Document Category: Sentencing

This brief argues against mandating regular drug or alcohol testing as a probation condition for a client who does not have a history of substance abuse related to their offense. It is written citing MCL 771.3(11), which requires probation conditions to be tailored to the individual’s assessed risks and needs, but can be easily adapted to other jurisdictions with similar probation statutes. The brief argues that mandatory testing is counterproductive to this client’s rehabilitation because it (1) makes it more difficult for probationers to obtain and maintain employment, (2) is extremely onerous and invasive, (3) places unnecessary financial burden on probationers, and (4) is not shown by research to improve recidivism outcomes. Defenders can use this brief to urge the court to strike mandated testing from their client’s probation requirements in favor of an individualized supervision strategy that is less invasive and truly aimed at supporting successful reintegration.

This draft motion argues for diversion to restorative justice (RJ) programming in lieu of imposing a traditional probation sentence. Section I (p. 1-3) explains the basic tenets of restorative justice, citing research showing restorative justice is more effective at reducing recidivism than conventional court processes. Section II (p. 3-6) argues that restorative justice works even in the absence of victim participation, citing research that use of victim surrogates may even increase its efficacy. Section III (p. 6-7) provides research-based support for restorative justice as an effective and appropriate tool for rehabilitating perpetrators of violent and bias-based harm (countering the narrative that restorative justice should be limited to nonviolent crime).

This draft section of a sentencing memorandum argues for a goal-based probationary term or, alternatively, for no more than one-year of probation.  It relies on social science research about how unnecessary, costly, and counterproductive probationary terms that are longer than one year are and how effective goal-based, shorter periods of probation are at acheiving the twin goals of probation — rehabilitation and public safety.  This draft motion is modular, permitting defenders to use it to argue for goal-based probation or no more than one year of probation or both.

This amicus brief urges the Arizona Supreme Court not to issue an execution warrant without first conducting a full and independent review of the state’s lethal injection practices. Drawing on research and autopsy data, the brief explains that Arizona’s one-drug pentobarbital protocol virtually guarantees the onset of acute pulmonary edema—causing the condemned to drown in their own fluids and experience sensations of terror and panic, like waterboarding (pp. 7–9, 13). These risks are magnified by Arizona’s history of illegally importing drugs, reliance on high-risk compounding pharmacies, and repeated failure to employ qualified medical personnel (pp. 10–14). The state’s record includes hiring executioners with malpractice histories, using unlicensed staff, and even determining lethal doses using Wikipedia (pp. 14–15). Finally, the brief highlights Arizona’s secrecy—exemplified by its termination of an independent review. (pp. 15–17). Defenders can use this brief to challenge the constitutionality of the pentobarbital protocol.

This brief argues that mandatory life without parole sentences are unconstitutional for people up to age 20 because late adolescents experience significant brain, behavioral, and psychological change similar to adolescents. The brief details brain development occurring from age 18-20 (pp. 3-12), explains how late adolescents are more vulnerable to risk taking and peer influence than adults (pp. 13-16), demonstrates that the brains and decision-making abilities of late adolescents are virtually indistinguishable from children under age 18 (pp. 17-21), describes how adversity slows neurocognitive development (pp. 21-35), and applies Michigan’s four-factor test for determining if punishment is cruel or unusual to 18 to 20 year olds (pp. 25-31).

This motion relies on the Federal Rules of Evidence to argue for exclusion of police testimony about the behavior of drug traffickers. Pages 13-14 rely on social science to argue that users of fentanyl, methamphetamine, and cocaine consume large quantities of each of those drugs daily to support their habit such that courts cannot infer distribution from larger amounts. Pages 15-16 collect national data to refute the suggestion that drug traffickers typically possess firearms.

This ten-page sample motion argues that judges should not consider a client’s record of prior police contacts, including arrests, that did not result in criminal convictions for purposes of sentencing because such records are (1) inherently unreliable/ambiguous and (2) likely to exacerbate existing racial disparities in the criminal legal system. The motion draws on national data and jurisdiction-specific case studies to show that people of color, particularly Black Americans, are stopped, searched, arrested, and charged at disproportionately high rates, not because of higher rates of crime commission but because of implicit bias in law enforcement. This sample motion also uses local data from Washtenaw County, Michigan, that defenders should replace with their own jurisdiction’s data when available, to demonstrate that these national trends are reflected in the defendant’s jurisdiction as well.  Data from this motion could also be useful to defenders drafting 4th Amendment suppression motions or making evidentiary arguments at trial to exclude evidence of prior police contacts.  To the extent that the court or the prosecutor bring up prior police contacts at pre-trial release hearings, this data could also be useful to argue for exclusion of prior contacts during bail/pretrial release assessments.

Draft motion arguing that finding many grams of methamphetamines does not necessarily support a conviction for possession with intent to distribute. Bottom of p. 1 through p. 3 explains that people addicted to methamphetamines use more frequently and in higher dosages than first-time users, using as much as one gram per day and rarely (but at least once) up to 15g in one day. Thus a person found with many grams of meth may only be a user rather than a dealer.  This data could also be used in other arguments, including: (1) a suppression argument that there is no probable cause to search a location for evidence of distribution when the quantity recovered or known about only suggests personal use; (2) a Rule of Evidence 403 argument limiting the testimony of a witness who wants to characterize a given quantity of meth as “a lot of drugs” or who wants to describe the client as a drug dealer or distributor; (3) a sentencing argument that a client is not as much of a danger to their community as someone actively selling drugs, despite the amount of drugs found.

The ACLU of Michigan included these reports as exhibits in its recent litigation attacking the constitutionality of Michigan’s Sex Offenders Registration Act (SORA). Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.). The research cited in these reports — specifically on the low risk of recidivism among people convicted of sexual offenses and the counterproductive impact of registration/notification requirements on public safety and recidivism — could be used (1) when negotiating with a prosecutor for a plea to a non-registration offense, (2) when justifying such a plea to a sentencing judge, (3) in pre-trial release arguments, (4) in sentencing arguments where clients will be forced to register to show the onerous nature of registration, or (5) to support a motion in limine to preclude reference to a client as a “sex offender.”

(Note that the following page numbers are keyed to the page numbers in each expert report, which you can find in the middle bottom footer of each report):

Letourneau Report

Pages 2-11: Explaining through a dozen different scientific studies that sex offender registration and notification laws fail to increase community safety, do not have a general deterrent effect, and may even increase the incidence of crime by making it difficult for ex-offenders to find and maintain housing, employment, and social relationships.

Pages 11-12: Noting that researchers have found no connection between juvenile registration/notification and an increase in public safety but they have found increased incidences of attempted suicide among juvenile registrants as well as an increase in their likelihood of being victims of sexual assault themselves.

Pages 12-13: Citing research showing that 80% to 90% of adult males convicted of sex offenses are never reconvicted of a new sexual crime, including studies that debunk recidivism myths by showing rates of recidivism as low as 2-5%.

Pages 13-14: Discussing research showing that conviction offense has no bearing on recidivism risk.

Pages 16-17: Citing research showing the negative impact of registration on people’s mental health and ability to find and maintain stable housing, employment, and prosocial relationships, creating barriers for reintegration.

Pages 17-20: Discussing why the costs of implementing sex offender registration and notification laws are greater than any savings or benefits generated by those laws

Pages 21-22: Finding no correlation between failure-to-register violations and sexual recidivism

Socia Report

Pages 4-8:  Citing research showing that 90-95% of all sex crime arrests are for first-time offenders; the vast majority of sex crimes are not committed by strangers; and sex offender registration and notification laws do not reduce recidivism or make communities safer

Page 9-12:  Debunking through scientific research any suggestion that there is a high sexual recidivism rate and noting that sexual recidivism rates are actually lower than those of any other offense except murder

Pages 16-17:  Noting that language matters to public perceptions and that individuals are more likely to think negatively about someone described as a “sex offender” than someone described as an “individual convicted of crimes of a sexual nature” (this research might support a motion in limine about how clients should be described in court)

Pages 19-22:  Documenting how individuals on the sex offender registry are stigmatized in ways that affect reintegration including compromising employment and housing opportunities, as well as social support networks

Pages 22-25:  Noting that there is no consistent evidence that failure-to-register convictions predict increased sexual recidivism.

This draft sentencing argument is one-page long and relies on three studies to demonstrate that when young people (including people up to age 24) are exposed to violence (gun-related or not), it substantially increases the likelihood that  they will later carry guns because they are afraid and feel they need the gun for self-protection and to protect their loved ones.  This data could also be used to argue in pre-trial release hearings that youth charged with firearms-related offenses are not necessarily dangerous.

Amicus brief, filed by a coalition of gender justice organizations, explains how sexual and gender-based trauma has profound adverse impacts on mental health, leaving survivors vulnerable to PTSD, depression, anxiety, emotional numbness, substance use, and revictimization (pp. 3, 5, 7, 13–15). Childhood sexual abuse increases susceptibility to these harms and can disrupt brain development (pp. 9–11). Trauma is cumulative—repeated exposure intensifies risk (pp. 11–12). The brief highlights that sex workers are at significantly higher risk of sexual violence (p. 15). Mitigation evidence related to gender-based trauma is crucial to countering social biases and prejudices of decision makers (pp. 20, 23, 25–26). While the brief focuses on capital sentencing, defenders can also rely on its research to support requests for gender and sexual violence experts and for sentencing mitigation.

This brief argues that, contrary to stereotypes, drug use alone—even frequent or illicit use—does not necessarily indicate substance abuse (pp. 23, 28-29). Only a minority of users develop a diagnosable SUD (p. 23). A single positive drug test is insufficient to establish a SUD (p. 29). And equating substance use, even a SUD, with substantial risk of harm to a child is unsupported by the medical evidence (pp. 40-42).  Defenders can use the research collected in this brief to file motions in limine to exclude evidence of or arguments about substance use as more prejudicial than probative or to obtain expert testimony on substance use.  The research could also be useful at the pretrial release and sentencing stages to suggest that clients do not suffer from a substance abuse disorder and do not pose a danger.

This Amicus Brief, filed by the Juvenile Law Center; Center for Law, Brain, and Behavior, the Sentencing Project; and the Children’s Policy and Law Initiative of Indiana argues that long term-of-year sentences imposed on juveniles are tantamount to life without parole and are therefore unconstitutional.  Pages 8-11 discuss the neuroscience behind the development of the prefrontal cortex and explain how brain science shows that adolescents’ long-term planning skills, emotional regulation abilities, impulse control, ability to evaluate risk and reward, and susceptibility to peer pressure are all still developing into a person’s twenties.  Pages 12-13 discuss how these characteristics are transient and show that youth with antisocial tendencies, violent behaviors, and impaired empathy often improve significantly in their mid-twenties.  Pages 13-15 discuss the connection between trauma and brain development, explaining how youth who are chronically traumatized and left alone often have documented difficulty with emotional regulation traceable to inhibited brain development.  The research relied on in this amicus brief could be useful to defenders representing anyone under the age of twenty-five to argue for mitigation in sentencing.

Cites research showing that the length of a sentence does not contribute to general deterrence, rather, deterrence is linked to the risk/certainty of detection: “there is no reliable evidence that appreciably longer periods of incarceration for violent crimes have a general deterrent effect on the population.” Particularly when looking at gun crimes and sentencing enhancements, “there is little reliable evidence “of a general deterrent effect of lengthy sentencing enhancements that impose additional years of incarceration for crimes committed with a firearm.”” Further incorporates research demonstrating that longer periods of incarceration increase the rate of recidivism.

Although this is a habeas brief, pages 27-29 (p. 34-36 of the PDF) lay out how lifetime electronic monitoring burdens participation in civic and social life by causing adverse impacts on relationships, decreased psychological well being, and reduced employment opportunities. The data collected in this section could be useful to defenders in sentencing and/or pre-trial release arguments — either to prevent the use of electronic monitoring devices or to argue for reductions in other conditions if electronic monitoring is imposed.  Additionally, pages 37-40 (p. 44-47 of the PDF) argue that sex offender registration burdens both freedom of movement and participation in civic and social life because of differences in state laws and the lack of privacy after information is posted on the internet.  That data could be used to argue for reduced incarceration for individuals who face placement on the registry in light of the punitive effects associated with the registry itself.

p. 16 – 28 cite to research on the deterrent effect of particular sentences, with studies concluding that “general deterrence is primarily a function of the certainty of punishment, not its severity.”

This NAACP amicus brief argues that Missouri’s parole procedures are unconstitutional as applied to juveniles,  because they do not provide juveniles with a meaningful opportunity to obtain release (leading to de facto life without parole sentences). Pages 10-13 rely on statistics to show that  race affects sentencing and that Black men and boys are punished with more severe penalties than their white counterparts. Pages 13-14 document research showing how racial stereotypes of Black men and boys as violent affect peoples’ behaviors and attitudes toward them. Pages 14-15 discuss research showing that judges are not immune to implicit racial biases. The studies discussed in this amicus brief could be useful to defenders who want to highlight the problems of racial bias (explicit and implicit) in sentencing in order to prevent such biases from infecting sentencing decisions.

This sentencing memorandum marshals empirical research about the typical profile and risk assessment of someone convicted of possessing child pornography, along with research related to the client’s age and the impact of incarceration on recidivism/deterrence, to argue that the client is not dangerous or likely to reoffend. These arguments could also be used pretrial in a bond argument.

Pgs. 26-27: An older person will suffer greater punishment from incarceration than the average person incarcerated

Pgs. 29-30: The empirical evidence shows no relationship between sentence length and general/specific deterrence

Pgs. 31-33, 46, 51-52: Empirical research shows that first-time child pornography possession offenders have a very low risk of sexual recidivism and the consumption of child pornography alone does not seem to represent a risk factor for committing contact sex offenses

Pgs. 33-34: Marriage reduces recidivism as does employment, education and family ties/responsibilities

Pgs. 33, 51: Recidivism (including for child sex offenders) declines with age, and only a very few child sex offenders recidivate after age 60

Pgs. 22-23, 47: Because of the ease of accessing child porn on the internet, there is no evidence that the number of images possessed bears on the likelihood that an offender is “dangerous” or more likely to engage in contact sex crimes

Pgs. 21, 47-50: Harsher punishment for child porn consumption will not reduce the flow of child porn on the internet because there is no empirical evidence to support the assumption that children are abused for the sole purpose of creating child pornography for dissemination (i.e., the consumption of child porn alone has no “market effect”)

Pgs. 52-53: Collects research discussing the criminogenic effects of prison