Monday, February 01, 2021

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

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

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

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

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

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

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

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

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

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

Sunday, January 31, 2021

"Undemocratic Crimes"

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

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

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

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

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

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

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

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

Make it easier to change excessive prison sentences

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

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

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

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

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

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

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

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

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

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

Saturday, January 30, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Assessing Graham v. Florida at the Ten-Year Mark: Progress and the Prospects for Ongoing Juvenile Sentencing Reform"

The title of this post is the title of this great looking upcoming symposium being conducted by the Catholic University Law Review this coming Friday, February 5, 2021 starting at 1pm EST. Here is how the event is described and the planned coverage (click through to see all the great speakers):

Three Supreme Court decisions in the last decade have dramatically reshaped the treatment of juveniles in our criminal justice system.  In Graham v. Florida (2010), the Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes.  Two years later, in Miller v. Alabama (2012), the Court held that even juveniles convicted of homicide may not be sentenced to mandatory LWOP.  Finally, in Montgomery v. Louisiana (2016), the Court held that Miller was retroactively applicable, thereby entitling several thousand individuals to a resentencing hearing at which their youth and all its mitigating attributes would be taken into account.  These cases not only significantly curbed the uniquely American practice of sentencing minors to LWOP, but also, together they stand for the proposition that children are different for purposes of sentencing.

Ten years after the landmark decision in Graham, this symposium will explore the impact that these cases have had on juvenile sentencing in the LWOP context and more broadly. The first of three panels will include practitioners who can provide a firsthand perspective on resentencing hearings and how they are playing out in courtrooms across the country.  The second panel will consider the legislative effects of Graham and will include policymakers working on the ground to pursue related juvenile sentencing reforms. Finally, the closing panel will afford attendees an opportunity to hear directly from individuals affected by Graham, that is, those who were sentenced to life imprisonment as juveniles and have now come home.

The Program

1:00 p.m.  Graham v. Florida at the Ten-Year Mark

1:30 p.m.  Resentencing Hearings Post-Graham

2:45 p.m.  Legislative Effects of Graham

4:00 p.m.  Life after Graham

January 30, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 29, 2021

Interim Attorney General releases new "Interim Guidance on Prosecutorial Discretion, Charging and Sentencing"

601446752800005c00974ec2Via this HuffPost piece, headlined "DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy," I see that the failure of the Biden Administration to yet have a new confirmed Attorney General is not keeping it from having a new prosecutorial charging and sentencing policy.  Well, actually, the Biden Justice Department now has an old charging and sentencing policy, as explained by HuffPost:

In a memo to all federal prosecutors obtained by HuffPost, acting Attorney General Monty Wilkinson rescinded a May 10, 2017, memo from then-Attorney General Jeff Sessions.  At the time, Sessions told federal prosecutors across the country to always pursue to harshest charges and penalties possible unless they received specific permission from their supervisors.

“The goal of this interim step is to ensure that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts while longer-term policy is formulated,” Wilkinson wrote.

Under Donald Trump-era policies, prosecutors were instructed to always disclose any facts that would trigger mandatory minimum sentences during the sentencing process.  If a prosecutor wished to recommend a departure or variance to a judge during the sentencing process, they were also told to get a supervisor’s approval.

For now, the Justice Department is reverting back to a 2010 charging and sentencing policy issued by former Attorney General Eric Holder.  Under Holder’s guidelines, federal prosecutors were encouraged to focus on “individualized justice” and decision-making based on “the merits of each case.”

This change is not unexpected, but it is still a big deal (and really a much bigger deal than the recent Executive Order on private prisons). Because this is a big deal, I am quite disappointed this change is announced on a Friday afternoon and without seemingly any official statement (yet) from the Justice Department.  Because we are still awaiting confirmation hearings for AG-nominee Merrick Garland, I suppose I can understand why this is getting a "soft launch" and is merely a partial reversal back to prior Obama-era policies.  But, at a time when there is a real interest and concern for criminal justice reform, this memo could be a real "teaching moment" if handled differently.  Sigh.

January 29, 2021 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Lots of commentary and advice for Prez Biden's criminal justice reforms task one week in

Prez Biden has been on the job for only a little more than a week, but lots of folks already have lots of thoughts and advice for what he (and his party) should be doing in the criminal justice reform arena.  Here is a round up of just some of the discussions I have seen in recent days:

From Al Jazeera, "Biden and prison reforms – a soft target?"

From The American Prospect, "How Biden Should Prosecute Corporate Crime: In top-to-bottom criminal justice reform, let’s not forget the top."

From The Appeal, "Why The Biden Administration’s Choice To Lead The Bureau Of Prisons Matters"

From Bloomberg Law, "Criminal Justice Changes Need Harris to Lead, Advocates Say"

From the Boston Globe, "Biden must not miss the urgency of the moment on criminal justice reform"

From The Hill, "True criminal justice reform requires family support"

From HuffPost, "After Trump’s Execution Spree, Criminal Justice Leaders Urge Biden To End Death Penalty"

From Reason, "Democrats Have No Excuse Not to Reform the Criminal Justice System"

From Time, "‘Much More Work To Be Done.’ Advocates Call for More Action Against Private Prisons After Biden's ‘First Step’ Executive Order"

From USA Today, "Biden's executive orders on criminal justice should extend to inmates sent home by COVID"

January 29, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Thursday, January 28, 2021

New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses

As detailed in this press relase from Senator Cory Booker's office, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL), both members of the Senate Judiciary Committee, announced legislation that will finally eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced."  Here is more:

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses vastly differed. For instance, until 2010, someone caught distributing 5 grams of crack cocaine served the same 5-year prison sentence as someone caught distributing 500 grams of powder cocaine. Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color.

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the sentencing disparity from 100:1 to 18:1....  The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.

And FAMM has this press release highlighting advocates support for this effort to remedy a long-standing and ugly federal sentencing injustice.  Here are excerpts:

FAMM and Prison Fellowship have teamed up to launch the #EndTheDisparity Campaign to urge Congress to eliminate the disparity between crack and powder cocaine-related sentences. Both organizations are circulating petitions and are planning a series of activities to build public support for reform.

“We have been fighting to repeal unjust sentencing laws for 30 years, and we’ve seen no greater injustice than the crack-powder disparity,” said FAMM President Kevin Ring. “We were glad Congress reduced the disparity in 2010, but it’s time to finish the job. We must remove this racially discriminatory scheme from the criminal code.”

In 2010, an overwhelming bipartisan majority in Congress passed and President Barack Obama signed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. Lawmakers acknowledged that the arguments for the original disparity had been proven incorrect; crack cocaine is no more addictive than powder and is not more likely to cause violent crime.

“The unequal treatment of crack and powder cocaine offenses is among the most glaring examples of racial discrimination in the criminal justice system,” said Heather Rice-Minus, Senior Vice President of Advocacy and Church Mobilization for Prison Fellowship. “There is no sound scientific reason to punish powder and cocaine offenses differently and more importantly, there is a moral imperative to repent from this injustice.”

Uncontroverted was the fact that lengthy mandatory minimum prison terms for crack offenses disproportionately harmed Black people.  Crack usage rates did not differ greatly between white and Black Americans, but more than 80% of federal crack convictions involved Black defendants.

While the Fair Sentencing Act greatly reduced the number of people subject to the mandatory minimum sentences for crack, Black people still make up more than 80 percent of federal crack convictions....

For more information and background on the disparity and campaign see the resources below:

January 28, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0)

"The Stress of Injustice: Public Defenders and the Frontline of American Inequality"

The title of this post is the title of this notable new paper now available via SSRN and authored by Valerio Baćak, Sarah Lageson and Kathleen Powell.  Here is its abstract:

Fairness and due process in the criminal justice system are all but unattainable without effective legal representation of indigent defendants, yet we know little about attorneys who do this critical work — public defenders.  Using semi-structured interviews, this study investigated occupational stress in a sample of 87 public defenders across the United States. We show how the intense and varied chronic stressors experienced at work originate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged.  Our findings are centered around three shifts in American criminal justice that manifest in the stress of injustice: penal excess, divestment in indigent defense, and the criminalization of mental illness.  Working within these structural constraints makes public defenders highly vulnerable to chronic stress and can have profound implications for their ability to safeguard the rights of poor defendants.

January 28, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

January 28, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Guest post: "Criminal Justice Scholarship and Reform"

6a00d83451574769e201b7c9134b4d970b-320wiI am very pleased to have the opportunity to publish this guest post from Michael Serota, who is a Visiting Assistant Professor at the Sandra Day O’Connor College of Law, an Associate Deputy Director of the Academy for Justice, and the Director of the Criminal Justice Reform Lab.  I was lucky enough to be a small part in a big project Michael has just completed, and so it is especially exciting to provide this platform for highlighting this work: 

Can scholarship improve criminal justice decisions?  That question drives Reforming Arizona Criminal Justice (RACJ), a collaborative project between the Academy for Justice and the Arizona State Law JournalRACJ is a special law review issue comprised of a dozen articles on Arizona criminal justice policy written by an interdisciplinary group of scholars (including SL&P’s own Doug Berman).  Each article offers an intimate look at an area of Arizona criminal law, provides an overview of relevant academic research, and proposes concrete recommendations for reform.  Together, the RACJ articles cover topics across all major stages of the criminal process, with an eye toward the most pressing and salient issues in Arizona.  Issues addressed by RACJ include: bail and pretrial detention, marijuana reform, expungement, sentencing reform, juvenile justice, forensic evidence, treatment of sex offenders, the policing of homelessness, public safety, private prisons, and prison oversight.

What’s unique about RACJ is the organizing principle driving the project.  We invited a diverse group of scholars from across the nation to focus their attention on the criminal law and policy issues in a single jurisdiction, and tasked them with offering targeted recommendations and specific policy guidance sensitive to legal and geographic context.  The goal is not only to persuade the government decisionmakers in that jurisdiction to move forward with reforms but also to offer them a clear sense of how to do so. 

I think of scholarship, whether in law or the social sciences, as existing on a spectrum of actionability, with the most general and abstract work on one end, and the most contextual and concrete on the other.  Valuable scholarship exists at all points along the spectrum.  That said, it seemed worthwhile, both intellectually and practically, to develop a collection of articles whose organizing principle was to push as far toward the concrete end of the spectrum as possible, with the hopes of seeing what a thoroughly actionable law review issue might look like. 

Criminal justice needs this kind of push because government decisions in this area are rarely made in the right way—that is, rationally, deliberately, and informed by expertise.    Instead of a careful weighing of costs and benefits, we’ve too often witnessed a pathological process in which all forms of expertise—and scholarly expertise in particular—have been marginalized.  (To take just one example: for decades, legislators have ratcheted punishments upward despite an academic consensus that marginal increases in sentencing severity are an ineffective way to promote public safety.)  And the consequences have been horrifying: mass imprisonment concentrated on our most vulnerable populations, and racial disparities that defy belief. 

Thankfully, we’re undergoing a societal reckoning during which increasing numbers of government officials seem interested in replacing this afactual, tough-on-crime decision-making calculus with something smarter.  But making smarter decisions requires better information, and criminal justice scholarship should be a critical part of that.  That said, hurdles to entry may put topically relevant academic work out of reach.  Aside from the obvious challenges (length, jargon, etc.), criminal justice scholarship typically offers conclusions pitched in the most general and universal terms, while focusing on the conceptual “U.S. criminal justice system,” or the very real but very distinctive “federal criminal justice system.”  In contrast, it is our many individual state and local criminal justice systems that brought us mass incarceration.  So it will be the distinct policy decisions made by the government actors that populate these systems that will need to lead us out of it.  Hopefully, the production of rigorous yet accessible scholarship, sensitive to the on-the-ground realities in these states and localities and filled with concrete recommendations, will help promote better outcomes.

One would be hard-pressed to find a better place to attempt this kind of project than Arizona.  In a nation that leads the world in incarceration, Arizona has the country’s fifth highest imprisonment rate.  Over the past four decades, prison populations throughout the United States expanded by 400%—but in Arizona, they exploded by around 1200%.  And most of this growth occurred while crime went down in the state.  What we’re left with is a prison population of more than 40,000 Arizonans.  And the situation is even worse than it seems because a disproportionate number of those trapped in the Arizona criminal justice system are also among the most vulnerable: the poor, the underserved, and minorities.  And, as the collection of RACJ articles reveals, Arizona appears to be more resistant to criminal justice reform efforts than other jurisdictions of similar size, resources, and political orientation.

So why, then, might one think that accessible, targeted scholarship could actually improve criminal justice decision-making—whether in Arizona or elsewhere?  Let me end with a couple of reasons for optimism.  Prior to entering academia, I spent six years working on criminal justice reform for the District of Columbia’s local government.  Time and again during this period, I heard expressions of interest in, but lamentations about the absence of, actionable scholarship.  Public servants who wake up every day thinking about how to improve a particular area of policy are, in my experience, inherently interested in what others with relevant expertise have to say about it.  Their question is simply this:  Are those experts speaking our language, and is what they’re saying sufficiently attuned to the diversity of factors bearing on the decisions I have to make?  

I also believe that, in Arizona, there is particular interest in hearing from experts who are attuned in this way.  Prior to undertaking this project, in the fall of 2019, I met with a wide range of Arizona criminal justice stakeholders to learn about the most pressing policy issues facing the state.  Over the course of these discussions, it became clear that there is a marked desire for research, but that written policy analyses of criminal justice issues are few and far between.  All too often, bills are proposed (and enacted) in Arizona without any meaningful written work product to support them.  At the same time, criminal justice debates in Arizona are more frequently centered around claims about evidence and data, alongside an omnipresent sense that Arizona’s policy challenges are unique in ways that generalized research might not be able to capture.  So, hopefully, a collection of evidence-driven, Arizona-focused scholarship will be a welcome addition to the criminal justice reform efforts happening around the state.

For those interested, here’s a list of the articles and participants:

The articles, along with executive summaries and other project-related multimedia, can be found at the Reforming Arizona Criminal Justice site.

January 28, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, January 27, 2021

Reviewing Prez Trump's clemency work from a number of perspectives

It is now a full week since former Prez Trump issued a large batch of clemencies in his final hours in office (basics here and here).  The final 140+ clemencies on the final day, and Trump's entire clemency efforts, are full of fascinating and frustrating stories with respect to individual cases and the entire body of clemency work.  Here is just a partial round-up of recent pieces assessing Trump's clemency record: 

From the Business Insider, "Trump's pardons may be poorly worded enough to leave some people on the hook"

From the Center for Responsive Politics, "Trump-tied lobbyists paid massive sums to push pardons"

From Law360, "Trump Pot Pardons A Bittersweet Win For Clemency Groups"

From Reason, "Presidential Mercy Is a Woefully Inadequate Remedy for Injustice: The controversy over Trump’s pardons and commutations highlights longstanding problems with clemency."

From the New York Post, "Comparing presidential pardons through the years"

From the New York Times, "The Road to Clemency From Trump Was Closed to Most Who Sought It: Of the nearly 240 pardons and commutations he granted during his term, only 25 came through the regular Justice Department process. The rest were a product of connections, influence and money."

From the New York Times, "For Prosecutors, Trump’s Clemency Decisions Were a ‘Kick in the Teeth’: Commutations in high-profile Medicare fraud cases have elicited anger among those who spent years pursuing complex prosecutions."

I may have more to say about Prez Trump's record in future posts, but on this front I am always more eager to look forward than look back.  Looking forward, I must note (and already complain) that Prez Biden has been setting records for execution action during his first week in office and yet has not yet used his clemency power or said a work about clemency reform.  

UPDATE: I am pleased to now be able to add that the Federal Sentencing Reporter is planning to cover Prez Trump's clemency record in a forthcoming issue, and FSR's publisher has this new posting on its blog providing a bit of context. That posting includes these paragraphs:

Donald Trump was certainly no exception to the tradition of presidents making waves through distinctive use of the clemency power, and the Federal Sentencing Reporter will be continuing a modern tradition of devoting a full issue to examining a president’s grants and considering clemency’s future.  Notably, Trump generally did not concern himself with the recommendation of the Justice Department’s Office of the Pardon Attorney, which has long played a central role in advising the president on such matters.  In addition to exploring the substantive clemency choices made by Trump, FSR‘s forthcoming June 2021 issue will also discuss what clemency process ought to be embraced by presidents to ensure the most effective and responsible use of this historic power.

FSR’s first extensive coverage of federal clemency actions appeared in a special double issue prompted by Bill Clinton’s high-profile and controversial pardons issued on his last day in office back in 2001.  The decision by George W. Bush to commute the sentence of Administration official Scooter Libby in 2007 prompted another FSR issue on clemency as a form of sentencing power.  And in 2017, FSR devoted a full issue to assessing Barack Obama’s remarkable and record-setting commutations resulting from the “Clemency Project” he set up toward the tail end of his second term.

January 27, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Prosecuting Misdemeanors"

The title of this post is the title of this book chapter authored by Jenny Roberts now available via SSRN.  Here is its abstract:

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year.  This chapter discusses the role of prosecutors in the misdemeanor system.  First, it addresses prosecutorial discretion and mass misdemeanor criminalization.  Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases.  Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes.  This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors.  Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record.

Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion.  Some recently elected so-called progressive prosecutors have already implemented significant promised changes.  Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

January 27, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 26, 2021

Prez Biden signs Executive Order "to Eliminate the Use of Privately Operated Criminal Detention Facilities" in the federal prison system

I had heard reports that today was going to be a day for Prez Biden to sign a number of executive orders related to criminal justice, but it seems as though only one such order was actually signed today during an event that was focused more broadly on racial equity.  Still, as reported in this AP piece, the one criminal justice executive order signed today is still notable:

President Joe Biden on Tuesday ordered the Department of Justice to end its reliance on private prisons and acknowledge the central role government has played in implementing discriminatory housing policies. In remarks before signing the order, Biden said the U.S. government needs to change “its whole approach” on the issue of racial equity. He added that the nation is less prosperous and secure because of the scourge of systemic racism....

Beyond calling on the Justice Department to curb the use of private prisons and address housing discrimination, the new orders will recommit the federal government to respect tribal sovereignty and disavow discrimination against the Asian American and Pacific Islander community over the coronavirus pandemic....

The order to end the reliance on privately-run prisons directs the attorney general not to renew Justice Department contracts with privately operated criminal detention facilities. The move will effectively revert the Justice Department to the same posture it held at the end of the Obama administration. “This is a first step to stop corporations from profiting off of incarceration,” Biden said.

The more than 14,000 federal inmates housed at privately-managed facilities represent a fraction of the nearly 152,000 federal inmates currently incarcerated. The federal Bureau of Prisons had already opted not to renew some private prison contracts in recent months as the number of inmates dwindled and thousands were released to home confinement because of the coronavirus pandemic.

GEO Group, a private company that operates federal prisons, called the Biden order “a solution in search of a problem.” “Given the steps the BOP had already announced, today’s Executive Order merely represents a political statement, which could carry serious negative unintended consequences, including the loss of hundreds of jobs and negative economic impact for the communities where our facilities are located, which are already struggling economically due to the COVID pandemic,” a GEO Group spokesperson said in a statement.

David Fathi, director of the American Civil Liberties Union’s National Prison Project, noted that the order does not end the federal government’s reliance on privately-run immigration detention centers. “The order signed today is an important first step toward acknowledging the harm that has been caused and taking actions to repair it, but President Biden has an obligation to do more, especially given his history and promises,” Fathi said.

The full EO, which is titled "Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities," can be found at this link, and it has this interesting "preamble" in its first section:

Policy.  More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color.  There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer.  To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities. 

We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption.  Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens.  However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources.  We should ensure that time in prison prepares individuals for the next chapter of their lives. 

The Federal Government also has a responsibility to ensure the safe and humane treatment of those in the Federal criminal justice system. However, as the Department of Justice’s Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff.  We have a duty to provide these individuals with safe working and living conditions. 

January 26, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

"The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment"

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

Recidivism is now the guiding principle of punishment and has become the new hallmark of criminal justice reform, as reflected in the U.S. Sentencing Commission’s recidivism project.  So far, the Commission has issued three reports in 2020 alone, which outline the parameters within which “safe” criminal justice reform can proceed.  Yet the overly broad definition of “recidivism” and the focus on easily measurable and static risk factors, such as prior criminal record, create a feedback loop.

The Commission’s work should come with a warning label.  Its recidivism studies should not be consumed on their own.  Instead, they must be read in conjunction with U.S. Probation and Pretrial Services recidivism research, which includes data on the impact of programming, treatment, and services on reentry success.  Yet, concerns about undercounting recidivism events drive the entire U.S. approach.  Western European studies reflect different philosophies and values that explain some of the underlying reasons for the dramatically different imprisonment rates on the two sides of the Atlantic.

These recidivism studies raise also questions about the Commission’s role.  Its ongoing preference for imprisonment indicates that it continues to consider itself the guardian of incarceration-driven guidelines.  The studies reenforce the status quo and the Commission’s role in it.  They threaten to propel us into data-driven selective incapacitation and continuously long prison terms for those with prior criminal records, all in the name of public safety.

January 26, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, January 25, 2021

Some prosectors concerned LA's new progressive prosecutor is progressing too far

Last month I noted in this post that L.A. County District Attorney George Gascón made a lot of bold policy changes in his first day in office.  Now this new Politico article, headlined "California prosecutors revolt against Los Angeles DA’s social justice changes," highlights the push-back these policy changes are engendering.  Here are excerpts:

Los Angeles District Attorney George Gascón ran on a vow to shake up America’s largest law enforcement jurisdiction. Sweeping progressive changes followed — and so has the California backlash.

Within weeks of taking office, Gascón instructed prosecutors to stop seeking the death penalty and trying juveniles as adults.  He ordered a halt to most cash bail requests and banned prosecutors from appearing at parole hearings.  Most controversially, he barred prosecutors from seeking various sentencing enhancements.

Even if expected, Gascón’s moves have set off a political confrontation of unprecedented magnitude.  Rank-and-file Los Angeles prosecutors have revolted and sought to block their new boss in court.  District attorneys elsewhere in California have said they will not share cases with Gascón....

The widening battle offers a high-profile microcosm for larger tensions roiling law enforcement in California and around the country.  The outcome will substantially impact Los Angeles and send a message to prosecutors everywhere.  Once a pioneer in stringent penalties that drove an incarceration boom, Los Angeles is now the hub of a struggle over the course of criminal justice.

“He’s doing exactly what he said he was going to do during the campaign,” transition spokesperson Max Szabo said. “There’s certainly backlash, but we can’t as a system of justice change course based on that backlash and ignore what the broader public has asked for.”...

“This is the first time that a district attorney in Los Angeles County is using data, science and research instead of fear and emotion to drive policy decisions,” Szabo said.  “Enhancements have never been shown to enhance safety, but excessive sentences have been shown to exacerbate recidivism and therefore create more victims of crime in the future.”

January 25, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Is Mass Incarceration Here to Stay?"

The title of this post is the title of this recent essay authored by Lynn Adelman and now available via SSRN. Here is its abstract:

This article argues that the number of people imprisoned in the United States is so large and that policymakers’ concerns about being perceived as soft on crime are so significant that it is very possible that mass incarceration will be with us for a very long time.  The article discusses some of the reasons that have been put forward as to why the United States has imprisoned so many people in the last 50 years and the harms that mass incarceration has brought about.  The article also explores some of the proposals that scholars and others have offered to reduce the number of people imprisoned.  Ultimately, however, the article questions whether there is sufficient will to address the enormity of the problem.

January 25, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, January 24, 2021

Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?

I noted in this recent post that group of Democratic members of Congress signed a letter calling upon Prez Biden to "commute the sentences of all those" on federal death row.  I wondered in my post if there might be a less politically controversial group of federal prisonsers who might be a better focal point for the very first clemencies from Prez Biden.  And this new BuzzFeed News piece, which carries the subheadline "In crowded cells, where COVID is running rampant, appeals for clemency for thousands of prisoners have gone unanswered or flat-out rejected," reminded me that Prez Biden might actually save many more lives right away if he were to focus on communiting federal prison sentences for the most vulnerable persons at risk of suffering "the new death penalty" that takes the form of COVID-19.  Here is some contexnt from the BuzzFeed piece: 

For many federal inmates who aren’t politically connected to the president, or state inmates with no sway with their governor, a pardon isn’t just about getting out of prison or having their sentence overturned, it’s literally a case of life and death.  In crowded prisons, with little access to healthcare or the ability to socially distance, COVID-19 cases have exploded, with at least 1 in 5 inmates infected.

A new report from the Prison Policy Initiative found that crowded jails and prisons led to more than half a million additional COVID-19 cases nationwide — or about 1 in 8 of all new cases — over the summer, including cases both inside and outside correctional facilities because the virus spreads via prison workers to the world beyond bars. At least 2,144 inmates and 146 corrections staff have died from the disease, according to data collected by the Marshall Project....

Wanda Bertram, a spokesperson for the nonpartisan Prison Policy Institute, pointed out that people in prison are infected with COVID-19 at a rate four times higher than that of the general population and twice as likely to die from the disease. “What that means is that people who were never sentenced to death are being killed by COVID-19,” Bertram said. “More people have been killed by COVID-19 in prisons than have been killed by the death penalty in like the last few decades, all over the country.”

Bertram pointed to a report published last month showing places with prisons record higher levels of community infection. “This is a tragedy,” she said. “It’s something that governors and the federal government should have been dealing with a long time ago by doing whatever it is that they had to do to get huge numbers of people out.”

The federal Bureau of Prison's COVID-19 page currently reports that there "have been 204 federal inmate deaths ... attributed to COVID-19 disease."  That amounts to more than four times the number of persons on federal death row; in a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes, and thus crimes much less serious than the aggarvated murders that lead to formal death sentences.   

The Buzzfeed piece rightly notes that "Public officials have been slow to use clemency powers, despite calls from the American Medical Association and other groups to reduce the prison population."  I sure wish a bunch of members of Congress and lots and lots of other folks would focus a push for clemency on the persistent and pressing need to try to depopulate federal prisons in order to reduce the spread and carnage of COVID in federal prisons.

A few of many prior related posts:

January 24, 2021 in Clemency and Pardons, Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, January 23, 2021

"What a Libertarian Attorney General Could Do"

The title of this post is the title of this new Cato commentary by Clark Neily.  I recommend the whole piece, and here are some excerpts:

Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it.  As I've written before, our criminal justice system is fundamentally rotten — it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions.  Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal "justice" system.

One might argue that because the vast majority of criminal enforcement occurs at the state level there's not much point in focusing on the federal system.  I disagree.  The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering — or withholding — financial incentives to other agencies and jurisdictions.  For better or worse, DOJ represents a kind of industry gold standard for criminal justice.  And that's disturbing because, as discussed below, many of DOJ's standard practices are astonishingly unjust.

DOJ is a sprawling, $30 billion-a-year agency that wears many hats.  Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post.  But one of the most consequential things DOJ does — and an area in particular need of fundamental reform — is the enforcement of federal criminal laws.  On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.

1. Accountability.  The lack of accountability among federal prosecutors is simply astonishing.  Perhaps the most stark — but by no means isolated — illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind....

2. Prosecutorial tactics.  Many of the tactics used by DOJ prosecutors — especially to induce people to waive their constitutional right to a jury trial and plead guilty, which more than 90 percent of federal defendants end up doing—are simply shocking....

3. Institutional culture.  A major part of the problem is that people who work within the criminal justice system come to accept as perfectly normal and unobjectionable the kinds of policies and tactics described above, such as letting misbehaving prosecutors off with a slap on the wrist (if that) and applying such extraordinary pressure on defendants to plead guilty that almost no one chooses to exercise their constitutionally guaranteed right to a trial anymore....

The bad news is that our criminal justice system is fundamentally broken and unjust.  The good news is that criminal justice reform represents a vast orchard of low-hanging fruit—policies that could be adopted overnight and would ameliorate some of the system's worst pathologies and realign many of its most perverse incentives.

Maybe putting someone whose core value is liberty in charge of an agency whose core mission is depriving people of it isn't such a crazy idea after all.

January 23, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Friday, January 22, 2021

37 Democratic member of Congress call on Prez Biden to "commute the sentences of all those" on federal death row

Via this letter, more than three dozen congressional Democrats has urge to communte the federal death sentences of all 49 condemned men on federal death row.  Here are excerpts from the letter:

We write to you today with grave concerns regarding the federal death penalty.  As members of Congress, we stand ready to work with you on your commitment to rebuilding the dignity of America.  We believe that rebuilding the dignity of America requires that we recommit ourselves to the tradition of due process, mercy, and judicial clemency when it comes to matters related to the criminal legal system.  For this reason, we urge you to immediately commute the sentences of all those on death row....

We appreciate your vocal opposition to the death penalty and urge you to take swift, decisive action. After referring to the death penalty as “deeply troubling,” President Obama halted federal executions and commuted the sentences of two federal prisoners on death row.  However, the Obama administration’s reticence to commute more death sentences has allowed the Trump administration to reverse course and pursue a horrifying killing spree over the final seven months of his presidency. Commuting the death sentences of those on death row and ensuring that each person is provided with an adequate and unique re-sentencing process is a crucial first step in remedying this grave injustice....

As President, you can exercise your executive clemency power by commuting the sentences of all those on death row and ensuring a fair re-sentencing process.  This moment demands a series of meaningful actions to ensure that no President can authorize the killing of Americans through the death penalty.  This includes dismantling death row at FCC Terre Haute, and establishing clear executive guidelines prohibiting federal prosecutors from seeking the death penalty.  In addition to those steps, you can call on the U.S. Congress to pass H.R. 262, the Federal Death Penalty Prohibition Act, sponsored by Representative Ayanna Pressley and Senator Dick Durbin, which would end the death penalty once and for all. Until that legislation is law, it is incumbent upon the executive branch to end the barbaric practice of federal executions as quickly as possible.

Beyond the substantive basics of seeking capital commutations for all on federal death row, I find it quite interesting that this letter calls upon Prez Biden to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  Typically, death row commutations by governors change death sentences to life without parole, and the two federal death sentences commuted by Prez Obama were both turned into LWOP sentences.  But many progressives now view an LWOP sentence as just a functional death sentence by another name, and so it seems these membrs of Congress are eager to have these now condemned men to have a chance to receive sentences less than life.  Relatedly, I am not aware of any commutation that has come with an instruction for a judge to conduct a full resentencing.  But because the clemency power is broad, I presume it would be permissible for a Prez to commute a sentence with these terms. 

As regular readers know, I am eager for any and every president to make regular and robust use of the historic clemency power.  But it might be wiser for the very first clemencies from Prez Biden to involve cases less likely to garner widespread controversy and involving persons who have not committed the most aggravated of crimes.

January 22, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Thursday, January 21, 2021

Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"

In this post from this past October, I wondered "Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?".  That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time.  Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled ""Home Confinement of Federal Prisoners After the COVID-19 Emergency."  Here is how it gets started:

The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2).  In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period.  See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).  The question is what happens to these prisoners once the pandemic emergency ends.  At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement.  Other inmates, however, may have a substantial time to go before becoming eligible.  Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.

We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning.  See id.  Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).  We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus "would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement."  This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.  Nevertheless, as FAMM's Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.

Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners.  And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic.  But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.

But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters.  Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement.  And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement.  Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: "One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now."

January 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

January 21, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

"Prosecutorial Elections: The New Frontline in Criminal Justice Reform"

Thumbnail_image001The title of this post is the title of this great symposium taking place (on Zoom) on February 19, 2021.  The Ohio State Journal of Criminal Law, together with the Drug Enforcement and Policy Center, has put together a series of terrific panels for this event.  This link provides a registration form, and here is schedule for the symposium:

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

  • Moderated by:
    • Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Maybell Romero, Associate Professor of Law at Northern Illinois University College of Law
    • Ronald Wright, Associate Dean for Research and Academic Programs and Needham Yancey Gulley Professor of Criminal Law at Wake Forest University School of Law
    • Carissa Byrne Hessick, Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law
    • Miriam Krinsky, Executive Director of Fair and Just Prosecution

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

  • Moderated by:
    • Amna Akbar, Associate Professor of Law at The Ohio State University Moritz College of Law
  • Panelists:
    • Angela J. Davis, Distinguished Professor of Law at American University Washington College of Law
    • Tamara Lawson, Dean and Professor of Law at St. Thomas University School of Law
    • Roger A. Fairfax, Jr., Patricia Roberts Harris Research Professor of Law and Founding Director of the Criminal Law and Policy Initiative at The George Washington University Law School
    • Olwyn Conway, Assistant Clinical Professor of Law at The Ohio State University Moritz College of Law

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

  • Moderated by:
    • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and Executive Director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law
  • Panelists:
    • Marilyn J. Mosby, Baltimore City State’s Attorney
    • Kay L. Levine, Professor of Law at Emory University School of Law
    • Alex Kreit, Director of the Center for Addiction Law & Policy and Assistant Professor of Law at Northern Kentucky University Chase College of Law

January 21, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Reviewing some notable data after a notably final clemency flourish by Prez Trump

A few months ago, I noted in this post a Pew Research Center piece, "So far, Trump has granted clemency less frequently than any president in modern history," which assailed then Prez Trump’s "sparse use" of his clemency powers as of Nov 2020.  At that time, I called the Pew piece a bit unfair because it compared Trump's record in his (then-not-complete) first term to mostly two-term Presidents.  I also noted that Prez Trump had already granted more clemencies in his first term than had Prez Obama or Prez George W. Bush at a comparable point in their first terms and that some more clemencies were surely to come.

Sure enough, after a bunch of pre-Christmas grants and a final big group of pardons and commutations, (former) President Trump's clemency record might now be reasonably described as fairly substantial.  Though I wish he had done a lot more, and while I still recall getting way too excited back in 2018 when Prez Trump said he was considering 3000 people for clemency, some basic data make the case for him being a significant user of his clemency powers.  Of course, there are ample grounds for criticizing the substantive decisions and the opaque process surrounding  Prez Trump's use of his historic clemency power.  But reviewing the raw numbers with an eye on the modern history of clemency highlights that it is no longer accurate to even suggest Trump's use of this power was sparse. 

Specifically, according to the data on this Justice Department "Clemency Statistics" page (which seems up-to-date but may be an undercount), Prez Trump is reported to have granted in his four years in the Oval Office a total of 206 clemencies in the form of 117 pardons and 89 commutations.  Even that number (which may be a bit low) amounts to nearly three times as many clemencies as our last one-term president: Prez George H.W. Bush granted only 77 total clemencies during his four years in office.  Indeed, in only one term, Prez Trump's used his clemency pen even more than Prez George W. Bush did over two full terms as he granted only 200 total clemencies during his entire eight years in office.

Given that Prez Trump was often eager to lay claim to a Reagan legacy, it is notable that Prez Trump can lay claim to using his clemency powers more in his first term in office than any president since Ronald Reagan.  As clemency fans may know, Prez Reagan was something of a marker of two different clemency eras: nearly every president before Reagan used his clemency powers more than nearly every president after Reagan (e.g., Prez Nixon alone used his clemency power more in roughly five years than both Prez Bushes and Prez Clinton combined over 20 years).  Prez Barack Obama is the one exception to the ugly modern story of relative clemency disuse because of his remarkable second-term commutation project, but that valuable program was still relatively modest if measured against the massive size of the modern federal prison population.

A focus on commutations makes the clemency record of Prez Trump perhaps especially notable.  Leaving Prez Obama out of the analysis, Prez Trump's 89 commutations amount to more federal prison commutations granted than any other president since Prez Lyndon Johnson and amount to more prison commutations granted than any Republican president since Herbert Hoover!  

Because so much of Prez Trump's early use of his clemency powers was overtly political and/or self-serving, I do not want to be misunderstood as unduly praising how Prez Trump used these critical powers of justice and mercy.  But I do want to strongly embrace the sentiments in this recent Slate commentary and headline: "The Presidential Pardon Power Is Good: Trump abused it, but clemency remains an indispensable tool that should be used more often, not less."  As Mark Joseph Stern put it even before the last round of grants: 

[A] jaundiced view of clemency is understandable.  It is also misguided.  The pardon power exists for a very good reason, and its exploitation at the hands of crooks and con men should not give cause for its eradication.  It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.  The United States’ federal prisons are filled with good citizens who have no business being behind bars.  It is unfortunate that Trump has overlooked these individuals in favor of his vile cronies.  It would be catastrophic if Trump’s actions prevented future presidents from using the pardon power to free the people who actually deserve clemency.

Thankfully, in his final batch of 143 clemencies, the ratio of deserving individuals to cronies seemed a lot better than in early rounds.  Regular readers know I have been advocating for reform of the clemency process for more than a decade, and I hope that becomes the focal point for continued calls for reform.  But imperfect and even poor use of the clemency power still seems to me better than no use at all.  I still wish Prez Trump did a lot more and a lot better with his clemency power, but now it is time to focus on urging Prez Biden to do a lot more and a lot better with this power ASAP.

A few of many recent related posts:

UPDATEThere is now an updated version of the Pew Research Center piece available here under the headline "Trump used his clemency power sparingly despite a raft of late pardons and commutations."

January 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Reviewing some old but still timely advice for new presidents past

As regular readers know, I have already done a lot of posts on what I and others believe new Prez Biden should be doing to reform our criminal justice systems.  For now, as I watch Prez Biden give his innaugural speech and related festivities, I thought to look back on some blogging in years past when former Prez Obama and former Prez Trump first took office.  Here is a small sampling of posts from January 2009 and from January 2017 that still feel timely:

From Jan 2009:

From Jan 2017:

January 20, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Prez Trump grants 73 pardons and 70 commutations in final hours in office

As detailed in this official statement, Prez Trump has "granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals."  The list of recipients strikes me as notably diverse, with some well-known names sure to cause controversy (e.g., Steve Bannon) as well as plenty of lesser-known individuals.  Here are just a few on the names on the list catching my eye upon first review: 

John Knock – President Trump commuted the sentence of John Knock.  This commutation is supported by his family.  Mr. Knock is a 73 year-old man, a first-time, non-violent marijuana only offender, who has served 24 years of a life sentence....

Michael Pelletier – President Trump commuted the sentence of Michael Pelletier.  Mr. Pelletier is a 64 year-old who has served 12 years of a 30 year sentence for conspiracy to distribute marijuana....

Craig Cesal – President Trump commuted the sentence of Craig Cesal.  Mr. Cesal is a father of two, one of whom unfortunately passed away while he was serving his life sentence for conspiracy to distribute marijuana....

Chalana McFarland – President Trump commuted the sentence of Chalana McFarland.  Ms. McFarland has served 15 years of a 30-year sentence....

Chris Young – President Trump commuted the remaining sentence of Chris Young.  This commutation is supported by the Honorable Kevin H. Sharp, Mr. Young’s sentencing judge, former law enforcement officials and Federal prosecutors, and multitudes of criminal justice reform advocates....

Amy Povah – President Trump granted a full pardon to Amy Povah, the founder of the CAN-DO (Clemency for All Non-violent Drug Offenders) Foundation.  In the 1990s, Ms. Povah served 9 years of a 24 year sentence for a drug offense before President Clinton commuted her remaining prison sentence in 2000.  Since her release, she has become a voice for the incarcerated, a champion for criminal justice reform, and was a strong advocate for the passage of the First Step Act....

Kwame Kilpatrick – President Trump commuted the sentence of the former Mayor of Detroit, Kwame Malik Kilpatrick. This commutation is strongly supported by prominent members of the Detroit community, Alveda King, Alice Johnson, Diamond and Silk, Pastor Paula White, Peter Karmanos, Representative Sherry Gay-Dagnogo of the Michigan House of Representatives, Representative Karen Whitsett of the Michigan House of Representatives, and more than 30 faith leaders....

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.”  Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago....

Shalom Weiss – President Trump commuted the sentence of Shalom Weiss.  This commutation is supported by former U.S. Attorney General Edwin Meese, former Solicitors General Ken Starr and Seth Waxman, former United States Representative Bob Barr, numerous members of the New York legislature, notable legal figures such as Professor Alan Dershowitz and Jay Sekulow, former U.S. Attorney Brett Tolman, and various other former elected officials. 

There are many more notable names on this last big clemency list, and it certainly seems like there are many more deserving cases than undeserving ones this time around.  I expect we will be hearing a lot more about some of these recipients, both good and bad, in the days ahead.  But because thislist maeks the end of the Trump term, it is now time to turn to urging the Biden Administration to do more and more grants and to adopt a new and improved clemency process.

January 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, January 19, 2021

Intriguing (and significant?) executive order from Prez Trump on "Protecting Americans From Overcriminalization Through Regulatory Reform"

I just saw this new federal Executive Order which was issued yesterday, January 18, 2021, by Prez Trump titled "Executive Order on Protecting Americans From Overcriminalization Through Regulatory Reform."  Here are the main operational sections of the order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve transparency with respect to the consequences of violating certain regulations and to protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations, it is hereby ordered as follows:

Section 1. Purpose. In the interest of fairness, Federal criminal law should be clearly written so that all Americans can understand what is prohibited and act accordingly. Some statutes have authorized executive branch agencies to promulgate thousands of regulations, creating a thicket of requirements that can be difficult to navigate, and many of these regulations are enforceable through criminal processes and penalties. The purpose of this order is to alleviate regulatory burdens on Americans by ensuring that they have notice of potential criminal liability for violations of regulations and by focusing criminal enforcement of regulatory offenses on the most culpable individuals.

Sec. 2. Policy. It is the policy of the Federal Government that:

(a) Agencies promulgating regulations that may subject a violator to criminal penalties should be explicit about what conduct is subject to criminal penalties and the mens rea standard applicable to those offenses;

(b) Strict liability offenses are “generally disfavored.” United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Where appropriate, agencies should consider administrative or civil enforcement of strict liability regulatory offenses, rather than criminal enforcement of such offenses; and

(c) Criminal prosecution based on regulatory offenses is most appropriate for those persons who know what is prohibited or required by the regulation and choose not to comply, thereby causing or risking substantial public harm. Criminal prosecutions based on regulatory offenses should focus on matters where a putative defendant had actual or constructive knowledge that conduct was prohibited....

Sec. 5. Agency Referrals for Potential Criminal Enforcement. (a) Within 45 days of the date of this order, and in consultation with the Department of Justice, each agency should publish guidance in the Federal Register describing its plan to administratively address regulatory offenses subject to potential criminal liability rather than refer those offenses to the Department of Justice for criminal enforcement.

As regular readers likely know, lots of folks have long been concerned about federal "overcriminalization."  For many years across multiple administrations, public policy groups on both the left and the right have advocated for mens rea reforms and other tools to limit undue criminal liability for regulatory offenses.  Against that backdrop, I find it especially intriguing and ultimately puzzling that Prez Trump's last Executive Order during his last week in office would seek to address these issues.  Because I am not an expert in this space, I am not sure if this is a significant EO, but I am eager to hear from anyone who thinks it might be.

UPDATE: I now see that the Heritage Foundation has this new short commentary on this Executive Order under the headline "Trump Delivers Long-Awaited Triumph for Criminal Justice Reform in Last-Minute Executive Order."  Here is a snippet from the commentary with lots of links:

The executive order is designed to “protect Americans from facing unwarranted criminal punishment for unintentional violations of regulations.”  

It recognizes what scholars from both sides of the political aisle have observed for decades: that federal criminal law is far-reaching, unintuitive, and difficult to understand. The National Association of Criminal Defense Lawyers, the American Civil Liberties UnionThe Charles Koch FoundationThe Heritage FoundationThe American Conservative Union, and many other groups have been advocating that the government clear up this tangled web of criminal laws because, as the executive order acknowledges, most Americans cannot reasonably understand what the law demands of them. And even accidental violations of arcane regulations can land them in prison.  

This isn’t hypothetical. The National Association of Criminal Defense Lawyers keeps a database of Americans who have been criminally punished for violating obscure regulatory laws.  

January 19, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (3)

"Reimagining the Death Penalty: Targeting Christians, Conservatives"

The title of this post is the title of this recent paper by SpearIt that is available via SSRN. Though posted a few months ago, I just came across the paper and it certainly remains timely.  Here is its abstract:

This Article is an interdisciplinary response to an entrenched legal and cultural problem.  It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States.  The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum.  Abolitionists must learn that conservatives are potential allies in the struggle, who share overlapping ideologies and goals.  The same holds true for Christians — there is much in the teachings of Jesus to suggest that he aligned more with forgiveness than capital retribution.  As such, abolitionists would do well to focus on these demographics more earnestly than in the past.  The notion of “culture work” underscores these groups as natural allies in the quest to end the death penalty.

January 19, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Monday, January 18, 2021

Hoping for a lot more "regular" folks on Prez Trump's coming final clemency list

CNN has this big new piece about Prez Trump's clemency plans under the headline "Trump to issue around 100 pardons and commutations Tuesday, sources say."  There is a lot of interesting reporting in this piece, and here are excerpts:

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals, high-profile rappers and others but -- as of now -- is not expected to include Trump himself.

The White House held a meeting on Sunday to finalize the list of pardons, two sources said.

Trump, who had been rolling out pardons and commutations at a steady clip ahead of Christmas, had put a pause on them in the days leading up to and directly after the January 6 riots at the US Capitol, according to officials. Aides said Trump was singularly focused on the Electoral College count in the days ahead of time, precluding him for making final decisions on pardons. White House officials had expected them to resume after January 6, but Trump retreated after he was blamed for inciting the riots.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one -- unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

The final batch of clemency actions is expected to include a mix of criminal justice reform-minded pardons and more controversial ones secured or doled out to political allies....

The January 6 riots that led to Trump's second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20....

Other attention-grabbing names, like Julian Assange, are also not currently believed to among the people receiving pardons, but the list is still fluid and that could change, too. It's also not certain whether Trump's former adviser Steve Bannon will receive a pardon....

The expectation among allies is that Trump will issue pardons that he could benefit from post presidency. "Everything is a transaction. He likes pardons because it is unilateral. And he likes doing favors for people he thinks will owe him," one source familiar with the matter said....

Inside the White House, there has been a scramble to petition for pardons on behalf of allies and advocacy groups and names could be added and taken off up until the last minute, sources say.  CNN previously reported there has been a crush of pardon requests during Trump's final days in office from allies, lobbyists and others hoping to cash in on their loyalty to Trump.  The New York Times reported Sunday some of those people were getting paid tens of thousands of dollars to lobby on behalf of felons hoping for pardons.

Regular readers know I have been hoping Prez Trump in his final days in office might make regular use of his clemency power to give relief to the many regular people who ought to benefit from executive relief in the form of a commutation and/or pardon.  But, perhaps unsurprisingly, it seems his ugly efforts to contest the election results and the additional ugliness he inspired on January 6 kept him from giving sustained attention to his last meaningful opportunity to use his presidential powers in a potent way.  Prez Trump often claimed to be concerned with "forgotten" Americans.  Federal prisoners without celebrity status or famous advocates are surely among those forgotten, and they are now enduring an extended lock-down thanks to Prez Trump's "stop the steal" shenanigans.  I sure hope more than a few of these forgotten folks make the final clemency cut.

Barring a pleasant surprise from the final round of grants, it seems likely that Prez Trump's clemency legacy will have been to demonstrate how this historic constitutional power can be used primarily to garner attention and score political points rather than to actually do justice or show mercy.  That said, despite some crass cases, Prez Trump has already issued at least a few grants that, as I see it, did effectively advance justice and/or show mercy.  (The Alice Marie Johnson case is most obvious, but I count a few dozen others.)  I hope we see a final Trumpian flourish in the spirit of justice and mercy, and I hope the momentum for clemency reform continues to advance some structural reforms in the next administration that could improve clemency decision-making and the advancement of justice and mercy for many years to come.

A few recent related posts:

January 18, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of notable death penalty stories at the state, federal and international level

While the execution spree conducted in the last six months of the Trump Administration has justifiably garnered a lot of attention from the press and others, I have noticed in recent days a number of notable new capital headlines that go beyond just federal death penalty stories.  In an effort to cover a lot of ground, here is a round-up with links:

From Bloomberg, "Boston Marathon Bomber Appeal Is Early Biden Test on Death Penalty"

From Equal Justice Initiative, "Dr. Martin Luther King’s Moral Opposition to the Death Penalty"

From the Gazette, "Bill that would reinstate limited death penalty advances in Iowa Senate"

From NBC News, "'This is not justice': Justice Sonia Sotomayor offers fierce dissent in death penalty case"

From the Richmond Times-Dispatch, "Virginia Senate committee backs bill to abolish the death penalty"

From Salon, "Amid Trump killing spree, MLK's family joins chorus demanding: 'Abolish the death penalty'"

From the San Francisco Chronicle, "Biden campaigned on eliminating death penalty — we could soon see how that turns out"

From the Washington Post, "Saudi Arabia says it executed 27 people in 2020, the lowest number in years, rights groups say"

January 18, 2021 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Saturday, January 16, 2021

Might Prez Trump announce his next round of clemency grants this weekend?

The question in this post is prompted by this Politico article headlined "Trump weighing a pardon for Steve Bannon." The start of the article suggests that some actually were expected some action on the clemency front last night:

President Donald Trump is considering granting a pardon to Steve Bannon, his former White House chief strategist and top campaign aide, who was charged with swindling donors to a private crowdsourcing effort to build a wall along the U.S.-Mexico border, according to two sources familiar with the matter.

The potential pardon would follow a wave of reprieves the president has recently granted to political allies who have been convicted, charged or reportedly under federal investigation. Two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office, according to one of the people.

I have been wondering in recent days about how the Capitol riot and Prez Trump's second impeachment might be impacting his clemency plans (and they advice he may be getting from his remaining advisors). Ultimately, I have given up making Trumpian predictions, but these recent articles reveal we can readily predict that Prez Trump will keep recieving clemency requests:

From The Daily Beast, "‘QAnon Shaman’ Seeks Trump Pardon for Riot, Says President Invited Him"

From Newsweek, "Jenna Ryan, Who Took Jet to Capitol Riot, Asks Donald Trump for a Pardon"

A few recent related posts:

UPDATE: These new stories highlight the Trumpian realities already shaping the clemency:

From The Guardian, "Giuliani associate told ex-CIA officer a Trump pardon would 'cost $2m’ – report"

From the New York Times, "Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump"

Here are portions of the NYTimes piece:

As President Trump prepares to leave office in days, a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers....

Legal scholars and some pardon lawyers shudder at the prospect of such moves, as well as the specter of Mr. Trump’s friends and allies offering to pursue pardons for others in exchange for cash.

“This kind of off-books influence peddling, special-privilege system denies consideration to the hundreds of ordinary people who have obediently lined up as required by Justice Department rules, and is a basic violation of the longstanding effort to make this process at least look fair,” said Margaret Love, who ran the Justice Department’s clemency process from 1990 until 1997 as the United States pardon attorney....

Few regulations or disclosure requirements govern presidential clemency grants or lobbying for them, particularly by lawyers, and there is nothing illegal about Trump associates being paid to lobby for clemency.  Any explicit offers of payment to the president in return could be investigated as possible violations of bribery laws; no evidence has emerged that Mr. Trump was offered money in exchange for a pardon.

Some who used resources or connections to try to get to Mr. Trump say clemency should be granted to more people, independent of their clout.

January 16, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

SCOTUS clear way for 13th federal execution in six months, prompting extended dissents from Justices Breyer and Sotomayor

The now familiar federal execution drama has now played out one more time, this time around with Dustin Higgs securing a stay in lower courts only to see the Supreme Court allowing the execution to go forward.  Notably, with this last scheduled federal execution, Justice Beyer and Justice Sotomayor each sought to say their piece in extended dissents.  Justice Breyer's fourt-page dissent starts this way:

Last July the Federal Government executed Daniel Lee. Lee’s execution was the first federal execution in seventeen years.  The Government’s execution of Dustin Higgs tonight will be its thirteenth in six months.  I wrote in July that “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.”  Barr v. Lee, 591 U.S. ___, ___ (2020) (dissenting opinion) (slip op., at 2).  The cases that have come before us provide several of those examples.

And Justice Sotomayor's ten-page dissent starts and ends this way:

After seventeen years without a single federal execution, the Government has executed twelve people since July.  They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson.  Today, Dustin Higgs will become the thirteenth.  To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes....

There is no matter as “grave as the determination of whether a human life should be taken or spared.”  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).  That decision is not something to be rushed or taken lightly; there can be no “justice on the fly” in matters of life and death.  See Nken v. Holder, 556 U.S. 418, 427 (2009).  Yet the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.  Those whom the Government executed during this endeavor deserved more from this Court.  I respectfully dissent.

This AP article reports on the execution, and includes these passages:

Higgs, 48, was pronounced dead at 1:23 a.m. Asked if he had any last words, Higgs was calm but defiant, naming each of the women prosecutors said he ordered killed. “I’d like to say I am an innocent man. ... I am not responsible for the deaths,” he said softly. “I did not order the murders.”

He did not apologize for anything he did on the night 25 years ago when the women were shot by another man, who received a life sentence.

January 16, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Friday, January 15, 2021

"Top Trends in State Criminal Justice Reform, 2020"

The title of this post is the title of this short paper from Nicole Porter at The Sentencing Project. Here is how it gets started and its concluding paragraph:

The United States is the world leader in incarceration and keeps nearly 7 million persons under correctional control.  More than 2 million are in prison or jail, and 4.6 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 100 million have a criminal record.  The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.  Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences.  This briefing paper highlights key reforms undertaken in 2020 prioritized by The Sentencing Project....

Lawmakers advanced policy reforms to address mass incarceration and scale back collateral consequences.  Too few policy changes were adopted to address COVID-19 and its impact on the incarcerated in overcrowded congregate lock ups.  While reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take substantial changes to significantly reduce the nation’s rate of incarceration.  Given the limited impact of incarceration on crime, there continues to be potential for substantial reductions in state prison populations.  Lawmakers and advocates must explore key changes that limit the use of incarceration by retroactively ending mandatory minimum sentencing, adopting universal sentencing review policies, challenging racial disparities through structural reforms, and addressing collateral consequences.

January 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 14, 2021

"Incarcerated Activism During COVID-19"

The title of this post is the title of this new essay authored by Eve Hanan now available via SSRN. Here is its abstract:

Incarcerated people have a notoriously difficult time advocating for themselves.  Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy.  Also like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest.  Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts.  Indeed, a dramatic increase in prisoner activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practice, it reveals both the dangers of silencing prisoner speech and the potential for prisoner self-advocacy.  This Essay first discusses silencing and speech in carceral spaces during the pandemic using a theory of political philosophy called epistemic injustice.  The theory of epistemic injustice addresses how disfavored social groups are excluded from sharing knowledge in public conversations. The stifling of prisoner speech occurs in part because incarcerated people are deliberately separated from the outside world.  But it also reflects their status as a stigmatized — and thus discredited — group.  Even when their speech is heard, it is discounted as manipulative and untrustworthy.

Second, this Essay argues that the self-advocacy efforts made by incarcerated people during the pandemic demonstrates the democratic value of their participation.  Among the necessary predicates to meaningful change in criminal legal practices is the democratic participation of the targets of those practices, including suspects, criminal defendants, and prisoners.  Their participation in the political sphere serves a vital democratic function the absence of which is felt not only in the authoritarian structure of prisons, but in the society-wide failure to enact widespread change to criminal legal practices.

January 14, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, January 13, 2021

Details on Ohio's new ban of juve LWOP and the broader national landscape

JLWOP202101-1200x802As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

January 13, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, January 12, 2021

"Legitimacy Matters: The Case for Public Financing in Prosecutor Elections"

The title of this post is the title of this new article in the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice authored by Rory Fleming.  Here is a part of its introduction:

Part I of this Article will present the results of two interlinked studies on candidate campaign finance in every election with a progressive prosecutor candidate from 2015 through 2019.  The first study examines campaign funding disparities between incumbent prosecutors and progressive challengers, while the second examines the differentials using the Cost Per Vote (CPV) metric.  Part II will discuss the major findings of the two studies, such as how progressive challengers in Democratic primaries seem to only win when a sufficient amount of Soros PAC money is granted, and how higher CPV values translate to greater tensions between local prosecutor offices and their communities.  Part III traces how the Soros-reliant funding model for progressive prosecutors has created an unprecedented crisis of prosecutorial legitimacy in many major urban counties.  Part IV presents public funding for prosecutor selections as one solution that can balance the desirability of competitiveness in prosecutor elections with the need to curb the backlash against prosecutors working to end mass incarceration.  V concludes.

January 12, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

"Criminal Municipal Courts"

The title of this post is the title of this new article authored by Alexandra Natapoff just published in the latest issue of the Harvard Law Review. Here is its abstract:

Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system.  Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce.  This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon.  Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue.  At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants.  Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions.  As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

This Article provides a framework for appreciating the institutional complexity of this lowest tier of American criminal justice.  Municipal courts deviate substantially from the classic model of courts as neutral, independent guardians of law. They are also vehicles for cities to express their political autonomy and redistribute wealth, and thus constitute underappreciated engines of local governance.  As criminal adjudicators, they quietly contribute to localized mass incarceration while threatening the integrity of some foundational features of the criminal process.  At the same time, they represent a potentially attractive opportunity to render criminal institutions more locally responsive.  Finally, they reveal a deep dynamic at the bottom of the penal pyramid: low-status cases and institutions exert a formative influence over law itself.  These complexities make reform especially challenging.  There are doctrinal reforms that could strengthen municipal court operations, but they are inherently limited.  The deeper reform would be to stop dismissing these courts as minor, inferior institutions and to take them and their millions of defendants seriously across the board of law, policy, and politics.  Widely influential, jurisprudentially challenging, and democratically complicated, municipal courts deserve a more central place in the modern legal conversation.

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

Monday, January 11, 2021

Ohio enacts new laws precluding death penalty for those with "serious mentally illness" and largely eliminating LWOP for juvenile offenders

As detailed in this official notice, Ohio Governor Mike DeWine over the weekend signed a bunch of new bills into law, and two are sure to be of interest to sentencing fans:

House Bill 136, sponsored by Representative Brett Hudson Hillyer, prohibits the death penalty if offender was mentally ill at time of offense. 

Senate Bill 256, sponsored by Senator Nathan Manning and former Senator Peggy Lehner, regards sentencing offenders under the age of 18. 

This local press piece provides a bit of background on these new Ohio laws:

Gov. Mike DeWine has also signed bills taking the death penalty off the table for murders committed by the severely mentally ill... House Bill 136, sponsored by Rep. Brett Hillyer (R., Uhrichsville), prohibits the death penalty for murderers who demonstrate they suffered from a “serious mental illness” at the time of the crime. The most severe punishment would be life without the possibility of parole.

In addition to future cases, the law would open a one-year window for some people currently on death row to ask judges to commute their death sentences. While execution is not an option now for juveniles and the mentally disabled, Ohio law still allows for capital punishment in cases involving mental illness claims that fall short of the threshold for a verdict of not guilty by reason of insanity.

“Serious mental illness” is defined as schizophrenia, schizoaffective disorder, bipolar disorder, or any delusional disorder significantly impairing the accused's ability to exercise rational judgment in complying with the law and fully appreciating the consequences of conduct....

Senate Bill 256, sponsored by Sens. Nathan Manning (R., North Ridgeville) and Peggy Lehner (R., Kettering), to remove life without parole as a sentencing option for juveniles and to allow for parole hearings for juveniles after certain periods of time in prison.

It will be fascinating to see how these new laws get implemented.  This other local piece, headlined "Mother of murder victim advocated for new parole changes," partially speaks to the application of the juve LWOP law while also highlighting the powerful role that crime victims can play in advancing criminal justice reform:

A bill that will change Ohio's parole options, signed by Governor Mike DeWine on Saturday, was advocated for by a local mother whose son was murdered in South Cumminsville in 2015.

Suliman Abdul-Mutakallim was walking home with food for his family in June, 2015, when he was shot dead and robbed. "When three assailants walked up behind him and shot him in the back of the head, they didn't even say 'stick 'em up.' They just shot him," said Rukiye Abdul-Mutakallim, Suliman's mother.

The three then took $40 from Suliman, stole his phone and the food he was bringing home. For Rukiye, it was difficult to ignore that two of the three responsible for her son's death were children: The youngest was just 14 years old. "I found it unfathomable. These are human beings, aren't they?" said Rukiye. "And then when I saw them in court and they were children? Ahh."...

"For her to recognize that they were children who made terrible, terrible mistakes and has the grace to understand and hold that out to say, 'This is not what I would want for them,' is really remarkable," said Kevin Werner, with the Ohio Justice and Policy Center. 

Werner said there are currently 11 prisoners in Ohio affected directly by SB 256, which will retroactively apply to juveniles already convicted and sentenced.  The bill instead adds parole possibilities at 18 years, 25 years and 30 years, depending on the severity of the crime.

"It doesn't go far enough and we know that, but it is the beginning," said Rukiye.... "If we are throwing our babies away, we have no future," said Rukiye.

January 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Interesting accounting of the "Top 5 Criminal Justice Reforms Advocates Want Under Biden"

Law360 has this notable new piece under the headline "Top 5 Criminal Justice Reforms Advocates Want Under Biden." Here is the preamble to the annotated Top 5 list, as well as the list itself:

Joe Biden's election as president has sparked hope among criminal justice advocates and organizations that his administration will overhaul the U.S. criminal justice system and implement reforms they have been seeking for years.

Biden's campaign website promises that the Democratic president-elect will "strengthen America's commitment to justice and reform our criminal justice system," and includes dozens of proposed changes to be made under his administration. But whether he will achieve all of these promises is unclear.

Advocates told Law360 that Biden's biggest challenge will be fighting political opposition and uniting Congress. However, they believe having a president who prioritizes criminal justice reform could sway lawmakers to pass legislation that has been collecting dust on their desks.

"Even though there's bipartisan consensus around the need for criminal justice reform, what that means in practice, what the fine print is, is where all the challenge is, and there isn't necessarily consensus right now," said Kara Gotsch, director of strategic initiatives for The Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates.

Here are the top five criminal justice reforms that advocates told Law360 they want under Biden's administration and what the president-elect has promised he will do:

1.  Address COVID-19 in Prisons and Jails...

2.  End Mandatory Minimum and Life Sentences...

3.  Expand Decriminalization of Drug Use...

4.  More Policing Accountability and Alternatives...

5.  Expand Incarceration Alternatives and Community Programs...

Especially because there are three federal executions scheduled for this week, I am a bit surprised that this list did not include abolishing the federal death penalty.  I also know many advocates are eager to see clemency reform as part of the Biden agenda (though the commentary includes suggestions that aggressive use of clemency by Prez-elect Biden could help achieve these other goals).

Because there is so much criminal justice reform work to do, it will be quite interesting to see what CJ issues are given priority in the weeks and months ahead.  Of course, what gets prioritized and what actually gets done will not just be shaped by Biden's appointments to the Justice Department, but also by what folks on Capitol Hill might have in mind.  Especially with certain GOP legislators now talking about the importance of "unity," perhaps federal legislators can unify around getting some significant criminal justice reform enacted in the first 100 days of the Biden Adminstration.

Some prior related posts:

January 11, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Saturday, January 09, 2021

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

January 9, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 07, 2021

Gearing up for Prez Trump's coming final round of clemency grants

Prez Trump's ignominious behavior raises uncertainty as to whether he will serve out the last two weeks of his term.  But we can all be certain that Prez Trump is planning to issue more clemency grants before he loses the power to do so.  As everyone surely recalls, just before Christmas, Prez Trump granted clemency to all sorts of friends and family and politically-charged defendants (basics here and here).  And recent press reports detail other grants that could be forthcoming. 

First, this new New York Times piece, headlined "Trump Is Said to Have Discussed Pardoning Himself," cover the one particular possible pardon sure to generate the most buzz and controversy.  But I am even more intrigued by this new Bloomberg piece, headlined "Trump Prepares Pardon List for Aides and Family, and Maybe Himself," which discusses more fully other grants that may be in the works.  Here are excerpts:

President Donald Trump has prepared a sweeping list of individuals he’s hoping to pardon in the final days of his administration that includes senior White House officials, family members, prominent rappers -- and possibly himself, according to people familiar with the matter.

Trump is hoping to announce the pardons on Jan. 19 -- his final full day in office -- and his ideas are currently being vetted by senior advisers and the White House counsel’s office, the people said....

He’s also considering a traditional pardon for Albert Pirro, who previously worked with the president on real estate deals and was convicted of tax fraud. Pirro is the ex-husband of Fox News host Jeanine Pirro, a former district attorney of Westchester County in New York.

Trump is similarly considering pardoning celebrities including rapper Lil Wayne -- with whom he posed for a photo during the presidential campaign --as well as rapper Kodak Black, who is serving time for falsifying paperwork to obtain a firearm.

Other prominent celebrities including rapper Lil Yachty and Baltimore Ravens quarterback Lamar Jackson have publicly lobbied Trump to pardon Kodak Black, who said in a now-deleted tweet that he would donate $1 million to charity if the president freed him.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone. A White House spokesman did not immediately respond to a request for comment.

While some of the proposed pardons have moved through the legal steps needed inside the White House, the idea of a self-pardon is far less developed, the people say, and so far only at the discussion stage.

I am hopeful, but not really optimistic, that there will be some good number of final Trumpian clemency grants for persons who are not well-connected or famous.  Whether there are or not, I hope Prez-elect Biden comes into office understanding that the best way to restore faith in the pardon power could be by using it right away to advance justice and mercy rather than parochial personal privilege.

A few recent related posts:

January 7, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sixth Circuit panel reiterates "district courts have discretion to define 'extraordinary and compelling' on their own initiative" for 3582(c)(1)(A) motions

A helpful reader made sure I did not miss another recent notable Sixth Circuit ruling discussing the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  A couple of months ago, as noted in this post, a Sixth Circuit's panel handed down US v. Jones, No. 20-3701 (6th Cir. Nov. 20, 2020) (available here), to become then only the second circuit to rule expressly that district courts now have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction now that federal courts can 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.  Yesterday, a distinct Sixth Circuit panel reiterated this important doctrinal reality in  US v. Elias, No. 20-3654 (6th Cir. Jan. 6, 2021) (available here).

Notably, the Elias decision ultimately affirmed a district court's decision not to grant a defendant any reduction in sentence.  But the ruling usefully restated the broad authority of district courts in this arena.  Here is some of that discussion:

This Court recently spoke on that question [of whether the existing sentencing guideline confines district court authority], stating that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates.  Jones, 980 F.3d at 1108–11.  The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion.  See id. (discussing the purpose of the First Step Act and noting that “[t]he first sentence of § 1B1.13 predicates the entire policy statement on the Director of the BOP’s filing a motion for compassionate release”).  The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts.  See Brooker, 976 F.3d at 234.  Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.  See United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 281–82.

Thus, there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that § 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions.  Further, we clarify that, as in Jones and Ruffin, district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others....  And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define “extraordinary and compelling” on their own initiative.  See Jones, 980 F.3d at 1111; Ruffin, 978 F.3d at 1007 (suggesting that without an “‘applicable’ policy statement for motions by defendants . . . district court[s] may freely identify extraordinary and compelling reasons”).

A few of many, many prior related posts:

January 7, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Celebrity (gossip) edition of criminal justice round-up

In a weak effort to bring a smidge of lightness at a time when it is pretty easy to feel dark, here are some recent headlines at the intersection of celebrity stories and criminal justice developments:

January 7, 2021 in Celebrity sentencings, Who Sentences | Permalink | Comments (0)

Wednesday, January 06, 2021

Prez-elect Biden's slate of nominees for the Justice Department revealed, with Judge Merrick Garland tapped for Attorney General

As reported in this new AP piece, "President-elect Joe Biden has selected Merrick Garland, a federal appeals court judge who in 2016 was snubbed by Republicans for a seat on the Supreme Court, as his attorney general, two people familiar with the selection process said Wednesday."  Here is more on who is slated to help run a new Justice Department:

Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general.  He will also name an assistant attorney general for civil rights, Kristen Clarke, the president of Lawyers’ Committee for Civil Rights Under Law, an advocacy group.

Garland was selected over other finalists including Alabama Sen. Doug Jones and former Deputy Attorney General Sally Yates.  The people familiar with the process spoke on condition of anonymity.  One said Biden regards Garland as an attorney general who can restore integrity to the Justice Department and as someone who, having served in the Justice Department under presidents of both political parties, will be respected by nonpartisan career staff.

If confirmed, Garland would confront immediate challenges, including an ongoing criminal tax investigation into Biden’s son, Hunter, as well as calls from many Democrats to pursue inquiries into Trump after he leaves office.  A special counsel investigation into the origins of the Russia probe also remains open, forcing a new attorney general to decide how to handle it and what to make public.  Garland would also inherit a Justice Department that has endured a tumultuous four years and would likely need to focus on not only civil rights issues and an overhaul of national policing policies after months of mass protests over the deaths of Black Americans at the hand of law enforcement.

It was unclear how Garland’s selection would be received by Black and Latino advocates who had advocated for a Black attorney general or for someone with a background in civil rights causes and criminal justice reform.  But the selection of Gupta and Clarke, two women with significant experience in civil rights, appeared designed to blunt those concerns and offered as a signal that progressive causes will be prioritized in the new administration....  Monaco brings to the department significant national security experience, including in cybersecurity — an especially urgent issue as the U.S. government confronts a devastating hack of federal agencies that officials have linked to Russia.

I have sensed that Garland's record as a relative moderate on criminal justice issues while serving as a judge on the DC Circuit has led many criminal justice reform advocates to not be especially excited by the prospect he could become Attorney General.  But, as this AP article suggests, the naming of Vanita Gupta as associate attorney general should exciting CJ reformers.  In forthcoming confirmation hearing and in other setting, it will be very interesting to see what tone a future AG Garland and other new DOJ members will set as to criminal justice reform efforts generally and as to what sets of CJ issues may be initially given the most attention.

January 6, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (5)

Do the Georgia run-off Senate results dramatically shift the criminal justice reform landscape?

With Georgia election results this morning suggesting hat we will soon have a 50-50 Senate that puts Democrats functionally in control of all of Congress, I think the answer to the question in the title of this post has to be yes.  That said, I was reasonably bullish on at least some federal criminal justice reforms in the next Congress even if the GOP held a slim majority in the Senate.  But, as this Axios piece highlights, the results in Georgia may have an immediate impact on the look of Prez-elect Biden's Justice Department:

Between the lines: It'd be tough to go big with a 50-50 Senate, so don't assume a substantial shift.  But Democratic control would be a massive blow to Republican hopes of blowing up anything they truly loathe.

👀 What we're watching: Biden sources tell Axios he now can go more progressive on remaining Cabinet picks, notably attorney general and secretary of Labor.

Sally Yates, the former acting attorney general who was fired by Trump, could now go back on the table to be Biden's attorney general.

Aside from who is in charge at the Justice Department, I think a 50-50 Senate makes it somewhat more likely that DOJ would be somewhat more willing to take somewhat more progressive positions on an array of criminal justice reform issues.  And, of course, lots of appointments that require Senate confirmation, from judges at all levels to nominees to the US Sentencing Commission to all sort of other impactful governmental roles, can perhaps now be a bit more progressive.

Most fundamentally, all the agenda items that have been suggested by various reform groups (including the Biden-Sanders Unity Task Force) would seem just that much more politically viable as a result of the Georgia outcomes.  I have listed here just some of my prior postings on these topics, and I suspect my future posting will necessarily incorporate heightened expectations now that Democrats seem to have even more power thanks to the Georgia run-off results.

Some prior related posts on CJUTF recommendations:

Some additional prior posts on CJ reform prospects in a Biden Administration:

January 6, 2021 in Campaign 2020 and sentencing issues, Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

Monday, January 04, 2021

Group of Virginia prosecutors urge state lawmakers to enact major criminal justice reforms

As detiled in this local article, headlined "‘Progressive prosecutors’ want Virginia to end the death penalty, cash bail and mandatory minimums," a group of elected prosecutors in the Commonwealth of Virginia are urging their state legislature to enact an array of criminal justice reforms.  Here are the basics:

A handful of self-described “progressive” Virginia prosecutors — including four from Hampton Roads — called Monday for state lawmakers to make dramatic changes to the state’s criminal justice system, including ending the death penalty, cash bail and mandatory minimum sentences and changing the “three strikes” law.

In a letter Monday to state leaders, the Virginia Progressive Prosecutors for Justice group said the changes would “help keep our communities safe while producing more equitable outcomes in our courts.”

The group of 12 prosecutors includes the elected commonwealth’s attorneys from Hampton, Newport News, Norfolk and Portsmouth.  The prosecutors come from cities and counties that make up more than 40% of the state’s population, according to the group.

The changes are likely to meet resistance from other prosecutors and from at least some Republicans in the legislature. Though Democrats now control both chambers of the General Assembly for the first time in a generation, some legislation backed by liberals has met resistance from more moderate members of the party.

The prosecutors want legislation that would allow certain criminal records to be expunged automatically — and for free — after people keep a clean record for a certain amount of time....

The prosecutors are also asking for:

  • Ending mandatory minimum sentences, which the prosecutors said lead to “irrationally lengthy” sentences that “fuel mass incarceration while exacerbating … racial and socioeconomic inequities.”
  • Eliminating cash bail. The prosecutors said cash bail creates a two-tiered justice system, “one for the rich and one for everyone else,” and the impacts of not being able to post bail disproportionately affect people of color.
  • Abolishing the death penalty.
  • Changing an aspect of the “three strikes” law that increases a misdemeanor larceny charge to a felony if a person has a prior misdemeanor larceny conviction.

The full letter from the prosecutors can be found at this link.

January 4, 2021 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Saturday, January 02, 2021

DC Circuit panel upholds January 12 execution date for only woman on federal death row

Just before Christmas, as noted in this post, a federal district judge vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for January 12.  But, on New Year's Day, a DC Circuit panel issued this order putting the execution back on track.  This CNN article about the ruling provides some context:

Montgomery's execution had been scheduled for December 8, but a judge postponed it after her attorneys said they were diagnosed with Covid-19 after flying from Texas to visit with Montgomery at the Federal Correctional Complex in Terre Haute, Indiana.

On November 23, the director of the Federal Bureau of Prisons, Michael Carvajal, rescheduled Montgomery's execution for January 12.  Friday's order said he was acting under the "governing regulation," which allowed him to reschedule the execution because the original execution date had not passed.  The order said he was acting under the law, clearing the way for Montgomery's execution later this month.

Montgomery's attorney, Meaghan VerGow, said in a statement that she disagrees with the judges and is going to file a petition for them to reconsider their decision.  The judges gave VerGow until Saturday to file. "The federal government must be required to follow the law in setting any execution date, as the district court correctly held ... Given everything we know about Lisa Montgomery's mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution," VerGow said.  "The government should stop its relentless efforts to end her life."...

The Trump administration has overseen 10 federal executions in the final months of his presidency, the most in a single year in the United States in decades, and a revival after years of having none.  Montgomery would be the first woman executed by the US government since 1953.

In 2004, Montgomery was convicted of strangling a Missouri woman who was eight months pregnant, then cutting out and kidnapping the baby.  The baby survived.

The last woman executed by the US government was Bonnie Brown Heady in 1953, according to US Bureau of Prisons records, for kidnapping and murder.  The US also famously executed Ethel Rosenberg that same year for espionage.

I suspect Montgomery's lawyers will pursue further appeals. But, in lots of prior federal capital cases in recent months, appeals courts (including the Supreme COurt) have consistently refected efforts to slow down the federal machinery of death.

January 2, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 01, 2021

Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62); I stressed in one of those posts that Prez-elect Biden could get started right away in implementing recommendations calling for creating a new "Task Force on Prosecutorial Discretion" and a "Clemency Board."  Especially with so much clemency chatter as Prez Trump's term comes to a close, I am eager to again amplify attention on the clemency recommendation.  Helpfully, this lengthy new Bloomberg piece, headlined "Biden Gets Unlikely Advice on Pardons: Copy Trump, Sideline DOJ," provides some useful background and context.  Here are excerpts:

President Donald Trump’s pardons of some of his closest allies have sparked a political firestorm, but criminal justice reform advocates believe he has done one thing right: sideline the Department of Justice from clemency decisions.  But rather than use that control the way Trump has, those advocates want to see President-elect Joe Biden use it to help non-violent drug offenders with questionable convictions or harsh sentences.  Relying on the DOJ’s Office of the Pardon Attorney to review and make recommendations on clemency requests, they say, is bureaucratic and puts those decisions in the hands of the department that put the offenders behind bars....

Biden’s criminal justice plan proposes a number of reforms and says he will “broadly use his clemency power for certain non-violent and drug crimes.” The campaign would not comment past the plan’s language.  In addition to removing the sole oversight of the Office of the Pardon Attorney, Biden could improve the process by creating a permanent independent advisory panel that includes criminal justice reform activists, defense attorneys and pardoned convicted offenders, alongside federal prosecutors, supporters say.

“It should certainly include people who are formerly incarcerated because they know that walk better than anybody,” said Cynthia W. Roseberry, deputy director of policy in the Justice Division of the American Civil Liberties Union.  “Also include criminal justice reform experts and members of the community who can opine about the fact that we want people to come home.  I’m not suggesting leaving DOJ out,” Roseberry added.  “They can definitely have a prosecutor at the table.  But it should look like the community.”

Though the Biden campaign language does not commit to creating a new clemency infrastructure, the criminal justice reform recommendations from the Biden-Sanders Unity Task Force expressly proposes doing so:

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds.  Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Long-time readers should not be surprised to hear me vocally advocate for a clemency board given that way back in 2010, I urged then-Prez Obama to structurally change the federal clemency system in this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  Here is a snippet from that piece:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, ... [the] basic idea is ... to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice."

Many others have been talking for many years in many better ways about the idea of an DOJ-independent clemency board or commission, and I especially think of the tireless work of Rachel Barkow and Mark Osler in promoting an improved clemency infrastructure (see, e.g., here and here and here and here).  And I want to here promote all ideas about clemency reform because I now believe when the Biden Administration gives attention to this matter is much more important than exactly how. 

As I noted in this recent post, among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  As detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office; Barack Obama and George W. Bush and Bill Clinton could not be bothered to pick up the clemency pen for a single individual during their first two calendar years in office.  If clemency work and reform is not made a priority in the weeks and months ahead, I fear that real reforms are unlikely to get done at all. 

At this moment, I am drawn to the notion of starting with a "clemency czar," particularly because appointing one initial advisor should be easier and quicker than creating a full clemency board.  And the aforementioned Rachel Barkow and Mark Osler and Cynthia Roseberry are all great names surely ready to serve in this role on day one.  And while ruminating on this topic, other great names of great people long doing great work in the criminal justice space come to mind, like Michelle Alexander and David Singleton and Bryan Stevenson.  (Heck, add in folks like Weldon Angelos, Brittany Barnett, Beth Curtis, Mark Holden, Shon Hopwood, Jessica Jackson and Amy Povah, and I guess it is not too hard to quickly envision a "Dream Team" for a badly-needed clemency board.) 

Some (of many) prior recent related posts on clemency reform:

Some prior related posts on CJUTF recommendations:

January 1, 2021 in Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 30, 2020

Two notable end-of-year state supreme court rulings for criminal defendants on sentencing matters

This week has brought two notable new state Supreme Court rulings from the coasts on sentencing issues.  Here are press reports and parts of the starts of the opinions:

From the Boston Globe, "SJC: Judges can grant probation in some 'three strikes' cases"

From the start of the ruling in Massachusetts v. Montarvo, No. SJC-12905 (Mass. Dec 29, 2020):

Colloquially referred to as the "three strikes" law, the habitual offender statute, G. L. c. 279, § 25, enhances the penalty for a defendant who, after two prior convictions resulting in State or Federal prison sentences of three or more years, receives a third felony conviction.  This case requires us to determine whether § 25 (a) of the law allows sentencing judges to impose probation on defendants who fall within its ambit.  We conclude that it does.

From the Los Angeles Times, "Sex offenders can qualify for early parole, California Supreme Court rules"

From the start of the ruling in In re Gadlin, No. S254599 (Cal. Dec. 28, 2020):

In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016.  The initiative amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1) (article I, section 32(a)(1)).)  The initiative also directed the Department of Corrections and Rehabilitation (the Department) to “adopt regulations in furtherance of these provisions” and instructed the Secretary of the Department to “certify that these regulations protect and enhance public safety.” (Art. I, § 32, subd. (b) (article I, section 32(b)).)

The Department adopted regulations implementing a nonviolent offender parole consideration process.  Those regulations exclude from nonviolent offender parole consideration any inmate who “is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3) [governing determinately sentenced offenders]; see also id., § 3496, subd. (b) [governing indeterminately sentenced offenders].)

We granted review to address the validity of these provisions.  The Department asserts it is authorized by article I, section 32(b) to exclude from nonviolent offender parole consideration all inmates convicted of a registerable sex offense, regardless of whether that offense is defined by the regulations as a nonviolent felony and regardless of whether the inmate is currently incarcerated for that conviction.  Indeed, the Department’s regulations categorize inmates convicted of a registerable sex offense as “nonviolent offenders” unless, among other criteria, they are currently incarcerated for a violent felony listed in Penal Code section 667.5, subdivision (c). (Cal. Code Regs., §§ 3490, subd. (a), 3491, subds. (a), (b), 3495, subd. (a), 3496, subds. (a), (b).)  Nonetheless, the regulations entirely exclude from nonviolent offender parole consideration inmates previously convicted or currently convicted of any registerable sex offense.  We conclude that this categorical exclusion conflicts with the constitutional directive that inmates “convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration.” (Art. I, § 32(a)(1).)

December 30, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)