Saturday, August 14, 2021

Lots of deep thoughts for sentencing fans in Summer 2021 issue of New Criminal Law Review

The latest issue of the New Criminal Law Review is committed to "New Topics in Sentencing Theory."  Here are the articles in the issue:

"Editor’s IntroductionNew Topics in Sentencing Theory" by Jacob Bronsther

"Algorithmic Decision-Making When Humans Disagree on Ends" by Kiel Brennan-Marquez and Vincent Chiao

"The Limits of Retributivism" by Jacob Bronsther

"Prosecutor Mercy" by Lee Kovarsky

"After the CrimeRewarding Offenders’ Positive Post-Offense Conduct" by Paul H. Robinson and Muhammad Sarahne

"The Conventional Problem with Corporate Sentencing (and One Unconventional Solution)" by W. Robert Thomas

"Bringing People DownDegrading Treatment and Punishment" by John Vorhaus

August 14, 2021 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Thursday, August 12, 2021

Senators Durbin and Booker write to Prez Biden requesting "immediate action" to prevent home confinement cohort from facing return to prison

As detailed in this new Hill article, "two top Democrats on the Senate Judiciary Committee are calling on President Biden to quickly adopt a plan to keep thousands of federal inmates who were transferred to home confinement during the pandemic out of prison."  Here is more:

Sen. Dick Durbin (D-Ill.), the committee's chairman, and Sen. Cory Booker (D-N.J.), who chairs a subcommittee on criminal justice, are urging Biden in a letter sent to the White House on Thursday to use the "ample executive authority" at his disposal to ensure that those on home confinement are not sent back to prison.

"Given the breadth of available executive authority, no person who has successfully transitioned to home confinement should be required to return to federal prison," Durbin and Booker wrote in the letter, which was shared with The Hill.  "The uncertainty of the current situation unnecessarily interferes with the efforts of those on home confinement to rebuild their lives and participate in our economic recovery.  With the goal of facilitating successful community reentry, we urge you to act immediately to resolve this issue and enable those on release to move forward with their lives."

The full two-page letter is available at this link, and here are excerpts:

We respectfully request that your Administration take immediate action to ensure that thousands of individuals who have successfully transitioned to home confinement from federal prison during the pandemic are not returned to prison without cause.  Your Administration has ample executive authority to immediately provide the certainty these returning citizens deserve as they reintegrate into their communities, reunite with their families, and join in rebuilding our economy....

On January 15, 2021, in the last days of the Trump Administration, the Department of Justice Office of Legal Counsel issued a memorandum opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (“OLC opinion”).  The OLC opinion incorrectly found that following the emergency period of the pandemic, BOP must recall federal inmates released to home confinement pursuant to the CARES Act and require these inmates to complete their sentences at BOP facilities. In fact, the CARES Act does not require or permit BOP to recall these prisoners.

On April 23, 2021, we asked Attorney General Garland to rescind the OLC opinion, and are awaiting his response.  However, the opinion does not prevent you from acting. We urge you to use your unfettered pardon power to immediately commute the sentences of those on home confinement pursuant to the CARES Act.  These individuals, who were released only after careful vetting by BOP, have successfully transitioned to home confinement.  They have reunited with family, obtained jobs, and are abiding by the conditions of their release.

Additional executive authorities are also available. BOP can provide relief for certain individuals through prerelease home confinement, under 18 U.S.C. § 3624(c)(2), and the Elderly Home Detention Pilot Program, pursuant to 34 U.S.C. § 60541(g). For those who do not qualify for those provisions, BOP can recommend, and DOJ should support, compassionate release pursuant to 18 U.S.C. 3582(c)(1)(A).  Compassionate release is authorized whenever extraordinary and compelling reasons warrant a sentence reduction, and the once-in-a-century global pandemic that led to these home confinement placements certainly constitutes such an extraordinary and compelling circumstance.

Some of many prior related posts:

August 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another round of terrific essays at new Inquest website

I am at risk of sounding like a broken record here as I keep blogging about the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  But even though I have already flagged nearly a dozen of the great essays that were at the site before this week, I still feel compelled to add this post to spotlight these three more must-reads added this week:

From Charles Fried, "A Failure of the Imagination: Like torture and the death penalty, mass incarceration is life-destroying. And indefensible."

From Darcy Covert & A.J. Wang, "A Most Carceral Friend: The Justice Department’s top Supreme Court lawyer is far more committed to helping prosecutors win convictions and keep people locked up than to 'doing justice'."

From Colin Doyle, "The Feature Is the Bug: For all the criticism they get, algorithms can be unlikely allies in exposing deep, structural injustices that entrench mass incarceration."

August 12, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, August 11, 2021

Part 3 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20282e1172fad200b-320wiIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the third and final post of this set (following the first and second).

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In two previous blogs about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I described its thesis that risk assessment instruments (RAIs) can reduce incarceration in a cost-effective manner, and the “jurisprudence of risk” it advances that aims to ensure accurate and fair instruments that, among other things, avoid racially disparate outcomes.  To take full advantage of risk assessment’s potential for curbing incarceration and rationalizing sentencing, however, we must also rethink our current punishment regime, which is another goal of the book.

In the past 50 years, a large number of states have moved away from indeterminate sentences controlled by parole boards toward determinate sentencing, which shifts power to prosecutors who can now essentially dictate the sentence received after trial through the charging decision.  Most of the states that have not adopted determinate sentencing have effectively gone in the same direction by significantly circumscribing the authority of parole boards to make release decisions.  These changes were understandable, given the dispositional disparities that occurred with indeterminate sentencing, the checkered history of parole boards, and the difficulty of assessing risk and rehabilitative potential.

With the advent of more accurate and objective predictive algorithms, however, indeterminate sentencing should be given a second chance. More specifically, while judges should still impose a sentence range that is determined by desert, risk-needs algorithms should be instrumental in determining whether offenders who are imprisoned stay there beyond the minimum term of that sentence.  Sentencing would no longer be based on convoluted front-end calculations which attempt to divine the precise culpability of the offender, tempered or enhanced by the prosecutor’s or the judge’s speculative intuitions about deterrence, risk or rehabilitative goals.  Rather, after the judge imposes the retributively-defined sentence range based on the charge of conviction, offenders would serve the minimum sentence (which for misdemeanors and lower level felonies may not involve prison), and only be subject to prolonged restraint if they are determined to be high risk via a validated RAI.  In this form of limiting retributivism, desert would set the range of the sentence, risk its nature and duration.

With this type of sentencing system, not only will the arbitrariness of the old parole-driven scheme be reduced, but the power structure within the criminal justice system will be profitably re-oriented.  Today, the plea bargaining process allows prosecutors to threaten draconian sentences that bludgeon defendants, even innocent ones, into accepting convictions without trial.  If, instead, post-trial dispositions within the sentence range depend on a parole board’s determination of risks and needs, the ultimate disposition after a trial will be unknowable, and prosecutorial bargaining power inevitably would be reduced. Defendants can turn down prosecutorial offers with virtual impunity if they are considered low risk.  And even high risk defendants might want to roll the dice with the parole board. Innocent people would be much less likely to plead guilty, and guilty people would be much less likely to acquiesce to harshly punitive bargains.  The prosecutor’s main leverage will come from offers of reduced charges or alternatives to prison, because with parole boards controlling release, threats to recommend the maximum sentence to the judge will be meaningless.

These proposals may appear to be radical. But in fact they merely reinstate a version of the sentencing regimes that existed in much of this country before the middle of the twentieth century, when dispositions were more flexible and plea bargaining and guilty pleas were less dominant.  At the same time, a key difference in these proposals, and the primary reason rejuvenating indeterminate sentencing is justifiable, is the reliance on risk assessment algorithms.  Without them, judges and parole boards are simply guessing about dangerousness, and their default judgment — absent heroic efforts to resist public pressure and normal human risk-averseness — will be to find that offenders pose a high risk of reoffending.  With them — and assuming their results are treated as presumptive — judges who refuse to imprison an offender and parole boards that make a release decision can point to known base rates (which, in the case of violent crime, are very low) and can blame the algorithm if things go awry.

The overarching hypothesis of this book is this: Whether implemented prior to trial in lieu of the bail system, or post-conviction in lieu of unstructured predictive decision-making, just algorithms can be a central component of any effort to reduce the human and financial cost of incarceration, without sacrificing public safety.  That hypothesis may be wrong, but it is worth a fair test.  Because when developed and used in a manner consistent with a coherent jurisprudence of risk, algorithms could be the single most potent mechanism we have for bringing about real reform of the American criminal justice system.

I want to thank Doug Berman again for letting me describe my book on his Sentencing Law & Policy Blog.

August 11, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"The Case for Pattern-and-Practice Investigations Against District Attorney’s Offices"

The title of this post is the title of this new article authored by Rory Fleming.  Here is its abstract:

Prosecutorial misconduct is a serious issue and one that is notoriously hard to combat.  Frustrated with the inaction from state bars, reformers have embraced alternative accountability strategies, such as prosecutor elections and civilian review boards.  Another tool for additional accountability is the pattern-and-practice investigation under 42 U.S.C. § 14141.  Frequently used as a federal intervention tool against errant police departments, the statute has only been used the local prosecutor context once.  Even so, it has untapped potential as a tool to make consistently high-problem local prosecutor's offices comply with their ethical duties under the rules in Brady, Batson, and other Supreme Court decisions.  Upon finding that the evidentiary threshold of a pattern of practice of constitutional violations has been met, the Justice Department can negotiate a settlement agreement that legally binds the local prosecutor's office to take action to ameliorate the issues leading to the status quo.  Several factors, such as a local prosecutor's jurisdiction experiencing a particularly high number of reversals due to misconduct and striking a particularly high number of minorities during voir dire, should inform DOJ's priorities, if it decides to act. 

August 11, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, August 10, 2021

Democratic Senators praise AG Garland's capital moratorium and urge additional steps

As reported in this Hill article, a group of 17 Democratic Senators sent a notable letter to AG Garland this week in which they "voiced their approval of Garland's decision to issue a moratorium on federal executions while the Department of Justice reviews policies and procedures."  This letter is available at this link, and it begins this way:

We commend you for your recent decisions to impose a moratorium on federal executions pending a review of death penalty policies and procedures and to withdraw several notices of intent to seek the death penalty that the Justice Department filed during the Trump Administration.  These are important steps toward ending the injustice of the death penalty.  We urge you to take the additional steps of withdrawing all pending death notices, and authorizing no new death notices, while your review proceeds.

As your memorandum announcing the moratorium recognizes, there are serious concerns about arbitrariness in the application of the death penalty, its disparate impact on people of color, and the alarming number of exonerations in capital cases.  These concerns justify not only a review of the procedures for carrying out the death penalty, but also support halting its use — including prohibiting federal prosecutors from seeking the death penalty — during the review process.

August 10, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Earned time credits set up by FIRST STEP Act subject to notable litigation

Though easily forgotten with all the COVID era issues and concerns, one the biggest and potentially most consequential elements of the FIRST STEP Act was its creation of a system of "earned time credits."   This part of the Act would enable certain inmates under certain circumstances to earn increased time in pre-release custody (i.e., to move from prison to a halfway house and/or home confinement).  I recall thinking at the time of FIRST STEP enactment that a robust approach to "earned time" could prove to be very consequential for incarcerated individuals while a limited approach to "earned time" could significantly reduce its potential and importance.  Against that backdrop, I am not surprised to see this new Reuters piece headlined "U.S. Justice Dept clashes with inmates over credits to shave prison time."  Here are basics:

The U.S. Justice Department asked a judge on Tuesday to deny a bid by four low-level federal inmates to qualify for early release under a new criminal justice reform law that allows shortened prison terms through recidivism-reduction programs.

In the U.S. District Court in Oregon, federal prosecutors said no program or activity the inmates took part in qualify for earned time credits. The inmates' public defender and some lawmakers have said the Bureau of Prisons' (BOP) criteria are too strict....

At issue is a provision from the 2018 First Step Act, which aims to ease harsh sentencing for non-violent offenders and reduce recidivism. The BOP may award 10 or 15 days' credit for every 30 days of participation in recidivism-reduction or activities such as academic classes or certain prison jobs. In a January 2020 proposal, the BOP defined a day of participation as 8 hours and limited the menu of qualifying programs.

"The math speaks for itself," federal defenders wrote in a January 2021 letter to BOP. "It would take 219 weeks, or over 4 years to earn a full year of credit under the BOP's proposed rule."

In Tuesday's case, lead plaintiff Adrian Cazares is serving a 71-month sentence for cocaine importation. He has held prison jobs such as a painter and an HVAC worker, and completed courses such as anger management, entrepreneurship, and a residential drug abuse program. None of those are on the BOP's approved list, prosecutors said.

"If HVAC work doesn't qualify, what kinds of jobs do?" asked Magistrate Judge John Acosta, noting the program's goal of reducing recidivism and facilitating reintegration into society.

"The ones that are identified by the Bureau of Prisons," federal prosecutor Jared Hager replied, noting the inmates have "not shown entitlement to any credit." The list of qualifying programs and activities will be updated by Attorney General Merrick Garland, he added.

A few prior related posts:

August 10, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, August 09, 2021

Guest post: another critical look at provocative paper claiming to identify the "most discriminatory" federal sentencing judges

Guest-Posting-ServiceI expressed concerns in this recent post about a new empirical paper making claims regarding the "most discriminatory" federal sentencing judges.  Upon seeing this Twitter thread by Prof. Jonah Gelbach about the work, I asked the good professor if he might turn his thread into a guest post. He obliged with this impressive essay:

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This post will comment on the preprint of The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants, by Christian Michael Smith, Nicholas Goldrosen, Maria-Veronica Ciocanel, Rebecca Santorella, Chad M. Topaz, and Shilad Sen.  Doug Berman blogged about it here, and I’m grateful to him for the opportunity to publish this post here.

As I explained in a Twitter thread over the weekend, I have serious concerns about the study.  The most important concerns I raised in that thread fall into the following categories:

  1. Incomplete data
  2. Endogeneity of included regressors
  3. Small numbers of observations per judge
  4. Use of most extreme judge-specific disparity estimates

I’ll take these in turn.

(1) Incomplete Data.  It’s complicated to explain the data, whose construction involve merging multiple large data sets.  In fact, a subset of the authors have a whole other paper about data construction.  In brief, the data are constructed by linking US Sentencing Commission data files to those in the Federal Judicial Center’s Integrated Data Base, which gives them enough to form docket numbers. They then use the Free Law Project’s Juriscraper tool (https://free.law/projects/juriscraper/) to query PACER, which yields dockets with attached judges’ initials for most cases that merged earlier in the authors’ pipeline.  The authors use those initials to identify the judge they believe handled sentencing, using public lists of judges by district.

As involved as the data construction is, my primary concern is simple: the share of cases included in the data set the authors use is very low.  For 2001-2018, there were 1.27 million sentences in USSC data and 1.46 million in FJC data (these figures come from the data-construction paper, which is why they apply to the 2001-2018 period rather than the 2006-2019 period used in the estimation of “Most Discriminatory” judges).  Of these records, the authors were able to match 860k sentences, of which they matched 809k to dockets via Juriscraper.  After using initials to match judges, they have 596k cases they think are matched.  That’s a match rate of less than 50% based on the USSC data and barely 40% based on the FJC data.  The authors can’t tell us much about the characteristics of missing cases, and it’s clear to me from reading the newer paper that the match rate varies substantially across districts.

I think this much alone is enough to make it irresponsible to report estimates that purport to measure individually named judges’ degrees of discrimination.  As a thought experiment, suppose that (i) the authors have half the data, and (ii) if they were able to include the other half of the data they would find that there was no meaningful judge-level variation in estimated racial disparities in sentencing.  By construction, that would render any discussion of the “Most Discriminatory” judges pointless.  Because the authors can’t explain why cases are missed, they have no way to rule out even such an extreme possibility.  Nor do they determine what share of cases they miss for any judge in the data, because they have no measure of the denominator (perhaps they could do this with Westlaw or similar searches for some individual judges).  Their approach to the issue of missing data is to simply assume that missing cases are missing at random:

“One unknown potential source of error is that we cannot determine what percentage of each judge’s cases were matched in the JUSTFAIR database. If this missingness is as-if random with respect to sentencing variables of interest, that should not bias our results, but we have little way of determining this.” (Pages 18-19, emphasis added.)

I believe it is irresponsible to name individual judges as “The Most Discriminatory” on the basis of data as incomplete as these.

(2) Endogeneity.  The authors include as controls in their model each defendant’s guideline-minimum sentence, variables accounting for the type of charge, & various defendant characteristics.  They argue that these variables are enough to deal not only with the enormous amount of missing data (with unknown selection mechanism; see above) but also any concerns that would arise even if all cases were available.  As Doug Berman previously noted here, if prosecutors offer plea deals of differing generosity to defendants of different races, then the guideline minimum doesn’t account for heterogeneity in cases.  And note that if that happens in general, it’s a problem for all the model’s estimates. In other words, even if the particular mechanism Doug hypothesized (sweet plea deals for Black defendants in the EDPA) doesn’t hold, the whole model is suspect if the guidelines variable is substantially endogenous.

There are other endogeneity concerns, e.g., the study includes as regressors variables that capture reasons why a sentence departed from the guidelines — an outcome that is itself partly a function of the sentence whose (transformed) value is on the left hand side of the model.  And as a friend suggested to me after I posted my Twitter thread, the listed charges are often the result of plea bargains, whose consummation can be expected to depend on the expected sentence.  So the guideline minimum variable, too, is potentially endogenous.

(3) Small numbers of observations per judge. The primary estimates on which the claim about particular judges’ putative discriminatory sentencing are based are what are known as random effect coefficients on race dummies.  It’s lengthy to explain all the machinery here, but I’ll take a crack at a simplified description.

The key model output on which the authors make their “Most Discriminatory” designations are judge-level estimated Black-White disparities (the same type of analysis applies for Hispanic-White disparity).  Very roughly speaking, you can think of the estimated disparity for Judge J as an average of two things: (i) the overall observed Black-White disparity across all judges — call this the “overall disparity”, and (ii) the average disparity in the subset of cases in which Judge J did the sentencing — call this the “judge-specific raw disparity”.

For example, suppose that over all defendants, the average (transformed) sentence is 9% longer among Black defendants than among White ones; then the overall disparity would be 9%.  Now suppose that among defendants assigned to Judge J, average sentences were 20% longer for Black than White defendants; then the judge-specific raw disparity would be 20%.

The judge-level estimated disparity that results from the kind of model the authors use is a weighted average of the overall disparity and the judge-specific raw disparity. So in our example, the estimated disparity for Judge J would be a weighted average of 9% (overall disparity) and 20% (judge-specific raw disparity).  What are the weights used to form this average?  They depend on the variance across judges in the true judge-specific disparity and the “residual” variance of individual sentences — the variance that is unassociated with factors that the model indicates help explain variation in sentences.

The greater the residual variance, the less weight will be put on the judge-specific raw disparity.  This is what’s known as the “shrinkage” property of mixed models — they shrink the weight placed on judge-specific raw disparities in order to reduce the noisiness of the model’s estimated disparity for each judge. (I noted this property in a follow-up tweet to part of my thread.)

However, all else equal, greater residual variance also means that variation in judge-specific raw disparities will be more driven by randomness in the composition of judges’ caseload. Because these raw disparities contribute to the model-estimated disparity, residual variance creates a luck-of-the-draw effect in the mode estimates: a judge who happens to have been assigned 40 Black defendants convicted of very serious offenses and 40 White defendants convicted of less serious ones will have a high raw disparity due to this luck factor, and that will be transmitted to the model’s estimate disparity.

How important this effect of residual variance is context-sensitive. The key relevant factors are likely to be the numbers of cases assigned to each judge for each racial group and the size of residual variance relative to the size of variance across judges in true judge-level disparities.

As I wrote in my Twitter thread, I used the authors’ posted code and data to determine that Hon. C. Darnell Jones II, the judge named by the authors as the “Most Discriminatory”, had a total of 103 cases with Black (non-Hispanic) defendants, 37 cases with Hispanic defendants, and 67 with White defendants. Hon. Timothy J. Savage, the judge named as the second “Most Discriminatory”, sentenced 155 Black (non-Hispanic) defendants included in the estimation, 58 Hispanic defendants, and 93 White defendants.  These don’t strike me as very large numbers of observations, which is another way of saying that I’m concerned residual variance may play a substantial role in driving the model-estimated disparities for these judges.

My replication of the authors’ model shows that true judge-specific disparities in the treatment of Blacks and Whites have an estimated variance of 0.055, whereas the estimated residual variance is nearly 30 times higher — 1.59 for a single defendant.  For a judge who sentenced 40 Black and 40 White defendants, this would mean that residual variance would be 2(1.59)/40~0.08 — which is larger than the 0.055 estimated variance in true judge-level disparity.  It’s more complicated to assess the pattern for judges with different numbers of defendants by race, but I would not be surprised if the residual variance component is roughly the same size as the variance in judge-level effects.

In other words, even given the effect of shrinkage, I suspect that “bad luck” in terms of the draw of defendants might well be quite important in driving the judge-specific estimates the authors provide. Even leaving aside the missing-data problem, I think that makes the authors’ choice to name individual judges as “Most Discriminatory” problematic.

Another issue is that the judge-specific estimated disparity (remember, this is the model’s output, formed by taking the weighted average of overall and judge-specific raw disparities) is itself only an estimate, and thus a random variable.  Thus if one picked a judge at random from the authors’ data, it would be inappropriate to assume that the estimated disparity for that judge was the true value. To compare the judge-specific estimated disparity to other judges’ estimated disparities, or to some absolute standard, would require one to take into account the randomness in estimated disparity.  The authors do not report any such estimates.  Nor does the replication code they posted along with their data indicate that they calculated standard errors of the judge-specific estimated disparities.  There is no indication that I can find in either the code or the paper that they investigated this issue before posting their preprint.

(4) The many-draws problem.  Consider a simple coin toss experiment.  We take a fair coin and flip it 150 times. Roughly 98% of the time, this experiment will yield a heads share of 41.6% or greater (in other words, 41.6% is the approximate 2nd percentile for a fair coin flipped 150 times).  So if we flipped a fair coin once, it would be quite surprising to observe a heads share of 41.6% or lower.  But now imagine we take 760 fair coins and flip each of them 150 times. Common sense suggests it would be a lot less surprising to observe some really low heads shares, because we’re repeating the experiment many times.

To illustrate this point, I used a computer to do a simulation of exactly the just-described experiment — 760 fair coins each flipped 150 times. In this single meta-experiment I found that there were 13 “coins” with heads shares of less than 41.6%, just under two percent of the 760 “coins”, roughly as expected.  Given that we know all 760 “coins” are fair, it would make no sense to say that “the most biased coin is coin number 561”, even though in my meta-experiment it had the lowest heads share (36.7%, more than 3 standard deviations below the mean).  We know the coin is fair; it’s just that we did 760 multi-toss experiments, and with that much randomness we’re going to see some things that would be very unlikely with only one experiment.

Leaving aside differences across judges in the number of cases heard, this is not that different from what the authors’ approach entails.  If all judges had the same number of sentences, then they’d all have the same weights on their raw disparities, and so differences across judges would be entirely due to variation in those raw disparities.  If the residual variance component of these raw disparities is substantial (see above), then computing judge-specific model-estimated disparities for each of 760 judges would involve an important component related to idiosyncratic variation.  Taking the most extreme out of 760 model-estimated disparities is a lot like focusing on “coin” number 561 in my illustrative experiment above.

Another way to say this is that even if there were zero judge-specific disparity — even if all judges were perfectly fair — we might not be surprised to see substantial variation in the authors’ model-estimated disparities.

Now, it’s not really the case that all judges gave the same number of sentences, so there’s definitely some heterogeneity due to shrinkage as discussed above, which complicates the simpler picture I just painted for illustrative purposes.  But I suspect there is still a nontrivial “many-tosses problem” here.  Note that this is really an instance of a problem sometimes referred to as “multiple testing” in various statistics literatures; as responders to my Twitter thread noted, one place it comes up is in attempts to measure teachers’ value added in education research, and another is in ranking hospitals and/or physicians.  In other words, this isn’t a problem I’ve made up or newly discovered.

* * *

In sum, I think the paper has several serious problems.  I do not think anyone should use its reported findings as a basis for deciding which judges are discriminatory, or how much.  This is as true for people who lack confidence in the fairness of the system as for any people who doubt there is discrimination.  In other words, the criticisms I offer do not require one to believe federal criminal sentencing is pure and fair.  These criticisms are about the quality of the data and the analysis.

I want to make one final point, as I did in my Twitter thread.  Like the authors of the study, I believe that PACER should be made available to researchers.  Indeed, I recently have written a whole paper taking that position.  But I am very concerned about the impact of their work on that prospect.  The work involves problematic methods and choices and then calls out individual judges for shaming.  In my experience there’s nontrivial opposition to data openness within the federal judiciary, and I fear this paper will only harden it.

August 9, 2021 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (14)

Is it problematic for sentencing judges to require the COVID vaccine as a probation condition?

The question in the title of this post is prompted by this new New York Times article headlined "Get a Covid-19 Vaccine or Face Prison, Judges Order in Probation Cases." Here are excerpts:

As cases of coronavirus infections rise in Ohio, some judges have attached unusual conditions for those released on probation: Get a Covid-19 vaccine or face being sent to prison.

On Aug. 4, Judge Christopher A. Wagner of the Court of Common Pleas in Hamilton County told Brandon Rutherford, who was convicted on drug offenses, that as part of his release on “community control,” or probation, he must receive the vaccination within 60 days.

“I’m just a judge, not a doctor, but I think the vaccine’s a lot safer than fentanyl, which is what you had in your pocket,” the judge told Mr. Rutherford, 21, according to a transcript provided by the judge’s office on Monday. “I’m going to order you, within the next two months, to get a vaccine and show that to the probation office,” the judge said. “You violate, you could go to prison.”

On June 22, another Court of Common Pleas judge, Richard A. Frye in Franklin County, gave Sylvaun Latham, who had pleaded guilty to drugs and firearms offenses, up to 30 days to receive the vaccination, according to court records. If Mr. Latham violated that condition and others, he could go to prison for 36 months. Mr. Latham agreed to be vaccinated, the records show.

The sentences were a unique breakthrough in the public health debate taking place in the United States about how civil liberties intersect with mask and vaccination mandates. The judges’ decisions go to the heart of how personal freedoms are being examined through the lens of public health in a pandemic. David J. Carey, the deputy legal director of the American Civil Liberties Union of Ohio, said he saw no “clear cut” violation of civil rights.

“It is a potentially murky area,” he said. “There is certainly a legitimate concern around ordering someone to do something that pertains to their bodily autonomy. They need to have a compelling reason to have to do so.”...

Asked about his decision, Judge Frye said in an email on Monday that he had issued vaccine orders three times so far, and none of the defendants raised medical or religious objections. “Ohio law allows judges to impose reasonable conditions of probation, intended to rehabilitate the defendant and protect the community,” Judge Frye said. He said that, based on medical evidence, the vaccination would protect others and keep those on probation safer as they search for or keep jobs.

Sharona Hoffman, a professor and co-director of the Law-Medicine Center at Case Western Reserve University’s School of Law, said it was unusual to pair sentencing with the vaccine. “Judges get creative in order to keep people out of jail,” she said. “They impose all sorts of sentences and, again, this is to the benefit of the person. And if you are going to be out in the community, you can’t run around infecting people with Covid.”

In some states, such as Georgia, judges have offered reduced sentences if defendants get vaccinated, WSB-TV in Atlanta reports. Early this year, prisoners in Massachusetts were offered the possibility of reduced prison sentences for receiving the vaccine, but the decision was later rescinded....

Judge Wagner, in response to questions on Monday, said in an email that “judges make decisions regularly regarding a defendant’s physical and mental health, such as ordering drug, alcohol, and mental health treatment.” He added that Mr. Rutherford was in possession of fentanyl, “which is deadlier than the vaccine and COVID 19.”

August 9, 2021 in Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (2)

Tale of two sentencings highlights disparity and need for for better data

This lengthy new article from Cleveland.com spotlights a local example of sentencing disparity and highlights how this tale contributes to calls for statewide data-focused reforms.  The headline of the article provides a preview: "White woman who stole $250K gets probation, while Black woman who stole $40K goes to jail.  Disparate sentences spark calls for reform."  Here is how the article gets started:

Two Cuyahoga County Common Pleas Court judges doled out disparate sentences this week to women who stole public money in separate cases, reigniting calls to create a statewide sentencing database to ensure judges mete out fair punishments.

A white woman stole nearly $250,000 from the village of Chagrin Falls.  Judge Hollie Gallagher sentenced her on Monday to two years of probation.  A Black woman who stole $40,000 from Maple Heights City Schools went before Judge Rick Bell, who sentenced her Tuesday to 18 months in prison.

Leaders of Black faith organizations, labor organizations, current and former judges and social activist groups all told cleveland.com and The Plain Dealer that the stark difference between the sentences damaged the credibility of the criminal justice system and reinforced the sentiment that judges disproportionately punish people of color or those without means.

All of the leaders called on Cuyahoga County’s judges and judges around the state to join an Ohio Supreme Court pilot project that would create a public database to make transparent how judges sentence defendants and provide guardrails on judicial discretion that often results in unequal justice.  Only 10 of Cuyahoga County Common Pleas Court’s 34 judges have said they plan to sign on to the program. Six of those judges are in their first term on the bench.

“It’s kind of hard to figure how you can end up with results that are so different for similar kinds of actions,” former longtime Cleveland Municipal Court Judge Ronald Adrine said.  “Cases like these point out the need for the system to do a better job of reviewing the data because there’s lots of disparity between the way that people of color and white people are treated. But it doesn’t get captured because nobody’s really looking.”

Ohio Supreme Court Justice Michael Donnelly, who spent 14 years on the Cuyahoga County Common Pleas bench before ascending to the state’s highest court in 2019, and 8th District Court of Appeals Judge Sean Gallagher said the adoption of the database would move the state closer to identifying and correcting issues that contribute to disparities in sentencing.  “Are we satisfied with a system that would allow for two extremely different results like this?” Donnelly asked.  “Is that good policy? Does it make the community more safe, when our sentencing laws allow for that disparity? We need to ask that question in Ohio.”

Both judges said that, while judicial discretion is important, the reaction to this week’s differing sentences shows the state needs to do more to ensure that judges punish people who commit similar crimes more equally.  “If there isn’t faith in the justice system that you’re going to get a fair shake, then that’s the biggest indictment against keeping the things the way they are,” Gallagher said.

A few prior related posts:

August 9, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, August 08, 2021

Part 2 of Prof Slobogin discussing Just Algorithms

6a00d83451574769e20224df387165200bIn this recent post, I explained that I asked Prof Christopher Slobogin to share in a set of guest posts some key ideas from his new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk.  Here is the second of the set.

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In a previous blog post on my new book Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press), I made the case for using risk assessments instruments (RAIs) in the pretrial and post-conviction process as a means of reducing incarceration through providing more accurate and cost-effective assessments of the risk of reoffending.  But not all risk assessment instruments are created equal.  Although algorithms, on average, are superior to unstructured judgment when it comes to prediction, many are seriously defective in a number of respects.  A major goal of my book is to provide a set of principles meant to govern the development of these instruments and to guide judges and other criminal justice actors in determining which measures to use and for what purposes.  Influenced by insights gleaned from the algorithms themselves, it advances, in short, a much-needed “jurisprudence of risk” analogous to the jurisprudence of criminal liability that has long governed the definition of crimes and the scope of punishment.

The first part of the book’s title points to one important aspect of this jurisprudence.  If the recommendations in this book are followed, the usual approach taken by legal decision-makers — which is to treat the algorithmic forecast as simply one factor relevant to risk assessment — would generally be impermissible.  “Adjusting” the results of a well-validated RAI, based on instincts and experience, defeats the purpose of using an RAI, especially when the decision-makers’ intuition about risk is based on factors that have already been considered in the tool.  Incorporating human judgment into the risk assessment will usually make matters worse when the RAI meets the basic requirements outlined in this book.  This notion is one meaning — the literal one — of “Just Algorithms.”

The second meaning of that title is even more important.  Properly cabined, predictive algorithms can be just.  Numerous writers have argued to the contrary, pointing in particular to racial disparities among those who are identified as high risk.  But even if such disparities do exist, they do not necessarily make risk algorithms unjust.  This book takes the position that the fairest approach to evaluating risk is to treat people who are of equal risk equally.  The primary goal of an RAI should be to identify accurately those who are high risk and those who are low risk, regardless of color, even if that means that a greater percentage of people of color are identified as high risk.  At the same time, it must be recognized that assessments of risk may be inaccurate if the influence of racialized policing and prosecutorial practices on the validity of assessment instruments is not taken into account.

Another, related complaint about predictive algorithms — one that has special salience at sentencing and other post-conviction settings — is that punishment should never be based on conduct that has not yet occurred, both given the uncertainty of prediction and its insult to human dignity and autonomy.  The point this book makes on this score is, again, a comparative one.  The primary competitor to sentencing that considers risk is a purely retributive system — one that relies solely on backward-looking assessments of criminal conduct and the mental states that accompany it.  But such a system is rife with speculative claims about just desert, and can be remarkably inattentive to the impact of mitigating human foibles.  Properly regulated algorithmic risk assessments, in contrast, can differentiate high and low risk offenders at least as reliably as judges and juries can calibrate culpability, and can do so without abandoning condemnation based on blame, especially if sentences ranges are still based on retributive principles.  The needs part of theassessment can also facilitate the identification of autonomy-affirming and dignity-enhancing treatment programs that help offenders help themselves.

To realize the full potential of RAIs in the sentencing setting, however, the current fixation on determinate sentencing needs to be rethought.  That is the subject of my third and final blog, soon to come.

Prior related post:

August 8, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Highlighting the importance of data to ensure equity in diversion efforts

Regular readers are probably used to hearing me stress the importance of data in various aspects of our criminal justice systems, and so I was pleased to see this new Law360 piece headlined "Data Collection Is Crucial For Equity In Diversion Programs." I recommend the lengthy piece in full, and here is how it starts:

Prosecutorial diversion programs are intended to create equity in the criminal justice system by stopping the incarceration of people who have mental health and substance abuse problems, but without proper data collection, prosecutors can't ensure equity in these programs, experts say.

The Prosecutorial Performance Indicators project, an initiative led by researchers at the Florida International University and Loyola University of Chicago to help prosecutors collect data to improve their methods, recently released a report that looked at racial disparities in the number of people who had their cases diverted from criminal courts to diversion programs, like mental health or drug courts.

According to the report that compared the race and ethnicity of people placed in diversion programs in four prosecutors' offices in Chicago, Jacksonville, Milwaukee and Tampa, even though overall more Black defendants than white were placed in diversion programs in three of the four cities, more white defendants than Black defendants had their felony cases placed in diversion programs in all of the cities.

With this data, prosecutors in these offices can use it to guide their policies and prosecutorial decisions, according to Melba Pearson, director of policy and programs at FIU's Center for Administration of Justice and a PPI co-manager. "While diversion is a great tool, we have to make sure that it's applied equitably, so that includes looking at factors like cost, accessibility [and] how offers are being delivered," Pearson told Law360.

In Jacksonville, the data shows that, from 2017 through 2019, the number of Black defendants that had their misdemeanor cases diverted from prosecution grew because its prosecutor's office implemented a program that gives people charged with misdemeanor traffic violations an opportunity to have their charges dropped.

The full report referenced in this article, which is titled "Race and Prosecutorial Diversion: What we know and what can be done," is available at this link.

August 8, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, August 05, 2021

Prof Slobogin discussing Just Algorithms in guest posts

6a00d83451574769e20224df387165200bIn this recent post, I flagged a notable new forthcoming book authored by Christopher Slobogin.  I asked Prof Slobogin if he might be interested in sharing some key ideas from this important book in a set of guest posts. He kindly agrees, and here is the first of the set.

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Doug has graciously invited me to blog about my new book, Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press). There follows the first of three excerpts extracted from the Preface (the next two coming soon):

Virtually every state has authorized the use of algorithms that purport to determine the recidivism risk posed by people who have been charged or convicted of crime. Commonly called risk assessment instruments, or RAIs, these algorithms help judges figure out whether individuals who have been arrested should be released pending trial and whether a convicted offender should receive prison time or an enhanced sentence; they assist parole boards in determining whether to release a prisoner; and they aid correctional officials in deciding how offenders should be handled in prison.  Most of these algorithms consist of from five to 15 risk factors associated with criminal history, age, and diagnosis, although an increasing number incorporate other demographic traits and psychological factors as well. Each of these risk factors correlates with a certain number of points that are usually added to compute a person’s risk score; the higher the score, the higher the risk.  Some tools may also aim at identifying needs, such as substance abuse treatment and vocational training, thought to be relevant to rehabilitative interventions that might reduce recidivism. This book will provide examples of a number of these instruments so that the reader can get a sense of their diversity and nuances.

One purpose of this book is to explain how risk algorithms might improve the criminal justice system.  If developed and used properly, RAIs can become a major tool of reform. They can help reduce the use of pretrial detention and prison and the length of prison sentences, without appreciably increasing, and perhaps even decreasing, the peril to the public (goals that are particularly pressing as COVID-19 ravages our penal facilities).  They can mitigate the excessively punitive bail and sentencing regimes that currently exist in most states. They can allocate correctional resources more efficiently and consistently.  And they can provide the springboard for evidence-based rehabilitative programs aimed at reducing recidivism. More broadly, by making criminal justice decision-making more transparent, these tools could force long overdue reexamination of the purposes of the criminal justice system and of the outcomes it should be trying to achieve.

Despite their potential advantages, the risk algorithms used in the criminal justice system today are highly controversial.  A common claim is that they are not good at what they purport to do, which is to identify who will offend and who will not, who will be responsive to rehabilitative efforts and who will not be.  But the tools are also maligned as racially biased, dehumanizing, and, for good measure, antithetical to the foundational principles of criminal justice.  A sampling of recent article and book titles makes the point: “Impoverished Algorithms: Misguided Governments, Flawed Technologies, and Social Control,” “Risk as a Proxy for Race: The Dangers of Risk Assessment,” “Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor.” In 2019, over 110 civil rights groups signed a statement calling for an end to pretrial risk assessment instruments.  That same year 27 Ivy League and MIT academics stated that “technical problems” with risk assessment instruments “cannot be resolved.”  And in 2020 another group of 2323 scholars from a wide range of disciplines “demanded” that Springer publishing company, one of the largest purveyors of healthcare and behavioral science books and journals, “issue a statement condemning the use of criminal justice statistics to predict criminality” because of their unscientific nature.

A second purpose of this book is to explore these claims.  All of them have some basis in fact.  But they can easily be overblown.  And if the impact of these criticisms is to prevent the criminal justice system from using algorithms, a potentially valuable means of reform will be lost.  A key argument in favor of algorithms is comparative in nature.  While algorithms can be associated with a number of problems, alternative predictive techniques may well be much worse in each of these respects.  Unstructured decision-making by judges, parole officers, and mental health professionals is notoriously bad, biased and reflexive, and often relies on stereotypes and generalizations that ignore the goals of the system. Algorithms can do better, at least if subject to certain constraints. .

In blogs to come I describe these constraints, and how RAIs can be integrated into the criminal justice system.

August 5, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Advocacy groups argue to DOJ that OLC home confinement memo is "incorrect" and should be rescinded

As highlighted in this Hill article, headlined "Civil rights groups offer DOJ legal strategy on keeping inmates home after pandemic," a number of advocacy groups have this week made a lengthy pitch to the Justice Department seeking to undo DOJ's internal memo concluding that federal prisoners released into home confinement will have to be returned to prison after the pandemic.  Here is an excerpt: 

Civil rights groups on Wednesday urged the Department of Justice (DOJ) to reconsider its position on sending back to prison thousands of federal inmates transferred to home confinement during the pandemic, offering a legal analysis they believe would justify keeping them out from behind bars. 

Five organizations sent a 20-page letter to DOJ critiquing a Trump-era legal memo that concluded the department is required by law to revoke home confinement for those transferred during the pandemic as soon as the emergency period is over.  They argued that the memo from the DOJ's Office of Legal Counsel (OLC) is based on a flawed interpretation of the CARES Act....

The letter was signed by the Democracy Forward Foundation, Families Against Mandatory Minimums, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers and Tzedek Association....

"The reasoning of the Memo is flawed and potentially harmful to the credibility of the office," the organizations wrote. "It overlooks important points of law and does not address reliance or due process issues that might apply to its analysis."

The full 20-page letter is available at this link, and here are portions of its introduction and conclusion:

OLC may reasonably determine that the Memo does not reflect the best (or even a permissible) reading of the relevant statutory language.  Specifically, the Memo read into the CARES Act a new requirement to revoke home confinement — immediately, and without discretion, at the end of the emergency — that does not exist anywhere in that statutory text. Under a plain reading of the CARES Act, the authority of the Bureau of Prisons to grant and revoke home confinement is the same as it always was under the pre-existing statutory scheme, except that BOP was authorized to “lengthen” the period of time a person may serve on home confinement.  Additionally, the Memo did not consider the affected prisoners’ reliance interests, potentially triggering a wave of hundreds or thousands of challenges when and if BOP attempts to implement the Memo’s instructions and placing BOP in legal jeopardy under recent Supreme Court precedent.

We have great respect for OLC’s non-partisan stance and the office’s general practice of stare decisis.  Consistent with OLC policy, however, we encourage you to reassess the Memo because it is incorrect and will present serious practical obstacles to BOP and the U.S. Attorneys’ Offices, not to mention the thousands of affected prisoners.  We provide the analysis below on why we believe that OLC should reconsider the Memo....

For these reasons, we respectfully request that OLC review the Memo and rescind it.  Time is of the essence. Each day that this Memo remains in place is a day that interferes with the ability of people living on home confinement to make the kinds of investments in families and employment necessary to successfully reintegrate into society.

Some prior recent related posts:

August 5, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, August 03, 2021

"Empathy and Remote Legal Proceedings"

The title of this post is the title of this notable new paper authored by Susan Bandes and Neal Feigenson now available via SSRN.  Here is its abstract:

Do remote legal proceedings reduce empathy for litigants?  Pre-COVID studies of remote bail hearings and immigration removal hearings concluded that the subjects were disadvantaged by the remote nature of the proceedings, and these findings are sometimes interpreted to mean that decision-makers tend to be less empathetic toward remote litigants.  Reviewing both the pre-COVID literature and more current studies, we set out to determine whether empathy is reduced in virtual courts. 

The notion that it is more difficult for decision-makers to exercise empathy toward someone they encounter only on a video screen is consistent with findings that physical distance increases social and hence psychological distance, and may well be borne out by further research.  However, while there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.  On the other hand, there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already unequally burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision-makers.  We call attention to particular ways in which virtual proceedings may exacerbate these empathy deficits.

August 3, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, August 02, 2021

More encouraging(?) news from Capitol Hill on federal statutory criminal justice reform efforts

Axios has this interesting new piece headlined "Senate plans barrage on crime," which provides an encouraging update on the commitment of some key Senators to get additional federal criminal justice reforms to the finish line soon. Here are some details (with a bit of my emphasis added):

Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) are working to win Senate passage of a big criminal justice reform package this Congress.

Why it matters: Crime is spiking in big cities. Sen. Tim Scott (R-S.C.) is still working on a police reform measure.  The bipartisan dynamic duo atop the Senate Judiciary Committee is stepping up, passing three piecemeal bills out of their committee....

What they're saying: It's these three measures, Grassley told Axios, they "hope to package along with potentially other proposals to pass the Senate sometime this Congress." Durbin told Axios in his own statement that he's "committed to bringing these bills to the Senate floor this Congress."

What to watch: The final package also may include a measure for the thousands of inmates who were released to home confinement during the pandemic but will be forced to return behind bars when it's over, a Republican Senate staffer told Axios.  In addition, it may address sentencing disparities in crack and powder cocaine offenses.

One challenge will be the crime spike, which has the potential of sapping support from senators afraid of being branded soft on crime.  "Negotiations have always been an important part of enacting criminal justice reform, and this time will be no different, especially given the increase in crime we are seeing across the country,” Grassley said.

Between the lines: It's still early, but advocates said they need to take advantage of any opening they see for criminal justice reform — especially since police reform has stalled. They pointed to the House Judiciary Committee recently voting out the bipartisan EQUAL Act.  It would eliminate disparities in sentencing for powder and crack cocaine offenses and allow some inmates to appeal their sentence.  Even normally critical Republicans like Rep. Louie Gohmert (R-Texas) are cosponsors for the bill, which they take as a good sign.  That has supporters believing whatever emerges from the Senate can be packaged with House measures in conference committee and, ultimately, pass Congress.

I use the term "encouraging(?)" to describe this news in my post title because "this Congress" only means sometime before January 3, 2023.  Given how hard it is to get a divided Congress to complete anything these days, I suppose I should find any talk of any serious commitment to getting anything done to be just "encouraging."  But because of the modest nature of the "three piecemeal bills" primarily being discussed here (details in links below), I have been hoping that one or more of these bills might have a real change of getting to the desk of Prez Biden before the end of this year.

That all said, if these three Durbin/Grassley bills were to be combined with the EQUAL bill to reduce crack sentences and with some statutory fix to the pandemic home confinement problem, then I think all sentencing advocates would have something to really get excited about.  Notably, the FIRST STEP Act ended up having a lot of smaller reform proposals rolled into it, and I would love to see  five good reform proposals (and a few more) put together so that reform legislation can really improve a federal criminal justice system broken in so many ways.

Last but not least, I cannot complete this post without emphasizing, yet again, how effective implementation of any congressional reforms demands a well-functioning US Sentencing Commission.  The FIRST STEP Act is now nearly three years old, and the absence of a fully functioning USSC has impeded needed follow-up reforms and analyses that only the USSC can complete.  All the Durbin/Grassley bills and others in this space likewise need a working USSC to aid implementation (and a functional USSC could and would now be able to aid legislative analysis and consideration of various proposals).  But, with no USSC nominations from Prez Biden yet named, I am now fearing we may not ever get a full slate of Commissioners during "this Congress."

Some of many prior related posts:

August 2, 2021 in Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice, Marijuana Legalization in the States, Who Sentences | Permalink | Comments (3)

"Power to the People: Why the Armed Career Criminal Act is Unconstitutional"

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

In our constitutional democracy, it is the people who hold ultimate power over every branch of government, including authority over the judiciary through the jury trial guarantee of the Sixth Amendment.  However, the traditional view of recidivist statutes, including the federal Armed Career Criminal Act (“ACCA”), exempts the fact of a defendant’s prior convictions from the Sixth Amendment jury trial promise.  Specifically, prosecutors and federal judges have removed from juries and given to sentencing judges the power to determine prior crimes that enhance a defendant’s sentence under the ACCA by labeling a recidivist finding a sentencing factor rather than an element of the offense.

In this article, I argue the recidivist statute exemption, primarily exercised in federal law through the vehicle of Almendarez-Torres v. United States, violates the Constitution; defies the Court’s revived focus on the jury trial right through the Apprendi v. New Jersey line of cases requiring any fact that increases a defendant’s sentencing range to be found by the jury or admitted by the defendant at the guilty plea; and disregards the Court’s due process focus in the Taylor v. United States line of cases prohibiting factfinding under the ACCA.

I present my theory by examining the ACCA’s different occasions clause, a lesser known but potent provision that in theory imposes the ACCA’s mandatory minimum sentence of fifteen years only when recidivist crimes are “committed on occasions different from one another.”  In practice, judges impose the different occasions clause by engaging in complex judicial factfinding at sentencing by a lower preponderance of the evidence standard regarding the who, what, when, where, and why of prior crimes.  Judges who label the different occasions clause a sentencing factor rather than an element of the offense act in disregard of the jury trial right, due process guarantee, and legislative intent of the ACCA.  I argue that the Constitution requires the ACCA different occasions clause to be decided by a jury beyond a reasonable doubt in a bifurcated trial.  Judicial removal of the different occasions clause from jury scrutiny dramatically illustrates why a new approach enforcing the Sixth Amendment jury trial right to the ACCA different occasions clause is long overdue.

August 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, August 01, 2021

Home confinement cohort at risk of being returned to federal prison garnering still more attention (but still little action)

The news a few weeks ago that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would have to be returned to prison after the pandemic continues to generate coverage and commentary.  Here is a round-up of just some recent pieces I have seen:

From Common Dreams, "Advocates Condemn Biden Plan to Send 4,000 Inmates Back to Prison After Pandemic"

From The Hill, "Inmates grapple with uncertainty over Biden prison plan"

From The Intercept, "Biden Has Said Pot Prisoners Should Be Free.  Now He’s Poised To Send Some Back To Prison."

From Politico, "Biden's prisoner's dilemma"

From The Root, "Biden Needs to Grant Clemency to the Over 4,000 People on Home Confinement"

It is understandable, but I still think quite unfortunate, that all of these stories focus almost exclusively on Prez Biden and his potential place in this story.  Most advocates have been talking up blanket clemency as the most efficient way to resolve this issue in order to keep the home confinement cohort from being sent back to prison after the COVID pandemic is over.  But, as I have highlighted in various posts, and stressed in this post titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.  This problem is fundamentally a statutory one created by Congress in the CARES Act, and it could be readily fixed by Congress simply by adding a sentence or two to pending pieces of legislation.

In addition, as I highlighted in this other post, another important option for case-by-case relief for members of this cohort is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce lengthy sentences and not merely allow these sentences to be served at home.  Consider the story told here by Jeanne Rae Green, who was transferred to home confinement in May 2020 after serving serving 6.5 years of a 12.5 year sentence for meth distribution.  It sounds like she and other members of this home confinement cohort could bring strong sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  The legal limbo in which Jeanne and others now find themselves could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison.  (Indeed, as I have previously mentioned, I think federal prosecutors could and should actively promote and support sentence reduction motions for now on home confinement at risk of being sent back to prison.)

I am pleased to see so many working so hard to ensure this issue garners continued attention, and I am hopeful that Prez Biden will use his clemency pen to bring relief to the home confinement cohort ASAP.  But in the meantime, I also hope that pressure will be brought to bear on all the others — from members of Congress to members of DOJ to members of the judiciary — who can and should also be doing more help this cohort.

Some prior recent related posts:

August 1, 2021 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Saturday, July 31, 2021

Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

In this post last month, I lamented the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  In that post, I noted that nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  As I see it, the majority in Jarvis was eager to create an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences because, presumably based on its own sense of sound policy, it wanted to cabin the new sentencing discretion created by the FIRST STEP Act. 

Against that backdrop, I was pleased to learn of a new amicus brief filed in support of rehearing en banc in Jarvis that makes a series of forceful arguments that wisely lean heavily on textualism.  The brief is filed on behalf of the American Conservative Union Foundation Nolan Center for Justice and Shon Hopwood, and I recommend the entire filing (which can be downloaded below).  Here are a few excerpts emphasizing the statutory text:

Until and unless the Sentencing Commission promulgates a new policy statement clarifying what factors district courts may consider in deciding motions for compassionate-release sentence reductions, this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of nonretroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)....

The Sentencing Commission is empowered to promulgate a new policy statement that expressly permits district courts to consider nonretroactive sentencing-law reforms, combined with other factors, in determining whether a defendant has presented extraordinary and compelling reasons.  That the Commission presently lacks a quorum is irrelevant to interpretation of the underlying statutes.  Since the Commission can promulgate a policy statement permitting consideration of nonretroactive sentencing reforms, district courts may certainly consider such criteria now in the absence of a new and applicable policy statement.

Download Jarvis Amicus Brief FINAL

July 31, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Trump Executions"

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

In the final six months of Donald Trump’s presidency, the federal government executed thirteen people.  For perspective, there were three federal executions in the prior fifty-seven years — and none since 2003.  Among other things, this Article is a historical record of the “Trump Executions,” constructed largely from primary-source material. The Article also offers a framework for organizing the unique legal issues that the Trump Executions presented, and discusses their crucial implications.

I proceed in three parts.  Part I places the Trump Executions in historical context.  For politicians and bureaucrats who embrace the death penalty, the Trump Executions were a once-in-a-generation opportunity.  Part I explains the Bureau of Prisons’ lengthy struggle to identify and implement a lawful execution protocol — which was largely responsible for the growth of federal death row, and the pent-up desire to clear it.  Part I also presents a four-year timeline of the Trump Executions, which grounds the balance of the Article.

Part II organizes, into four useful categories, the legal disputes that were largely unique to the Trump Executions.  These were over: (1) the pentobarbital-only lethal injection sequence, (2) a federal “parity” provision requiring alignment between federal and state death penalty implementation; (3) a statutory savings clause allowing prisoners to bypass otherwise-applicable restrictions on post-conviction relief; and (4) the effects of the COVID-19 pandemic.  (Issues belonging to a residual category receive abbreviated treatment.) Surprisingly, when the litigation was complete, the judiciary had clarified little about federal death penalty law.

Part III considers the implications of the Trump Executions.  The Supreme Court, which undertook unprecedented intervention by way of its “shadow docket,” plainly worked to ensure that the Joe Biden administration had no say in sentence implementation.  The significance of the presidential transition was quite real, as the Trump Executions went forward on the backs of political and bureaucratic outliers that coincide only infrequently.  Ironically, the Trump Executions will most durably affect other institutional practices that depend on emergency adjudication — including pandemic responses, elections, and capital punishment in the states.

July 31, 2021 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, July 30, 2021

Provocative new empirical paper claims to identify the "most discriminatory" federal sentencing judges

Via Twitter, I was altered to this notable new empirical paper by multiple authors titled "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  The paper's title alone likely explains why I describe it as provocative, and this abstract provides more context about the paper's contents:

In the aggregate, racial inequality in criminal sentencing is an empirically well- established social problem. Yet, data limitations have made it impossible for researchers to systematically determine and name the most racially discriminatory federal judges.  The authors use a new, large-scale database to determine and name the observed federal judges who impose the harshest sentence length penalties on Black and Hispanic defendants.  Following the focal concerns framework, the authors (1) replicate previous findings that conditional racial disparities in sentence lengths are large in the aggregate, (2) show that judges vary considerably in their estimated degrees of racial discrimination, and (3) list the federal judges who exhibit the clearest evidence of racial discrimination.  This list shows that several judges give Black and Hispanic defendants double the sentences they give observationally equivalent white defendants.  Accordingly, the results suggest that holding the very most discriminatory judges accountable would yield meaningful improvements in racial equality.

The "new, large-scale database" used for this study is this JUSTFAIR data source published online last year.  I have not previously blogged about the JUSTFAIR data because I have never been sure of its representativeness since the source says it includes nearly 600,000 cases over a recent 18-year period (from 2001 to 2018), but more than twice that number of persons have been sentenced in federal courts during that span.  I fear I lack the empirical chops to know just whether to be reasonably confident or highly uncertain about the JUSTFAIR data, and that broader concern colors my thinking about this provocative new paper's claims that the authors have been able to identify the "most racially discriminatory federal judges."

I would love to hear from readers with strong empirical backgrounds about whether this new paper effectively demonstrates what it claims to identify.  I am initially skeptical because the the two judges labelled "most discriminatory" come from the same federal judicial district and only a few districts are among those that have all the identified "discriminatory" judges.  That reality leads me to wonder if case-selection realities, rather than "discrimination," may at least in part account for any observed racial differences in sentencing outcomes.  Relatedly, when I dig into the local data at the JUSTFAIR data site, the judges identified in this new paper as the "most discriminatory" do not seem to have anywhere close to the most racially disparate rates of above/below guideline sentencing outcomes even within their own districts.

In short, without a much better understanding of the empirics at work here, I am not confident about what this new empirical paper is claiming.  But I am confident that I would like to hear from readers as to what they think about this provocative new paper on an always important topic.

July 30, 2021 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Highlighting how the Biden Administration could and should start reforming federal BOP

I have lamented in post after post that the Biden Administration has so far failed to seize the opportunity to advance federal sentencing reforms by making needed appointments to US Sentencing Commission, and I will continue to be troubled by (and complain about) its failings in this space for as long as it lasts.  In the meantime, I am pleased to see this new AP article highlighting another so-far-missed Biden Administration missed opportunity under the headline: "Is Biden overlooking Bureau of Prisons as reform target?".  Here are excerpts from a long piece worth a full read:

Biden is overlooking a prime -- and, in some ways, easier -- target for improving the conditions of incarcerated people: the federal Bureau of Prisons. While most criminal justice overhauls require action from local officials or legislation, reforming the federal prison system is something Biden and his Justice Department control. And there are crying needs there for improvement.

Even before the coronavirus, federal prisons were plagued by violence, suicide, escapes, understaffing and health concerns. The pandemic made things worse. And now these facilities are set to absorb even more prisoners from private institutions that are no longer in business with the government....

Meanwhile, the number of federal prisoners is rising. Defendants end up in federal prison usually because their crime crossed state lines, or they violated a specific federal law. There are about 156,000 federal inmates. In total, 38% are Black and 57% are white, 1.5% Asian and 2.4% Native American. Most are serving sentences between 5 and 20 years, and 46% of those sentences are for drug offenses. Another 20% are for weapons, explosives or arson charges.

The administration can’t control the laws that get someone sent to prison. But it can control staffing, transparency, health care, the use of solitary confinement and, most of all, agency leadership. The head of the Bureau of Prisons is a Trump holdover, Michael Carvajal, who has been in charge as the coronavirus raged behind bars, infecting more than 43,000 federal inmates. He also oversaw an unprecedented run of federal executions in the last six months of Donald Trump’s presidency that was a likely virus super spreader.

Administration officials have been mulling whether to replace him, but no decision has been made, according to officials who spoke to The Associated Press.

One question they should be asking, according to Andrea Armstrong, a Loyola Law School professor who studies prisons, is whether the director’s role is to do more than keep operations running smoothly. “Real leadership,” she says, “would be convening people incarcerated, wardens and programming staff together to say, OK, we have an enormous problem ... how do we address this?”....

The “First Step Act,” approved in 2018, gives judges more discretion when sentencing some drug offenders, eases mandatory minimum sentences and encourages inmates to participate in programs designed to reduce the risk of recidivism, with credits that can be used to gain an earlier release.

But those programs can’t be completed right now, because there are not enough workers to facilitate them. Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. “There need to be enough people working in a prison to keep people housed in a prison safe. And they must be able to get access to the programs that should allow their release,” said Maria Morris of the American Civil Liberties Union’s National Prison Project.

A few of many prior related posts:

July 30, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Thursday, July 29, 2021

Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants

This new BuzzFeed News article, headlined "A Judge Questioned If Capitol Rioters Are Getting Off Too Easy For 'Terrorizing Members Of Congress'," reports on some notable comments by some notable federal judges about the plea deals being given to some of the Capitol rioters.  Here are excerpts:

A federal judge on Thursday pushed back on the government’s decision to ink deals in the Capitol riot cases that involve low-level misdemeanors, questioning whether that was appropriate for people involved in “terrorizing members of Congress.”

The unusual exchange came during a plea hearing for Jack Jesse Griffith, who was charged solely with misdemeanor crimes for going into the Capitol on Jan. 6; he wasn’t accused of violence or property destruction.  As Griffith prepared to plead guilty to one count of parading, demonstrating, or picketing in a Capitol building — a class B misdemeanor with a maximum sentence of six months in jail — US District Chief Judge Beryl Howell asked the prosecutor to explain why Griffith’s deal involved a class of crime typically reserved for people who did things like trespass in a national park at night.

“I'm just curious — does the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?” Howell asked.  “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”

It was the second time this week that a judge questioned whether defendants charged in connection with Jan. 6 are getting off too lightly in plea deals, even if they’re not accused of more serious criminal activity, such as attacking police.  On Tuesday, US District Judge Reggie Walton, one of Howell’s colleagues on the federal bench in Washington, DC, briefly pondered whether he should jail two defendants who signed a deal similar to Griffith’s, given their involvement in the “atrocious act” of storming the Capitol; he ultimately allowed them to go home until they’re sentenced in October.

Griffith is the 27th defendant charged in the Jan. 6 riots to appear before a judge to plead guilty, and the 21st person to plead guilty to a single misdemeanor as part of an agreement with prosecutors — either the parading count that Griffith pleaded guilty to or disorderly conduct in a Capitol building, which also has a maximum sentence of six months in jail.

Howell in the end accepted Griffith’s guilty plea, but, like Walton, put the government and defense through several paces before she did. She asked whether the government was concerned that an agreement involving a low-level misdemeanor was enough not only to deter Griffith from participating in a similar event in the future but also the broader universe of the hundreds of people who descended on the Capitol that day.  The circumstance that led to the Jan. 6 insurrection, a presidential election, happens every four years, the judge noted.

Assistant US Attorney Mitra Jafary-Hariri and Griffith’s lawyer H. Heather Shaner defended the deal, telling Howell that Griffith had expressed interest in pleading guilty early on — something defendants throughout the criminal justice system typically get credit for — and had cooperated with law enforcement officials by turning over his devices and giving them access to his social media. Jafary-Hariri said that under those circumstances, the government decided it was “willing to resolve it this way.”

Some prior related posts:

July 29, 2021 in Celebrity sentencings, Who Sentences | Permalink | Comments (3)

"The Informed Jury"

The title of this post is the title of this notable new paper authored by Daniel Epps and William Ortman now available via SSRN.  Here is its abstract:

The right to a criminal jury trial is a constitutional disappointment.  Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process.  The most important thing juries do in criminal cases is authorize state punishment.  But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant.  This principle of jury ignorance is a profound mistake.  It is unmoored from history and the core function of the jury to authorize punishment.  Worse, it exacerbates the criminal legal system’s predilection for excessive severity.

This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction.  Informed juries would change the dynamics of criminal justice for the better.  In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust.  But more importantly, informed juries would provide systemic benefits.  Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity.  In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

July 29, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 28, 2021

"Disrupting Death: How Dedicated Capital Defenders Broke Virginia's Machinery of Death"

The title of this post is the title of this new paper authored by Corinna Lain and Doug Ramseur now available via SSRN. Here is its abstract:

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the Supreme Court invalidated capital punishment statutes nationwide.  In part, this is because Virginia’s repeal marks the first time a Southern state abolished the death penalty.  And in part, it is because even among Southern states, Virginia was exceptional in its fealty to capital punishment.  Virginia had the broadest death penalty statute in the country, coupled with a post-conviction review process that was lightning fast and turned death sentences into executions at a rate five times the national average.  Virginia holds the record for the most executions in the history of the United States, so how did it go from all-in on the death penalty to abolition?

A critical piece of the puzzle was the fact that Virginia had not seen a new death sentence in ten years, and had only two people left on death row.  The death penalty was dying on the vine, and how that came to be owes largely to Virginia’s dedicated capital defenders, who literally worked themselves out of a job by disrupting the machinery of death at every turn.  In this Article, we (a law professor and a former regional capital defender) tell the story behind the story of Virginia’s plunging death sentences — what was happening in the trenches that the transcripts and plea deals don’t show. This is the backstory as we know it, and we share it here both to better understand Virginia’s journey, and to serve as a resource for others still navigating theirs.

July 28, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Is the politics of crime and punishment now different than in our recent history?

The question in the title of this post is promoted by this recent Politico piece by Joshua Zeitz headlined "'Law and Order' has Worked for the GOP Before. This Crime Boom Might be Different." I recommend the piece in full, and here are a few excerpts:

In the 1970s and 1980s, Republican candidates successfully used violent crime as an issue to attract white voters. Fused with concerns over the economy, busing and neighborhood integration, “law-and-order” politics dislodged millions of working- and middle-class white voters from their former home in the Democratic Party. No politician did it better than Richard Nixon, whose White House staff aimed, in their own words, “to orient the Silent Majority toward issues other than foreign policy (e.g.: inflation, crime, law and order, etc.) and then to increase support for the President’s foreign and domestic proposals.”

But 2021 is not 1971. Even allowing for the public’s very real perception of violent crime as a top national priority, the nation’s political demography has changed dramatically over the last half century. Then, many working-class and middle-class voters lived in cities or inner-ring suburbs where crime was not a hypothetical concern; it was an everyday reality. By contrast, today most voters the GOP hopes to claw back inhabit increasingly diverse suburban areas where crime is not an everyday reality. Polls show that while most voters believe crime is on the rise, they don’t believe it threatens their neighborhoods.

It’s true that crime might function as a mechanism to motivate the conservative base. But to move voters from the Democratic to the Republican column, it will need to capture the independent voters who swung from Trump to Biden in the last election. And here the historical analogy breaks down....

[V]ast demographic changes over the past 50 years have re-sorted the American population.  Today’s swing voters are affluent suburbanites, not working-class residents of transitional urban neighborhoods.  The places where violent crime is on the rise — namely, cities — are deep blue and unlikely to change.  The places where violent crime is not on the rise — namely, suburbs — are the new political battleground....

Of course, none of this is to say that some of the urban voters affected by today’s rise in crime might not be up for grabs. Studies show that low-income non-white families are far more exposed to violent crime and more likely to perceive it as an immediate threat.  Republicans have made inroads with Latino voters, and in recent months, it has become clear that last year’s racial justice awakening obscured a more complicated reality about the Black electorate, which is diverse — not a monolith — but generally concerned about crime and welcoming of a greater police presence on the streets if and when that presence is protective of their safety....

The 2022 election cycle is still in the distant future, and in politics, things change quickly.  Judging by history and by polling, however, crime may not provide the winning message that the GOP is looking for.  Yesterday’s swing voters are not today’s swing voters, and in 2021, “law and order” doesn’t mean the same thing it did in 1971.

This article is focused on demographics to rightly observe that the politics of crime and punishment has evolved over the last half-century.  But I also think there is a lot more to the story of the changing political landscape, ranging from bipartisan disaffinity for (some parts of) the war on drugs and much greater public awareness — especially among younger Americans and libertarian-leaning conservatives — of the racial and economic impacts of mass incarceration and collateral consequences.  What all this means for elections in the 2020s remains to be seen, but nobody should forget that Donald Trump ran in 2016 on a "law and order" message and then signed a major federal criminal justice reform bill into law just two years later.  Put simply, in this century, I think both the politics and the practice of crime and punishment are quite nuanced and often quite unpredictable.

July 28, 2021 in Campaign 2016 and sentencing issues, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Ohio Justice provides insider take on "sentencing by ambush" due to plea bargaining process

This local court press piece, headlined "Justice Admonishes ‘Sentencing by Ambush’," reports on a notable new law review article authored by Ohio Supreme Court Justice Michael Donnelly. Here are excerpts from the press piece (with links from the original):

An Ohio Supreme Court justice is seeking reforms to plea deal processes, which he says are full of unknowns for defendants, who often surrender their constitutional rights.

Justice Michael P. Donnelly lists his concerns and solutions about discrepancies in plea agreements and their outcomes in an article published by the Akron Law Review titled, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform.”

In the piece, Justice Donnelly details observations from his 14 years as a Cuyahoga County Common Pleas judge and how his experiences on the trial court bench, paired with his perspective as a member of the Supreme Court, compelled him to write about the need for systemic change to plea arrangements.

“Would you ever enter into a contract when you had no idea what benefit you would receive… [or] without knowing the terms to which you were obligating yourself?” Justice Donnelly asks in the article. “Regrettably, … criminal defendants do that every single day.”

The article explains the legal course of plea bargaining: a prosecutor and defense attorney settle on a recommended punishment, and a judge ultimately determines the sentence. Justice Donnelly highlights multiple procedural flaws that occur in pursuit of this type of conclusion to a case.  The fundamental issues Justice Donnelly raises are magnified because U.S. Department of Justice researchers estimate 90% to 95% of cases — state and federal — are resolved through plea deals.

He notes that prosecutors can charge multiple and different offenses based on the facts from a single event as a means of leverage against a defendant.  The high court jurist also points out two main inconsistencies in plea proceedings: Not all judges accept settlements between the prosecution and defense, and not all plea negotiations are on the record.

“One of the biggest threats to public confidence in the criminal justice system [stems] from off-the-record sentencing representations, whether from a judge in chambers or a defense attorney’s informed speculation,” Justice Donnelly wrote.  As a means for transparency, the justice recommends that all discussions take place in open court. He believes a documented dialogue would ensure negotiations are fair between the prosecution and defense, which would include stating the rationale for the agreement....

Addressing sentencing issues also is the aim of a larger initiative, led by Chief Justice Maureen O’Connor and Justice Donnelly, to develop a statewide sentencing database.

Both efforts emphasize the need for transparency as a way to provide more uniform and proportional sentences across the state, while limiting implicit bias.  “This reform would provide decision-makers (judges, prosecutors, defense counsel, and legislators) with information that is essential to ensure that better decisions are made regarding the most serious issue of incarcerating individuals,” Justice Donnelly said.

July 28, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, July 27, 2021

Prison Policy Initiative details "Nine ways that states can provide better public defense"

Ginger Jackson-Gleich and Wanda Bertram at Prison Policy Initiative have this new briefing fully titled "Nine ways that states can provide better public defense: We suggest a few questions to ask to assess the strength of your state's public defense system." Here is part of its introduction and conclusion:

One of the many reasons mass incarceration persists is because people too poor to afford their own lawyers are denied meaningful representation in court. This injustice happens because public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened.

While every state and local public defense system is unique, we’ve identified nine urgent and common problems that plague public defense systems nationwide.  Unfortunately, there isn’t enough current data for us to explain how every state stacks up on these issues, but we’ve done the next best thing: We’ve created a list of nine questions you can ask to assess where your state’s public defense system might need help, and we’ve highlighted helpful and detailed resources that can assist reform efforts....

Even an excellent public defense system in every state would not, on its own, end mass incarceration, but ensuring that every person accused of a crime has satisfactory assistance of counsel would certainly help.  As many others have noted before us, the constitution’s promise that every criminal defendant has the right to legal counsel has never been a reality in this country.

Today, at least 4.9 million people are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can’t afford their own lawyer.  Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist.

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

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

July 27, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Technocorrections, Who Sentences | Permalink | Comments (0)

Monday, July 26, 2021

Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity?

At last month's Senate Judiciary Committee Hearing on "Examining Federal Sentencing for Crack and Powder Cocaine," the Biden Administration through the testimony of Regina LaBelle rightly stated that the crack-powder sentencing disparity produces "significant injustice":

The Biden-Harris Administration strongly supports eliminating the current disparity in sentencing between crack cocaine and powder cocaine.  The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color.  The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end.  Therefore, the Administration urges the swift passage of the “Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act.”

In addition, the US Department of Justice submitted testimony (linked below) that rightly stated that "it is long past time" to end the crack-powder sentencing disparity:

The Department strongly supports the legislation, for we believe it is long past time to end the disparity in sentencing policy between federal offenses involving crack cocaine and those involving powder cocaine.  The crack/powder sentencing disparity has unquestionably led to unjustified differences in sentences for trafficking in two forms of the same substance, as well as unwarranted racial disparities in its application.  The sentencing disparity was based on misinformation about the pharmacology of cocaine and its effects, and it is unnecessary to address the genuine and critical societal problems associated with trafficking cocaine, including violent crime.

Download DOJ EQUAL Act Testimony- FINAL

In light of these forceful statements, I have been optimistic that the EQUAL Act might move forward in Congress fairly soon even though the pace of congressional action is always uncertain.  At the same time, I hoped that federal prosecutors under the authority of Attorney General Garland might do what they could ASAP, in the exercise of their charging and sentencing authority, to minimize the impact of the crack-powder disparity as Congress works on a permanent legislative fix.  After all, if DOJ really believes that "it is long past time to end the disparity" and that the disparity is based on "misinformation" which produces "unwarranted racial disparities," then a department purportedly committed to justice surely ought not keep charging crack mandatory minimums and advocating for guideline sentences based on this disparity.

But I have heard from defense attorneys in the know that statements about existing crack sentencing provisions creating "significant injustice in our legal system" have seemingly not trickled down to federal prosecutors, who are still generally charging crack mandatory minimums and arguing for within-guideline crack sentences.  And I have be authorized to share this recent statement from the Federal Defenders to DOJ: "We were glad to see the Department’s recent support for legislation to end the crack-powder disparity but reports from the field indicate that line prosecutors continue to indict mandatory-minimum crack cases and seek guideline sentences that rely on the discredited ratio."

Talking the talk to Congress about reform is an important aspect of what the executive branch can do to improve our justice system. But the Justice Department can and should also be expected to walk the walk.  But so far, it seems, federal prosecutors are not really ready to give up the crack-powder disparity, even though DOJ asserts that "it is long past time" to do so. Sigh.

July 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Excited for the launch of Inquest, "a forum for advancing bold decarceral ideas"

E676CJ9WQAEKg4PI was pleased to receive via email this morning the first official announcement of Inquest, which as explained here "is published by the Institute to End Mass Incarceration [but] not the voice of the Institute."   Here are excerpts from the Inquest mission page:

Inquest is a forum for advancing bold ideas to end mass incarceration in the United States. Here, you will find original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that mass incarceration is an epic injustice that can and must urgently end.

Our authors include leading and new voices across fields, from activism and community organizing, to law and policy, to academia, journalism, and public health. Drawing on their lived experience and their accumulated wisdom, they come here to share ideas, narratives, and analyses that boldly explore the causes and consequences of mass incarceration and that provoke rigorous discussion — all aimed at driving thoughtful action....

Rather, our mission is to create a space where the voices of those doing the thinking and the work — the people closest to the problem, including those directly impacted by mass incarceration — can come together to share ideas and be heard as they pursue bold solutions.

And here is some of the text from the introductory email that I received along with links to the first set of materials and essays on the site:

We are so excited to share this new publication and its core mission with you.  Our opening slate of original, thought-provoking essays is below.  We hope you will take a look today and come back often. Inquest is a forum for advancing bold ideas to end mass incarceration.  The publication features original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that our system of mass incarceration can and must urgently end....

Read a welcome note from our founding editors and visit Inquest to check out our opening slate of essays, all linked below:

Joel Castón, the first incarcerated person ever elected to public office in Washington, D.C., shares his story and vision with Inquest.

Tomas Keen, incarcerated in Washington State, highlights the problems with a prison closure plan.

"To get to real justice, we have to stop depending on the department bearing that name." — Rachel Barkow & Mark Osler

Maneka Sinha on forensics: "[M]any of the reforms proposed to date . . . serve to shore up the legitimacy of the field in the same ways that conventional reform proposals do in the policing context."

All these essays look great, and I am very excited to keep up with both Inquest and the new Institute to End Mass Incarceration.

July 26, 2021 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Reviewing Biden Administration's uninspired criminal justice reform efforts

Law360 has this lengthy new article, headlined "Advocates Frustrated By Biden's Silence On Justice Reform," that provides a lengthy review of various criminal justice reform efforts to date by the Biden Administration.  As the headline suggests, advocates are so far underwhelmed.  Here are excerpts from a piece worth reading in full:

One of President Joe Biden's most powerful tools for advancing criminal justice reform is his voice and yet, despite his campaign promises, he has been mostly silent on the issue while in office, frustrating criminal justice reform advocates.

Advocates for ending mass incarceration and mandatory minimum sentencing would have liked Biden to do more than just talk about criminal justice reform in his first six months in office, but they are even more frustrated by the fact that he isn't loudly advocating for reform and isn't letting people know when he will act on his reform promises....

Criminal justice advocates acknowledge that Biden started his presidential term with a full plate of pressing issues to address: the COVID-19 pandemic, an economic downturn, extreme political division and a migrant crisis at the southern border that could have sidelined criminal justice reform in his administration's early days.  And now, six months later, Biden's administration is still grappling with these issues in addition to combating a spike in homicides and surges in coronavirus cases in areas with low vaccination rates.

But advocates and experts say that Biden could at least publicly support more criminal justice reform legislation that has been introduced in Congress and dispel myths being perpetuated by some Republican lawmakers that releasing people from prison increases crime....

Biden alluded to criminal justice reform in his inaugural speech and in a presidential address marking his first 100 days in office.  He also included snippets of criminal justice reform in his plans for revitalizing jobs, helping American families and fighting gun violence....

Udi Ofer, director of the American Civil Liberties Union's justice division, said that Biden's crime prevention plan doesn't recognize that the majority of what police do is arrest people for low-level offenses like drug possession, and these arrests don't stop homicides and gun violence. "President Biden has invested so much political capital in laying out his crime prevention plan, and we have not seen the same sort of commitment laid out for criminal justice reform and for police accountability," Ofer said.

A lot of people are waiting to hear him say loud and clear that he recognizes the flaws in the justice system and genuinely wants to help fix them.

Some experts say that Biden's silence on criminal justice reform could be a calculated political move to straddle party lines and keep members of his own party together.  Republicans and Democrats are in disagreement about police reform. Progressive Democrats are calling for defunding the police and older party members fear that is too radical a move, according to Jacinta Gau, a criminal justice professor at the University of Central Florida....

Rumblings of Biden's early plans for handling criminal justice reform-related issues has already sparked outcry from lawmakers and advocates.  A coalition of 20 advocacy organizations sent a July 19 letter to Biden urging him not to reimprison people who were released to home confinement during the pandemic and instead commute their sentences....

Even though advocates and experts want Biden to move more quickly on criminal justice reform, they also don't want him to make reactionary "tough on crime" policies that have been devastating for communities of color and led to mass incarceration.  However, they say Biden and his administration don't need to "reinvent the wheel" on criminal justice reform because organizations and scholars have already done the research on what works and what doesn't work.  The administration just needs to follow their lead, they say.

Though I am not surprised it goes unmentioned in this article, I have to bring up again in this context that the Biden Administration has so far missed the opportunity to appoint reform-minded persons to the US Sentencing Commission.  Of course, as I have lamented in post after post, the Biden Administration has so far failed to appoint anyone to the USSC.  As I stressed here, the US Sentencing Commission, when functional, has the power and the ability to be a significant agent for federal criminal justice reform.  But, unless the Biden Administration makes a lot of appointments very soon, I fear this important agency might not be functional until 2022 or perhaps even later.  Sigh. 

July 26, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

"Death Penalty Exceptionalism and Administrative Law"

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

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials — administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection.  What I find is death penalty exceptionalism — the notion that “death is different” so every procedural protection should be provided — turned on its head. 

Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure.  And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent.  The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law.

In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply.  It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.  In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right.  What happens at the intersection of these two great bodies of law is a result not good for either.

July 26, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, July 25, 2021

"The Boundary Problem of Rights Restoration"

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

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically — profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?  The conventional position, which I call “depoliticization,” imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination — not the wholesale elimination — of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty.  It follows that rights restoration is not the conferral of a new statutory benefit to a political outsider, as courts have assumed, but instead marks the endpoint of state-sustained subordination.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment, resolves a number of doctrinal contradictions, and — most critically for future litigation challenges — sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes and debtors’ prisons.  By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

July 25, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, July 24, 2021

"Talking Back in Court"

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

People charged with crimes often speak directly to the judge presiding over their case.  Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers.  While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court.  In individual cases, talking back could result in fairer outcomes.  On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power.  While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly.  Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice.  The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture.  Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

July 24, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Friday, July 23, 2021

Across political spectrum, insightful folks saying in insightful ways that Prez Biden must do better on criminal justice reform

The news to start this work week that the Biden Justice Department is not disputing the legal opinion that federal prisoners released into home confinement would be returned to prison after the pandemic has likely contributed to the end of this work week bringing a number of effective commentaries rightly asserting that Prez Biden continues to come up short on criminal justice issues.  Notably, these commentary are coming from across the political spectrum as evidenced by these pieces:

From Samantha Michaels at Mother Jones, "Biden Said He’d Cut Incarceration in Half. So Far, the Federal Prison Population Is Growing."

From Lars Trautman at The Washington Examiner, "Biden’s criminal justice inaction is nothing but malarkey"

I recommend both of these shorter pieces, but I especially want to encourage everyone to read this lengthy Washington Post magazine commentary by Piper Kerman headlined "She accidentally provided the ‘Lose Yo Job’ soundtrack to Biden victory memes this fall.  He could learn a lot from hearing her story."  In fact, we can all learn a lot from her story, as brilliantly told and contextualized by Piper Kerman, and her piece is a useful reminder that Vice-President Harris ought not be left out of discussions and criticisms of the tepid criminal justice reform efforts of the Biden Administration to date.

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

Thursday, July 22, 2021

Noticing Biden Administration's withdrawal of pursuit of the death penalty in many cases

This new New York Times article, headlined "U.S. Won’t Seek Death Penalty in 7 Cases, Signaling a Shift Under Biden," reports on a notable set of pending case developments suggesting one way that the Biden Administration is making good on its stated antipathy toward capital punishment.  Here are excerpts:

One man was charged in Orlando, Fla., with kidnapping and fatally shooting his estranged wife. Another man was indicted in Syracuse, N.Y., in the armed robbery of a restaurant and the murders of two employees. And a third man was charged in Anchorage with fatally shooting two people during a home invasion.

Those cases and four others prosecuted in federal courts around the country all had a common theme — they were among cases in which the Justice Department under President Donald J. Trump directed federal prosecutors to seek the death penalty if they won convictions.

But now, under a new presidential administration, the Justice Department has moved to withdraw the capital punishment requests in each of the seven cases. The decisions were revealed in court filings without fanfare in recent months. The decision not to seek the death penalty in the cases comes amid the Biden administration’s broad rethinking of capital punishment — and could signal a move toward ending the practice at the federal level....

Some legal experts said it was too early to tell what the seven scattered cases signified, and one lawyer suggested Mr. Garland could have been even more assertive. “I think it’s a good and important step by the attorney general, but there’s no question that it’s not far enough,” said Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union. “President Biden should issue a much broader moratorium,” Ms. Stubbs added. “He should ask for a moratorium on all death penalty prosecutions.”

But Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento, Calif., that supports crime victims and the death penalty, was critical of Mr. Garland’s decisions in the seven cases. “The families of murder victims are clearly not included in the calculus when ordering U.S. attorneys not to pursue capital punishment in the worst cases,” he said.

Under Mr. Garland, the Justice Department has continued to fight the appeal of the death sentence imposed on Dylann Roof, the white supremacist who murdered nine Black churchgoers in Charleston in 2015. And in the case of Dzhokhar Tsarnaev, who was convicted of helping to carry out the 2013 Boston Marathon bombing, which killed three people and injured more than 260, the Justice Department has asked the Supreme Court to reinstate the death penalty, which had been overturned on appeal.

July 22, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release

The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing).  The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends.  But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order.  A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding).  I suspect the final clause will garner considerable attention no matter how characterized.  Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release.  Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.

July 22, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

House Judiciary Committee votes 36 to 5 to advance the EQUAL Act to reduce federal crack sentences

At a time of problematic and often ugly partisanship inside the Beltway, I have continued to believe and hope that a number of federal sentencing reforms could and should still be able to secure significant bipartisan support.  This belief was reinforced yesterday when the House Judiciary Committee voted 36 to 5 to advance the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act.  Excitingly, not only does this bill reduce crack statutory sentences to the level of powder cocaine offenses, it also provides for all previously convicted crack offenders to obtain a resentencing.  (Recall that neither the Fair Sentencing Act of 2010 nor the FIRST STEP Act of 2018 included full retroactivity for the sentencing reductions in those reform bills.)

I want to believe that the overwhelming vote in support of the EQUAL Act in the House Judiciary Committee means that a vote a passage by the full House will be coming soon.  I also want to believe that the bill, which also has bipartisan Senate support, could move efficiently through the upper chamber and become law this year.  But, because the politics and ways of Congress are always mysterious, I am not assuming passage is a sure thing and I have no idea what the timeline for the bill's potential progress will be going forward.  All I know is that it is now more than a quarter-century since the US Sentencing Commission first explained to Congress why a big crack/powder sentencing difference was unjustified and unjust, so the EQUAL Act cannot become law too soon and is way too late.  But better late than never, I still hope.

Notably, we are already approaching three years since passage of the FIRST STEP Act and there is yet to be a next step.  Though I would like to see many more statutory sentencing reform steps from Congress that go far beyond the EQUAL Act, I still think reforms can and should be happy right now with even baby steps in the right direction from a divided Congress.  And,  critically, the EQUAL Act would be a consequential baby step: USSC data indicate that more than 8000 people are in federal prison for crack offenses now and that more than 100 people are sentenced on crack offenses each month.  So literally thousands of people will be impacted if the EQUAL Act becomes law, and then, if/when this reform is finally achieved, we can work on correcting the next and the next and the next injustice baked into federal sentencing law and practice. 

A few prior related posts:

July 22, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, July 21, 2021

"Prosecutorial Roles in Reducing Racial Disparities in the Justice System"

The title of this post is the title of this interesting new R Street report authored by Nila Bala, Casey Witte and Lars Trautman.  Here is its executive summary:

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system.  In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences.  While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful.  With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities.  This paper examines the sources of racial disparities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities.  These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

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

Tuesday, July 20, 2021

When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission?

As we officially hit six months into the Biden Administration, it seems a good time to express my frustration again that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for most of the last five years, and the USSC has not had complete set of commissioners firmly in place for the better part of a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional in terms of formal amendments or agendas in recent years.

In this post a few weeks ago, I highlighted that all the openings on the USSC provide the Biden Administration with an opportunity to appoint transformative commissioners who could make the USSC into a criminal justice reform leader for years to come.  And, as the title of this post suggests, I am now growing a bit frustrated that an array of criminal advocacy groups are not yet publicly advocating on this issue.  (I surmise there might be behind-the-scenes work afoot on this front.  I sure hope so.)  Notably, a broad range of advocacy groups have been actively urging Prez Biden to broadly and aggressively use his clemency powers for various sets of offenders.  Though I share an interest in seeing clemency powers revived, clemency is often just a "one-time" achievement.  Effective appointments to the US Sentencing Commission can provide the foundation for advancing badly needed structural and institutional federal sentencing reforms for a generation.

Justified concern for the home confinement cohort at risk of being sent back to federal prison after the end of the pandemic has garnered lots of attention from advocates and the media.  But, ironically, with the pandemic dragging on, that cohort is still likely to be able to stay home for the foreseeable future even if Prez Biden does not grant some kind of mass clemency (and, as I have argued, Congress ought to be acting to address this issue).  Meanwhile, the federal prison population is growing significantly again, perhaps in part due to a number of beneficial changes to federal sentencing law from the FIRST STEP Act having not yet been fully implemented into the guidelines.  (I particularly have in mind potential expansion of the "safety valve" adjustment in the drug guidelines based on the statutory change in FIRST STEP; a parallel guideline change which might reduce thousands of drug sentences if made fully retroactive.)  With the pandemic dragging on and the federal prison population on the rise, it is especially worrisome that the Biden Administration is moving at a pace that could result in there is no functioning  US Sentencing Commission in place until 2022 and even no realistic chance for any needed guideline amendments until perhaps 2023.

I understand that other appointments, from judges to other executive branch positions, are a higher priority for many political insiders and advocacy groups.  But shrewd and bold nominations to the US Sentencing Commission could and would serve as an effective way for Prez Biden to signal a real commitment to criminal justice reform while also reviving an agency with a long history of impactful work on the federal sentencing system.  In addition to hoping the Biden team is making some progress on this front, I also now want to urge criminal justice advocacy groups to see this is an important opportunity to advance needed change.

Last bit of insider tounge-in-cheek joke:  Maybe the Biden team should get really clever and urge Justice Breyer to give up his day job and serve again on the US Sentencing Commission. 

A few of many  prior recent related posts:

July 20, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Monday, July 19, 2021

"The Evolving Standards, As Applied"

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

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences.  Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility — that the defendant is beyond hope of rehabilitation — as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed.  While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases.  The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases.  Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases.  Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences.  In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases.  Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.  Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

July 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends

As reported in this new New York Times article, headlined "Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency," it appears that the US Department of Justice is not changing its view of the limits of congressional authority to move people to home confinement under the CARES Act. Here are the details:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, officials said on Monday.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations.  Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.  Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.”...

The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.

Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue. “On the campaign trail and during your presidency, you have spoken about the importance of second chances,” according to the letter. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”

I do not find this news especially surprising; if there was any considerable legal wiggle room here, I think the Justice Department would have spoken some time ago.  And, as this article highlights, I have sensed that a number of advocates have been talking up blanket clemency as the most fitting way to resolve this issue.  But I am always eager to highlight the point I made in this recent post, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," that Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.

In addition, as I highlighted in this recent post, another option for case-by-case relief is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce sentences and not just allow these sentences to be served at home.  Of course "the volume of work required" for so many CR motions would be considerable, but the Justice Department could (and I think should) support and even bring sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

Some prior recent related posts:

July 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

New report highlights how various federal agencies other than DOJ can advance criminal justice reform

The Center for American Progress has this intriguing new report titled "Beyond the U.S. Department of Justice: An Intersectional Approach To Advancing Criminal Justice Reform at the Federal Level." The report discusses the work that leading federal agencies other than the Justice Department could do to improve criminal justice systems. Here is part of the report's introduction:

The nation urgently needs to rethink justice system operations, from policing and prosecution to probation and parole. But a comprehensive approach to U.S. criminal justice reform must also look beyond the justice system. The nation must re-examine the web of policies that intersect with public safety and criminal justice — from education to economic development to health care and beyond. Only through an intersectional approach can the government truly redress the harms of the past and build a fairer, more just, and equitable future....

While the DOJ will undoubtedly play a significant role in reforming criminal justice policy and regulations during the next four years, other federal agencies will also be crucial to these efforts. From the Department of Agriculture to the Department of Veterans Affairs, every corner of President Biden’s administration will be essential in shaping the future of America’s approach to safety and justice. As the new administration works toward its promise to “strengthen America’s commitment to justice,” there are several agencies that can take meaningful action toward implementing progressive criminal justice reforms, reducing the footprint of the justice system, and removing barriers for formerly incarcerated individuals.

This report highlights some of the agencies beyond the DOJ that can have significant impacts on reforming the criminal justice system and outlines measures that they could take to establish policies and regulatory practices that would support a more fair and equitable justice system in the long term.

July 19, 2021 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (0)

Saturday, July 17, 2021

"Reducing Racial Inequalities in Criminal Justice: Data, Courts, and Systems of Supervision"

The title of this post is the title of this short report from the National Academies of Sciences, Engineering, and Medicine capturing the proceedings of a notable workshop. Here is how the report is described:

The Committee on Reducing Racial Inequalities in the Criminal Justice System of the National Academies of Sciences, Engineering, and Medicine convened a workshop in April 2021 as part of its exploration of ways to reduce racial inequalities in criminal justice outcomes in the United States.  This workshop, the third in a series of three, enabled the committee to gather information from a diverse set of stakeholders and experts to inform the consensus study process. Speakers at the workshop presented on deeply rooted inequalities within the criminal justice system, which exist not only in readily measured areas such as incarceration, but also in a much larger footprint that includes contact with police, monetary sanctions, and surveillance and supervision.  This publication highlights the presentations and discussion of the workshop.  

July 17, 2021 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

"How the Criminal Justice System's COVID-19 Response has Provided Valuable Lessons for Broader Reform"

The title of this post is the title of this notable new research brief written by multiple authors and distributed by RAND Corporation.  I recommend the full document, and here is how it is introduced:

To better understand the challenges that the COVID-19 pandemic has created within the criminal justice system and how the various sectors of the system have adapted to those challenges, the Priority Criminal Justice Needs Initiative conducted a series of panel workshops with representatives of different sectors within the system.  Panels focused on law enforcement, the court system, institutional corrections, community corrections, victim services providers, and community organizations.  This brief presents key lessons learned and recommendations offered by panel workshop participants.

And here is a closing section that is dear to my data-nerd heart:

There is an urgent need to assess what data need to be collected now, as the pandemic continues, for fear of losing the chance to assess what has been learned and how the changes made have performed.  For example, in some agencies, there have been significant differences in the doses of justice intervention received by different people, and solid information about how those doses varied might become very difficult to reconstruct after their program involvement is complete.  What the system did — and the value of it continuing to do some of those things — is part of the story, and the collection of data to support research and evaluation efforts going forward can help support the case for maintaining some of those practices.  And some of the most important lessons from the pandemic come from what the system did not do, including the choice to not arrest many people and not require some individuals to complete their original sentences or periods of detention for particular crimes and violations.  Lessons can be learned from what that inaction means for potential changes that could be made to the justice system of the future.

July 16, 2021 in Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Thursday, July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

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 realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Wednesday, July 14, 2021

Prez Biden names new drug czar just in time for latest disconcerting accounting of drug overdose casualties

Sub-buzz-10462-1626268647-10As reported in this Politico piece, the "Biden administration is tapping Rahul Gupta as its top drug policy official, charging the former West Virginia public health commissioner with leading federal efforts to combat a spiraling addiction crisis.  In some drug reform quarters, Gupta's appointment is being celebrated as evidenced by this Marijuana Moment piece headlined "Biden Selects White House Drug Czar Who Helped Implement State Marijuana Program And Touted Medical Benefits."  But this new Filter article about the appointment strikes a much more wary tone:

Filter broke the news in March that Gupta was the leading candidate for the role, reporting that harm reduction experts and activists have been critical of his drug policy record. In 2018, he supported the closure of a low-barrier syringe service program.  West Virginia is not only struggling to prevent soaring overdose deaths, but is now facing multiple outbreaks of HIV and hepatitis C, driven by a lack of harm reduction infrastructure and access to sterile syringes for people who use drugs.  In February, the Centers for Disease Control and Prevention described Kanawha County’s HIV outbreak as “the most concerning in the United States.”

It remains to be seen whether as “drug czar” Gupta will take more pro-harm reduction positions and support local harm reduction organizations that are facing political backlash across the country.

“The Biden Administration has made enhancing evidence-based harm reduction efforts one of ONDCP’s top priorities,” Robin Pollini, associate professor at West Virginia University’s Department of Behavioral Medicine & Psychiatry, told Filter.  “I sincerely hope Dr. Gupta will embrace the opportunity to lead on that issue.  And I would ask that he bring that leadership without delay back to West Virginia, where anti-harm reduction laws at both the state and local levels are literally killing our loved ones, friends, and neighbors.”

Gupta is set to take on the federal government’s top drug policy job during a historic year of record-breaking overdose deaths, driven primarily by the presence of illicitly manufactured fentanyl in the unregulated drug supply, as well as stimulants like methamphetamine.

This last sentence from the Filter piece foreshadowed this morning's headlines with the latest reports on just how bad the numbers were on overdose deaths in 2020. Here are a couple of the reports:

From BuzzFeed News, "More People Than Ever Died Of Drug Overdoses In The US In 2020"

From the Wall Street Journal, "U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020, Driven by Synthetic Opioids"

These press reports on the latest 2020 overdose death data draw from this CDC page with more details.  There is an interesting map on the CDC page showing state-by-state overdose numbers  in 2019 and 2020.  Remarkably, two states saw declines in overdose deaths in 2020, New Hampshire and South Dakota.  But, even more remarkably, neighboring Vermont and Nebraska saw huge increases in overdose deaths in 2020.  Sadly, it is hard to find any clear pattern in all the state data except lots of death.

July 14, 2021 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)