Justice Update: Merrick Garland's Record, Status of Sentencing Reform

March 23, 2016

A Closer Look at Merrick Garland and Criminal Justice

Merrick Garland’s criminal justice record has come under the microscope since his nomination to the U.S. Supreme Court last week. 

New York Times report found Garland sided with law enforcement in 10 out of 14 criminal cases where he “voted differently from at least one fellow judge.” Other outlets, from USA Today to Vox to The Daily Beast, have portrayed him in a similar way.

But a closer look at his record by Ames Grawert in Reuters finds that Garland, a former prosecutor, “has shown a healthy skepticism of prosecutors and a savvy understanding of how criminal trials actually work.” For instance, Garland wrote the unanimous 2008 District of Columbia Circuit Court opinion in Parhat v. Gates that ruled a military tribunal did not have sufficient evidence to declare Huzaifa Parhat an enemy combatant.

“This decision suggests that Garland as a judge understands the care with which government attorneys must wield their considerable power,” Grawert wrote. “His record indicates a willingness to draw on practical experiences when deciding issues related to fair-trial rights and the balance of power between the prosecution and the defense.”

Meanwhile, on sentencing reform, Speaker Paul Ryan said today that he's planning to bring the House bill to the floor for a full vote. But in the Senate, there are rumors that senators may stall the bipartisan Sentencing Reform and Corrections Act of 2015 as a reaction to the expected partisan battle over Garland’s nomination. The bill would reduce mandatory minimum sentences for some low-level drug crimes, and give judges more discretion in sentencing low-level offenders.

Writing in U.S. News & World ReportInimai Chettiar noted that it’s “a false choice to pit sentencing reform against a Supreme Court battle” and “accord on one shouldn't be overridden by combat on the other.” 

In an op-ed for The HillChettiar and Lauren-Brooke Eisen underscored the strong role the federal government can play in ending mass incarceration.

Data Shows There’s No National Crime Wave

Experts debunked claims of a new national crime wave in an op-ed in InsideSourcesAmes Grawert and James Cullen said those warning of a new crime surge are “simply wrong,” citing a Brennan Center analysis of 2015 crime data. 

“Crime has been declining for 25 years, and 2015 gave no reason to believe the trend is over,” they wrote. “There is no crime wave building just over the horizon.”

The Atlantic’s CityLab also cited Brennan Center data in an article on a Johns Hopkins University study that found a “very weak” link between Baltimore’s higher homicide rates and the so-called “Ferguson Effect,” which claims that officers are reluctant to make arrests because of intense scrutiny following recent shootings.  

Justice Department Mounts New Initiative on Fees and Fines

The Justice Department last week sent state chief justices and state court administrators a letter encouraging them “to reform harmful and unlawful practices” involving defendant fees and fines. The Brennan Center’s library of work was cited extensively.

“These charges are often levied against people who can least afford to pay them,” said Lauren-Brooke Eisen, author of Charging Inmates Perpetuates Mass Incarceration. “The subsequent punishment for unpaid debts helps spin the revolving door of the criminal justice system. It’s one example of a financial incentive that fuels mass incarceration.”

Read more from the Associated PressCBS News, and NBC News

Research Roundup

  • The United States Sentencing Commission released a comprehensive report on recidivism rates for federal prisoners. In the eight years after their release in 2005, 49 percent of offenders were re-arrested for a new crime or a violation of their supervision conditions. Re-arrest rates for those with little criminal history was about 30 percent, and climbed to 80 percent for those with longer criminal backgrounds.
  • A February issue brief by the Pew Charitable Trusts examined crime rates in the 23 states that raised their felony theft threshold (i.e., the value of stolen goods or money that would qualify as a felony) between 2001 and 2011. The study found that increasing the threshold did not cause an increase in larceny rates or overall property crime.
  • Researchers from the University of California, Irvine, the RAND Corporation, and the Association of State Correctional Administrators published results of a 50-state survey of corrections officials in 2011 to understand prison downsizing. While 148 correctional facilities closed between 2007 and 2012, 29 new facilities were opened. Overall, however, there was a net reduction of 19,000 beds.