Sunday, October 23, 2022

US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

This past Friday, the US Sentencing Commission reported on the public comments it received in response to the USSC's tentative policy priorities for the 2022-2023 guideline amendment year (which were announced late last month).  Here is how the USSC describes on its website homepage what was set its way: "The Commission received more than 8,000 public comment submissions pertaining to proposed priorities for the 2022-2023 amendment year."

I would guess that eight thousand(!) comments amounts to some kind of record for the USSC.  This large number of comments surely reflects a kind of "pent up demand" given the need for guideline reforms to fully implement the First Step Act and other issues that have festered over the last four years while the Commission has lacked a quorum.  But I also suspect it reflects that many advocates may realize, circa Fall 2022, that the new USSC may be more willing and more able to advance certain federal criminal justice reforms than any other federal actors right now.

The USSC has provided a "sample of these letters" reflecting public comment at this link.  It is notable and interesting to see comments there from a Senator, from multiple federal judges, from prosecutors and defense attorneys, from probation officers, and from all sorts of interest groups and interested individuals.  Kudos to everyone involved in sharing a wide array of views to help the USSC's with its important work.  And, this Friday brings the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

A few prior related posts:

October 23, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 20, 2022

"Violent Crime and Public Prosecution: A Review of Recent Data on Homicide, Robbery, and Progressive Prosecution in the United States"

The title of this post is the title of this notable new study looking at relationships between prosecutorial policies and crime. The full study is apparently not yet available, but this executive summary provides lots of details and also has this extended abstract:

What caused the sharp increase in homicide in dozens of major cities in the United States in 2020 is the source of acrid debate.  Most academic researchers have attributed the sudden increase in homicide to changes in the availability of guns, shifts in policing, and the pandemic’s aggravation of chronic strains in civil society such as homelessness, ill mental health, and drug abuse.  Others have hypothesized that the increase in homicide is the result of the election of prosecutors whose pledges to reform the system of criminal justice have discouraged the police from stopping and arresting emboldened lawbreakers.

We examined the most timely, reliable, and comprehensive set of data on homicide and robbery that was publicly available in the summer of 2022.  We took three different approaches to the analysis of these data: we pooled data from 65 major cities, conducted a statistical regression analysis of trends in violent crime as well as larceny in two dozen cities, and compared the incidence of homicide before and after the election of progressive prosecutors in Philadelphia, Chicago, and Los Angeles, cities where we are conducting on-going research on changes in criminal justice.  We have also compared trends in recorded crime across all counties in Florida and California since 2015.

We find no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.  We also find weak evidence to support the claim that prosecutors of any broad approach to crime and justice are causally associated with changes in homicide during the pandemic.  We conclude that progressive prosecutors did not cause the rise in homicide in the United States, neither as a cohort nor in individual cities.  This conclusion echoes the findings of most of the research to date in this field.

This new piece in The Atlantic, headlined "What’s Really Going On With the Crime Rate?: Cities with progressive prosecutors may not exactly resemble the dystopian landscapes you’ve heard so much about," discusses this new study at some lengthy.

October 20, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"?

The question in the title of this post is prompted by this new Slate commentary by John Pfaff headlined "Biden’s Focus on Marijuana Is Part of the Problem." One should read the full lengthy piece to understand the full "hot take," but here are some excerpts (with my complaints to follow):

A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular.  It’s a narrative that shapes — or, better put, misshapes — policy.

Most Americans are deeply misinformed about why people are in prison.  A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then.  (Those held in state prisons make up 90 percent of the nation’s incarcerated population.)  This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.

We think we can decarcerate with easy choices.  We cannot.

Nationally, in 2019 almost 60 percent of all people in state prisons were convicted of violence; those convicted of just homicide or rape make up nearly 30 percent of the overall prison population....  If we released everyone held in state prisons convicted not just of marijuana crimes, nor just of drug offenses, but of all non-violent offenses combined, we would still have one of the world’s highest incarceration rates.  Unsurprisingly, this means that violent crimes are also at the heart of racial disparities in U.S. prison populations, as a recent study by the Council on Criminal Justice made clear.

Yet reforms continue to refuse to grapple with this reality.  A 2020 report by the Prison Policy Initiative found nearly 100 state reforms in recent years that had explicitly refused to extend the changes to those convicted of violence.  In some cases, the tradeoff between non-violent and violent crimes is explicit.  In 2016, Maryland’s Democratic legislature scaled back sanctions for non-violent crimes, but also increased punishment for violent offenses.  And just recently, California Gov. Gavin Newsom vetoed a bill to limit the use of solitary confinement, long viewed by behavioral scientists as torture, an indication of the lack of stomach for deeper reforms even among so-called progressive state leaders.

The inability to discuss crimes of violence remains clear in our current politics. Oz’s attacks on Fetterman on crime are now echoed in Wisconsin, where Republican Sen. Ron Johnson says Democratic challenger Mandela Barnes demonstrated “far greater sympathy for the criminal or criminals versus law enforcement or the victims.”  Anecdotal attacks about violent crime have already caused two different New York governors to roll back the state’s 2020 bail reform law, before it was even possible to assess its impact.  Even with new evidence suggesting reform did not contribute much if anything to rising crime in 2020, further rollbacks loom for 2023.  And Virginia recently amended a law that expanded the ability of people in prison to earn good time credits to expressly exclude those who were serving time for any crime of violence.

Meanwhile, as state prison populations fell nationwide by 15 percent from 2010 to 2019, Bureau of Justice Statistics data suggests that the number of people locked up for violence fell by just 1 percent; a separate analysis of the BJS data conducted by the Council on Criminal Justice estimated that the numbers confined for violence actually rose over that time, undermining the declines in drug and property cases.

Talking exclusively about drugs does little in the short-run and reinforces a narrative that appears to affirmatively undermine the sorts of difficult discussions we need to have about the ways we respond to violence.  There are things that Biden could have done, or at least done at the same time, that could have taken advantage of his bully pulpit.

He could have encouraged state and local governments to think about alternative ways to address not just crime, but serious violence.  Biden’s August 2022 Safer America Plan did include some funding for just this but that part of the plan was always secondary to the push to hire more police; it was even framed merely as a way to free up the police to focus more on violence....

He could have announced a push for a repeal of the PLRA or AEDPA, two Clinton era laws that continue to impose real costs on people held in prison or challenging potentially wrongful convictions.  Or, he could have pushed harder to amend the federal code to eliminate qualified immunity for police, or pushed state legislatures to pass such bills, about 35 of which have been proposed in the aftermath of George Floyd’s murder only to almost all be thwarted by police union lobbying.  Such an approach could help improve police-community relations, which in turn could help address the single biggest challenge we face in reducing violence: the general unwillingness of victims of violence to contact the police.

It’s true that these are long-shot proposals.  But short of pardoning every single person in federal prison — an impossibility — nothing any president does will have a significant impact on the size and reach of a criminal legal system that is almost entirely driven by local politics, policies, and funding.  The president’s biggest power is his ability to shape the debate around criminal legal policy, not the policy itself.

Biden’s proposal here did nothing to shape that debate. There are lots of ways he could have taken steps to push the discussion in the direction it needs to go, but he disappointingly chose to highlight, once again, marijuana.  That choice will make it harder to move the reform discussion beyond where it has mostly been mired for the past decade.

I am a big fan of so much of Pfaff's work, especially his emphasis on "the numbers," but there is much about this commentary that just does not add up.  For starters, these World Population data of incarceration rates suggests that the US would easily fall out of the top 10 in incarceration rates if we cut our prison population 40% by releasing everyone held for non-violent offenses.  Pfaff has long been eager to say we must not ignore violent offenders when thinking about the problem of mass incarceration.  That is basically right, but dramatic decreases in our use of prison for non-violent offense would still make a very big impact AND his own commentary highlights why this is far more politically achievable than massive cuts to sentences for violent offenders.  (Indeed, there is good reason to hope and expect that much shorter and many fewer prison sentences for non-violent offenses would serve as an essential first step to laying the foundation for reducing the overall severity scale of all our punishments.)  

More generally, Pfaff claims there is an "inability to discuss crimes of violence," but I am seeing plenty of discussion (and political ads) about crimes of violence and especially murder having increased considerably over the last few years.  When violent crime has spiked — which it clearly has and which Pfaff does not discuss — and when many polls indicate many voters are troubled greatly by this spike — which they clearly have and which Pfaff does not discuss — one should not be surprised that politicians are responsive to voter concerns about violent crime in their actions and rhetoric.  Indeed, I think it notable (and encouraging) that some criminal justice reform efforts continue moving forward (at least for non-violent crimes) even when "tough on crime" political conditions seems to be prevalent.

And while I support various reforms to PLRA and AEDPA and qualified immunity, I am not aware of any significant research or evidence that such reform will reduce violence in our communities.  If there was such evidence, these reforms could and likely would become a central element of reform supported by politicians on both sides of the aisle.  There are all sort of good arguments for all sorts of criminal justice reforms, but wishing away the facts of increased violent crime (and increased voter concerns about violent crime) will surely "make things worse for criminal legal reform in the long run," much more than will Prez Biden granting blanket pardons to thousands of marijuana possession offenders. 

October 20, 2022 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, October 19, 2022

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

October 19, 2022 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New FAMM report: "Grading the States: The State Compassionate Release Report Card Project"

Compassionate-Release-MapAs detailed in this press release, the folks at FAMM have today released a lot of new materials and resources focused on how states approach compassionate release for state prisoners.  Here are details from the press release:

Today, FAMM has released a compassionate release report, including report cards for every state, grading compassionate release programs designed for incarcerated people struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

“It was not surprising, but still disheartening to see so little improvement in compassionate release across the country since we first examined state compassionate release in 2018,” said Mary Price, FAMM’s general counsel and author of the report. “Lawmakers across the country fund compassionate release programs that sit idle and leave people to die in prison – including during the COVID-19 pandemic.

“There comes a point in a person’s sentence where they are so sick that incarceration loses any meaning or worse, becomes torture. If the programs are broken and can’t be used effectively, the lawmakers should fix them.”

In concert with the report, FAMM today also released a new national poll which found that 70% of Americans, across political lines, support compassionate release programs.

“At a time of concern about rising rates of crime, why are so many states wasting their limited resources to incarcerate sick and elderly people?” said Kevin Ring, FAMM’s president. “Committing to compassionate release programs could allow for funds to be better used to address concerns about crime.”

FAMM graded the compassionate release programs for each state in several categories before assigning a letter grade. The map of results is below.

The report is an update to “Everywhere and Nowhere: Compassionate Release in the States,” a comprehensive, state-by-state report on the early-release programs. That report was released in 2018.

October 19, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 18, 2022

Get ready: new US Sentencing Commission soon to finalize new policy priorities

Though MLB playoffs and NCAA and NFL action are what usually get me going this time of year, in 2022 my inner federal sentencing nerd has as much to look forward to as my inner sports fan.  Specifically, after receiving a few weeks ago the US Sentencing Commission's new tentative policy priorities for the 2022-2023 amendment year, next week brings the excitement of the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

For those eager to pre-game all the USSC action, the Commission has now released here a "very special episode" of its official podcast, Commission Chats.  This is "Episode 9: Meet Our New Chair!" and it gets previewed this way:

In this very special episode, newly appointed Commission Chair Carlton W. Reeves discusses highlights of his career as a lawyer and judge, including the moment he learned he was not only nominated as a member but also Chair of the Commission.  Judge Reeves also shares his goals for the Commission this amendment year and hopes for this season's Jackson State Tigers. (Published October 17, 2022)

And, for even more intense pre-game action, the folks at FAMM have put together this great panel discussion for Monday October 24 titled "Guess Who's Back: The Sentencing Commission's Return & the 2022-2023 Amendment Cycle."  Here is a preview of the FAMM overview:

After over 3 years without a Sentencing Commission, the Commission is now back in action.  What does this mean for criminal justice reform?  Join FAMM and our special guests as we provide an overview of the Commission's role in criminal justice reform, what we know the Commission will prioritize this guideline amendment cycle, the legal landscape that has developed in the absence of a Commission, and the impact of all this on real people.

So get ready, get ready, because here they come!

October 18, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, October 17, 2022

Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress

As detailed in this extended ABC News piece, the "Justice Department is asking a federal judge to sentence Steve Bannon, adviser to former President Donald Trump, to six months in prison and make him pay a $200,000 fine for his conviction on two counts of criminal contempt of Congress, according to a new court filing." Here is more of the basics:

Bannon was found guilty in July of defying a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.  He had been subpoenaed by the Jan. 6 panel for records and testimony in September 2021.

Bannon is set to be sentenced on Friday at the D.C. courthouse by federal judge Carl Nichols at 9 a.m.  His lawyers are expected to submit their own sentencing memo Monday.

The Government's 24-page sentencing memorandum is available at this link, and it starts this way:

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.  The Committee sought documents and testimony from the Defendant relevant to a matter of national importance: the circumstances that led to a violent attack on the Capitol and disruption of the peaceful transfer of power. In response, the Defendant flouted the Committee’s authority and ignored the subpoena’s demands.  The Defendant, a private citizen, claimed that executive privilege—which did not apply to him and would not have exempted his total noncompliance even if it had—justified his actions.  Then, on the eve of trial, he attempted an about-face, representing to the Committee that former President Donald J. Trump had waived executive privilege and freed the Defendant to cooperate.  But this proved a hollow gesture; when he realized that his eleventh-hour stunt would not prevent his trial, the Defendant’s cooperative spirit vanished.  Despite the removal of the only purported barrier to his compliance, to this day the Defendant has not produced a single document to the Committee or appeared for testimony.  For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

UPDATE: Steve Bannon has also today submitted his sentencing memorandum, which can be found at this link. Here is its starting "summary":

The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment? Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers? Should a person be jailed where the prosecutor declined to prosecute others who were similarly situated – with the only difference being that this person uses their voice to express strongly held political views? If the answer to any of these questions is no, then a sentence of probation is warranted. Because we believe that the answer to each of these questions is no, we respectfully ask this Court to impose a sentence of probation, and to stay the imposition of sentence pending appeal.

October 17, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Half dozen GVRs provide only "excitement" for CJ fans in latest SCOTUS order list

Regular readers now know I am making a regular habit (see here) of complaining about the relative lack of interesting criminal matters on the Supreme Court's docket this Term.  That reality leads me to eagerly await each new SCOTUS order list with the hope the Justices will add something spicy for sentencing fans (or really any criminal cases concerning more than just intricate procedural issues).  So, I opened today's SCOTUS order list ... and the title and start of this post surely made it plain that there were not any exciting new criminal justice cert grants or even opinions dissenting about any denials (in fact, there were no cert grants or opinions at all).

That said, I was intrigued to see that the new order list did include six GVRs based on criminal justice rulings last Term.  Specifically, there were five GVRs based n Ruan (basics here) and one based on Concepcion (basics here).  I have not kept a running list of the number of GVRs from these cases or others, but maybe that will be my best bet for SCOTUS excitement these days.

But hope springs eternal in the SCOTUS fall, and the Justices will release another order list in a couple of weeks on October 31.  Perhaps someone can scare up some spirited cert grants for that special day.  And, not to be forgotten, a big case for federal prisoners seeking review of convictions and sentences, Jones v. HendrixNo. 21-857, is be argued on November 1.  (And, as I will discuss in another coming post, in the meantime sentencing fans do have the excitement of the first public US Sentencing Commission hearing in nearly four years on October 28.)

October 17, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 16, 2022

Another discouraging dispatch about BOP's shaky First Step Act steps

Walter Palvo continues to provide terrific coverage of difficulties in the implementation of the First Step Act's earned time credits, and this latest piece in Forbes is titled "Bureau Of Prisons’ Failure To Communicate First Step Act."  Here are excerpts from this lengthy piece that merits a full read:

The Federal Bureau of Prisons (BOP) is under new leadership but it is still suffering from decades of mismanagement. BOP Director Colette Peters began work on August 2nd of this year ... [and] testified on September 29, 2022 in front of the Senate Judiciary Committee.... Senator Dick Durbin was frustrated in Peters’ testimony stating that the full effects of FSA had not been implemented nearly 4 years after it being signed into law.  Peters assured the Senators that an auto-calculator was completed in August 2022 that provided FSA credits to prisoners which had the effect of reducing many sentences.  However, that auto-calculator was not in place at the time of the hearing, or at least it was not communicated to prisoners or the public. 

According to dozens of prisoners I interviewed for this piece, calculations were not communicated to them nor reflected on BOP.gov, which tracks release dates for federal prisoners.  Anticipating this computer program’s rollout that would reduce many prisoner release dates, prisoners and their families eagerly awaited the news of when they would be going home.  As the weeks passed after after August, prisoners still had no news.  It was not until the week of October 3rd that FSA credits started to be applied.  As one prisoner told me, “I was expecting a year of credits and I got 4 months. I have no idea what happened.”

What happened is that the calculator still has errors in it.  Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year....

Prisoners have worked for years to take programming that the FSA law stated would earn them credits.  Now, as implemented, those credits are fewer than many thought and they still do not have answers.  They also have no realistic remedy to correct it in a timely manner.  Millions of dollars will now be spent on litigation that will last years while prisoners who should be released stay in prison.

Some prior related posts:

October 16, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, October 15, 2022

Notable comments on drug sentencing policies from rival Senate candidates in Pennsylvania

NBC News has recently run a couple of interesting pieces based on interviews with the Pennsylvania US Senate candidates that probed some sentencing issues. Here are links to the pieces and some of the passages:

"Fetterman says his stroke recovery 'changes everything' but that he’s fit to serve as senator"

He also pushed back on Republicans who accuse him of being soft on crime. Though he used his seat on a state parole board to advocate for the early release of some prisoners — including felons convicted of murder and other violent crimes — Fetterman said paroles were only granted in a small fraction of cases and to convicts who had demonstrated remorse through years of good behavior....

He also praised President Joe Biden’s decision last week to pardon thousands of people convicted only on charges of marijuana possession at the federal level; he said earlier this year that he had pressed Biden to decriminalize pot.

At the same time, Fetterman told NBC News that he favors strengthening federal drug laws to make it easier to apply mandatory minimum sentences to fentanyl dealers, an idea incorporated into GOP legislation on Capitol Hill.

Pennsylvania, like many states, has grappled with the abuse of pain-killers such as fentanyl, a powerful synthetic opioid that can be lethal in small doses. Despite his approval for releasing some violent criminals early, and without committing to signing onto a GOP bill in Congress, Fetterman endorsed the basic aim of the legislation.

“I’d have to see what’s in front of me when it’s there. But the bottom is that being an addict, you know, we haven’t been able to arrest our way out of, you know, to the addict,” he said. “But it’s the, actually the pushers and the dealers, that’s a completely different issue. And they deserve to be in prison.”

"Oz says he supports Biden on marijuana pardons and opposes federal mandatory minimum prison sentences":

Mehmet Oz opposes federal mandatory minimum prison sentences and thinks President Joe Biden made a “rational move” by announcing a broad pardon for certain marijuana users, Oz, the Republican Senate nominee in Pennsylvania, said Thursday in an exclusive interview with NBC News.

The remarks represent a slight tack to the center in the final days of a race in which Oz, who trails in public polling, has repeatedly attacked Democratic rival John Fetterman as being too soft on crime.

Oz said he supports Biden’s decision to clear the records of ex-convicts who were in federal prison solely on charges of simple marijuana possession, a rare area of agreement with Biden and Fetterman.

“Going to jail for marijuana is not a wise move for the country. I think folks who have used marijuana and that’s the only reason they’re in jail should not have those criminal — those rulings — held against them,” Oz said, crediting Biden with a “rational move.”

He also said he broadly opposes federal mandatory minimum prison sentences, just days after Fetterman voiced support for applying them in more cases involving fentanyl dealers in an exclusive interview with NBC News.

“I really think judges should be empowered to make the difficult decisions, and they generally do it well,” Oz said. “When we tie their hands by making laws at the federal level, it hinders their ability to do what needs to be done.”

October 15, 2022 in Clemency and Pardons, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Friday, October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Thursday, October 13, 2022

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

October 13, 2022 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

New DEPC resource highlights "Drugs on the Ballot: 2022" (and in prior elections)

I am very pleased to be able to promote this great new resource page, titled "Drugs on the Ballot: 2022," authored by the great staff at the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  The page not only details  cannabis-related ballot initiatives that voters will be considering in five states this November, but it also provides a set of maps and timelines of efforts to enact and implement state cannabis reforms over time, via both ballot measures and legislation. 

This new resource was developed in conjunction with this exciting online DEPC event scheduled for later this month (October 25 at noon EDT) titled "Cannabis on the Ballot: Lessons Learned from the Marijuana Reform Movement."  The registration page for the event is at this link, and here is its description:

Ever since California voters legalized medical marijuana via ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures to advance marijuana legalization and broader drug policy reforms. But reforms advanced through ballot initiatives can raise distinct political and policy challenges, and recent initiatives have sometimes produced legal uncertainty about regulatory regimes and even new limits on the availability of direct democracy.  On the eve of another major election, please join our panel of experts as they discuss the pros and cons of efforts to enact and implement drug policy reforms via the ballot box and these efforts’ impact on direct democracy more generally. 

October 13, 2022 in Marijuana Legalization in the States, Who Sentences | Permalink | Comments (0)

"A Nat-Con Case for Criminal Justice Reform"

The title of this post is the title of this new essay authored by Marc A. Levin at Law & Liberty. I recommend the full piece, and here is just a taste from the start and closing of the piece:

From the halls of Mar-a-Lago to the streets of Chicago, all Americans have a stake in the fair application of criminal law by a system they can trust. Indeed, there cannot be a policy area in which a principled approach is more important than in criminal justice, where lives and liberties are at stake.  So how do the principles of the emergent national conservatism movement apply to criminal justice policy?  Can they inform a center-right approach to public safety that draws on the overlap between national conservatism’s Christian worldview and universal truths?

A July 2022 manifesto entitled “National Conservatism: A Statement of Principles” crystallizes the tenets of this movement that seeks to address many Americans’ apprehension about the coarsening of our culture and erosion of our national identity.  These concerns naturally implicate the criminal justice system, which becomes the last backstop when society’s norms and institutions from the family to the education system prove inadequate, leaving the law as the only remaining form of social control, weak as it often is....

[N]either conservatives of any stripe nor anyone else should back policies that are inconsistent with public safety. However, within that universe, the principles of the manifesto are consistent with four factors for evaluating criminal justice policies: 1) Are they deeply rooted in our best traditions and in alignment with our founding principles of liberty?; 2) Do they protect and strengthen families?; 3) Do they address not just individual culpability but also drivers of criminal activity, including family breakdown, exposure to trauma, addiction, mental health, and the neighborhood environment; and 4) Do they nurture and sustain the public’s confidence in the rule of law as an expression of our shared morality?

Those policies that check these boxes can lead to a stronger, fairer, safer, and more unified nation, an objective that both national conservatives and all Americans can embrace.

October 13, 2022 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, October 12, 2022

Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

I was fairly impressed with how Prez Biden decided to craft and announce his marijuana possession pardons last week (basics here and here).  Blanket pardons are rare, especially in modern times, but they have a rich American history (see the great list in Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Federal Sentencing Reporter 139, 140 (2001)).  And to couple these pardons with an expedited review of marijuana's Schedule I status, which is overdue, could have a huge future impact on federal marijuana policy. 

It also struck me as notable and important that Prez Biden further called upon state Governors to follow his pardoning lead, and he did so right after he referenced the enduring consequences of even low-level marijuana convictions in this official statement:  "There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions."  Of course, even the lowest-level state marijuana convictions also can carry an array of collateral consequences, which I discussed a bit in my (now very dated) 2018 article "Leveraging Marijuana Reform to Enhance Expungement Practices."

But, in some conversations about record relief at the state level, it dawned on me that Prez Biden's work also was a missed opportunity to give Congress some prodding along with state Governors and his own agencies.  Specifically, one reason some state Governors might not feel a huge need to pardon marijuana possession offenders is the fact that most every state has some legislative/court mechanism to seal or expunge low-level convictions, and many of these mechanisms have been expanded in recent years.  But, at the federal level, there are no general record relief laws in place (though a number of bills have been proposed to remedy this legal gap).  As the folks at the Collateral Consequences Resource Center have explained in recent recommendations to Congress

Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.  States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records.  Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.

Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all.  In addition, many areas of federal law fail to recognize or give effect to state relief.

Prez Biden is right to be deeply concerned about the collateral consequences arising from even the lowest-level drug convictions, but he should know that federal clemency efforts are not the only or even the best way to address these concerns.  Rather, Congress needs to step up and start moving forward with the many bills proposing some form of federal record relied (the Clean Slate Act and the Fresh Start Act are some notable bills in this space, but there are a lot more possibilities).  And Prez Biden's announcement of his marijuana possession pardons would have been an especially timely opportunity for him to urge Congress to get a bill to his desk on this front.

Arguably this is a nit-pick, complaining about the federal record relief dog that did not bark when Prez Biden made his pardon announcement.  But that announcement has received a lot of attention from the press and others, and yet I do not think I have seen any new discussion of the absence of any general federal record relief mechanism.  This ugly gap in federal law merits a lot more attention, and so I cannot help but lament this missed opportunity.

Prior related posts:

October 12, 2022 in Clemency and Pardons, Collateral consequences, Who Sentences | Permalink | Comments (0)

Severe federal drug sentence in a sad, high-profile case with so many stories within

I sometimes say to students (and on this blog) that certain cases could alone provide a robust foundation for teaching about so many different aspects of sentencing theory, policy and practice. Upon reading this Washington Post account of the high-profile federal sentencing of Eric Kay for providing the drugs that led to the death of Tyler Skaggs, I am yet again struck by how many notable issues and stories are sometimes tucked within a single sentencing. Here are some of the details:

Eric Kay, the former communications director for the Los Angeles Angels, was sentenced Tuesday to 22 years in prison after being convicted in February of providing the drugs that caused the 2019 death of pitcher Tyler Skaggs.  District Judge Terry Means said he went above the minimum 20 years Kay faced because of remarks he made in prison.   Prosecutors played a tape of a prison phone conversation in which Kay, whose calls were monitored and recorded, said of Skaggs: “I hope people realize what a piece of s--- he is. … Well, he’s dead, so f--- him.”

Means said he had been dreading sentencing Kay, 48, who was convicted of drug distribution resulting in death, because he felt mandatory minimums were “excessive.”  But the judge said the prison conversations showed a “refusal to accept responsibility and even be remorseful for something you caused.”

In his own remarks, Kay apologized for having “spewed vitriol” about Skaggs, prosecutors and the jury, in that and other prison correspondence. “I wanted to blame Tyler for all of this,” Kay said, calling his words “so wrong and foul.”

The emotional sentencing hearing spelled a bleak end to this phase of a legal saga that began when Skaggs, 27, was found dead in a Southlake, Tex., hotel room July 1, 2019, with oxycodone and fentanyl in his system. Kay has indicated he will appeal his conviction.  Kay, like Skaggs, was a user of illicit opioids.  During Kay’s trial in February, witnesses including several Major League Baseball players said he shared black market pain pills with them, though the government has not suggested he did so for profit.

Federal prosecutor Erinn Martin stated that Kay was in Skaggs’s hotel room when he choked on his own vomit — a contention based on key card evidence — and that he didn’t try to save the pitcher because “he freaked out and decided to save himself and his job” or because he was incapacitated himself. Martin said Tuesday that Kay knew the drugs he gave Skaggs were “likely or potentially counterfeit” and could contain fentanyl.

Kay, who did not take the stand in his own defense during the trial, did not directly address the government’s version of events Tuesday but expressed remorse for his actions, blaming his addiction.  “I will spend the rest of my days in repair,” said Kay, who wore an orange jumpsuit and was in arm and leg shackles, during remarks in which he sometimes sobbed.

Skaggs’s family members said Kay was responsible for the pitcher’s death in their own remarks in court Tuesday. “Eric Kay knew that the drugs he was giving to my son and other players [were] laced with fentanyl,” said Skaggs’s mother, Debbie, adding that “a strict sentence … has the power to dissuade people from providing lethal drugs to others.” ...  “I know no matter how much time Eric Kay gets it won’t bring back Tyler,” Skaggs’s father, Darrell, said in a statement read in court by Tyler’s aunt. “But the longer he is incarcerated, the safer everyone is.”

Kay, who was raised upper-middle class in Southern California and educated at Pepperdine University before rising to earn a six-figure salary with the Angels, had no previous criminal record.  But Martin, the prosecutor, said Kay’s prison correspondence was evidence that he hadn’t learned his lesson.  In emails and phone calls, Kay referred to the “trash-ass Skaggs family,” derided the jurors as “rednecks” with missing teeth and referred to a federal prosecutor’s “horrible makeup.” Martin also noted that Kay was allegedly caught with suboxone while in jail. “That kind of person reoffends,” Martin said. “Eric Kay isn’t going to stop.”

Kay’s attorney, Cody Cofer, said his client’s jailhouse remarks reflected the resentment of a man coming to terms with being separated from his family for two decades. “The notion that he is likely to reoffend is just not supported,” Cofer said.

Means said Kay should be incarcerated near his home of California, where he has three sons, the youngest of whom is 12. Kay’s middle child, 20-year-old Carter, said during the sentencing hearing that his father “wouldn’t do something bad willingly” and urged the judge to be lenient. “My little brother needs him most,” Carter Kay said. “I haven’t seen him smile in a while.”...

Since Kay’s trial, one of his attorneys, Reagan Wynn, has been suspended from practicing law after a Texas bar panel found he “failed to explain” to another client the facts of his criminal case. In a May hearing in Kay’s case, his other attorney at the time, Michael Molfetta, appeared to blame Wynn for having left Kay without representation during a meeting with probation officials before his sentencing....

Molfetta also has since left the case. In an interview with The Washington Post, Sandy Kay said her son had received a poor legal defense. “Tyler Skaggs was an adult male who willfully chose to engage in dangerous behavior that ended in his death,” Sandra Kay said. “And to hold someone else accountable for that is a great injustice.”

October 12, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

October 12, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

"Promise or Peril?: The Political Path of Prison Abolition in America"

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

This article explores whether prison abolition as a movement will, on net, lead to more productive changes to criminal justice punishment practices or instead produce a backlash that hinders reform efforts.  For those who embrace abolition as an expressive reaction to what they view as the intolerable state of American punishment practices, the answer to that question may not matter.  But others adopt an abolitionist stance precisely because they believe it is the most effective political strategy for bringing about change to American criminal justice practices.  It is this latter goal of abolition that is the subject of this Article.

The most optimistic take is that the movement could shift the conversation around crime policy for bolder initiatives that dislodge the central role of prisons and punishment and shift attention to root causes of harm.  On this view, the abolitionist perspective can shift the Overton window to embrace much broader downsizing of prisons and investment in communities than would take place without the abolitionist challenge.  Moreover, the call for abolition is just the kind of simple, powerful rhetorical move that draws people to embrace it and helps mobilize grassroots efforts for change.

There is, however, a future political path for abolition that is less rosy.  Instead of helping the cause of decarceration and improving the lives of those under the control and supervision of the state’s punitive apparatus, there is the possibility that calls for abolition could lead to more harms than they prevent.  This risk exists for two main reasons. First, because the rhetoric of abolition is absolutist — the language being used is deliberate and calls for an end to prisons — there is the risk that approach will frighten segments of the public who would otherwise support even radical decarceration but who are not prepared to rule it out entirely.  The second reason an abolitionist framing may ultimately produce more harm than good is that some who seek abolition often use that goal as the yardstick for deciding what policy changes to support.  They reject what they call “reformist reforms” that do not contribute to dismantling the existing legal order. For example, many abolitionists reject calls to invest in improvements to prisons or put in place greater staffing, even if doing so would improve the lives of currently incarcerated people, on the view that this additional funding ultimately expands the role of prisons in society and leads to incarceration being more entrenched overall.  Abolitionists have also rejected laws that would release certain groups of incarcerated people —  such as those serving offenses that do not involve violence — because of a concern that those laws exclude others.  The abolitionist framing therefore runs the risk of sacrificing too many reforms that would benefit people currently suffering from incarceration for a utopia that will ultimately not materialize.

In weighing the pros and cons of abolition as a political organizing strategy, then, a great deal turns on the likelihood of prisons being abolished.  And on that score, the relatively recent history of another recent abolition movement — the movement to close state mental hospitals and provide community care to people with mental health needs known as deinstitutionalization — strongly suggests that the more pessimistic take on the fate of prison abolition will ultimately prove correct.  Deinstitutionalization is a cautionary tale with important lessons for today’s abolitionists and their political calculus.

It is an urgent question what strategy will best address the fact that prisons and jails in the United States are inhumane and dreadful.  For those of us committed to drastic changes to patterns of policing, prosecution, and punishment that perpetuate structural inequality and fail to reduce harm, what is the best path forward to achieve those goals?  Is the rhetoric and social organizing power of abolition beneficial because it will spark a successful political movement toward decarceration, or does it bring more political risks than benefits and therefore ultimately harm the goal of weening America off its reliance on prisons, jails, and other forms of detention?

This article answers these questions by first describing the abolitionist movement in Part I.  Part II considers the policy implications of an abolitionist framework.  Part III then turns to the political calculation and analyzes the political pros and cons of an abolitionist stance.  Drawing lessons from the defund the police movement and deinstitutionalization, it highlights where and why public resistance may emerge.

October 11, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

October 11, 2022 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

October 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, October 10, 2022

"Three steps to setting federal prisons on the right path"

The title of this post is the headline of this new Hill commentary authored by Hugh Hurwitz, who served as Acting Director of the US Bureau of Prisons during the Trump Administration.  Here are excerpts:

The Federal Bureau of Prisons’ (BOP) mission is to safely and securely confine offenders and assist them in becoming law-abiding citizens.  By most media accounts, the BOP is failing in this mission.  Members of Congress have described the agency as “crisis plagued.”  BOP’s recent history includes allegations of sexual assault against inmates and female staff at several institutions, staff misconduct and discipline issues at all levels of the agency, serious staffing shortages, and failures to implement policies under the three-year-old First Step Act (FSA).

New Bureau of Prisons (BOP) Director Colette Peters recently testified before the Senate Judiciary Committee. Director Peters undoubtedly has a big job ahead of her.  Until recently, BOP had long been a model of quality and consistency, but has lacked permanent, consistent leadership for years.  Peters is the seventh director/acting director in seven years.

Senate committee members, other members of Congress, DOJ leadership, and many stakeholders, all are pushing Peters to do more.  Most changes and priorities will require the right resources in people, time, and money.  To reverse these trends and restore BOP’s place as the premier correctional agency in the world, Peters will need to be allowed to initially focus on three important areas.  Succeeding in these areas will open the doors to making many of the other changes she and others wish to achieve.

First, focus on the staff. Peters is known to care greatly about staff; it has been a focal point through her career in Oregon. BOP must work to fill many vacant jobs. Easier said than done, as recruiting people to work inside prison is a challenge for all correctional systems....

Second, begin to address BOP infrastructure. Inmates and staff need safe, well-maintained prisons.  Peters testified that BOP’s infrastructure is in such bad shape that they need to prioritize the life/safety issues and let other needs go unmet.  She noted that BOP has over $2 billion of structural needs and repairs, but their annual appropriation is under $100 million.  Obviously, this is unsustainable.  At the same time, BOP’s population is down to about 158,000 people from the peak of nearly 220,000.  COVID and the CARES Act showed that we can safely put more people in home confinement and halfway houses without increasing crime.  As the BOP continues to implement the FSA, it will continue to move more low risk people to community confinement or supervision, and out of prison.....

Finally, demonstrate a commitment to fully implementing the FSA, which was the culmination of years of bipartisan effort and the first major criminal justice reform legislation in a generation.  When fully implemented, the FSA reduces overly lengthy prison sentences and better prepares inmates to successfully reenter society.  Efforts to fully implement the FSA have been hampered by the pandemic, staffing shortages, and failed policy implementation.  Director Peters can’t repair all this overnight, but she needs to demonstrate to Congress, BOP staff, and all stakeholders, that implementation of this significant legislation is on the top of her list....

If Peters is given the help and resources to resolve the staffing challenges and improve the infrastructure, she will have the staff and resources needed to fully implement the FSA, increased capacity to provide mental health treatment, medical care, education, and job training — and to ensure that the 95 percent of BOP population that are returning to our communities will be good neighbors that we can all be proud of.

October 10, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Sunday, October 09, 2022

Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

President Joe Biden's marijuana actions on Thursday (basics here and here) were sure to generate a lot of buzz (pun intended?), and it would be impossible here to round up all of the reactions.  So I will be content here to just flag a few pieces that caught my eye:

From the AP, "Racial equity in marijuana pardons requires states’ action"

From Axios, "The politics of Biden's marijuana pardons"

From Fox News, "North Carolina governor pushes to legalize marijuana possession after Biden pardons: 'End this stigma'"

From Law Dork, "Biden's marijuana moves: The good, the bad, and the ugly"

From Marijuana Moment, "Will Governors Issue Marijuana Pardons Following Biden’s Call To Action? Dozens Are Already Weighing In"

From Reason.com, "Biden's Marijuana Reforms Are Long Overdue but Will Have Just a Modest Impact"

From Yahoo! Entertainment, "Bill Maher High-Fives Biden for Marijuana Pardons: Pot-Smokers ‘Do Show Up to Vote’"

October 9, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Saturday, October 08, 2022

"The Problematic Structure of Indigent Defense Delivery"

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

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense.  In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems.  In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders.  In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal cases as quickly as possible.  Those incentives fuel mass incarceration, because the lawyers put less time into each case than their public defender counterparts and achieve poorer outcomes for their clients.  Moreover, empirical research shows that assigned-counsel and flat-fee contract systems are economically more costly to the public fisc than public defender systems.

This Article collects data from across the country to show how prevalent assigned-counsel and contract systems remain, explains why arguments in favor of substantial reliance on the private bar to provide for indigent defense are outdated, argues that more states need to move toward state-structured public defender models, and explains how it is politically possible for stakeholders to get there. 

October 8, 2022 in Data on sentencing, Who Sentences | Permalink | Comments (2)

Friday, October 07, 2022

In the wake of historic pardons, noticing the federal prison population keeps growing during the Biden years

As a matter of pardon practice and marijuana policy, President Joe Biden's actions yesterday (basics here and here) qualify as both historic and consequential.  But, because nobody receives significant federal prison time for just simple marijuana possession, his mass pardon has absolutely no direct impact on the federal prison population.  I suspect some persons imprisoned for marijuana trafficking might cite the pardons in compassionate release motions, but I doubt these pardons alone will significantly impact how judges thinking about compassionate release issues.

More broadly, the same day as this pardon announcement, I thought to check the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  As of October 6, 2022, the federal prison population clocks in at 158,949, which is the highest it has been since July 2020.   

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable recent realities about the the federal prison population (based on BOP data); there I highlighted that during Prez Trump's one term, the federal population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

The dramatic federal prison population drop in the Trump years was largely a function of the FIRST STEP Act and especially COVID dynamics.  So, with COVID disruptions easing, it should not be too surprising to see some growth in the federal prison population.  Still, over the course of 21 months, we have now had the federal prison population grow over 7,300 persons, which amounts to federal population growth of almost 5%.  So, while I am eager to celebrate Prez Biden for getting out his clemency pen, there is still plenty more work to do.

October 7, 2022 in Clemency and Pardons, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Thursday, October 06, 2022

A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana

As noted in this prior post, Prez Biden today granted a mass pardon to "all prior Federal offenses of simple possession of marijuana."  This official proclamation, titled "A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana," provides some who and how details:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have been convicted of the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights. 

My intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48–904.01(d)(1), and not any other offenses related to marijuana or other controlled substances.  No language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.  This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.

Pursuant to this proclamation, the Attorney General, acting through the Pardon Attorney, shall administer and effectuate the issuance of certificates of pardon to eligible applicants who have been charged or convicted for the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1).  The Attorney General, acting through the Pardon Attorney, is directed to develop and announce application procedures for certificates of pardon and to begin accepting applications in accordance with such procedures as soon as reasonably practicable.  The Attorney General, acting through the Pardon Attorney, shall review all properly submitted applications and shall issue certificates of pardon to eligible applicants in due course. 

Helpfully, the Justice Department's Office of the Pardon Attorney has this extended Q&A about the reach of the pardon proclamation, and here are some interesting parts:

Does the proclamation apply to convictions under state law?  

No. President Biden’s proclamation does not pardon convictions under state law, although it does apply to possession of marijuana convictions under the District of Columbia’s criminal code.  

Does the proclamation apply to all types of federal marijuana offenses?  

No. President Biden’s proclamation applies only to simple possession of marijuana offenses. Conspiracy, distribution, possession with intent to distribute, and other charges involving marijuana are not pardoned by the Proclamation.  

Do I qualify for a pardon if I was convicted under 21 U.S.C. § 844 of possessing marijuana and another drug in a single offense?  

No. The proclamation does not apply to persons who were convicted of possessing multiple different controlled substance in the same offense. For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation. If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.  

Does the proclamation apply to charges that are currently pending as of October 6, 2022? 

Yes. President Biden’s Proclamation applies if the qualifying offense occurred on or before October 6, 2022, even if a conviction has not been obtained by that date.  

Does the proclamation protect me from being charged with marijuana possession in the future? 

No. The proclamation pardons only those offenses occurring on or before October 6, 2022. It does not have any effect on marijuana possession offenses occurring after October 6, 2022. 

In various press reports, I keep seeing some version of this accounting of the impact from this ABC News piece:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

I presume that the US Pardon Attorney will keep detailed records of how many people end up acquiring certificates of pardon (though all these people have been pardoned, a certificate just serves as a way to get an official memorialization of that fact).  And I would love to see more details, now or later, about some of the demographics of the estimated population who got these pardons.  Someone has clearly run the numbers, though I suspect any accounting here is a bit of a guess and also lacks as much demographic information as might be really interesting.

UPDATE: Thanks to commentor atomicfrog, I just saw that the US Sentencing Commission has produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  The analysis merely details yearly convictions since 1992 with number of convictions of US citizens and lawful permanent residents.  The data is more than a bit inscrutable in part because there are three charts for which the relationship to each other is unclear and because of a note stating that "2,085 cases were excluded from the three analyses in this report due to missing information relating to citizenship."

Since these data are from the US Sentencing Commission, the data sets used for these analyses ought to have race and gender and age and criminal history information.  Perhaps in time the US Sentencing Commission or the White House will look to provide additional demographic information here.   Also, now seeing that the mid-1990s brought as many as 500 federal marijuana possession convictions per year, I suspect there were at least few thousand more prior relevant convictions not captured in these data but subject to coverage by the mass pardon from Prez Biden.  I am tempted to start saying that it looks like 10,000 or more pardons were actually announced by the President in this initiative.

October 6, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!

DownloadAbout a half hour ago as of this writing, President Joe Biden has announced a set of remarkable new marijuana policy moves on this Twitter thread, which starts this way:

President Biden @POTUS

As I’ve said before, no one should be in jail just for using or possessing marijuana.

Today, I’m taking steps to end our failed approach. Allow me to lay them out.

First: I’m pardoning all prior federal offenses of simple marijuana possession.  There are thousands of people who were previously convicted of simple possession who may be denied employment, housing, or educational opportunities as a result.  My pardon will remove this burden.

Second: I’m calling on governors to pardon simple state marijuana possession offenses.  Just as no one should be in a federal prison solely for possessing marijuana, no one should be in a local jail or state prison for that reason, either.

Third: We classify marijuana at the same level as heroin – and more serious than fentanyl.  It makes no sense.  I’m asking @SecBecerra and the Attorney General to initiate the process of reviewing how marijuana is scheduled under federal law.

This is very big news (though not quite massive news), with lots of formal and informal ripples for criminal justice systems and sentencing.  The legal, policy, political and practical consequences of these moves are going to be fascinating (and a bit unpredictable, I suspect).

Wow!

UPDATE: Here is a fuller official statement from the White House, with the federal pardon talk at the start:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana.  Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit.  Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities.  And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.
 
Today, I am announcing three steps that I am taking to end this failed approach.
 
First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.

According to this New York Times piece, headline "Biden Pardons Thousands of People Convicted of Marijuana Possession Under Federal Law"  the promised pardons have already been issued:

President Biden on Thursday pardoned all people convicted of marijuana possession under federal law and said his administration would review whether marijuana should still be a Class 1 drug like heroin and LSD.

The pardons will clear about 6,500 people who were convicted on federal charges of simple possession of marijuana from 1992 to 2021 and thousands more who were convicted of possession in the District of Columbia, officials said. Officials said the president would urge governors to follow his lead for people convicted on state charges of possession.

October 6, 2022 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (16)

Reminder on a call for papers for "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms"

As first flagged here a couple of months ago, the Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University are organizing a symposium titled “Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms.” The deadline for the new call for papers for this event is approaching, so I wanted to provide another link to the full call here and also report the basics:

The conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms (broadly defined, including clemency policy and criminal justice reform) and public safety (broadly defined, with an emphasis on violent and serious crime).  [The conference will take place at Arizona State University, Phoenix, AZ from March 14-16, 2022.]

Background

In 1996, California kicked off a new state-driven law reform era through a ballot initiative legalizing medical marijuana.  In subsequent decades, as dozens of states legalized marijuana use, various advocates, public officials, and researchers warned about the possibility of dire public safety consequences.  More drug crimes, more general criminality, more drugged driving, and all sorts of other public safety harms were often mentioned as the possible short- or long-term consequence of significant state-level marijuana reforms.

As of summer 2022, there are 37 states with robust medical marijuana regimes and 19 with full adult-use marijuana programs.  The continued support for state-level marijuana reforms seems to reflect, at least in part, the fact that so far, researchers have not documented direct connections between marijuana reforms and adverse public safety outcomes.  Though crime is a growing public concern given the rise in violent crimes in recent years, few advocates or researchers have documented clear connections or correlations between jurisdictions that have reformed their marijuana laws and increases in crimes.

As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local level, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities. As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication in Spring of 2024.

Though proposed papers can and should look to explore the relationship between drug reforms and public safety in any number of diverse ways, the conference organizers are particularly interested in explorations of the impact of: (a) legalization of medical and/or adult-use marijuana, (b) drug decriminalization efforts, and (c) back-end relief efforts (e.g., clemency) — on crime and violence, the enforcement of criminal laws, and the operation of criminal justice systems.

Deadlines and Length of Paper

A proposed abstract of no more than 300 words are due on October 17, 2022.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1@osu.edu.

Accepted researchers will be notified by November 18, 2022.

Participants should plan to have a full draft to discuss and circulate by March 1, 2023. Papers may range in length from 10,000 words to 25,000 words.

Final papers for publication will be due on August 1, 2023.

October 6, 2022 in Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Who Sentences | Permalink | Comments (0)

Wednesday, October 05, 2022

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

October 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

October 5, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"Expanded Criminal Defense Lawyering"

The title of this post is the title of this new article recently posted online and due to be published in the January 2023 issues of the Annual Review of Criminology. The article is authored by Ronald Wright and Jenny Roberts, and here is its abstract:

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work.  Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers.  Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints.  Over the decades, however, theoretical understandings of the defense attorney's work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act.  Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

October 5, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, October 04, 2022

Intriguing report on intriguing "equitable criminal sentencing technology" being formally adopted in Florida county

This local article out of Florida, headlined "Alachua County makes history with approval of equitable criminal sentencing technology," report on an interesting new development with some interesting sentencing technology. Here are the developments:

With the finalization of its budget Tuesday evening, Alachua County made the joint-effort of state attorney Brian Kramer and public defender Stacy Scott a historic reality: Florida’s Eighth Judicial Circuit will become Florida’s first judicial circuit to integrate equitable sentencing software as an official part of its case management system and plea-bargaining process. Roughly 95% of cases are settled in plea negotiations.

“We feel like this is an important step forward in trying to create more parity in our criminal justice system so that there aren’t these disparate sentences that exist today,” Scott said when she and Kramer presented the system to county commissioners Aug. 2.

Known as the Equity in Sentencing Analysis System (ESAS), this fairly new software provides legal practitioners with a searchable database of statewide sentencing data from the Florida Department of Corrections going back to 1998. It enables them to analyze past sentences that people with similar criminal backgrounds have received for similar crimes.

“That dataset is going to provide the lawyer things like the mean, the mode, the median,” Kramer told WUFT. “So that’s giving the lawyer data upon which to say, ‘OK, is this situation that I’m looking at, is it less serious than the average? Is it more serious than the average? And it gives them a starting point from which to develop a sentence that hopefully eliminates some of the inequities in the criminal justice system.”

Scott further reiterated this, adding that the sentencing data would allow for more honesty and consistency in plea negotiations, “instead of the way we’ve always done it, which is just sort of somebody’s gut feeling about what should happen.”

Its initial integration into the current system will cost Alachua County $73,000, followed by an annual subscription cost of roughly $23,000 for each office. But the software’s owner, Al Barlow, said he didn’t create it to make money. An attorney with 37 years of legal experience, Barlow was motivated by unfair sentencing he had encountered first-hand and presented the concept behind the sentencing analysis system to the Senate Judiciary Committee in 2017. He was looking to give the software to the state of Florida if the committee set him up with a programmer, but he didn’t receive the response he had hoped for. “They thought I was an alien. They kind of blew me off,” Barlow said. “I came back to Jacksonville, and I got with this programmer and another guy, and we built the software ourselves.”

And so his company, Technologies for Justice, was born along with his sentencing database. Barlow’s ensuing analysis, powered by this new software, showed him that the sentencing guideline system established by the Criminal Punishment Code in 1998 fails to ensure equitable sentencing across Florida. And he said ESAS could serve as a means to audit it....

Some attorneys, Scott and Kramer included, said ESAS is not the end-all-be-all. To them, it’s one of many factors worth considering when determining fair sentences. Still, Kramer saw something in Barlow’s software that other state attorneys haven’t acted on: the potential to combat intrinsic bias. “Does it eliminate bias? No, not at all, because you can’t eliminate bias,” Kramer said. “But what it would do is give us an unbiased starting point. And then we could work from there to try and make those adjustments upward or downward as appropriate.”

Until now, Florida prosecutors have almost entirely avoided this sentencing analysis system: Barlow said there was one other state attorney’s office that contacted him, piloted ESAS but ultimately never used it. Defense attorneys are generally the ones who use it to reduce sentences, according to a spokesperson for the Eighth Judicial Circuit.

Even among all Florida attorneys, the software isn’t well-known. Only 150 are currently registered to use it, with some others occasionally performing one-time searches, Barlow said. (Note that over 100,000 people are currently registered to practice law in Florida, according to the Florida Bar.) And he estimated two-thirds aren’t even aware of it.

Barlow also said software like ESAS doesn’t seem to exist outside of Florida. He said he receives calls from lawyers in Washington, New York, Seattle and all over the nation who are shocked to hear about such technology. “Florida is on the cusp of doing something very, very special,” Barlow said. “If it works half as good as we know it can, Gainesville will set a precedent for equitable sentences that the whole nation can follow.”

I have never previously heard of Equity in Sentencing Analysis System (ESAS) or Technologies for Justice, no doubt because it seems ESAS is a propriety technology that has not been widely used (or even widely known) in Florida. 

October 4, 2022 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Recapping lots of (little?) new criminal justice reforms in California

Late last week, California Gavin Newsom had a deadline to sign or veto a bunch of criminal justice reform bills.  This AP piece, headlined "Newsom has mixed verdict on California criminal justice laws," reports on some of the bill and choices made by Gov. Newsom:

California Gov. Gavin Newsom delivered a mixed verdict on more than three dozen criminal justice laws before his bill-signing deadline Friday, approving measures to seal criminal records and free dying inmates but denying bids to restrict solitary confinement and boost inmates’ wages.

Starting in July, one new law will give California what proponents call the nation’s most sweeping law to seal criminal records, though it excludes sex offenders. It will seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years, as well as records of arrests that don’t bring convictions, while former prison inmates convicted of serious felonies will be able to ask a judge to seal their records.

Backers estimate that 70 million Americans and 8 million Californians are hindered by old criminal convictions or records. They estimated the law could give more than a million Californians better access to jobs, housing and education. Newsom also approved related measures, one allowing record sealing and expungement even if former offenders still owe restitution and other court debt, and another making it easier to apply for certificates of rehabilitation....

Newsom also relaxed standards to allow more ill and dying inmates to be released from state prisons. The new law will allow inmates to be freed if they are permanently medically incapacitated or have a serious and advanced illness “with an end-of-life trajectory,” the standard used by the federal prison system. “It reduces incarceration costs, but more importantly, ensures there is a more humane and effective relief process for all people in California’s state prisons,” said Claudia Gonzalez of Root & Rebound, one of the reform groups that sought the measure....

He also expanded a 2020 law allowing suspects to allege they were harmed by racial bias in their criminal charges, convictions or sentences. The earlier law was limited to cases after Jan. 1, 2021. But this measure extends the safeguards to prior convictions.

Newsom, a Democrat who says he supports second chances and reducing incarceration, has had a mixed record on criminal justice bills. He has backed many reform efforts but in years past also vetoed other legislation he felt went too far or duplicated existing efforts. This year, he blocked a bill that would have made California the latest state to restrict segregated confinement in prisons and jails, as well as for the first time adding immigration detention facilities....

Newsom also vetoed one bill that would have given the state prison system five years to marginally boost the wages of inmates who usually earn just dollars a day, and a second bill that would have increased the “gate money” inmates are given upon their release from the current $200 to $1,300. The bills had survived even as lawmakers this year rejected a constitutional change that might have required much more compensation for inmate workers.

From another accounting, Daniel Nichanian has this Twitter thread on thread on "13 of the biggest [bills from California] and why they matter." Among the bills highlighted in that thread: "Gavin Newsom SIGNED a bill to make phone calls free from prison" and "Newsom SIGNED a bill that will 'vacate the death sentences of people who have become permanently incompetent'" and "Newsom SIGNED a bill to decriminalize jaywalking in California." 

Though I am inclined to call the record sealing bill "big" because of the number of people and families potentially impacted, the title of this post conveys my general sense that a lot of these reforms are fairly little.  But little does not mean unimportant, and it will be interesting to see if any of these reforms end up having major crime and punishment echoes.

October 4, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 03, 2022

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. HendrixNo. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

October 3, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, October 02, 2022

"State Constitutionalism and the Crisis of Excessive Punishment"

The title of this post is the title of this new article available via SSRN authored by Robert J. Smith, Zoe Robinson and Emily Hughes. Here is its abstract:

The institutional site of responsibility for America’s mass incarceration crisis represents one of the most important and undertheorized barriers to reducing excessive punishment in the United States.  While mass incarceration is frequently presented as an American crisis, with more that 113 million Americans impacted by the criminal justice system, this Article argues that mass incarceration is not a national issue, but instead a local issue.  Ninety percent of the people in America’s prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-seven individual U.S. states have an incarceration rate higher than any country other than the U.S. itself.  While there exists a growing popular and scholarly movement attempting to address the political intractability of mass incarceration, this Article argues that missing from the debate is the role of state courts and state constitutions.

Drawing on two burgeoning movements — the movement to end mass incarceration and the re-emerging significance of state constitutionalism — this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration.  The Article evaluates state courts’ quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment.  Motivated by recent developments in state courts, the Article highlights the growing support for, and potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis.  In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments that respects federal developments while also capturing the localism of criminal law and ultimately emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.

October 2, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Weekend round-up of stories from incarceration nation

Another busy week means another weekend effort to catch up with this round-up of links to a number of stories and commentaries concerning prison realities that caught my eye in recent days:

From the AP, "Alabama prisons reduce meals, nix visits amid inmate strike"

From Forbes, "First Appearance By Bureau Of Prisons Director Falls Shorts On Facts"

From The Guardian, "What’s Prison For? Concise diagnosis of a huge American problem"

From The Guardian, "‘Slavery by any name is wrong’: the push to end forced labor in prisons"

From the Marshall Project, "What an Alabama Prisoners’ Strike Tells Us About Prison Labor"

From NBC News, "Biden pledged to end solitary confinement. Federal prisons are increasing its use."

From the New York Times, "Justice Dept. to Seek Stiffer Sentences in Prisoner Abuse Cases"

From NPR, "What it's like serving a life sentence in prison with no chance of release"

From Scientific American, "Dementia in Prison Is Turning into an Epidemic: The U.S. Penal System Is Badly Unprepared"

From the Washington Post, "They’re in federal prison, and they’re done staying quiet"

October 2, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, September 30, 2022

"The Lost Right to Jury Trial in 'All' Criminal Prosecutions"

The title of this post is the title of this recent article available via SSRN authored by Andrea L. Roth. Here is its abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.”  Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less.  These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse.  This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace.

While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable.  Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions.  Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court.  The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

September 30, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (76)

Thursday, September 29, 2022

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

September 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Spotlighting again the decarceral success of the CARES Act

Because it is often so very easy to notice and spotlight government failings in the crime and punishment arena, it is nice to have opportunities to highlight government successes in this world.  So, though I have noted before the great data about the success of persons released from federal prison early under the CARES Act, I am happy to see Molly Gill talking up this data in this new Washington Post opinion piece headlined "Thousands were released from prison during covid. The results are shocking."  Here are excerpts:

We are keeping many people in prison even though they are no danger to the public, a jaw-dropping new statistic shows. That serves as proof that it’s time to rethink our incarceration policies for those with a low risk of reoffending.

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release....

The Cares Act policy teaches us that many of our prison sentences are unnecessarily lengthy. People who commit crimes should be held accountable, and that might include serious time in prison. Many of the people released to home confinement had years or even decades left to serve on their sentences. But they changed in prison and are no longer a danger to others, as the new data confirms.

Releases to home confinement were also focused on two groups of people who pose little to no risk to public safety: the elderly and the ill (i.e., those most likely to face serious covid complications). Study after study confirms that people become less likely to reoffend as they get older. America’s elderly prison population is growing rapidly, because of our use of lengthy prison terms.

People with serious chronic illnesses or physical disabilities are another group who can be safely released from long sentences. They are not dangerous, but their increased medical needs make them exponentially more expensive to incarcerate. Taxpayers aren’t getting much public safety bang for their buck when we incarcerate bedridden people.

The federal Cares Act home confinement program should inspire similar programs across the country. Virtually all states have programs available to release elderly or very sick people from prison, but they are hardly used and should be expanded. States should also give people serving the longest sentences a chance to go back to court after 10 or 15 years and prove that they have changed and can be safely released.

The data is in. It shows that we can thoughtfully release low-risk people from prison with supervision and not cause a new crime wave. At a time when crime is going up in so many cities and towns, we cannot afford to waste money or resources keeping those who no longer need to be in prison locked up.

Prior related posts:

September 29, 2022 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

New bill, Federal Prison Oversight Act, part of continued congressional push for federal prison oversight

As detailed in this AP article, a "bipartisan group of U.S. senators introduced legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons."  Here is more:

The bill, called the Federal Prison Oversight Act, would require the Justice Department to create a prisons ombudsman to field complaints about prison conditions, and would compel the department’s inspector general to evaluate risks and abuses at all 122 federal prison facilities.

The bill, sponsored by Sens. Jon Ossoff, D-Ga., Mike Braun, R-Ind., and Dick Durbin, D-Ill., is being introduced a day before Bureau of Prisons Director Colette Peters is scheduled to testify before the Senate Judiciary Committee, which Durbin chairs.

Ossoff, Braun and Durbin are three founding members of the Senate Bipartisan Prison Policy Working Group. The panel launched in February amid turmoil at the Bureau of Prisons, much of it uncovered by AP reporting, including rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and deaths. “It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight. The result has been catastrophic for both incarcerated people and staff.”

A companion bill in the House is sponsored by Reps. Kelly Armstrong, R-N.D. and Reps. Lucy McBath, D-Ga. Under the Federal Prison Oversight Act, the Justice Department’s inspector general would be required to conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The inspector general would also be required to report findings and recommendations to Congress and the public, and the Bureau of Prisons would then need to respond with a corrective action plan within 60 days. A prison ombudsman would be established to take complaints — via a secure hotline and online form — and investigate and report to the attorney general and Congress dangerous conditions affecting the health, safety, welfare and rights of inmates and staff....

The reforms have the backing of a wide array of groups involved in the federal prison system and across the political spectrum, including the correctional officers’ union, the inmate advocacy group Families Against Mandatory Minimums, the American Conservative Union and the Koch brothers-backed Americans for Prosperity....  Shane Fausey, the president of the Council of Prison Locals union, is also scheduled to testify Thursday, along with the former head of Pennsylvania’s state prison system, John Wetzel, and Cecilia Cardenas, a former federal inmate.

The folks at FAMM have this detailed summary of The Federal Prison Oversight Act of 2022.  Today's Senate Judiciary Committee hearing, "Oversight of the Federal Bureau of Prisons," can be followed at this link.  And Shanna Rifkin is live-tweeting the hearing starting with this tweet.

September 29, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, September 28, 2022

Spotlighting one Governor's notable clemency track record

The Guardian has this notable lengthy new piece, fully headlined "The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’; Kate Brown has granted more commutations or pardons than all of Oregon’s governor from the last 50 years combined."  I recommend the full piece, and here is how it starts:

Last October, Kate Brown, the governor of Oregon, signed an executive order granting clemency to 73 people who had committed crimes as juveniles, clearing a path for them to apply for parole.

The move marked the high point in a remarkable arc: as Brown approaches the end of her second term in January, she has granted commutations or pardons to 1,147 people – more than all of Oregon’s governors from the last 50 years combined.

The story of clemency in Oregon is one of major societal developments colliding: the pressure the Covid-19 pandemic put on the prison system and growing momentum for criminal justice reform.

It’s also a story of a governor’s personal convictions and how she came to embrace clemency as a tool for criminal justice reform and as an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“If you are confident that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” Brown said in a June interview.

September 28, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Voices from Within the Federal Bureau of Prisons: A System Designed to Silence and Dehumanize"

The title of this post is the title of this notable recent report from the nonprofits More Than Our Crimes and The Washington Lawyers Committee for Civil Rights and Urban Affairs. Here is part of the report's executive summary:

Prison walls are erected not only to keep people in, but to prevent the world from seeing the abuses of our carceral system.  The inhumanity of what happens behind bars, as is demonstrated by the accounts of incarcerated persons in this report, is deliberately hidden from view in faraway prisons surrounded by high walls and double fences of razor wire.  Few people other than those who are confined or work in prisons have a full view of how they operate.  Glimpses provided by litigation or a scandal are rare and transitory; sustained transparency is nonexistent. This opacity allows dehumanizing conditions to be sustained and grow worse.

The Federal Bureau of Prisons (FBOP) is comprised of 122 institutions, incarcerating more than 157,000 people, that are among the least transparent and accountable in the nation.  The violent, dehumanizing and dangerous conditions in FBOP prisons harm families and communities in every state; impacting the mothers, fathers, children and siblings who lose loved ones to this sprawling network....

Yet, despite this extremely problematic history, the FBOP operates with no real accountability. The Department of Justice (DOJ) Inspector General routinely lists “maintaining a safe, secure and humane prison system” as one of its top management challenges.  FBOP and prison leadership seem to be either unwilling or incapable of ensuring that even minimum standards are met.  As Sen. Dick Durban, chair of the Senate Judiciary Committee, noted, FBOP Director Michael Carvajal (since resigned) has “overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more.”

However, the overarching conclusion of this report is that reform cannot be achieved solely by replacing Director Carvajal with new blood.  The problems with the FBOP are cultural, entrenched and systemic, and independently enforced accountability must be the cornerstone of any serious attempt to change.  That cannot be achieved without replacing the current grievance procedure that incarcerated individuals must follow — which too often triggers retaliation as severe as physical abuse — with a process that is safe, reliable and fair.

September 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

September 28, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 26, 2022

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

September 26, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Spotlighting the ugly problems with incarceration deaths (and with data collection by the Justice Department)

Last week brought this notable bipartisan Senate report with a title that largely highlights its main points: "Uncounted Deaths in America’s Prisons & Jails: How the Department Of Justice Failed to Implement the Death In Custody Reporting Act."  Here is the report's "Executive Summary":

Approximately 1.5 million people are incarcerated in state and local correctional facilities throughout the United States.  Thousands die every year.  The Death in Custody Reporting Act of 2013 (“DCRA 2013” or “the reauthorization”) — reauthorizing a law that first passed in 2000 — requires states that accept certain federal funding to report to the Department of Justice (“DOJ” or “the Department”) about who is dying in prisons and jails.

Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the law, the Permanent Subcommittee on Investigations (“PSI” or “the Subcommittee”) found that DOJ is failing to effectively implement DCRA 2013.  DOJ’s failed implementation of DCRA 2013 undermined the effective, comprehensive, and accurate collection of custodial death data.

This failure in turn undermined transparency and Congressional oversight of deaths in custody.  The Subcommittee has found that DOJ will be at least eight years past-due in providing Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.  The Subcommittee also highlights the following key facts: in Fiscal Year (“FY”) 2021 alone, DOJ failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete.  DOJ failed to implement effective data collection methodology, despite internal warnings from the DOJ Office of the Inspector General (“OIG”) and the Bureau of Justice Statistics (BJS).  DOJ’s failures were preventable.

Here was just some of the media coverage from the release of this report and the associated hearing:

From The Marshall Project, "‘A Moral Disgrace’: How The U.S. Stopped Counting Deaths Behind Bars; The Department of Justice is failing miserably at collecting data on deaths. Experts say that makes it hard to identify the worst prisons and jails."

From NBC News, "Hundreds of prison and jail deaths go uncounted by the federal government, report finds; A Senate subcommittee hearing is focusing on how lawmakers say the Justice Department has "failed to implement" the Death in Custody Reporting Act.

From The Washington Post, "DOJ slammed by senators over poor reporting on deaths in custody"

September 26, 2022 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, September 25, 2022

Rounding up some notable justice coverage and commentary from Law360's Access to Justice

I find a lot of Law360 coverage and commentary to be blogworthy, but I also find a lot of it behind a paywall.  Fortunately, the Law360 folks have the good sense to keep its Access to Justice section open access.  And that section has had a number of recent pieces that ought to be of interest to sentencing fans:

"Access To Justice Cases To Watch This Supreme Court Term"

"Racial Disparities In State Imprisonment Continue To Decline"

"Mich. Ruling Widens Sentencing Protections For Young Adults"

"Algorithms Have Potential To Reduce Sentencing Disparities"

September 25, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, September 24, 2022

"Are progressive chief prosecutors effective in reducing prison use and cumulative racial/ethnic disadvantage? Evidence from Florida"

The title of this post is the title of this new article recently published in the journal Criminology & Public Policy and authored by Ojmarrh Mitchell, Daniela Oramas Mora, Tracey L. Sticco and Lyndsay N. Boggess. Here is its abstract:

Research Summary

Progressive chief prosecutors, campaigning on platforms calling for reducing prison populations and racial/ethnic disparities, have been elected in numerous jurisdictions across the United States in recent years.  Yet, there is no empirical research that compares case outcomes between jurisdictions headed by progressive and traditional chief prosecutors.  In this research, we utilize a cumulative case outcome approach that tracks cases from arrest to disposition to examine whether cases prosecuted under progressive chief prosecutors receive less punitive sanctions and exhibit smaller racial/ethnic disparities.  We find that cases adjudicated in progressive jurisdictions are more likely to end without a felony conviction and less likely to result in a prison sentence.  Racial but not generally ethnic disadvantage is evident in case outcomes, and racial disparities are smaller in jurisdictions led by progressive chief prosecutors.

Policy Implications

The election of progressive prosecutors is a radical departure from earlier approaches aimed at controlling prison populations and mitigating racial disparities.  Instead of restricting the discretion of criminal justice actors, voters are relying on progressive, reformist prosecutors to use their enormous discretion in less punitive and more egalitarian fashions.  This research indicates that progressive chief prosecutors do, in fact, reduce prison use and racial disparities.

September 24, 2022 in Race, Class, and Gender, Who Sentences | Permalink | Comments (19)

Friday, September 23, 2022

Brennan Center publishes new report on "The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward"

I was alerted via email this morning about this notable new Brennan Center report titled “The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward.”  I recommend the report in full, but the email I received usefully summarized the reports "recommendations to Congress and to the Department of Justice and its Bureau of Prisons to fulfill the First Step Act’s potential":

September 23, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Noticing notable aspect of SCOTUS vote on Alabama execution stay

The story of Alabama botched execution last night has many interesting elements, but this new Washington Examiner piece flags one (small) part of the story that ought not be overlooked.  The article, headlined "Barrett sides with liberal justices in opposition to halted Alabama execution," merits a full read for SCOTUS fans.  Here are excerpts:

Supreme Court Justice Amy Coney Barrett sided with the high court's three liberal justices on Thursday in dissenting a decision to allow the execution of an Alabama inmate, but the state called off the execution at the last minute....

In a 5-4 vote prior to the halted procedure, the Supreme Court ruled that the execution of Miller could move forward, lifting a lower court's injunction that had blocked his death by lethal injection. Barrett joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent....

Barrett has sided with the liberal justices in other death penalty cases.

In February 2021, Barrett sided with Sotomayor, Kagan, former Justice Stephen Breyer, and a justice who did not disclose his vote in a "shadow docket" case that blocked the execution of Alabama inmate Willie Smith....

In January 2022, Barrett once again sided with Sotomayor, Kagan, and Breyer in voting to block the execution of Alabama inmate Matthew Reeves, who was convicted of robbing and killing a tow truck driver in 1998.

However, Barrett has not exclusively voted against the death penalty in Supreme Court cases. She went against liberal justices in the March 2022 case that reinstated the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Though it may be pure coincidence, it seems Justice Barrett often has particular concerns with how Alabama is seeking to move forward with executions.  In almost all other capital cases, Justice Barrett seems to be a fairly predictable vote for the state. Indeed, Justice Barrett's first official SCOTUS vote in November 2020, as detailed here, had her joining with her five more conservative colleagues to lift a stay on a federal execution.

A range of distinct and complicated procedural issues attended the stay in this latest Alabama execution effort, and the SCOTUS order lifting the stay only notes the dissent without any explanation for any of the votes.  It will be interesting to see if this case or other capital cases will give us further clues on what issues are driving various votes in these kinds of matters.

September 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)