The Sentencing Project has published a timely report on evidence-based responses to skyrocketing opioid addiction and overdose deaths, fueled by the booming legal market in prescription opioids like hydrocodone and oxycodone. In “Opioids: Treating an Illness, Ending a War,” published on December 13, 2018, the Project notes that unlike the heroin and crack crises of the past, there is broader support for preventative and treatment-based policy solutions because “the current opioid emergency has disproportionately affected white Americans—poor and rural, but also middle class or affluent and suburban.”
Of particular note is the Project’s reminder of the lessons to be learned from the drug war. Exacting an enormous emotional and economic toll that was disproportionately experienced among communities of color, the drug war with its punitively long prison sentences was largely ineffective in addressing drug usage:
Yet the War on Drugs did not play a major role in ebbing cycles of drug use. Following a comprehensive review of research, a 2014 report by the National Research Council concluded: “The best empirical evidence suggests that the successive iterations of the war on drugs—through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades.” New York Times reporter Timothy Egan’s assessment of the nationwide crack crisis in 1999 illustrates how this drug ran its course for reasons other than criminal justice interventions. Egan compares the crack crisis with a fever: “It came on strong, appearing to rise without hesitation, and then broke, just as the most dire warnings were being sounded.” As they aged, crack users eventually desisted from using the drug, and younger people spurned the drug upon seeing its devastating effects—in what is known as the “younger sibling” effect. Aggressive law enforcement did not deter longtime users from the drug or eliminate adaptable drug markets, as revealed by anecdotes of police chiefs, surveys of past users, and comparisons across cities. For example, Egan notes that while declining crack use in New York City coincided with a massive buildup of arrests, Washington D.C. outpaced New York’s decline in cocaine use among young residents even though D.C. police reduced drug arrests in some years. Nevertheless, as Michael Tonry has argued, “the most intrusive laws and the cruelest penalties tend to be enacted after intolerance [toward the drug] has reached its peak and when drug use is already falling.”
But we still hear the “war on drugs” rhetoric today in response to the opioid crisis. AG Sessions, for example, recently said to a police academy in Ohio,“We must not capitulate intellectually or morally to drug use. We must create a culture that is hostile to drug abuse.” The Sentencing Project’s opioid report, which collates some excellent data, could prove to be a useful resource to counter punitive sentiments in opioid-related cases from prosecutors.
Second Circuit Judge Denny Chin, a former district court judge, has long recognized the importance of defense advocacy at sentencing and the unfairness of penalizing mitigation efforts. In United States v. Lee, 653 F.3d 170 (2d Cir. 2011). writing for the Court, he held that the government abused its authority when it withheld a third “acceptance of responsibility” point because the defendant had challenged errors in his presentence report. Now, in United States v. Singh, 2017 WL 6327823 (2d Cir. December 12, 2007), he has turned his sights to the sentencing judge. Rejecting, in part, a judge’s characterization of the defendant’s apology letter as a disavowal of responsibility, he has authored an opinion reversing a sentence of 60 months in an illegal re-entry case where the guidelines recommended 15 to 21 months.
Notably, the Court found the sentence unreasonable both on procedural and substantive grounds. To support the latter finding, the Court utilized data from the Sentencing Commission on average sentences in illegal reentry cases nationally. At almost three times the top of the guidelines, the sentence “stir[red] the conscience” if it didn’t “shock” it, particularly, where the Probation Department and the government both recommended a sentence within the advisory guideline range. Moreover, Singh’s low-level, non-violent criminal history, which the district court viewed as justifying the sentence, was not that serious, again, when compared to national sentencing data.
Procedurally, the Court took particular issue with the sentencing judge’s apparent position that Singh’s effort to explain his crime (foolish behavior under the influence of friends, and fear for his life in his native Guyana) indicated a failure to accept responsibility. While granting him acceptance points (to avoid “creat[ing] an appeal point”), the sentencing judge noted that she would nonetheless consider the acceptance of responsibility issues in fashioning the appropriate sentence under 18 U.S.C. § 3553.
The Circuit concluded that “[t]o the extent the district court increased Singh’s punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.”
But the opinion did not end there. The district court’s position was viewed as so egregious that Judge Chin’s opinion included an admonition about the appropriate role of the sentencing judge, and her obligation to act with generosity and humanity:
“Sentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.” Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007). While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of “the diverse frailties of humankind.” See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion). In deciding what sentence will be “sufficient, but not greater than necessary” to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a “generosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.” Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (“Be kind. If we judges could possess but one attribute, it should be a kind and understanding heart. The bench is no place for cruel or callous people regardless of their other qualities and abilities. There is no burden more onerous than imposing sentence in criminal cases.”).
The explosion in incarceration over the last several decades has led to the “graying” of our inmate population, which, coupled with already over-stretched medical and mental health budgets [http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality], further diminishes our prisons’ capacity to ensure the basic needs of the individuals in their care. Compassionate release is one mechanism to alleviate this financial and emotional burden, but it is sadly used sparingly and often too late to be meaningful [https://oig.justice.gov/reports/2013/e1306.pdf]. On December 7, 2017, FAMM, along with 35 other organizations and individuals, aims to change this narrative — launching a national campaign for compassionate release to “urge the creation, expansion, and robust use of federal and state programs that grant early release to prisoners with compelling circumstances, such as a terminal or age-related illness.” The Campaign has endorsed “a statement of principles,” focusing on “the humanitarian, public safety, and economic benefits of granting early release to elderly prisoners, those with disabilities, or prisoners facing extreme family changes.” The Campaign is a necessary reminder that our prisons are especially punishing on older and ill prisoners, and those whose family circumstances become dire while incarcerated. Until this Campaign bears fruit, defense advocates with clients who may be candidates for this kind of relief down the road can point out to their sentencing judges that it is better to “front-end” compassionate measures rather than hope that compassion will exercised later during their time in custody.
Armed adolescent gang members who robbed a household of adults and young children are the subject of another of EDNY Judge Weinstein’s nuanced academic sentencing decisions. As he explains in United States v. Rivera, 2017 WL 6210813 (E.D.N.Y., December 7, 2017), the case requires him to balance the need to punish a brutal crime, incapacitate young men with limited ability to escape powerful gang ties, take account of their young age and underdeveloped brains, and promote their rehabilitation in a justice system ill-equipped to provide the kind of structured environment and programming necessary to prevent recidivism. In the end, he sentences the three to at or near the 7-year mandatory minimum sentence required by their guilty pleas, but in the process, presents an extensive survey of the literature on incapacitation.
Tracing the evolution of incapacitation as it became the main focus of sentencing in the latter part of the 20th Century, Judge Weinstein points to studies that show its inefficacy: longer sentences actually increase the potential for recidivism. He points to national and international research that diversion and mentoring of young violent offenders has proved effective, but notes the limited availability of such programs in Brooklyn, where the Rivera defendants resided. In fact, ignoring the enlightened literature, he notes that the New York Senate recently passed the “Criminal Street Gang Enforcement and Prevention Act” requiring higher incapacitation to enhance gang prosecution and stem gang violence. Finally, he puts mandatory minimum sentencing under the microscope as “the greatest byproduct of the penological focus on incapacitation.” These “eliminate the ability of judges to take into account the full range of sentencing considerations . . . and deny defendants’ the opportunity to benefit from alternatives to incarceration.” Moreover, he adds, such sentences are now the subject of a sustained re-evaluation by state and federal sentencing systems.
This is an immensely rich and complex decision full of useful data for the sentencing advocate to cite. It joins Judge Weinstein’s many other sentencing memoranda that explore the conundrum of fashioning an individualized sentence in the context of all the competing purposes of sentencing, with a particular focus here on defendants who are inheritors of generations of inequality. For more of Judge Weinstein’s decisions, check out my “Social Science at Sentencing: A Survey of Federal Sentencing Decisions, 2005-2017” memo in the Resources section of this blog.
One of the most intractable questions in criminal justice is whether incapacitation of offenders reduces crime. The assumption that it does undergirds our explosive rise in incarceration rates over recent decades, but is it accurate? The answer is not purely an academic one. It is a critical prerequisite to current criminal justice reform efforts, and in particular, those focused on decarceration and alternatives to incarceration. It is also important to sentencing advocates, who will frequently cite to studies that conclude that long sentences do not deter and that prison actually exacerbates recidivism. Now, there is a an important meta-study from the Open Philanthropy Project, published in September 2017, The Impacts of Incarceration on Crime (see also here and here), in which David Roodman subjects three dozen empirical studies on the link between incarceration and crime to a rigorous review, including replication and reanalysis of eight of the studies. He concludes, in essence, that while incarceration may modestly lower crime rates temporarily, this decrease is cancelled out by the criminogenic impact of incarceration, which increases crime rates. As such, the “best impact of additional incarceration on crime in the United States today is zero.” His key findings, subject to several caveats, can be summarized as follows:
* but *
Finally, Roodman focused on “high credibility” studies (those that could exploit randomized experiments), and in particular, eight studies where he could access the underlying data and code (i.e. the studies with the highest integrity). “Replication and subsequent reanalysis of these eight revealed significant econometric concerns in seven and led to major reinterpretations in four” leading him to conclude that “even the best studies on incarceration and crime are less reliable than they appear.” Moreover, Roodman’s review “focuses mainly on studies that compare incarceration to ordinary freedom or traditional supervised released (probation and parole), as distinct from alternatives such as in-patient drug treatment and restorative justice conferences. Those options may offer promise, and deserve more research and evidence reviews.”