Sentencing Class @ OSU Moritz College of Law

A final (too brief) foray into what metrics and data matter for assessing a sentencing system

After our first few weeks of class discussing theories of punishment, you likely recall that we never reached any kind of firm conclusive resolution as to what goals a sentencing system must or should pursue.  For that reason (and others), it should not be a surprise that there is no firm conclusive view of what metrics or data matter most for judging a sentencing system or the criminal justice system more generally.  But this is not for lack of possible options, and here I will list some broad categories and sub-categories for you to consider as possible data points of greatest interest or concern for a sentencing system:

CRIME

• Overall crime rates and/or total crimes (per year or over an extended period)
• Violent crime rates and/or total violent crimes
• Murder rates and/or total murders

ARRESTS

• Overall total arrests (per year or over an extended period)
• Arrest rates relative to crime rates
• Arrests for certain crimes

CONVICTIONS

• Total convictions, felonies and misdemeanors (per year or over an extended period)
• Conviction rates relative to crime rates or arrest rates
• Conviction rates for certain crimes

SENTENCES IMPOSED

• Total sentences for many types of punishments (death, prison, jail, probation, fine)
• Prison/jail sentences for more any crimes
• More severe sentence of death, life or more than, say, 20 years in prison

PRISON, JAIL, SUPERVISION POPULATIONS

• Total persons in prison, jail. supervision at one snapshot in time
• Total persons in prison, jail. supervision over a year or longer
• Total persons in prison, jail. supervision for certain crimes

RECIDIVISM RATES

• Persons arrested within one year (or 5 or 10 years)  after arrest
• Persons sentenced for a new crime within one year (or 5 or 10 years) after release from custody
• Persons convicted of a new serious crime within one year (or 5 or 10 years) after prior CJ contact

CRIMINAL RECORDS AND COLLATERAL CONSEQUENCES

• All persons ever subject to arrest/conviction
• All persons who see or secure record relief from a prior conviction
• All persons receiving longer sentences due to criminal past

FINANCIAL/SOCIAL COSTS

• Total expenditures by governments on entire criminal justice system
• Total expenditures by governments on prisons and jails
• Social/human costs (and benefits) from interactions with criminal justice system

I could go on and on, but I am sure you get the idea and that you can now reflect a bit on how many different possible sentencing "outputs" could  be a focal point for data collection, review and analysis.  This is the broad topic I am eager for us to cover in our last few classes, and I especially want to highlight that this long list of possibilities does not begin to engages various social justice issues — e.g., should we focus on "output" numbers in any or all of these categories particularly for people of color?  for women?  for juveniles?  for persons with mental illness?  for veterans?

We can perhaps start the discussion here in the comments, but know I will be asking you in our final classes to share your views on these issues through this particular question: What two of three metrics or data points should the incoming Biden Administration give special and sustained attention to in the coming months and years?

Reactions to our look behind the robes with federal sentencing judges?

I hope everyone enjoyed as much as I did the Zoom visit today by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa).  This post provides an opportunity to share comments and reactions to what we heard.

Are there any "offender characteristics" that you think must be considered at sentencing? If so, how?

As we continue digging into the challenging and dynamic topics of offender characteristics at sentencing, I urge you to think about what offender characteristics should or must always be considered at federal sentencing with two particular "whos" in mind: the US Sentencing Commission and US District Judges.  

The challenge for the USSC 

You should closely review Problem 5-4 in the text and the notes that follow (pp. 322-26).  You will see that Congress in the Sentencing Reform Act of 1984 instructed the USSC to consider the "relevance" of various offender factors at sentencing (and only declared a few factors like race and sex and socio-economic status off-limits).  In other words, Congress gave the Sentencing Commission considerable discretion to include various offender factors in guideline calculations, but the USSC has historically deemed nearly all offender factors — such as "disadvantaged upbringing" and "drug or alcohol dependence" and "education and vocational skills" and "employment record" and "family ties and responsibilities" — as either "not relevant" or "not ordinarily relevant" at sentencing.

Notably, in a 2014 law review article, a former Chair of the US Sentencing Commission, US District Judge William Sessions, criticized the federal sentencing guidelines for having too often and for too long declared offender characteristics to be "prohibited or discouraged factors" because of a fear these factors could too readily lead "courts to issue different sentences to defendants with similar records who have been found guilty of similar conduct."  In his article, titled "The Relevance of Offender Characteristics in a Guideline System," Judge Sessions asserted that the "Commission needs to embrace the relevance of human factors and educate judges and practitioners as to their impact on the sentencing process;" drawing from his own sentencing experiences, Judge Sessions suggested that factors like "past drug dependence" and "positive response under pretrial supervision" ought to be the basis for new "guidelines that encourage consideration of those characteristics where appropriate."  

Do you agree that it is problematic that the federal sentencing guidelines largely seek to exclude consideration of offender characteristics and that the US Sentencing Commission consider a new approach to these matters?  Judge Sessions says "the Sentencing Commission should take more of an initiative to collect data on offender characteristics, draft guidelines that encourage consideration of those characteristics where appropriate, and educate judges about the reasons why those characteristics are relevant should what might these guidelines look like."  If you were serving on the USSC, what kinds of "data on offender characteristics" might you want to collect and what kind of "draft guidelines" might you start to compose?

 

The challenge for US District Judges

Even when the guidelines were mandatory before Booker, US District Judges had some limited authority to give some effect to offender characteristics at sentencing when selecting an exact sentence within the guideline range.  (For example, a judge impressed by a defendant's charity work could reference this personal history when giving a 51-month term to a defendant facing a guideline sentencing range of 51-63 months.)  But US District Judges before Booker largely understood that most "usual" offender characteristics were of little importance within the guideline structures, and that reality in turn often led defense attorneys to spend little or no time developing any offender-based mitigating factors to present to judges at sentencing.

But when Booker made the guidelines advisory, US District Judges became obligated to focus upon and follow the statutory instructions in 18 U.S.C. § 3553(a).  And the very first subsection of this statutory provision states judges "shall consider the nature and circumstances of the offense and the history and characteristics of the defendant" (emphasis added).  In other words, Congress gave US District Judges a formal instruction to consider offender considerations, and this instruction became a focus point for advocacy and decision-making after Booker.  This provision was also stressed by US District Judge Robert Pratt when he initially sentenced Brian Gall to 36 months of probation rather than within the guidelines sentencing range of 30-37 months in prison.  The Eighth Circuit reversed Judge Pratt's sentence as unreasonable, but the Supreme Court reversed that reversal (excerpted in our text at pp. 341-48) to essentially confirm that offender characteristics could play a much larger role in federal sentencing after Booker.

If you were able to advise a group of federal judges about modern sentencing under the advisory guideline system, what advice might you give circa 2020 as to how best to approach the consideration of offender characteristics?  Are there any offender characteristics that you think federal district judges should or must always consider at sentencing?  If so, how should judges now approach these matters without creating the risk of unjust sentencing disparities or other potential problems?

Reviewing class plans for the rest of November

Amidst all the recent uncertainty and angst, I wanted to be certain to remind everyone about our class plans for the rest of November:

Tuesday, Nov 10: Guest lecture via Zoom by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  (No in-person class, background reading/prep detailed here.)

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" for sentencing (skim Johnson and read Tiernan closely in the text for this class)

Tuesday, Nov 17: In-person regular continuing our review of "the criminal" for sentencing (read Gall closely in the text for this class) 

Thursday, Nov 19: Guest visits via Zoom by US District Judge Douglas R. Cole (SD Ohio) and US District Judge Robert W. Pratt (SD Iowa)

Tuesday, Nov 24: Constructive Wednesday so ... NO CLASS

 

Spotlighting federal government's ability (and efforts) to control both "charges" and "real" conduct in some drug cases

As we wrapped up a too-quick discussion of the "offense" for sentencing purposes with a focus on drug cases, I briefly mentioned the somewhat (in)famous litigation in Chicago surrounding so-called "stash-house sting" case.  I have done a series of blog posts about these cases at my main blog, some of which are linked below.  Here is a 2019 Chicago Tribune article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison," which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full (and posts linked below) for those interested in these stores, but here is an overview of the basics (with sentencing points bolded) drawn from this press piece (which also highlights the role of a bunch of different critical "whos"):

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison.  He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decades-long prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary. Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.  The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling.  While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

I was fortunate to get Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, to author a series of posts for my main blog about her remarkable work in these remarkable cases.  Provided below are links to my main blog of an early press piece, and there her three posts about the amazing and consequential work of defense lawyering in this setting:

• Deep dive into litigation over Chicago “Stash House Stings”

• Guest post series on Chicago "stash-house sting" litigation: Part 1 on "Sentencing Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

• Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation" 

Reviewing class plans and readings/prep for our Zoom visit from Jonathan Wroblewski on Nov 10

As we all deal with post-election day uncertainty, I wanted to be certain to remind everyone about out certain class plans for this week and next:

Thursday, Nov 5: In-person regular class to discuss the election and finish up discussion of "the crime" for sentencing (some additional optional materials here on drug offenses)

Tuesday, Nov 10: Guest lecture on Zoom by Jonathan Wroblewski, Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice.  

Thursday, Nov 12: In-person regular class beginning our review of "the criminal" for sentencing (skim Johnson and read Tiernan closely in the text for this class)

Director Wroblewski has told me his is eager to discuss during the Nov 10 class "what 2021 might mean for federal sentencing reform" and he also plans to do his "revised long-term sentencing trends PowerPoint."  He has also provided this additional preview and questions/readings for our collective consideration:

I will focus my presentation on mass incarceration and will present lots of numbers.  I’ve attached two readings [available below]: an excerpt from the book The New Jim Crow by Michele Alexander and Professor James Forman’s response to this book.  Please also ask the students to come to class having thought about the following questions (I will call on some of them) —

1. How do we define mass incarceration?

2. What were the factors that led to our current incarceration numbers?

3. Should we have a target level of incarceration that policymakers should be aiming at?  How do we figure out what that level is?

4. What policy steps should be taken, if any, to reduce our current level of incarceration?

 

Download NewJimCrow_Intro+ch2

 

Download Forman_Racial Critiques of Mass Incarceration

Listen to (and log time on) oral argument in Jones v. Mississippi

I found as a useful distraction the morning of 2020 Election Day listening to the oral argument in Jones v. Mississippi, 18-1259.  All the Justices had lots of interesting and hard questions concerning the issue of whether the Eighth Amendment requires a sentencer to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

And you can now LISTEN to the Jones oral argument HERE.