Thursday, May 27, 2021

"What's the right age for juvenile criminals to be considered adults? Advocates and some states push it past 20."

The title of this post is the headline of this notable recent lengthy Des Moines Register piece. Here are excerpts:

Four years ago, juvenile justice advocates celebrated a huge win: North Carolina ended its status as the last state in the nation that automatically considered anyone 16 years old or older an adult in the criminal justice system.  When North Carolina raised the age to 18, the change was more than a dozen years in the making.  Now, advocates are setting their sights — and their desired age limit — higher.

And they're winning.  Vermont, Massachusetts, Connecticut and Illinois raised or are looking to increase the age of juvenile jurisdiction through age 20 or created separate courts or parole allowances for those ages 18 to 25.  Similar bills have moved or are being considered in California, Colorado, Washington, D.C., and Florida.  Backed by evidence of racial disparities, court cases and research showing a person’s brain isn’t fully developed until at least 25, states see kids as kids and emerging adults as not fully developed and still prone to immature behavior.

“We've really seen a reversal of the trend in the ’90s, which was to treat more children as adults — sort of the ‘adult crime and adult time’ mindset,” said Karen Lindell, senior attorney with the Juvenile Law Center.  Studies showed minors sentenced in the adult system not only committed more crimes upon release than peers in the juvenile system but also engaged in more serious crimes, Lindell said.

U.S. Supreme Court rulings struck down the death penalty for juveniles and ended mandatory life without parole in all but homicide cases — then for all crimes.  Faced with the research and those rulings, state officials started looking at trends showing juvenile crime rates were plummeting.  In 2019 — the latest year data is available — minors accounted for the fewest arrests in nearly 40 years, roughly 700,000, according to the U.S. Department of Justice.  The biggest drops in juvenile crime were over the past 10 years — a 58% drop overall and a 40% falloff in violent crime.  By comparison, the department said violent crime among adults was down 7%.

Forty-seven states automatically charge those under 18 as juveniles for all but the most serious offenses, such as murder or sexual assault.  Michigan and Missouri joined the list over the past year.  Michigan is working on the Holmes Youthful Trainee Act, which would give people ages 17 to 23 the chance to wipe even felonies from their records.  "No state should want to be the last jurisdiction to automatically prosecute and sentence youth under 18 as adults," said Lael Chester, director of the Emerging Adult Justice Project at Columbia University’s Justice Lab.

Officials in the remaining three states — Georgia, Wisconsin and Texas — have considered bumping the cutoff age to 18.  All three states set the age at 17.  It's not just the ceiling for juvenile jurisdiction being raised: The floor is being lifted as more states increase the age at which minors can first enter the juvenile system. Massachusetts set the floor at age 12. Illinois lifted it to 14.

As on most state-level changes, states look to their peers for guidance, said Anne Teigen, the program director for juvenile justice at the National Conference of State Legislatures.  Other state lawmakers are looking at Vermont.  That state set the age of juvenile jurisdiction through age 18 last year, and that limit will increase to 19 in July 2022 and 20 in 2024.  Vermont started moving in the direction of raising the age in 2016, when then-Gov. Peter Shumlin, a Democrat, signed a law enabling anyone 21 or younger charged with a nonviolent crime to be eligible for juvenile offender status....

Recently, Illinois lawmakers have debated a bill that would raise the age for juvenile consideration to those under 21 and separately, a measure to reintroduce parole to the state  — something that was ended in 1978.  Illinois, like other states, says adulthood begins at 21 for alcohol and tobacco use, so the same age should be applied to criminal behavior, said state Sen. Laura Fine, a Democrat.  "Their brains are not fully developed," Fine said. "And if you put yourself in their position, think of what you did when you were 18. A lot of people were lucky because they did stupid things, and they didn't get caught."

Many law enforcement organizations oppose the move, and the bill, which won early support, stalled as lawmakers worked on other major criminal justice changes, such as getting rid of cash bail.  "We think that what people do when they're 20 or 21 is quite a bit different from what people do when they're 13 and 14.  And the kinds of opportunities that we give to 13- and 14-year-olds seem rather appropriate most of the time," said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, which opposes the measure....

If the Illinois bill becomes law, Columbia University's Chester said, it could swing other states in that direction.  “Illinois would be the second state to move in that direction, but it would be a big deal," Chester said. "As momentous as Vermont is, it's a very small state.  And I think the bigger states, having Illinois with a very large population — the big city of Chicago — that is more influential on the national stage.”

May 27, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 26, 2021

AG Garland announces new(?) federal effort to reduce violent crime

This new press release and this new detailed guidance from the Deputy AG sets forth the particulars of "a new Department of Justice effort to help protect our communities from the recent increase in major violent crimes."  I am not really sure there is actually much that is really new here, but the focus and framing (and future follow up) is interesting to see coming from our new Attorney General as the US continues to experience an uptick in homicides and gun assaults.  Here is part of the press release:

The strategy announced today is three-pronged. First, it establishes a set of four fundamental principles to be applied Department-wide to guide violent crime reduction:

  1. Build trust and earn legitimacy. Meaningful law enforcement engagement with, and accountability to, the community are essential underpinnings of any effective strategy to address violent crime, as well as important ends in themselves. Accordingly, building trust and earning legitimacy within our communities is the foundation on which the strategy is built. 
  2. Invest in prevention and intervention programs. Violent crime is not a problem that can be solved by law enforcement alone. Accordingly, the Department must invest in community-based violence prevention and intervention programs that work to keep violence from happening before it occurs.
  3. Target enforcement efforts and priorities. The Department is most effective when it focuses its limited enforcement resources on identifying, investigating, and prosecuting the most significant drivers of gun violence and other violent crime.
  4. Measure results. Because the fundamental goal of this work is to reduce the level of violence in our communities, not to increase the number of arrests or prosecutions as if they were ends in themselves—we must measure the results of our efforts on these grounds.

I did not see anything in these materials concerning sentencing policies or practices, though all federal prosecutorial priorities and plans necessarily ripple into sentencing advocacy and outcomes in some way. 

May 26, 2021 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional

I flagged in this post last week that the US Sentencing Commission had just released a host of notable new materials with lots of interesting data via the USSC's website.  Upon reflection and review, I was especially struck by this new data run detailing retroactive application of "Amendment 782 -- The 2014 Drug Guidelines Amendment, often referred to as 'Drugs Minus Two'."  These data reminded me of how impactful a functional and forward-thinking US Sentencing Commission can be on its own ... and why I hope Prez Biden will soon put forward nominations that would lead the USSC to become functional and forward-looking once again.

A bit of background, drawn from this report: "On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that ... reduced by two levels the offense levels assigned to [drug] quantities....  On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782."  In other words, the USSC in 2014 reduced the basic guideline offense level by two for all drug offenses and made this change retroactively applicable to all federal drug defendants still imprisoned for offenses before 2014.  Because drug offense are a huge part of the federal criminal docket and an even larger part of the federal prison population, this relatively small guideline change has had a huge prison time impact.

Specifically, as this retroactive new data report details, a total of 31,908 persons in federal prison were granted sentence reductions that averaged 26 months.  In other words, the retroactive application of the "drugs -2" guideline amendment resulted in just about 70,000(!) years of retroactive reduced imprisonment.  Further, with well over 100,000 federal drug cases sentenced over the last six years, the "prospective" impact of the  drugs -2 guideline amendment has surely been at least another 200,000 years of reduced imprisonment for federal drug offenders (and still counting). 

Critically, the drugs -2 amendment was not a direct reaction to any congressional legislation, it was a (bipartisan) decision made by a (bipartisan) expert commission shaped by evidence and sound policy analysis in all respects.  In other words, this was a consequential (decarceal) reform moved forward in precisely the good-government process that Judge Marvin Frankel envisioned when he astutely suggested the creation of a Commission on Sentencing for the federal criminal justice system. 

Sadly, the US Sentencing Commission is now essentially non-functional, at least for guideline amendments and any big initiatives, for going on three years because of the lack of commissioners.  As discussed in a number of prior posts linked below, I hope Prez Biden will get the USSC up and running again.  In the meantime, I will keep doing posts to note the wisdom and reform potential we risk losing until the USSC is functional and forward-looking once again.

 A few prior recent related posts:

May 26, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration"

The title of this post is the title of this new paper authored by Michael Conklin now availabe via SSRN.  Here is its abstract:

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism.  States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs.  The need for such common-sense reform is timely.  COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes.  This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience.  This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience.  It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities.  These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

May 26, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 24, 2021

Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel

As detailed in this website, candidate Joe Biden pledged to "Eliminate the death penalty" if elected.  But many months into his presidency, it appears that Prez Biden's Department of Justice is continuing to actively defend the application of the death penalty in at least on high-profile case.  Specifically, as detailed in this local article, tomorrow a Fourth Circuit panel will hear arguments on Dylann Roof's appeal of his conviction and death sentence with DOJ apparently seeking to defend that punishment.  Here are the basics:

Defense lawyers will advance arguments Tuesday on up to 20 issues in the U.S. 4th Circuit Court of Appeals in Richmond as to why Dylann Roof was wrongfully convicted and sentenced to the death penalty in 2017 after a weeks-long trial. They will ask the court to vacate both the conviction and the death penalty.

Those arguments will be countered by a team of prosecution appellate lawyers from the U.S. Department of Justice. They seek to uphold the conviction and sentence.

Roof, 27, who grew up in Columbia, was sentenced to death in January 2017 by U.S. Judge Richard Gergel after a jury found him guilty of 18 death eligible federal hate-crimes and firearms charges. In a subsequent proceeding to determine sentence, the same jury ruled Roof deserved the death penalty. Judge Gergel then pronounced the sentence.

Evidence at Roof’s trial, which included his own writings and selfie photos and videos, portrayed him as a self-described white supremacist who wanted to start a race war by killing African-Americans. To implement his plan, Roof traveled to Charleston in June 2015, entered a prayer meeting at an African American church and executed nine Black churchgoers, including beloved Democratic state Sen. Clementa Pinckney.

“Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty” will be considered, according to a description about the case on the Fourth Circuit’s web site.

Roof’s purported mental illness and inability to be his own lawyer — casting aside an active defense role by David Bruck, one of the nation’s most experienced death penalty lawyers — is a major feature of Roof’s defense....

“Though Roof’s mental state was the subject of two competency hearings, and five experts found him delusional—findings swiftly dismissed by the court, in its rush to move the case along—jurors never heard any of that evidence. Instead, prosecutors told them Roof was a calculated killer with no signs of mental illness. Given no reason to do otherwise, jurors sentenced Roof to death. Roof’s crime was tragic, but this Court (the 4th Circuit) can have no confidence in the jury’s verdict,” the defense brief on the case says....

Prosecutors will argue that Judge Gergel’s rulings in both the guilt or innocence, as well as the penalty, phases of the trial were correct. “(Judge Gergel) did not clearly err in finding Roof competent to stand trial. The finding was supported by expert testimony and was not arbitrary or unwarranted,” the prosecutors’ brief said. “Roof’s right to self-representation was correctly defined and properly protected.”

“No error occurred at the penalty phase,” the prosecutors wrote. “The death penalty was not plainly erroneous based on Roof’s age or mental condition. Finally, Roof’s convictions rest on sound legal and constitutional grounds.”

Interestingly, though this appeal is technically being considered by the Fourth Circuit, no Fourth Circuit judge will actually be hearing the appeal. The press article explains:

The judges on the panel are Judge Duane Burton of the 8th Circuit Court of Appeals; Kent Jordan of the 3rd Circuit Court of Appeals; and Senior Judge Ronald Gilman of the 6th Circuit Court of Appeals. Usually, judges on a panel are chosen from the full 4th Circuit, which has 15 judges. However, 4th Circuit Judge Jay Richardson of Columbia was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.

I welcome reader comment on the (interesting?) metaphysical question of whether an appeal in the Fourth Circuit heard by no Fourth Circuit judges is really a Fourth Circuit appeal.  (I also wonder if there will have to be an additional 12 judges appointed by designation in order to properly consider any en banc petition that might follow a ruling from this panel.)

A few of many prior related posts:

May 24, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

Lengthy lament in SCOTUS cert dissent about execution method litigation

The Supreme Court’s order list this morning has no cert grants and lots and lots of cert denials.  And, at the end, Justice Sotomator penned a lengthy dissent to one such denial concerning a Missouri inmate’s effort to contest the state’s execution methods.  This dissent, in Johnson v. Precythe, No. 20-287, is joined by Justices Breyer and Kagan.

Because I am caught up with some pomp and circumstance today, I will not have a chance to review this opinion closely anytime soon.  (But I do have time to note that there are precious few persons being intentionally executed by states these days while there are still lots and lots of persons dying in prisons and jails due to neglect and other less intentional causes.  I hope these other more frequent kinds of deaths in custody might get more attention from the Supreme Court before too long.)

May 24, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Sunday, May 23, 2021

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

6a00d83451574769e20224df387165200bIn this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

May 23, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Spotlighting how "death in prison" LWOP cases still get so much less attention than capital punishment

Way back in 2008, I lamented in an article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," that all the "Supreme Court attention and constitutional scrutiny given to capital cases necessarily means less attention and constitutional scrutiny given to non-capital cases."  Though that article was particularly focused on SCOTUS dockets, regular readers know I have long fretted about the tendency of so many media, lawyers, advocates and legal decision-makers to give so much time and energy to very rare capital cases when there are so many other cases with so many other ugly sentencing realities that could benefit from more attention.

Over the last decade, mass incarceration and a range of other sentencing and punishment realities have thankfully garnered considerably more attention in so many quarters.  But I think there are still problematic imbalances in coverage and commentary and concern: for example, South Carolina's decision to bring back firing squads even though the state has not had an execution in a decade got lots of attention, while a Mississippi court's decision to uphold an LWOP sentence for marijuana possession has gotten far less attention.

Against this backdrop, I was pleased to see this new lengthy article in The Marshall Project under the headline "Life Without Parole Is Replacing the Death Penalty — But the Legal Defense System Hasn’t Kept Up."  I recommend this piece in full, and here are excerpts:

Life-without-parole sentences are steadily replacing the death penalty across the United States.  Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms. 

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead.  Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers.  In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up.  Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center.  In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found.  Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska.  In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.  Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.  “The sentencing stakes are so high and often irreversible.”  People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said....

Though thousands are serving life without parole for violent crimes such as homicide, courts in almost a dozen states have given hundreds of people that penalty for drug crimes.  Prosecutors have found that jurors are less squeamish about locking people up for the rest of their lives than about executing them. And life-without-parole trials cost thousands of dollars less than death penalty cases. They are shorter, involve fewer lawyers, allow limited appeals and often end in plea deals before trial....

“Prosecutors have gone wild with life-without-parole sentences -- but in particular counties and for particular marginalized people,” said Brandon Garrett, a Duke University law professor who wrote a book on the decline of capital punishment.  His study of North Carolina found that more than 60% of the prison population serving life without parole was Black.  Only 30% was White....

In 2003, the American Bar Association updated its guidelines for what lawyers should do for clients who face death sentences. Among other things, the guidelines say these lawyers should have extensive criminal trial experience and knowledge of death penalty case law and should hire investigators and mental health experts.  Some state legislatures and courts have adopted these standards, including Texas. But experts say enforcement is a problem.  And in almost every state, the standards don’t apply to life-without-parole cases. 

May 23, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, May 22, 2021

Noticing a lack of pleas, so far, in Capitol riot prosecutions

I keep saying that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  This recent Reuters piece, headlined "Few plea bargains in U.S. Capitol riot cases as prosecutors stand firm," provides another interest update on these cases:

Nearly four months after the U.S. Capitol attack, just one of more than 440 people charged has pleaded guilty, a sign of tough conditions set by prosecutors for plea deals and resistance by defense lawyers to their demands.  This reflects the high stakes of cases stemming from the worst violence at the Capitol in modern history, which left five people dead.

U.S. officials have suggested in court hearings that defendants might be interested in pleading guilty, a move that typically can result in a shorter sentence.  Prosecutors routinely seek to resolve cases through plea bargains.  But legal experts said it is relatively early in this process for either prosecutors or defense lawyers to be reaching quick deals.

Lawyers for more than a dozen defendants said plea talks so far have foundered because prosecutors demanded their clients turn over social media data, cell phones and other evidence, while also pushing for prison sentences they would not accept.  Without plea deals, hundreds of separate trials will move forward, a time-consuming process now extended by a case backlog resulting from the COVID-19 pandemic.

Moreover, without evidence provided under plea bargains, federal prosecutors may have a harder time building cases against leaders of the violence on more serious charges such as conspiracy or violation of laws intended to fight organized crime....

The charges have ranged widely, from disorderly conduct to assaulting officers and conspiracy. Key conspiracy cases have largely focused on leaders of the right-wing Oath Keepers and Proud Boys groups. They face charges of obstruction of an official proceeding, destruction of government property and occupying a restricted building.

Some defendants facing lesser charges have been surprised by prosecutors' demands. Defense lawyers have complained that their insistence on obtaining cell phones and other physical and digital evidence is excessive. That data could be used to build cases against planners of the violence.

Attorney Steven Metcalf said he rejected a plea deal that would have sent his client Richard Barnett to prison for several years. The man from Gravette, Arkansas was seen in a widely circulated photograph sitting at a desk with his feet up in House of Representatives Speaker Nancy Pelosi's office. "We might consider something more reasonable," Metcalfe said....

Former federal prosecutor Laurie Levenson, a law professor at Loyola Law School in Los Angeles, said that by taking a tough stand in plea-bargain negotiations, prosecutors are "sending a message" about how seriously they take the riot cases. "It is still relatively early in the process," Levenson said. "Prosecutors don't want to ... set the standards too low. There's not a lot incentive for prosecutors to give a sweetheart deal."

Prosecutors are also likely focused on amassing as much evidence as they can, she said, hence the requests for defendants to surrender phones and other data. The one person who has pleaded guilty so far, Oath Keepers founding member Jon Schaffer, agreed to turn over "any and all evidence" of crimes that he was aware of and to fully cooperate with prosecutors, according to his plea deal filed in federal court.

The lawyer for Jacob Chansley, the man nicknamed the "QAnon Shaman" who was photographed wearing a horned headdress inside the Capitol, said the prosecutors he has talked to appear to have less leeway to negotiate deals without consulting Washington than he normally encounters in federal cases. "We have been working as collaboratively as we can with the government," said Albert Watkins, a St. Louis lawyer who represents Chansley and three other Jan. 6 defendants....

At a court hearing this month, prosecutors indicated that senior officials had approved possible plea deal offers for four defendants charged with attacking police in a Capitol tunnel with firecrackers and chemicals. But lawyers for some of them said no offers have materialized....

Plea discussions appear to be advanced in the case of at least one other accused rioter, court records showed. Douglas Jensen of Des Moines, Iowa, faces charges including violent entry of the Capitol and disrupting government business. Court records showed that a conference in early May was postponed until June while the parties decide if they want to proceed with a plea. Jensen’s lawyer declined to comment.

I am quite confident that many of these cases will be resolved via pleas and that there will not be "hundreds of separate trials" moving forward.  Indeed, because prosecutors are still building more cases and likely still figuring out relative culpability, it is not all that surprising that they are aggressively seeking cooperation and information in the plea negotiation process before agreeing to reduced sentences.  Also, as Prof Levenson rightly highlights, federal prosecutors are likely disinclined to have early pleas involve less serious charges with what may be perceived as light sentencing outcomes, both because of the optics of any deal perceived to be "sweetheart" and because early plea deals often set benchmarks for later plea negotiations and sentencings.  In other words, these case still reflect classic federal prosecutorial dynamics, even if plea deals are being struck a little more slowly.

Prior related posts:

May 22, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, May 21, 2021

"Population-Based Sentencing"

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

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses.  How have courts responded to this trend?  Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques.  First, the courts have expanded individual procedural rights into sentencing where they once did not apply.  Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants.  These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract.  While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration.  However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward.

May 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Notable data on BOP resistance to compassionate release requests from federal prisoners

As regular readers likely surmise, I have been quite pleased that federal courts have seized their new authority under the FIRST STEP Act to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  This BOP "First Step Act" page reports that there have been a total of 3,414 "Compassionate Releases / Reduction in Sentences" approved by courts since passage of the FIRST STEP Act, but the BOP has not reported on how many of such motions have been support by the BOP.  But this week, a letter from the BOP to members of Congress (which was apparently written in mid April and can be downloaded below) provides more details on how many compassionate release requests have been made and how few have been endorsed by the BOP.

Specifically, the letter to members of Congress authored by Ken Hyle, BOP's General Counsel, reports that since March 1, 2020, a little over 30,000 compassionate release requests were made by federal prisoners,  Of that number, only 374 of these requests were recommended for approval by prison wardens and then only 36 were approved by the BOP's Director.  In other works, during global pandemic, only about 1 out of 83 requests for compassionate release got approved by a federal warden, and then less than one out of every 10 requests approved by a warden was approved by the BOP Director.

Thankfully, federal judges had a much more fulsome view of compassionate release during a pandemics.  Specifically, given that around 3250 motions for compassionate release were granted by judges during the pandemic, it seems that for every compassionate release motion found satisfactory by the BOP Director, there were an additional 90 motions that federal judges concluded were satisfactory to  justify a sentence reduction under the provisions of 18 U.S.C. § 3582(c)(1)(A).

Download Response from BOP re. compassionate release during COVID 4.16.21

May 21, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 20, 2021

"But Who Oversees the Overseers?: The Status of Prison and Jail Oversight in the United States"

The title of this post is the title of this notable new article by Michele Deitch in the American Journal of Criminal Law.  Here is part of the issue's introduction:

In 2010, I published research demonstrating that external oversight over prisons and jails was a rarity in the United States.  Ten years later, this article reveals a similar conclusion — despite the extraordinary concerns surrounding conditions of confinement and the treatment of people in custody, relatively few jurisdictions have established independent agencies tasked with scrutinizing these institutions and addressing the problems they find.  However, there have also been significant signs of change over the last decade: the national landscape for independent correctional oversight is improving, with greater awareness of this issue, more calls for the creation of oversight mechanisms, more concrete efforts to establish these entities, and the successful implementation of several new oversight bodies.

This article builds on my 2010 report to highlight those recent developments and to assess the current state of correctional oversight in the United States.  Part I describes the concept of correctional oversight and explains its goals to improve transparency and increase accountability within prisons and jails.  It goes on to outline the benefits of oversight that can accrue to diverse stakeholders, including incarcerated persons, correctional administrators, policymakers, judges, the media, and the public at large.  This section also discusses the prevalence of independent oversight bodies in other countries, and how the lack of such oversight makes the United States an anomaly on the world stage.

In Part II, I discuss America’s historical reliance on court oversight as a way to address problematic institutional conditions and how this has inhibited the development of preventive oversight mechanisms.  But as litigation has become a less reliable tool for prison reformers, and as the drawbacks of court oversight have become more obvious, advocates have begun to emphasize the need for preventing harm through routine inspections of facilities rather than waiting until conditions hit rock bottom to get involved in reform efforts.

Part III examines the growing interest in correctional oversight and discusses recent calls for the development of independent oversight mechanisms in this country.  Since 2006, there has been a series of notable highlights in the nascent oversight movement, and this section sets forth a chronology of those key events.

Part IV describes a multi-year research project conducted at the Lyndon B. Johnson School of Public Affairs at the University of Texas to find, interview, and catalog all external prison and jail oversight bodies that currently exist for adult correctional facilities around the nation.  This part of the article presents and analyzes the key findings about these various oversight bodies.  In this section, I also highlight those jurisdictions that have established oversight bodies since 2010, to show the shifting landscape of correctional oversight in the United States. This section of the article also includes charts with lists of various prison and jail oversight bodies at the state and local levels.

Finally, Part V concludes with an overall assessment of the status of correctional oversight in the United States.  That assessment mixes optimism and excitement about the future of oversight with a dose of realism about the challenges ahead and a recognition that we continue to trail our peer nations when it comes to belief in the critical importance of independent oversight.  But still we must push on in our efforts to promote transparency and accountability in all places of confinement.

May 20, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, May 19, 2021

Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills

I was pleased to see today this press release from Americans for Prosperity noting that the US Senate Judiciary Committee has a meeting scheduled on Thursday which includes plans "to mark up three key bills: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act."  Here is how the press release describes these bills:

I have blogged about all these bills in these prior posts:

Senators Durbin and Grassley introduce new "First Step Implementation Act"

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act" 

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 

It is exciting to all three of these bill poised to move forward in the legislation process.  None alone would be a massive reform, but all together would be a significant advance in federal criminal justice reform.

May 19, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

US Sentencing Commission releases lots of notable new data and "Quick Facts" reports

I was pleased to receive an email from the US Sentencing Commission today titled "What's New in Federal Sentencing?".  This email provided links and brief highlights of a lot of new items and data just posted to the USSC's website.  Here is a sampling from the email:

NEW First Step Act Data

The U.S. Sentencing Commission published updated data on sentence reductions pursuant to Section 404 of the First Step Act of 2018. Under Section 404, defendants sentenced before the Fair Sentencing Act of 2010 are eligible for a retroactive sentence reduction. 

Data Highlights

Through September 30, 2020, the Commission received the following information from the courts: 

  • 3,705 offenders were granted a sentence reduction under Section 404.
  • 65% were assigned to the highest Criminal History Category (VI). 
    • 56% were Career Offenders.
  • 45% received a weapon-related sentencing enhancement.
  • Offenders received an average decrease of 6 years in their sentence. 
    • The original average sentence was 274 months.
    • The new average sentence was 202 months.
  • 87% of granted motions were made by the defendant, 9% by the attorney for the government, and 4% by the court.

Quick Facts 

The Commission continues to update QuickFacts with new data. Recently updated QuickFacts include:

QuickFacts publications give readers basic facts about a single area of federal crime in an easy-to-read, two-page format. The Commission releases new QuickFacts periodically.

May 19, 2021 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (3)

"The Origins of the Superpredator: The Child Study Movement to Today"

The title of this post is the title of this notable new report from the Campaign for the Fair Sentencing of Youth.  Here is its introduction:

The 1995 superpredator narrative is often called out as the impetus for our nation's harmful sentencing policies for Black children.  After all, 75 percent of all kids sentenced to life without parole (JLWOP) were sentenced in the 90s or later, and 70 percent of this population are kids of color (60 percent Black).  But the pseudo-scientific, unsubstantiated, and racialized superpredator theory is actually part of an American tradition of deeming some children something other than children.

The term superpredator first appeared in a publication by American political scientist John J. DiIulio, Jr. in 1995. DiIulio predicted that a wave of teenagers driven by "moral poverty" numbering in the tens of thousands would soon be on the streets committing violent crime. These "hardened, remorseless juveniles" were framed in the article as a pressing "demographic crime bomb."  DiIulio's narrative used racist tropes to further stoke fear — broadly attributing "moral poverty" to "Black inner-city neighborhoods" and families and specifically and repeatedly calling attention to gang violence and "predatory street criminals" among "Black urban youth." 

Five years later, DiIulio renounced the superpredator theory, apologizing for its unintended consequences.  While Dilulio predicted that juvenile crime would increase, it instead dropped by more than half.  Conceding that he made a mistake, Dilulio regretted that he could not “put the brakes on the super-predator theory” before it took on a life of its own.

Despite his later distancing from the idea, DiIulio's terminology spread like wildfire through major news outlets and academic circles.  Coming just a few years after headlines using "wilding" and "wolf pack" to describe five teenagers convicted and later exonerated of raping a woman in Central Park, the rhetorical dehumanization of youth suspected of violence was not new, but DiIulio's coining of "superpredator" lent new credibility and energy.  The superpredator myth reinforced and sought to legitimize longstanding fears of Black criminality, disguised as developmental science and resting on pseudo-scientific assumptions that certain children are not children at all.

While the widespread adoption and popularization of DiIulio's rhetoric and the broader tough on crime atmosphere of the 1990s is instructive in examining our extreme sentencing policies, it is important to place them in the context of our long history of only regarding some children as worthy of protection.  This report highlights the superpredator theory as one manifestation of a longstanding practice in which policymakers, lawyers, and academics classify children on the basis of moral and racial beliefs.  These classifications permit racially biased perceptions of deviance to replace chronological age as the defining characteristic of youth.

This report takes as its jumping off point the Child Study movement of the 19th century, which had long lasting impact on the contours of academic inquiry and the American legal system.  The Child Study movement itself was of course rooted in a deeply racist culture, profoundly influenced by the justifications used to uphold slavery and Jim Crow, and with its own ideological predecessors dating back to the Enlightenment of the 18th century.

May 19, 2021 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

OG progressive prosecutor Larry Krasner wins big in Philadelphia DA primary

This week's primary election for Philadelphia District Attorney was reasonably seen as a kind of referendum on the progressive prosecutor movement.  (See this AP piece, headlined "Prosecutor’s reelection pits reform against rising gun crime.")  Larry Krasner is seeking a second term after pushing a wide array of criminal justice reforms during his first three years in office; former assistant DA Carlos Vega had the backing of the city's police as he sought to dislodge Krasner during the Democratic primary. 

Some polling seemed to suggest this could be a close race, but tonight it appears that DA Krasner has secured the Democratic nomination by a wide margin (and thus all-but-certain re-election in a deep blue city).  As of this writing (around midnight), this election website reports, with over 80% of the divisions reports, Krasner has roughly 65% of the vote to Vega's 35%.

UPDATE: This piece from The Intercept, headlined "Philadelphia District Attorney Larry Krasner Trounces Police-Backed Primary Challenger," provides lots of context, and I found these passages notable as DA Krasner considers his plans for the coming years:

Since his election in 2017, Krasner has become a symbol of the burgeoning movement to elect reform-minded prosecutors. “Krasner has been kind of a model,” said Scott Roberts, senior director of criminal justice campaigns at Color of Change, a racial justice group that supported several such prosecutors’ bids and endorsed Krasner.  “I can’t tell you how many potential DA candidates I have talked to who lead with, ‘I’m going to be the Larry Krasner of fill-in-the-blank city.’”

But Krasner’s election and the reforms he enacted as soon as he took office also sparked a fierce backlash — making him a national target for law enforcement groups and prominent Republicans.  Former President Donald Trump, for example, claimed in 2019 that prosecutors in Philadelphia and Chicago “have decided not prosecute many criminals” who pose a threat to public safety.

Krasner’s reelection bid came as an increase in gun violence in many U.S. cities — including Philadelphia — and calls to reduce the scope of policing prompted a return to tough-on-crime rhetoric and rebuke of reformist efforts.  But other reform-oriented DAs in cities with considerable gun violence — like Chicago’s Kim Foxx and St. Louis’s Kim Gardner — recently won reelection bids despite sometimes vicious attacks on them.

According to a recent poll by Data for Progress, many of the reforms Krasner enacted remain popular with voters in Pennsylvania. Sixty-four percent of people surveyed expressed support for limitations to the use of cash bail, 60 percent were in favor of the decriminalization of drug possession, 75 percent favored sentence reductions for good behavior, and 68 percent supported terminating probation when supervision is no longer needed.  Just this week, a Philadelphia City Council committee advanced a measure outlining procedures for a new police oversight board that will go to a full council vote later this week — the result of years of organizing by local activists who have pushed to create a body with power and funding to hold police accountable for misconduct, with renewed energy after police met protests last summer with brute force.

“With all the noise that goes on, the attacks, what have you, we know that the agenda is still very popular,” said Roberts. “People want to see these prosecutors’ offices being focused on bringing down incarceration rates, and holding police accountable.  And they’re actually looking for other solutions for violence, they’re not willing to buy into the narrative that they hear from police unions and conservative politicians.”

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

Tuesday, May 18, 2021

Idaho delays scheduled execution for terminally ill condemned man to allow for commutation hearing

As reported in this new AP piece, a "scheduled June execution for an Idaho man who is dying of terminal cancer has been canceled so the state’s Commission of Pardons and Parole can consider whether to commute his sentence."  Here are a few details:

Gerald Ross Pizzuto Jr. was scheduled to die by lethal injection on June 2 in connection with the 1985 murders of two people at a remote Idaho County cabin.  On Tuesday, the Idaho Commission of Pardons and Parole granted Pizzuto’s request for a commutation hearing, and attorneys for the state and Pizzuto agreed that the execution should be stayed until the hearing is concluded.  The hearing will be held in November, the commission said....

Pizzuto, 65, has terminal bladder cancer, diabetes and heart disease and is confined to a wheelchair.  He’s been on hospice care since 2019, when doctors said he likely wouldn’t survive for another year....

Court records show Pizzuto’s life was marred by violence from childhood.  Family members offered gruesome testimony that Pizzuto was repeatedly tortured, raped and severely beaten by his stepfather and sometimes by his stepfather’s friends, and he sustained multiple brain injuries.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money.  He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Pizzuto is one of eight people on Idaho’s death row.  Idaho has executed three people since capital punishment was resumed nationwide in 1976.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhodes was executed in 2011 and Richard Albert Leavitt was executed in 2012.

May 18, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Uninspired comments and plans emerging from Biden White House concerning clemency vision

The New York Times has this new story that reinforces some of the buzz I have been recently hearing that Prez Biden is disinclined to significantly transform either the process or the practice of federal clemency anytime soon.  Regular readers know I have been urging clemency action by Prez Biden since his first days in office, but the first line of the article suggests we ought not expect any grants until at least mid to late 2022: "Administration officials have quietly begun evaluating clemency requests and have signaled to activists that President Biden could begin issuing pardons or commutations by the midpoint of his term."

The article does goes on to suggest Prez Biden might at least be considering a clemency approach akin to what Prez Obama eventually adopted at the very end of his second term. But it sounds like any program would still be administered through the Pardon Attorney's office still problematically located in the Department of Justice.  Here are excerpts of a piece worth reading in full:

Mr. Biden’s team ... has signaled in discussions with outside groups that it is establishing a more deliberate, systemic process geared toward identifying entire classes of people who deserve mercy.  The approach could allow the president to make good on his campaign promise to weave issues of racial equity and justice throughout his government.

The White House has publicly offered few details about his plans for issuing pardons, which wipe out convictions, and commutations, which reduce prison sentences.  But White House officials have indicated in private conversations with criminal justice activists, clemency seekers and their allies that Mr. Biden’s team is working with the Justice Department’s Office of the Pardon Attorney to process clemency requests with an eye toward having the president sign some before the 2022 midterm elections.

“We asked them not to wait to the end of a term to execute pardon and commutation power for photo ops, and they definitely assured us that is not this administration’s plan,” said DeAnna Hoskins, the president of the criminal justice group JustLeadershipUSA, who participated in a Zoom session for former prisoners with White House officials last month. “This administration is looking at early on,” said Ms. Hoskins, who worked on prisoner re-entry issues for county, state and federal government agencies after serving a 45-day sentence for theft in 1999.

Participants in the Zoom session and other meetings with the White House have come away with the impression that Mr. Biden intends to use clemency grants — which are among the most unchecked and profound powers at a president’s disposal — to address systemic issues in the criminal justice system.  The Biden campaign hinted at such an approach in its criminal justice platform, which indicated that he intended to use clemency “broadly” to “secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes.”

Among those supporting the administration’s efforts is Susan E. Rice, who leads Mr. Biden’s Domestic Policy Council. She is focused on instilling racial equity in all of the administration’s initiatives and has recruited a team with deep roots in civil rights and justice....  But the White House has indicated that it will rely on the rigorous application vetting process overseen by the Justice Department’s Office of the Pardon Attorney.

Mr. Biden’s White House has already signaled that even its allies will have to go through the process, as was made clear to Desmond Meade, who in 2018 led a successful push to restore voting rights to more than 1.4 million Floridians with felony convictions.  Mr. Meade, who has expressed interest in a federal pardon for a decades-old military conviction for stealing liquor and electronics on Navy bases while he was serving in the Army, was steered this year to the Justice Department’s pardon attorney...  In an interview, Mr. Meade said that the department’s clemency process was “way too bureaucratic,” adding that “the pardon application in itself is daunting, and it screams that you need to hire an attorney to make that happen.”  He said he was among the activists who urged White House officials to consider moving the process out of the Justice Department, noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy.

But the Biden administration is not inclined to circumvent the department, according to a person familiar with the White House’s thinking. Instead, Mr. Biden’s team has pointed to the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants.  Most went to people recommended by the Justice Department, many of whom had been serving sentences under tough antidrug laws, including those convicted of low-level, nonviolent crimes like possession of cocaine.

In outreach sessions to criminal justice activists, White House officials have collected recommendations on categories of clemencies that should be prioritized.  The sessions have included groups with strong connections in the Black community and those that aggressively opposed Mr. Trump, including the American Civil Liberties Union, as well as the libertarian Cato Institute and the Prison Fellowship, which counts evangelical conservatives among its staff and supporters....

The A.C.L.U. highlighted those prisoners and others in an online and newspaper advertising campaign during Mr. Biden’s inauguration week.  It urged him to grant clemency to 25,000 people in federal prison, including “the elderly, the sick, those swept up in the war on drugs and people locked up because of racist policies of the past that have since been changed.”  Udi Ofer, the director of the A.C.L.U’s justice division, said that Mr. Biden “has a special obligation given his history to use the power of clemency to fix these issues, because he was the architect of so many of the mass incarceration policies that we are now trying to repeal.”

I suppose I should be pleased that clemency issues continue to get significant attention, but I remain displeased that all we have seen so far is a lot of clemency talk (or proclamations about second chances) and no actual clemency grants.  Notably, recent polling shows lots of support for commuting the sentences of a wide variety of persons serving problematic sentences, and  almost everyone readily recognizes that there are many, many persons in the federal criminal justice system still subject to problematic sentences.  I say "almost everyone" because I sense that federal prosecutors working in the Department of Justice do not see all that many federal sentences as so problematic, which is why so many others (myself included) think it so problematic that the Justice Department’s Office of the Pardon Attorney continues to serve as the gatekeeper (and wet blanket) in the federal clemency process.  

A few prior recent related posts:

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

Monday, May 17, 2021

After embracing new firing squad option, will South Carolina seek to move quickly forward with "old school" executions?

As reported in this new AP piece, "South Carolina Gov. Henry McMaster has signed into law a bill that forces death row inmates for now to choose between the electric chair or a newly formed firing squad in hopes the state can restart executions after an involuntary 10-year pause." Here are more details that prompt the question in the title of this post:

South Carolina had been one of the most prolific states of its size in putting inmates to death. But a lack of lethal injection drugs brought executions to a halt.

McMaster signed the bill Friday with no ceremony or fanfare, according to the state Legislature’s website. It’s the first bill the governor decided to deal with after nearly 50 hit his desk Thursday. “The families and loved ones of victims are owed closure and justice by law. Now, we can provide it,” McMaster said on Twitter on Monday.

Last week state lawmakers gave their final sign offs to the bill, which retains lethal injection as the primary method of execution if the state has the drugs, but requires prison officials to use the electric chair or firing squad if it doesn’t.

Prosecutors said three inmates have exhausted all their normal appeals, but can’t be killed because under the previous law, inmates who don’t choose the state’s 109-year-old electric chair automatically are scheduled to die by lethal injection.  They have all chosen the method that can’t be carried out.

How soon executions can begin is up in the air.  The electric chair is ready to use.  Prison officials have been doing preliminary research into how firing squads carry out executions in other states, but are not sure how long it will take to have one in place in South Carolina.  The other three states that allow a firing squad are Mississippi, Oklahoma and Utah, according to the Death Penalty Information Center.

Three inmates, all in Utah, have been killed by firing squad since the U.S. reinstated the death penalty in 1977.  Nineteen inmates have died in the electric chair this century, and South Carolina is one of eight states that can still electrocute inmates, according to the center.

Lawyers for the men with potentially imminent death dates are considering suing over the new law, saying the state is going backward.  “These are execution methods that previously were replaced by lethal injection, which is considered more humane, and it makes South Carolina the only state going back to the less humane execution methods,” said Lindsey Vann of Justice 360, a nonprofit that represents many of the men on South Carolina’s death row.

From 1996 to 2009, South Carolina executed close to average of three inmates a year.  But a lull in death row inmates reaching the end of their appeals coincided a few years later with pharmaceutical companies refusing to sell states the drugs needed to sedate inmates, relax their muscles and stop their hearts.  South Carolina’s last execution took place in May 2011, and its batch of lethal injection drugs expired in 2013.

I am struck by the report here that South Carolina has a "109-year-old electric chair." It makes me wonder, only half-jokingly, if they might try to find some really old guns for use in a firing squad.  Gallows humor aside, I sincerely wonder how quickly South Carolina will seek to set execution dates for condemned prisoners who has exhausted all their appeals and how quickly the inevitable litigation over this new law will make its way through the court system.

May 17, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

SCOTUS rules unanimously that "community caretaking" does not create special exception to Fourth Amendment for warrantless home entry

Though I will be thinking a lot about what a split Supreme Court did to Teague doctrine today with its ruling in Edwards v. Vannoy (discussed here), the Court also was notably unanimous this morning in another criminal case, Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021) (available here). The start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:

Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment.  Cady v. Dombrowski, 413 U.S. 433 (1973).  In reaching this conclusion, the Court observed that police officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents.  Id., at 441.  The question today is whether Cady’s acknowledgment of these “caretaking” duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.  It does not....

What is reasonable for vehicles is different from what is reasonable for homes.  Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”  Collins, 584 U.S., at ___ (slip op., at 8).  We thus vacate the judgment below and remand for further proceedings consistent with this opinion.

Intriguingly, Justices Alito and Kavanaugh write distinct concurring opinions, both longer than the opinion of the Court, in order to set out questions unresolved and examples of what Justice Kavanaugh views as "warrantless entries that are perfectly constitutional under the exigent circumstances doctrine."  Here is a notable passage from Justice Alito's concurrence that brings to mind a famous commercial (footnotes removed):

Today, more than ever, many people, including many elderly persons, live alone.  Many elderly men and women fall in their homes, or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance.  In those cases, the chances for a good recovery may fade with each passing hour.  So in THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive.  This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.

May 17, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

By 6-3 vote, SCOTUS in Edwards v. Vannoy rewrites Teague to say all new procedural rules not retroactive in federal habeas

The Supreme Court this morning handed down an opinion in Edwards v. Vannoy, No. 19–5807 (S. Ct. May 17, 2021) (available here), which holds that the "Ramos jury-unanimity rule ... does not apply retroactively on federal collateral review." Justice Kavanaugh wrote the opinion for the Court, and it starts this way:

Last Term in Ramos v. Louisiana, 590 U.S. ___ (2020), this Court held that a state jury must be unanimous to convict a criminal defendant of a serious offense.  Ramos repudiated this Court’s 1972 decision in Apodaca v. Oregon, 406 U.S. 404, which had allowed non-unanimous juries in state criminal trials.  The question in this case is whether the new rule of criminal procedure announced in Ramos applies retroactively to overturn final convictions on federal collateral review.  Under this Court’s retroactivity precedents, the answer is no.

This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review.  See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion); see also Linkletter v. Walker, 381 U.S. 618, 639–640, and n. 20 (1965).  Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure.  But the Court has not applied any of those new rules retroactively on federal collateral review.  See, e.g., Whorton v. Bockting, 549 U.S. 406, 421 (2007) (Confrontation Clause rule recognized in Crawford v. Washington, 541 U.S. 36 (2004), does not apply retroactively).  And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review.  See, e.g., DeStefano v. Woods, 392 U.S. 631, 635 (1968) (per curiam) (jury-trial rule recognized in Duncan v. Louisiana, 391 U.S. 145 (1968), does not apply retroactively).

In light of the Court’s well-settled retroactivity doctrine, we conclude that the Ramos jury-unanimity rule likewise does not apply retroactively on federal collateral review.  We therefore affirm the judgment of the U. S. Court of Appeals for the Fifth Circuit.

Notably, the Edwards Court here goes beyond saying that it refuses yet again to find a procedure to meet the "watershed" exception to the retroactivity limits in Teague, it says there is no longer to be such an (hypothetical) exception:

At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts.... It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U.S. ___, ___ (2019) (slip op., at 11)(internal quotation marks omitted).

Justice Kagan authors the dissent (joined by Justices Breyer and Sotomayor), and its starting passage concludes this way:

The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule.  Nor can the majority explain its result by relying on precedent.  Although flaunting decisions since Teague that held rules non-retroactive, the majority comes up with none comparable to this case.  Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.

So everything rests on the majority’s last move — the overturning of Teague’s watershed exception.  If there can never be any watershed rules — as the majority here asserts out of the blue — then, yes, jury unanimity cannot be one.  The result follows trippingly from the premise.  But adopting the premise requires departing from judicial practice and principle.  In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis.  It discards precedent without a party requesting that action.  And it does so with barely a reason given, much less the “special justification” our law demands.  Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014).  The majority in that way compounds its initial error: Not content to misapply Teague’s watershed provision here, see ante, at 10–14, the majority forecloses any future application, see ante, at 14–15.  It prevents any procedural rule ever — no matter how integral to adjudicative fairness — from benefiting a defendant on habeas review.  Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.

May 17, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

SCOTUS grants cert on a capital habeas procedure case, while Justice Sotomayor makes district statement about capital sentencing process

The Supreme Court is back in action this morning, and the big news from this new order list is its decision to grant cert on an abortion case from Mississippi.  But the Court granted cert in a couple of other cases, including a capital case from Arizona, Shin v. Ramirez, No. 20-1009, which raises this issue:

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

In addition, at the end of the order list, Justice Sotomayor has a statement respecting the denial of certiorari in a capital case out of Texas, Calvert v. Texas, No. 20–701.  The statement laments various procedural developments in this case and ends this way:

Although this case does not meet this Court’s traditional criteria for certiorari, it still stands as a grim reminder that courts should rigorously scrutinize how States prove that a person should face the ultimate penalty.  Juries must have a clear view of the “uniquely individual human beings” they are sentencing to death, Woodson, 428 U.S., at 304 (plurality opinion), not one tainted by irrelevant facts about other people’s crimes.  The Constitution and basic principles of justice require nothing less.

May 17, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, May 16, 2021

"Bars Behind Bars: Digital Technology in the Prison System"

The title of this post is the title of this notable new paper now available vis SSRN authored by Paolo Arguelles and Isabelle Ortiz-Luis. Here is its abstract:

With little opportunity to engage with technology while behind bars, returning citizens are finding themselves on the far side of the digital divide and increasingly vulnerable to recidivism.  Investing in a well-run digital literacy program for our prison system is an innovative solution to a persistent problem and a rare win-win situation for inmates, prison officials, and American taxpayers.

We begin by discussing how inmate tablet distribution programs mutually benefit both inmates and prison officials.  We then explore prison profiteering by technology companies as a potential obstacle to the successful administration of technology programs, discussing the emergence of virtual monopolies in the prison technology space, their history of controversial pricing practices, and how these practices are perpetuated through prison tablet programs.  We then present novel insights into how competitive bidding can be used as a public policy instrument to regulate competition, specifically in the context of prison technology.  We argue that a traditional bidding framework is insufficient to act as a policy instrument and propose an alternative incentive-based framework toward this end.  We conclude by outlining several practical recommendations that prison officials should consider when administering digital literacy programs in their facilities.

May 16, 2021 in Prisons and prisoners, Technocorrections, Who Sentences | Permalink | Comments (1)

More details on "Justice Counts," a notable (and needed) criminal justice data collection effort

Justice-Counts-Powerpoint2-scaled-500x500-c-defaultI flagged in this post a few weeks ago the great online panel event hosted by the Drug Enforcement and Policy Center, in collaboration with National Association of Sentencing Commissions, titled "Justice Counts: Using Data to Inform Policy and Bolster Public Safety."  I am pleased to be able to now report that the video and transcript of this event are now available at this DEPC webpage, and the discussion has me quite excited for the Justice Counts data collection efforts that, as this website explains, aspires to provide "public, aggregate criminal justice data, which will provide policymakers in every state with timely information about their criminal justice systems, existing gaps in data collection, and opportunities to do better." 

Helpfully, the folks at ASU Crime and Justice News covered this event and provided an effective written summary of the discussion at this link.  Here are excerpts of this accounting of efforts to account for justice:

Criminal justice policy makers long have been plagued by a lack of good data on how the justice system operates, from arrests to imprisonments. In an effort to fill many of the gaps, the Council of State Governments Justice Center (CSG) has launched a project called Justice Counts that will provide state-by-state numbers on important parts of the justice process.  A website under development for the last year is expected in June to begin displaying numbers from state corrections systems, including counts of prisoners and people on probation and parole. 

In the past, such national data has been available on a consistent basis from the U.S. Bureau of Justice Statistics, which collects it from the states but often publishes it a year or more later, making it immediately out of date....  The new corrections data to be published should be timely after a year in which there have been more shifts than usual in prison and jail populations during the coronavirus pandemic, with many states and localities freeing inmates in advance of their expected release dates.

CSG staffers gave a preview of the new site on Tuesday to a webinar sponsored by the National Association of Sentencing Commissions and the Drug Enforcement and Policy Center at The Ohio State University. 

All states were asked to provide data to the central site. It is not yet available on a uniform basis because states compile it at different intervals, whether daily, weekly or monthly.

As of now, CSG has current prison population data from 36 states and numbers on various aspects of corrections, such as the number of state prisoners sent by courts or behind bars because they violated parole conditions, from varying numbers of states, ranging from seven in one category to 19 in another.  Eventually, the website will feature metrics such as the cost of corrections systems and whether they are achieving their goals.

Some recent related posts:

May 16, 2021 in Data on sentencing, Detailed sentencing data, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, May 15, 2021

After historic hiatus, state execution plans and practices back in the news

A lengthy break in state executions has been one of many notable impacts of the coronavirus pandemic on criminal justice systems.  Indeed, as this Death Penalty Information Center analysis explains, the United States is in the midst of "the longest period in 40 years without any state carrying out an execution." (Of course, as DPIC also notes, at the federal level, the Trump administration during this period launched "the longest and most sustained execution spree in the modern history of the U.S. death penalty [as it] carried out 13 consecutive executions between July 14, 2020 and January 16, 2021, the most consecutive executions by any jurisdiction since capital punishment resumed in the U.S. in the 1970.")

After an historic hiatus, there are now serious execution dates scheduled over the next few weeks in Texas (May 19 for Quintin Jones) and Idaho (June 2 for Gerald Ross Pizzuto Jr.).  And it seems that a few other states are also growing eager to get their death machinery back into operation.  Consequentially, as detailed by the links and headlines below, state capital punishment practices are again generating news:

From the AP, "Idaho death row inmate asks Supreme Court to stop execution"

From the AP, "Nebraska death sentences continue despite not having execution drugs"

From CBS News, "Quintin Jones is on death row for killing his great-aunt. The victim's sister is pleading for clemency."

From Fox News, "South Carolina to bring back firing squads for executions"

From The Marshall Project, "They Are Terminally Ill. States Want To Execute Them Anyway."

From NBC News, "Rush of Arkansas executions that included Ledell Lee's comes under renewed scrutiny"

May 15, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Friday, May 14, 2021

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” Judge Latrice Westbrooks wrote. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

May 14, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, May 13, 2021

New UCLA Law Review special issue examines "Jailhouse Lawyering"

I was pleased to see this notable new UCLA Law Review special issue devoted to "Jailhouse Lawyering."  The issue's introduction is available at this link and here is the end of its overview:

In this series, authors with experience as jailhouse lawyers and journalists behind bars write about the legal issues and systems affecting incarcerated persons today.  They share stories shaped by litigation and legal research.  They make arguments rooted in both their lived experiences and an extensive knowledge of the law.  Each of these authors — and countless others — is a testament to the power and tradition of jailhouse lawyering.  We are proud to feature their work here and look forward to the day when they are acknowledged and respected for their immeasurable contributions to the field.

Here are the articles in this great-looking special issue:

Barriers to Jailhouse Lawyering by Rahsaan "New York" Thomas 

Broken Systems: Function by Design by Phal Sok 

Applying for Compassionate Release as a Pro Se Litigant by Lynn Reece

Insurgent Knowledge: Battling CDCR From Inside the System. The Story of the Essential Collaboration Between Jailhouse Lawyers and Appointed Counsel & Lessons for Resentencing Today by Stephen Liebb & Gina Cassar

Bound by Law, Freed by Solidarity: Navigating California Prisons and Universities as a Jailhouse Lawyer by Michael Saavedra

What You Didn’t Know About Adelanto Immigration Detention Center by Anna Solodovnikova

Challenging Gladiator Fights in the CDCR by Kevin McCarthy

To Act Like a Democracy by Juan Moreno Haines

Jailhouse Lawyering From the Beginning by Kevin D. Sawyer

Making Bricks Without Straw: Legal Training for Female Jailhouse Lawyers in the Louisiana Penal System by Robin Bunley

An Old Lawyer Learns New Tricks: A Memoir by James C. Bottomley

May 13, 2021 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (1)

Fascinating compassionate release ruling based on clear sentencing error without other means of remedy

Regular readers are likely familiar with many of my (pre-COVID) prior posts making much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds.  A helpful reader alerted me to an especially interesting example of the granting of a sentencing reduction in US v. Trenkler, Cr. No. 92-10369 (D. Mass. May 6, 2021) (available for download below).

Trenkler is a fascinating case and opinion for many reasons, and the discussion of the case particulars and compassionate release jurisprudence more generally make Trenkler a must-read for anyone working in this space.  Here are some small snippets from the start and heart of the 50+ page opinion to encourage downloads:

Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer.  On November 29, 1993, a jury convicted Trenkler of illegal receipt and use of explosive materials and attempted malicious destruction of property by means of explosives, in violation of 18 U.S.C. §§ 844(d), 844(i) (Counts 2 and 3), and conspiracy, in violation of 18 U.S.C. § 371 (Count 1). See Jury Verdict, ECF No. 487. Trenkler is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”).  Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence....  The Court reduces Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years... 

In addition to the risks associated with the COVID-19 pandemic, Trenkler urges the Court to reduce his sentence to time served in light of the “unique circumstances” surrounding his case.  Those unique circumstances, in Trenkler’s view, include questions surrounding his guilt and the fundamental unfairness of his conviction; the disproportionality of his sentence as compared to Shay, Jr.’s sentence; and his unlawfully imposed life sentence.

[Despite limits in AEDPA concerning habeas petitions,] now Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction....  [A series of discussed] cases — and others like them — leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case....

Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.

Download Trenkler CR opinion

May 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Representing juvenile lifers: do attorneys in parole hearings matter?"

The title of this post is the title of this new article authored by Stuti Kokkalera and just published online in the Journal of Crime and Justice.  Here is its abstract:

Courts and scholars have advocated for the right to legal representation in the parole process. The state examined in this study qualified that juvenile lifer parole candidates have the right to an attorney at their initial parole board hearing.  Data drawn from written decisions issued by the state parole board were analyzed to determine the association between having an attorney and type of legal representation on two parole outcomes: (1) whether a candidate was granted or denied parole, and (2) length of interval terms, that is, number of years that a candidate waits for another hearing.  While having an attorney at the hearing was not related to both outcomes, type of representation was associated with interval terms.  Hearings with appointed (non-retained) attorneys were associated with reduced odds of a maximum interval term, while having retained attorneys was related to higher odds of a maximum interval term.  Hence, state efforts to provide counsel are necessary since their presence is significantly associated with the ultimate time served by juvenile lifer candidates.  Findings support the need for more comparative research across states as well as the inclusion of other parole-eligible populations.

May 13, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 12, 2021

Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden

As detailed in this official press release, titled "President Biden Announces Third Slate of Judicial Nominees," Prez Biden announced a slate of six new judicial appointments ( three new Court of Appeals nominees and three new District Court nominees.  As detailed in this Reuters article, headlined "Biden latest judicial picks stress public defender work," the new Prez is fulfilling calls to add professional diversity to a federal judiciary now dominated by prosecutors and BigLaw lawyers (see prior posts here and here).  Here are some details:

President Joe Biden on Wednesday announced his latest wave of judicial nominees with six picks who not only reflect his goal of diversifying the federal bench but also include three current or former public defenders for appellate court seats.

The nominees include two attorneys currently with federal public defender offices, Eunice Lee for a seat on the New York-based 2nd U.S. Circuit Court of Appeals and Veronica Rossman for a spot with the Denver-based 10th U.S. Circuit Court of Appeals.

They also include Chief Judge Gustavo Gelpí Jr of the U.S. District Court for the District of Puerto Rico for a spot on the Boston-based 1st U.S. Circuit Court of Appeals, which hears appeals from three states plus the island territory.  If confirmed, Gelpi, who in the 1990s served as an assistant federal public defender, would be only the second Puerto Rican to serve on the court and would replace the first, Juan Torruella, who died in October.

Progressives and judicial reform proponents have long called for more judges on the federal bench with backgrounds as public defenders. More often, judges have tended former prosecutors or defense attorneys from major law firms.  "President Biden has made clear that the days of public defenders being systematically passed over for top jobs on the federal bench are over," Christopher Kang, the chief counsel of the progressive group Demand Justice, said in a statement.  He said no president has before nominated so many circuit judges with experience as public defenders. All five of Biden's nominations so far to the regional circuit courts have had such experience, and three spent the majority of the careers in such positions.

I will be excited to see if and how a group of new federal judges with public defender experience will have a long-term impact on criminal justice jurisprudence coming from the federal courts.  For those interested in short-term reform, however, perhaps it is even more important to see Prez Biden nominate a slate of diverse (and reform-minded) US Sentencing Commissioners. 

Back in February, I wrote a commentary, "Reviving the U.S. Sentencing Commission," which noted that the USSC has historically been dominated by persons with prosecutorial backgrounds; I also lamented that the USSC now needs six new confirmed members to get back to full strength and at least three new commissioners to even be somewhat functional.  At that time, I did not reasonably expect to see needed nomination to the US Sentencing Commission until at least some Circuit and District Judge nominees were put forward.  And, by late March, as reported in this post, there was seemingly serious talk of serious work on slate of nominees for the Sentencing Commission. 

But it is now mid May, and though Prez Biden has put forward 20 judicial nominations, we have still not yet heard anything more about getting the Sentencing Commission back to work.  So ...  color me antsy.

A few prior recent related posts:

May 12, 2021 in Who Sentences | Permalink | Comments (4)

State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing

As reported in this new AP piece, a "Minnesota judge has ruled that there were aggravating factors in the death of George Floyd, paving the way for the possibility of a longer sentence for Derek Chauvin, according to an order made public Wednesday."  Here are more details and context:

In his ruling dated Tuesday, Judge Peter Cahill found that Chauvin abused his authority as a police officer when he restrained Floyd last year and that he treated Floyd with particular cruelty. He also cited the presence of children when he committed the crime and the fact Chauvin was part of a group with at least three other people.

Cahill said Chauvin and two other officers held Floyd handcuffed, in a prone position on the street for an “inordinate amount of time” and that Chauvin knew the restraint was dangerous. “The prolonged use of this technique was particularly egregious in that George Floyd made it clear he was unable to breathe and expressed the view that he was dying as a result of the officers’ restraint,” Cahill wrote.

Even with the aggravating factors, legal experts have said, Chauvin, 45, is unlikely to get more than 30 years when he is sentenced June 25....

Even though Chauvin was found guilty of three counts, under Minnesota statutes he’ll only be sentenced on the most serious one — second-degree murder. Under Minnesota sentencing guidelines, he would have faced a presumptive sentence of 12 1/2 years on that count, and Cahill could have sentenced him to as little as 10 years and eight months or as much as 15 years and still stayed within the guideline range.

But prosecutors asked for what is known as an upward departure — arguing that Floyd was particularly vulnerable with his hands cuffed behind his back as he was face-down on the ground. They noted that Chauvin held his position even after Floyd became unresponsive and officers knew he had no pulse.

With Tuesday’s ruling, Cahill has given himself permission to sentence Chauvin above the guideline range, though he doesn’t have to, said Mark Osler, professor at the University of St. Thomas School of Law. He said attorneys for both sides will argue whether an upward departure is appropriate and how long the sentence should be.

A pre-sentence investigation report will also be conducted. These are usually nonpublic and include highly personal information such as family history and mental health issues, as well as details of the offense and the harm it caused others and the community....

Cahill agreed with all but one of the prosecutors’ arguments. He said prosecutors did not prove that Floyd was particularly vulnerable, noting that even though he was handcuffed, he was able to struggle with officers who were trying to put him in a squad car....

No matter what sentence Chauvin gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of the penalty in prison and the rest on supervised release, commonly known as parole.

Chauvin has also been indicted on federal charges alleging he violated Floyd’s civil rights, as well as the civil rights of a 14-year-old he restrained in a 2017 arrest. If convicted on those charges, which were unsealed Friday, a federal sentence would be served at the same time as Chauvin’s state sentence. The three other former officers involved in Floyd’s death were also charged with federal civil rights violations; they await trial in state court on aiding and abetting counts.

The full six-page ruling reference in this article is available at this link.

Prior related posts:

May 12, 2021 in Blakely in the States, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

The Sentencing Project releases new report urging "A Second Look at Injustice"

Long-time readers know that I have long been a supporter of laws and practices that facilitate taking a second look at long sentences (see links below).  I continue to be pleased to see more and more advocacy for second look sentencing efforts, and I am especially pleased to see this new 50-page report from The Sentencing Project titled " " Here is the start of its Executive Summary:

Lawmakers and prosecutors have begun pursuing criminal justice reforms that reflect a key fact: ending mass incarceration and tackling its racial disparities require taking a second look at long sentences.

Over 200,000 people in U.S. prisons were serving life sentences in 2020 — more people than were in prison with any sentence in 1970. Nearly half of the life-sentenced population is African American.  Nearly one-third is age 55 or older.

“There comes a point,” Senator Cory Booker has explained, “where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long.”  He and Representative Karen Bass introduced the Second Look Act in 2019 to enable people who have spent at least 10 years in federal prison to petition a court for resentencing.

Legislators in 25 states, including Minnesota, Vermont, West Virginia, and Florida, have recently introduced second look bills.  A federal bill allowing resentencing for youth crimes has bipartisan support.  And, over 60 elected prosecutors and law enforcement leaders have called for second look legislation, with several prosecutors’ offices having launched sentence review units.

This report begins by examining the evidence supporting these reforms.  Specifically:

•  Legal experts recommend taking a second look at prison sentences after people have served 10 to 15 years, to ensure that sentences reflect society’s evolving norms and knowledge.  The Model Penal Code recommends a judicial review after 15 years of imprisonment for adult crimes, and after 10 years for youth crimes.  National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have recommended a second look for all after 10 years of imprisonment — a timeframe that corresponds with what criminological research has found to be the duration of most “criminal careers.”

•  Criminological research has established that long prison sentences are counterproductive to public safety.  Many people serving long sentences, including for a violent crime, no longer pose a public safety risk when they have aged out of crime.  Long sentences are of limited deterrent value and are costly, because of the higher cost of imprisoning the elderly.  These sentences also put upward pressure on the entire sentencing structure, diverting resources from better investments to promote public safety.

•  Crime survivors are not of one mind and many have unmet needs that go beyond perpetual punishment.  Ultimately, a survivor’s desire for punishment must be balanced with societal goals of advancing safety, achieving justice, and protecting human dignity.

A few on many recent prior posts on second-look topics:

A sampling of my prior writing on this front through the years:

May 12, 2021 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Old law" federal prisoners provide new reminder that parole does not cure all ills

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which lamented the federal sentencing system's decision to abolish parole back in 1984.  Among other points, in this piece I suggested that "parole could have been, and perhaps should now become, a bulwark against the kind of impersonalized severity that has come to define much of the modern federal sentencing experience."  I realized while working on that piece that there was a bit of "grass is always greener" thinking driving my modern "ivory tower" affinity for part of a sentencing scheme that has long been beset with problems in practice. 

Today, the imperfect realities of parole is highlighted in this new NPR piece a helpful reader made sure I saw headlined "Forgetting And Forgotten: Older Prisoners Seek Release But Fall Through The Cracks."  I recommend the full piece, and here is how it starts and a few other passages:

Davon-Marie Grimmer has been struggling to get help for more than year for her cousin, Kent Clark. Sometimes, when he calls from prison, he asks to speak with relatives who are no longer alive. Sometimes, he forgets the name of his cell mate. "As far as I know, he hasn't received any medical attention for the dementia, and he's just so vulnerable in there," Grimmer said. "He's 66 years old. He can't take care of himself."

Clark is one of about 150 people in federal prison who time mostly forgot. This group of "old law" prisoners committed crimes before November 1987, when the law changed to remove the possibility of parole. But even with the grandfathered-in chance for parole — and despite a push to reduce prison populations — dozens of men in their 60s, 70s and 80s still have little hope of release.

When Congress tweaked the law three years ago to allow sick and elderly people behind bars to apply to a judge for compassionate release, that change didn't apply to the "old law" prisoners. They're easy to overlook.

"They are the oldest and most vulnerable cohort of people within the federal prison system today," said Chuck Weisselberg, a law professor at the University of California, Berkeley. "I mean, their only path for release is through the parole commission, an agency that's been dying for decades."

A bipartisan group of senators has introduced legislation that would give "old law" prisoners the chance to petition judges for release based on their age and poor health, but it's awaiting action in Congress....

As for Kent Clark, the U.S. Parole Commission reviewed his case last year.  According to written records, Clark's case manager told the commission that Clark is showing signs of dementia.  He pointed out that as a young man, Clark was a boxer who may have a history of head injuries.

But the parole examiner denied Clark's bid for release.  The examiner wrote that if Clark can't remember what he did, "how can the Commission be certain he has learned something from his mistakes and/or that he has developed the skills to avoid engaging in the same behavior?"

May 11, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, May 10, 2021

Effective review of (just some) issues surrounding home confinement for the Biden Justice Department

This new extended Hill article, headlined "DOJ faces big decision on home confinement," provide an effective accounting of the building discussion around the status of home confinement in the federal system as it appears the pandemic is winding down.  I recommend the full piece, and here are excerpts:

The Biden administration will soon have to decide whether to send back to prison thousands of inmates who were transferred to home confinement after the start of the COVID-19 pandemic.  President Biden and Attorney General Merrick Garland have been facing mounting calls to rescind a policy implemented in the final days of the Trump administration that would revoke home confinement for those inmates as soon as the government lifts its emergency declaration over the coronavirus.

Advocates and lawmakers argue that the program has been a resounding success, and that it would be unjust to reincarcerate thousands of individuals who abided by the terms of their home confinement.  “If you're one of these people, you're trying to figure out, 'Do I go back to college? Do I start a new job? Do I start a family? Do I sign a lease? I mean, what can I do, not knowing where I'm going to be in six months?’ That's cruel to keep somebody in that doubt and uncertainty for this long and to say, ‘You know, don't worry about it, it's not going to happen tomorrow,’” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums.

Last year, in response to the CARES Act, then-Attorney General William Barr directed the federal Bureau of Prisons (BOP) to prioritize home confinement for certain inmates in order to limit the spread of the coronavirus within the prison system.  According to the BOP, about 24,000 inmates have been released to home confinement since the beginning of the pandemic. Advocates say there are now about 4,500 people facing uncertainty about whether they might have to go back to prison after months of reintegrating into society.

BOP Director Michael Carvajal told a House Appropriations subcommittee in March that just 21 inmates released to home confinement were sent back to prison for alleged rule violations. And in the program overall, only one person has committed a new crime....

The uncertainty about the program’s fate began in January, a few days before President Biden's inauguration, when the Justice Department's Office of Legal Counsel issued a memo stating that under federal law, those inmates released under the CARES Act must report back to prison when the coronavirus emergency is over, unless they are nearing the end of their sentence.

Randilee Giamusso, a BOP spokesperson, said the Biden administration had recently expanded the eligibility for home confinement.  “This is an important legal issue about the language Congress used in the CARES Act,” Giamusso said in a statement.  “It is important to recognize even under the Office of Legal Counsel's (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.”

Giamusso added that Biden recently extended the national emergency regarding COVID-19, and that the Department of Health and Human Services expects the public health crisis to last at least through December.  “The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred,” Giamusso said.

Still, some lawmakers and advocates argue that the Trump-era policy would unnecessarily upend the lives of those deemed low-risk enough to be sent home and who have since abided by the terms of their home confinement.  Biden and Garland are facing pressure to rescind the policy memo, receiving letters from Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee; a bipartisan group of 28 House lawmakers; and a coalition of advocacy groups....

This past week, the White House told advocates that Biden is preparing to use his clemency powers, in what would be a rare early exercise of the power to commute or pardon incarcerated people.  Ring said rescinding the home confinement policy, or using another tool to keep those affected by it out of prison, is an easy way for Biden to show that he’s serious about taking on mass incarceration.

“They've said they want to use the clemency authority more robustly to let people out of prison who don't need to be there,” said Ring, who has served time in federal prison. “Well, here's 4,500 people that Bill Barr and Donald Trump cleared as the lowest of low risk. So if you can't find a way to keep these people home, I mean, how discouraging will it be for those who are hoping for clemency?”...

Experts and advocates alike see the home confinement policy as a radical experiment that yielded positive results, potentially adding more momentum to criminal justice reform efforts that have seen a growing bipartisan consensus against the tough-on-crime policies of the late 20th century.  Ring, of Families Against Mandatory Minimums, said lawmakers should consider the success of the home confinement program as a potential alternative to incarceration.  “I think this is still a good model or a good use of natural experiment to show that we can keep more people in the community, and not keep them in prison,” he said. “Congress should use what happened here as evidence for expanding home confinement going forward.”

But in the meantime, Ring said, the priority is for the Biden administration to make clear that it does not intend to re-incarcerate those who are serving their sentences out at home. “Not only do they need to fix it, they need to fix it immediately,” he said. “They need to announce to these people, ‘You're not going back. We're not making you go back. We'll rescind the memo or we'll use some other authority we have to fix this.' But these people need to get on with their lives.”

I am grateful for this effective review of not just the COVID-driven home confinement changes, but also the broader issue of whether this unfortunate "natural experiment" justifies a robust rethinking of home confinement as an alternative punishment.  And I think that issue need to be explored even further because I surmise that home confinement can end up meaning lots of different things for lots of different persons.  And, in addition to the wonderfully low number of problems with the COVID home confinement transfers, it will be interesting and important to track long-term recidivism rates for these groups. 

Some prior recent related posts:

May 10, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"Constraining Criminal Laws"

The title of this post is the title of this notable new article authored by F. Andrew Hessick and Carissa Byrne Hessick now available via SSRN. Here is its abstract:

Most criminal law is statutory.  Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes.  They say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal

This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past.  Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law.  The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability.

May 10, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 09, 2021

Split Eleventh Circuit panel creates circuit split over compassionate relief criteria after FIRST STEP Act

I have blogged in recent months about a significant number of significant circuit rulings addressing the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine "extraordinary and compelling" reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below). 

But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits.  The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021) (available here), gets started this way:

Thomas Bryant is a corrupt former police officer who was sentenced to prison for running drugs and guns. He filed a motion seeking a reduction in his sentence under 18 U.S.C. § 3582(c)(1)(A), and the district court denied that motion based on the Sentencing Commission’s policy statement found at U.S.S.G. § 1B1.13.  In resolving Bryant’s appeal, we must answer two questions about the relationship between Section 3582(c)(1)(A) and 1B1.13.

First, we must decide whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement.  Under Section 3582(c)(1)(A), a court can reduce an otherwise final sentence for “extraordinary and compelling reasons,” as long as the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”  The statute commands the Commission to publish a policy statement that defines “extraordinary and compelling reasons,” 28 U.S.C. § 994(t), and the Commission did: 1B1.13, which is entitled “Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A).”  At the time, the statute required all motions to be filed by the BOP.  The policy statement repeats that then-existing statutory language and, in its application notes, lists several circumstances that are “extraordinary and compelling reasons” that justify a sentence reduction.

So far, so good.  But after Congress changed the statute to allow defendants to file motions in addition to the BOP, several of our sister circuits have held that 1B1.13 is not an “applicable policy statement[]” for those defendant-filed motions.  This is so, they say, because the policy statement, quoting the pre-existing statute’s language, begins with the following phrase: “Upon motion of the Director of the Bureau of Prisons.”  Based mostly on that language, our sister circuits have held that this policy statement is not an “applicable policy statement” that binds judicial discretion as to defendant-filed motions.

We disagree with that reasoning.  The statute’s procedural change does not affect the statute’s or 1B1.13’s substantive standards, specifically the definition of “extraordinary and compelling reasons.”  The Commission’s standards are still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant.  And the structure of the Guidelines, our caselaw’s interpretation of “applicable policy statement,” and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.

Second, because we conclude that 1B1.13 is an applicable policy statement, we must determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A).  Bryant argues that Application Note 1(D) of 1B1.13 conflicts with the statute’s recent amendment.  As a catch-all provision, Application Note 1(D) says that a court may grant a motion if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”  Bryant argues that, because the statute now allows for defendant-filed motions, we should replace “as determined by the [BOP]” with “as determined by the [court].”  This alteration to the policy statement would give courts effectively unlimited discretion to grant or deny motions under Application Note 1(D).

But we cannot do that. Application Note 1(D) is not inconsistent with the procedural change in the statute that allows defendants to file motions.  Because we can apply both the amended Section 3582(c)(1)(A) and Application Note 1(D), we must apply both.

In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop “other reasons” that might justify a reduction in a defendant’s sentence. Accordingly, we affirm.

Judge Martin's dissent gets started this way:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”).  Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act.  And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.  The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement.  Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it.  With all respect due, I dissent.

A few of many, many prior related posts:

May 9, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day?

The question in the title of this post is prompted by my persistent eagerness to see a lot more clemency activity from chief executives and also by this new story out of Illinois headlined "Protesters deliver Mother’s Day card to Pritzker’s house, demand release of incarcerated loved ones."  Here are excerpts:

Against a backdrop of bright pink tulips, protesters stood outside Gov. J.B. Pritzker’s Gold Coast home on Friday with flowers, signs and a painted piece of cardboard that read, “Dear J.B., on this Mother’s Day, set our loved ones free.” That oversized Mother’s Day card included demands that Pritzker sign clemency petitions to for prisoners they say have been wrongfully incarcerated and that he stop construction of a new youth prison at the Lincoln Developmental Center.

Denice Bronis, an Elgin resident and member of Mamas Activating Movements for Abolition and Solidarity, said her son Matthew Echevarria, in prison for 22 years after being convicted of murder, contracted COVID-19 at Menard Correctional Center and still exhibits long-term symptoms. “Mother’s Day is just as much a day of love as it is a day of pain, especially for those who have experienced forced separation from our children, our loved ones, by the state,” Bronis said....

Kiah Sandler, a Bronzeville resident with the End IL Prison Lockdown Coalition, said although the group’s demands have shifted since Pritzker signed a sweeping criminal justice reform bill, there is still work to be done by the governor. Sandler said the coalition is asking Pritzker to lift that ban on personal contact during in-person visits, and also to grant more clemency requests to “set loved ones free with the stroke of a pen.”...

A Pritzker spokesperson later sent an email stating Pritzker has granted clemency requests throughout the pandemic and the state prison population is at its lowest level in years — down 28% since 2019, including a 43% drop in female inmates.

Holly Krig, a member of Moms United Against Violence and Incarceration, said it is “horrific and cruelly unnecessary,” that visitors and incarcerated people are not allowed to touch and also that visitors must be vaccinated; that means children under 16 — who can’t be vaccinated yet — can’t visit. She said for younger children and newborns to maintain a relationship with incarcerated mothers, contact is essential. “People can be released, people should be released and they should be released immediately,” Krig said. “We need to bring our people home.”

As highlighted by recent polling discussed here, granting clemency to various groups of persons has considerable public support across the political spectrum.  Focusing particularly on reuniting families though commutations and restoring rights through pardons on Mother's Day could be a big political winner.

A few prior recent related posts:

May 9, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, May 08, 2021

Noting how carceral craziness and foolhardy finality fixations result in cases like Tarahrick Terry's

As highlighted in this post following this past week's SCOTUS oral argument, the questions from the Justices strongly suggest that the Supreme Court will soon rule that Tarahrick Terry is not entitled to seek a resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  Over at SCOTUSblog, Ekow Yankah has this effective review of the Terry argument which spotlights a portion I found especially notable toward the end:

One dissonant note came late in the morning, when Justice Brett Kavanaugh embarked on an extended exchange with Mortara.  Rather than a sharp set of questions, Kavanaugh ruminated on, among other things, the history that led to the sentencing regime Congress sought to fix.  He recalled the 1986 death of college-basketball star Len Bias from a cocaine overdose that shocked the nation and brought cocaine use squarely into the spotlight.  Recalling that Bias was only a year older than him and that he looked up to him, Kavanaugh (himself an avid basketball player and coach) mused that Bias’ death had motivated congressional action to impose harsher penalties on cocaine use, noting only casually that Bias died after using powdered cocaine.  It was, to this observer, a cringe-worthy moment of naivete; to draw a clear path from the traumatizing death of Bias to harsher punishment of crack cocaine is to ignore a sea of racial politics.  Len Bias’s death did not lead Congress to hammer down on Wall Street bankers doing coke.

Yankaw is right to spotlight generally how ugly racial realities were largely ignored throughout the Terry argument.  But even more "cringe-worthy" has been the way Congress, the US Sentencing Commission, the Department of Justice and the courts have created and sustained crazy carceral approaches to drug offenses for many decades even as the illogic, inefficacy and injustice of lengthy federal prison sentences in response to drug issues have been so plainly evident.  Apologies for a bit of a rant, but what follows is actually a reserved accounting of what strikes me a stunningly ugly (and still continuing) example of systemic injustice. 

For starters, what basis did Congress have back in 1986 to think that harsh mandatory minimum prison sentences for any drugs (let alone for crack) would be a sound and sensible way to respond to either the overdose death of a basketball superstar or societal concerns about a new drug problem?  The history of alcohol Prohibition certainly is not a rousing tale of the efficacy of criminal justice responses to substance use, and racial disparities in other drug panics have marked US policies and practices for eons.  Moreover, not long before in 1970, as noted in this article, Congress repealed most drug mandatories with then-Texas Rep. GHW Bush saying doing so would result in "better justice and more appropriate sentences."  

Critically, the carceral craziness of the Anti-Drug Abuse Act of 1986 goes even further than Congress deciding to re-embrace federal mandatory minimum provision for drug offenses.  Congress in 1986 had the even crazier idea to tether its harsh prison mandatory minimums to precise drug quantities rather than to offense role or violent acts or any other sounder sentencing factors.  And Congress further decided that just five grams of crack cocaine — the weight of a single nickel — would be enough to trigger five mandatory years in federal prison (while a full pound of the same stuff in powder form would not).       

As I highlighted in this recent post, in 1991 the US Sentencing Commission wrote a lengthy report to Congress detailing how misguided and racially disparate all mandatory minimum provisions were in operation; in 1995, the USSC wrote another report documenting the extreme racial disparities resulting from the 100-1 crack/powder ratio.  I had the honor in 1995 to still be clerking for Second Circuit Judge Guido Calabresi who wrote at that time in United States v. Then, 56 F.3d 464 (2d Cir. 1995), that, if Congress failed to respond to the USSC's expert analysis, "equal protection challenges based on claims of discriminatory purpose might well lie" or the USSC's reports "might nonetheless serve to support a claim of irrationality." Id. at 468 (Calabresi, J., concurring).

Aggravatingly, Congress did not do anything to address the 100-1 ratio for 15 more years until the Fair Sentencing Act of 2010, during which time tens of thousands of disproportionately black persons received disproportionately severe statutory and guideline sentences for crack offenses.  Critically, the USSC, the DOJ, and the courts ought also be faulted for carceral craziness in this period: the USSC refused for over a decade to even try to change the crack guidelines while awaiting congressional action, the DOJ (under both Prez Clinton and Prez Bush) was generally opposition to any major sentencing reforms, and courts consistently rejected any and all challenges to this racially disparate and irrational sentencing structure. 

Interestingly, the Booker case merits mention in this history not because it happened to be a crack case, but because some federal judges started using their new post-Booker discretion to do better in crack cases and the USSC advanced some modest (but still meaningful) crack guideline amendments as a result.  But, tellingly, DOJ still largely opposed district judges going below the crack guidelines after Booker (which required SCOTUS to issue the important Kimbrough decision), and many district judges still readily and regularly sentenced within the severe 100-1 crack guidelines even after Booker and Kimbrough made clear that they had broad authority to effectuate the USSC's expert analysis that the crack guidelines produced racial disparities and generally recommended prison terms that were much "greater than necessary." 

Of course, in August 2010, we finally get the Fair Sentencing Act from Congress.  Notably, the FSA did not unwind the key carceral craziness of tethering harsh mandatory prison minimums to precise drug quantities, nor did it provide for treating crack and powder offenses similarly.  Rather the FSA simply says it now takes 28 grams grams of crack — the weight of five quarters — to trigger five mandatory years in federal prison (though a full pound of the same stuff in powder form sill will not).  The US Sentencing Commission amends the crack guidelines downward accordingly as instructed by the FSA, and thankfully the federal sentencing world gets just a little bit less carceral crazy going forward for some crack cases. 

But even as the carceral craziness recedes a bit after the FSA of 2010, foolhardy finality fixations kick into high gear.  Notably, as noted in this post, international human rights law generally provides that, when legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  But the Obama Justice Department argues in 2010 that federal law required that even crack defendants who had not yet been sentencing when the FSA was enacted still had to be subject to the 100-1 ratio for pre-FSA conduct even through everyone agreed that pre-FSA sentences for crack were unfair, excessive, ineffectual and produced extreme racial disparities.  The Supreme Court in the 2012 Dorsey case — by only a 5-4 margin — decides sentencing courts did not have to keep applying a misguided and suspect sentencing scheme in these pipeline cases.  But all the while the USSC, the DOJ and the courts all readily accept that nobody should get any retroactive benefit from the FSA statutory change simply because Congress did not say expressly that it wanted people still in prison still enduring the 100-1 ratio's carceral knee on their necks to have a chance to argue they should get to sooner breathe the air outside prison walls.           

Critically, as just suggested, retroactivity of lower crack sentences (or any other sentencing changes) in the federal system has never been automatic.  Persons in prison, even if permitted under applicable laws to get to court for resentencing, generally have to prove to a judge that public safety concerns and other equities weigh in favor of a lower sentence.  That is, for Tarahrick Terry and so many others, they are not actually arguing for resentencing, they are arguing that they should just have a chance to argue for discretionary resentencing.  In a law review article some years ago, "Re-Balancing Fitness, Fairness, and Finality for Sentences," I contend it ought to be a lot easier for a defendant to get access to court seeking resentencing because "the conceptual, policy, and practical reasons [that may justify] limiting review and reconsideration of final convictions are not nearly as compelling when only sentences are at issue."  I find it so frustrating discretionary resentencing for crack offenders remains so contested even when each and every federal policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive, ineffectual and produced extreme racial disparities.

Of course, Congress voted almost unanimously for the FIRST STEP Act, which is a huge bill designed to help reduce a lot of federal sentences and which included a provision making the Fair Sentencing Act retroactive.  But, given the SCOTUS argument in Terry, it appears that because Congress did not use just the precise kind of magic words in that statutory provision, the lowest level of all crack offenders are to be categorically excluded from securing even a chance to argue for resentencing.  Sigh.  Injustice must sometimes be one of those turtles going all the way down as carceral craziness and foolhardy finality fixations persist circa 2021.  There are some heartening indications that we all know we can and should be doing a lot better in federal sentencing and elsewhere, but Terry is perhaps a useful reminder that the myriad sentencing and racial injustices of the past are never dead, and they are not even past.

Prior recent related posts on Terry:

May 8, 2021 in Booker and Fanfan Commentary, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, May 07, 2021

Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison

Alice Marie Johnson and Ja’Ron Smith have this notable new USA Today opinion piece headlined "COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it." The subtitle of the piece captures its themes: "Nearly 5,000 inmates may be sent back to prison. After rebuilding their lives, and being contributing members of society, how is being returned justice?". Here are excerpts (links from original):

This spring, as more Americans are able to get vaccinated, there’s hope the pandemic is nearing its end and life is slowly returning to normal.  But for 4,500 Americans, the end of the pandemic could instead mean returning to prison. 

The March 2020 CARES Act allowed the Federal Bureau of Prisons to expand the period of home confinement, which usually comes at the end of a sentence.  As a result, thousands of incarcerated individuals convicted of nonviolent crimes were released from prison – where COVID-19 swept through cramped facilities – to home confinement. Many were able to reunite with their families and find jobs.   

But earlier this year, the Justice Department ordered that individuals under home confinement due to COVID-19 must return to prison when the emergency is lifted, putting 4,500 lives in limbo, awaiting an uncertain date when their return to normalcy is taken away.  Inmates near the end of their sentence may be able to stay home if the Bureau of Prisons grants permission, according to a recent USA TODAY report.  And while the Biden administration extended the length of the COVID emergency declaration, that still might not help people with years left to serve.   

The administration could get into a legal back-and-forth over the interpretation of the CARES Act.  But a simpler path would be for President Joe Biden to grant clemency to those on home confinement who pose no threat to public safety.  Reviewing the cases will be another step toward reducing unnecessary incarceration in America, which imprisons more people than any other democratic country with no added benefit to public safety.  

The two of us experienced the justice system, and clemency in particular, up close.  One of us worked as a senior adviser to former President Donald Trump on criminal justice and other policy issues.  The other served nearly 22 years in prison for a first-time, nonviolent drug offense before returning home after Trump granted clemency, and later a pardon.  Through these experiences, we have come to know people from diverse backgrounds who have made mistakes, but still have much to offer their families and our society. That is what we are seeing with many of the individuals under home confinement due to COVID-19....

To prevent individuals like these from being sent back to prison, a congressional coalition wrote a letter to Biden, urging him to review their cases for clemency.  The letter notes that the CARES Act did not require individuals on home confinement be sent back to prison, and that the Justice Department can modify the guidance issued by the last administration.  But clemency would allow rehabilitated individuals to move on with their lives rather than serving home detention for the rest of their sentences.   

Clemency should be carefully and fairly considered.  But all the people under home confinement were released because they were determined to be safe, making them strong candidates.  The moral issue goes beyond these 4,500 Americans.  In recent years, a diverse coalition from across the political spectrum has united for criminal justice reforms. Trump signed the bipartisan First Step Act in 2018, reducing some excessive sentences and creating more opportunities for rehabilitation.  

Biden ran on a platform to build on these criminal justice reforms. As he said in a proclamation commemorating Second Chance Month, “We lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”  Biden should now extend that commitment to people under home confinement.  Reviewing these cases for clemency will not only help transform the lives of thousands of Americans, but also continue the momentum toward a more sensible and fair criminal justice system. 

Some prior recent related posts:

May 7, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing"

The title of this post is the title of this notable new empirical paper authored by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000.  Yet, little empirical research has been conducted on the determinants of LWOP sentences.  The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences — studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes.  The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018.  In our final model, we find seven variables that are correlated with sentencing outcomes.  Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions.  We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican.  We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants.

May 7, 2021 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Split(?) Sixth Circuit panel clarifies disparity between actual sentence and sentence under current law can be proper compassionate relief factor

I have been pleased to be able to blog about a significant number of significant circuit rulings on the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth Sixth, Seventh, Ninth and Tenth Circuits issued generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).  And, yesterday a split(?) Sixth Circuit issued another ruling in this line of important precedents with US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), which gets started this way and thereafter makes key observations on the way to reaching its holding:

Ian Owens appeals the district court’s order denying his motion for compassionate release because it concluded that the disparity between his lengthy sentence and the sentence that he would receive following the passage of the First Step Act was not an extraordinary and compelling reason to support compassionate release.  For the reasons set forth in this opinion, we REVERSE the district court’s order and REMAND for reconsideration of Owens’s motion for compassionate release consistent with this opinion....

Many district courts across the country have taken the same approach as McGee and Maumau and have concluded that a defendant’s excessive sentence because of mandatory minimum sentences since mitigated by the First Step Act may, alongside other factors, justify compassionate release. [cites to more than a dozen notable district court rulings modifying sentences]... 

As explained above, Owens presented three factors that he asserted together warranted compassionate release.  The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.  In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings.

I keep putting a question mark next to the notation "split" with respect to this panel decision because here is the (seemingly peculiar) start to the opinion in Owens:

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J., will deliver a separate dissenting opinion that will be appended to the majority opinion at a later time.

Until Judge Thapar appends his dissenting opinion, I am not sure if he disagrees with the main holding of the panel majority or if he has some other concern with this decision.  I presume he is dissenting on the merits, but the idea that sentencing disparities can be at least a factor in considering compassionate release motions does not seem to me to be a particularly controversial proposition since the text of the applicable statute does not expressly provide for any excluded factors concerning what can serve an "extraordinary and compelling reason" to support a sentence modification.

A few of many, many prior related posts:

May 7, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, May 06, 2021

Spotlighting effectiveness of home confinement under CARES Act and concerns about OLC memo disruption

USA Today has this lengthy new piece highlighting the administration of home confinement in the federal system during the pandemic and the worries about a Justice Department memo which could return offenders to prison. I recommend the piece in full, which is headlined "Inmates sent home during COVID-19 got jobs, started school. Now, they face possible return to prison." Here are some excerpts:

In the weeks and months since he was sent home, RJ Edwards found a job, bought a car, got an apartment for him and his mother and started working toward a bachelor’s degree in computer science....

Edwards, 37, is among the more than 24,000 nonviolent federal prisoners who have been allowed to serve their sentences at home to slow the spread of COVID-19 inside prisons. But a Justice Department memo issued in the final days of the Trump administration says inmates whose sentences will extend beyond the pandemic must be brought back to prison.

Advocates urged the Justice Department to rescind the memo, which was issued by the agency's Office of Legal Counsel. They say it defeats the whole idea of rehabilitation and contradicts President Joe Biden's campaign promise to allow people with criminal pasts to redeem themselves. "They let us go, and we reintegrate, and then it feels like nothing matters. All the hard work you put in, it doesn’t matter. We’re just a number to them," said Edwards, who has five years left to serve.

During a congressional hearing, Sen. Chuck Grassley, R-Iowa, raised concerns about sending people back to prison, especially those who have been following the rules. Of the 24,000 prisoners who were allowed to go home, 151 – less than 1% – have violated the terms of their home confinement and three have been arrested for new crimes. "This highlights how effective home confinement can be," Grassley said....

Reincarcerating people who, for the past year, have been law-abiding would disrupt their rehabilitation and would do little to improve public safety, according to a letter more than two dozen groups sent to Attorney General Merrick Garland last month.  "Establishing community ties and deepening family connections are known to be significant positive factors for reducing recidivism," according to the letter. "Disrupting that process would mean disrupting safe re-integration into society and damaging networks that are vital to improving public safety."

Keeping people behind bars is also costly.  In 2018, the annual cost of housing just one federal prisoner was about $37,000 or $102 per day....

In the past year since they were sent home, the majority of these inmates have finished their sentences or have met the criteria to stay on home confinement.  As of mid-April, 4,500 inmates on home confinement would not have qualified if not for the pandemic, although many of them are likely to meet the criteria in the next months.  About 2,400 have more than a year left in their sentence, [BOP Director Michael] Carvajal told lawmakers.

A little more than 300 have five years left to serve.  That includes Edwards, who was sentenced to 17 years for wire fraud.  He was sent home in July.  By August, he found a job.

Prior related post:

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

Federal prison population holding steady at just over 152,000 through first 100 days of the Biden Administration

The day after Joe Biden was inaugurated as President, I authored this post posing a 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 numerical realties 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 in office, 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 can and do play lots of different expected and unexpected roles in shaping federal prosecutions and sentencings, and these case processing realities in turn can have unpredictable impacts on the federal prison population.  Consequently, I was disinclined in this January 2021 post 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 any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population.  

Sure enough, we are now well past the "100 days" milestone for the Biden Administration, and the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage show little change.  Specifically, as of May 6, 2021, the federal prison population clocks in at 152,085. 

Given that the federal prison population has not been anywhere near 150,000 in over two decades, folks troubled by modern mass incarceration should perhaps be inclined to celebrate that the considerable yearly population declines that got started in 2014, and that kicked into a higher gear during to the pandemic, may now have set something of a "new normal" for these population totals.  But, few should forget that, in historical and comparative terms, the modern federal prison population is still quite massive, that almost half of this population is incarcerated for a drug offense, that almost a third of this population has "little or no prior criminal history," and that only around a quarter of this group is "serving a sentence for an offense involving weapons" (details drawn from this USSC quick facts as of June 2020).

A few prior related posts:

May 6, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, May 05, 2021

Might Prez Biden use his clemency power relatively soon?

The question in the title of this post is promoted by this notable new Hill article headlined "Biden set to flex clemency powers."  The headline is a bit more encouraging than the full article for those eager to see some action on this front, and here are some of the details:

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.  The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.  “It was clear that they are working on something,” said Norris Henderson, founder and executive director of New Orleans-based Voice of the Experienced, who participated in the call.  “They are looking at that right now as an avenue to start doing things.”

The White House declined to comment for this report when asked about Biden’s plans for clemency grants or his timeline.  Asked at a briefing Wednesday whether the Biden administration has a timeline for pardons or commutations, White House press secretary Jen Psaki answered: “I don’t have any previewing of that to provide and probably won’t from here.”

Biden disappointed some advocates by not granting clemency to anyone in his first 100 days in office and has faced pressure to take action to reform the criminal justice system and address racial injustices.  Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system.  The Justice Department faces a backlog of some 15,000 petitions for clemency.

DeAnna Hoskins, president and CEO of JustLeadershipUSA, said officials communicated on the call last week that Biden is “not waiting until the end of his presidency” to issue pardons or commutations. “It was very promising because he already, from the White House perspective, has staff working on this,” Hoskins said....  Vivian Nixon, executive director of the College & Community Fellowship, described the White House as more noncommittal, saying there was not a “promise to do anything” but that officials acknowledged “that they are looking at this issue very closely.”

Biden’s record on criminal justice is mixed.  He has faced backlash for his role in passing the 1994 crime bill that critics say contributed to mass incarceration and had a disproportionate impact on communities of color.  As part of the criminal justice platform he unveiled on the campaign trail, Biden promised to use his clemency power to “secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes” if elected....

The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to pressure Biden to grant clemency to 100 women in his first 100 days in office, but that milestone came and went last week without action from the White House.  The American Civil Liberties Union has petitioned Biden to grant clemency to 25,000 people as soon as possible, calling mass incarceration a “moral failure” and “racial justice crisis.”

White House officials including domestic policy adviser Susan Rice, senior adviser Cedric Richmond and counsel Dana Remus convened the call last Friday to hear criminal justice reform recommendations from advocates, and clemency was among the topics discussed....

“One thing that was very clear from the conversation was there will be a process,” Desmond Meade, president and executive director of the Florida Rights Restoration Coalition, said of Friday’s White House call. “At the end of the day, they know that there are changes that should be made, but there should be a process there that makes it fair for everyone.”...

Friday’s call was the first in what is expected to be a series of White House engagements with criminal justice reform advocates and individuals who have been directly impacted by the prison system.... Participants expressed optimism that the White House is serious about addressing criminal justice reform and giving those who have been impacted by the justice system a seat at the table.

A few of many recent related posts on Prez Biden and clemency:

May 5, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 04, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New federal defender laments BOP's response to COVID and the FIRST STEP Act

The Federal Public and Community Defenders sent this new letter today to Senate Judiciary Committee leaders to follow up on the April 15 oversight hearing concerning the Federal Bureau of Prisons.  The 16-page letter covers a lot of ground, and here are excerpts:

For too long, DOJ and BOP have ignored congressional directives to prioritize the safety and rehabilitation of individuals in its custody, and left tools provided by Congress unused. These failures have been exacerbated by a culture that bends towards opacity and against accountability.  We urge Congress to intervene.  At minimum, it must strengthen and increase its oversight of DOJ and BOP to help ensure that federally incarcerated persons remain safe and that Congress’ vision for sentencing and prison reform is realized.  At best, it will enact legislation to smartly and swiftly lower prison populations and to move vulnerable individuals to a place of relative safety.

For the past 13 months, COVID-19 has torn through BOP facilities.  Meanwhile, BOP has failed to take the necessary steps — or to use available resources — to remediate the pandemic’s risk. Even now, despite the increased availability of vaccines across the country, COVID-19 remains a lifethreatening risk to those in BOP custody.  The death count of incarcerated individuals continues to mount, and conditions in federal detention facilities remain dire....

BOP and DOJ have failed to use the tools Congress gave them to safely lower prison populations.  The failure by DOJ and BOP to use tools to move vulnerable individuals to a place of relative safety — either by transferring them to home confinement or by seeking their release through compassionate release — has exacerbated the consequences of substandard medical treatment and care in BOP....

The First Step Act of 2018 (FSA) was intended to shorten certain federal prison sentences and to reorient the federal prison system away from pure punishment and towards rehabilitation.  The FSA’s ameliorative sentencing provisions have made significant strides: as of September 28, 2020, BOP has released 2,509 individuals who qualified for retroactive Fair Sentencing Act of 2010 relief. 

But since the FSA’s enactment, little has been done to advance the Act’s core prison reform: a system designed to reduce recidivism risk by offering individuals incentives in exchange for their participation in evidence-based programming and productive activities.  To create that system, the FSA directed the DOJ to dramatically expand programming in BOP facilities, and to develop a risk and needs assessment system (“RNAS”) that could determine “the recidivism risk of each prisoner” and “the type and amount of evidence-based recidivism reduction programming for each.”  Unfortunately, DOJ and BOP have failed to meet the programming or RNAS mandates and have undercut the promise of the FSA by promulgating restrictive policies behind closed doors....

Even prior to the pandemic, BOP had a long history of not providing sufficient programs.  Because the recidivism-reduction efforts of the FSA are meaningless without adequate programming, and in light of the IRC’s warning, we are deeply concerned that BOP does not have a plan of action to comply with the FSA requirement that BOP “provide all prisoners with the opportunity to actively participate in evidence-based recidivism reduction programs or productive activities according to their specific criminogenic needs, throughout their entire term of incarceration.”  BOP’s past performance, with inconsistent access and quality across institutions, makes it difficult to have confidence that BOP will meet its statutory obligations in this regard.  We hope that Congress will continue to closely oversee BOP’s efforts on this front, and to appropriate sufficient funding to support adequate programming.

May 4, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Notable NY politician gets furlough from BOP as he is "considered for home confinement"

When I saw the headline of this new New York Post piece, "Sheldon Silver released early on furlough after less than a year in prison," I thought the paper was misusing a term because furloughs from federal prison seem extraordinarily rare. But the story explains it has the right term:

Disgraced former New York Assembly Speaker Sheldon Silver has been sprung from federal prison early on furlough — while he awaits a decision from the agency on whether he can serve out the remainder of his term in home confinement, a report said Tuesday.

Silver — who has served less than a year of his 6 1/2-year sentence — was cut loose from Otisville Prison, in Orange County, New York, and released to his home while awaiting the decision, a source familiar with the matter told the Associated Press.

The 77-year-old crooked former pol was released under DOJ’s expanded powers to grant inmates release amid the coronavirus pandemic, according to the report. In a statement, the Bureau of Prisons said Silver is still “designated” to Otisville Prison, but added that it has the power to transfer inmates to their home on furlough.

“We can share that the Bureau of Prisons (BOP) has authority to transfer inmates to their home on furlough for periods of time while they may continue to be considered for home confinement designation,” a spokesperson said.

The BOP recently notified prosecutors in the Southern District of New York that it was considering cutting Silver loose on home confinement, a spokesperson for the district told The Post. n an email response sent yesterday, the prosecutor’s office — which secured a guilty verdict against Silver for corruption-related crimes during his run as an Albany power broker — stressed that it ardently opposes the move, the spokesperson said.

In a memo last year, former Attorney General Bill Barr gave the director of BOP expanded discretion to release vulnerable inmates from federal lockups amid the pandemic. BOP officials need to take into account a host of factors when determining if an inmate qualifies for home confinement, including “age and vulnerability of the inmate to COVID-19,” according to the memo. In addition, a BOP medical official is supposed to sign off on home confinement releases based on risk factors for a specific inmate, according to the memo....

Silver was sentenced last summer after avoiding lockup for more than five years after he was first convicted. At his sentencing, Judge Valerie Caproni admonished the crooked politician, who was convicted of illegally using his office to benefit two real estate developers in exchange for cash.

“This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” Caproni added.

Because there is always much mystery around the working of the BOP, I have no notion of whether any lower-profile prisoners might get similar treatment.

May 4, 2021 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (3)

"Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?"

The title of this post is the title of this notable new report from The Fines and Fees Justice Center.  Here are some excerpts from the report's "Introduction and Executive Summary":

Over the past two decades, advocates, researchers, government agencies and the media have drawn increasing attention to the dangerous effects of fines and fees, particularly on communities of color and low-income people.  While those moving through the criminal justice system often experience fines and fees as a single, ongoing burden, there are key distinctions between how each of these revenue sources are assessed and imposed.

Fines are monetary sanctions imposed for violating the law. Fees (also known as costs, assessments and surcharges) are additional charges imposed to fund the criminal legal system and other government services.  Fines and some fees are imposed by courts when a person is convicted of a criminal or traffic offense or a municipal code violation. Typically, these fines and fees are owed to the court.  Fees are also often imposed by local governments or their agencies both before and after a person is convicted.  For example, probation fees may be imposed by a local probation department either before trial or after a conviction.  These fees are typically owed to either a city or county government.

Considerable research has uncovered the financial burden and unintended consequences wreaked on the people charged with paying fines and fees.  Yet there has been little, if any, investigation into how much debt is outstanding or delinquent nationwide.  One of the few studies to address the issue found that none of the eight jurisdictions studied had a central repository where information on the total amount of fines and fees owed could be found.  Understanding the full scope of our nation’s criminal justice debt problem is vital to the task of creating an equitable justice system.  Without this information, we cannot accurately evaluate the true impact of fines and fees as a source of government revenue or, more importantly, as a financial burden on those who owe court debt.  The absence of data also results in the absence of accountability for policymakers and justice system stakeholders who support and enact harmful fines and fees policies.

This report addresses fines and fees imposed at conviction in felony, misdemeanor, traffic and municipal ordinance violation cases.  We refer to these fines and fees as “court debt” because it is debt imposed by the court and typically collected by courts or private collection agencies working on a court’s behalf.

This court debt is just the tip of the iceberg when it comes to monetary sanctions in the criminal justice system.  Depending on the jurisdiction, the fines and fees imposed at conviction can be just a fraction of the total amount of unpaid fines and fees owed by people who are or were involved in the criminal legal system.  California, a state which maintains relatively robust data on fines and fees, serves an example — outstanding debt owed to California from the fines and fees imposed at conviction is equal to roughly $10 billion; roughly $16 billion is owed to the state’s counties for one or more of the 23 administrative fees that counties are authorized by state law to impose; and approximately $360 million was owed to counties in juvenile fees.

We chose to focus our investigation on court debt because courts keep a record of every case, and those records should specify the amount of fines and fees imposed at conviction.  We assumed that courts routinely aggregated that data, allowing them to determine the amount of fines and fees assessed.  We also assumed that courts would track how much of those fines and fees were actually collected.  In an effort to obtain this critical information, the Fines and Fees Justice Center contacted judicial offices and government agencies in all 50 states and the District of Columbia that might have data related to outstanding court debt. In a few states, the information related to the data request was already publicly available, but for most of the jurisdictions, a formal request was submitted....

But for half the country ... the full extent of our nation’s problem with court debt is shockingly untraceable and unknown.  And it’s not just the numbers that matter.  If states do not have the means (technological or otherwise) to determine how much money they are owed, there is a strong possibility that reliable data about who holds that debt may also be out of reach.  Without this vital information, stakeholders cannot appropriately weigh other socio-economic factors (apart from poverty) that may correlate with an inability to settle one’s court debt. How can we intelligently assess policy solutions when we can’t obtain a complete view of the problem?...

Knowing how much court debt exists will also allow us to accurately assess whether government resources are being wasted trying to collect debt that people will never be able to pay.  According to a report published by the Brennan Center for Justice, it costs New Mexico’s largest county, Bernalillo, at least $1.17 to collect every dollar of revenue it raises from fines and fees.  The report also found that some Texas and New Mexico counties spend 121 times what the IRS spends to collect taxes on fines and fees collection efforts.  These are valuable funds that could be invested in our communities....

Based on the information that was received, we can document that at least $27.6 billion of fines and fees is owed across the nation.  This figure grossly understates the amount of court debt that people living in the U.S. cannot afford to pay because only 25 states provided data, and the information that many provided was incomplete.  Information concerning the debt totals for the remaining 25 states and the District of Columbia could not be provided or was not available. 

May 4, 2021 in Data on sentencing, Detailed sentencing data, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (1)