Thursday, April 19, 2018

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

April 19, 2018 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Lots of notable reporting and commentary as federal prison reform tries to move forward

As reported here last week, there was talk of a federal prison reform bill moving forward in the House of Representatives this week.  This article from The Hill, headlined "Prison reforms groups battle over strategy," highlights that folks on the left may be gumming up the works:

Progressive groups fighting for criminal justice reform are divided over legislation that would allow prisoners to finish their sentences in a halfway house, home confinement or under community supervision if they complete education, job training, drug treatment and other programs while behind bars.  The Leadership Conference for Civil Rights, American Civil Liberties Union and NAACP are among the groups saying that legislation that fails to reduce mandatory minimum sentences isn’t worth their support....

But #cut50, a criminal justice reform advocacy group led by Van Jones, the CNN host and former adviser to President Obama, sees the bill sponsored by Reps. Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.) that’s supported by the White House as an opportunity for positive change, even if it’s incremental. “It’s a bill that’s moving that we decided as a group we’ll hop in and try to make stronger because I think this is going to move with or without us,” said Jessica Sloan Jackson, the national director and co-founder of #cut50.

Instead of shooting it down, the group said it’s lobbying to make the Prison Reform and Redemption Act stronger.  Sloan Jackson acknowledged #cut50 would rather have the Collins–Jeffries bill include language that reduces mandatory minimum sentences, but recognized the criminal justice reform movement has shifted under Trump. She said #cut50 would like to at least win some changes to help people in prison.  “At this point in the process, I think it’s stupid not to even engage in conversations with folks on the right and in the White House just because you aren’t getting everything you want,” she said.

To supporters of broader reforms, however, the bill is a significant step down from legislation that nearly won approval in the last Congress.  That bill, sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), has been reintroduced and would eliminate certain mandatory minimum sentences for nonviolent drug offenses. It would also give judges more discretion in sentencing.

The Collins–Jeffries bill authorizes $50 million to be appropriated each year from 2018 to 2022 for the Bureau of Prisons to offer education, work training and other programming, but opponents say that’s not enough.  It also lists 48 different categories of crimes that make prisoners ineligible to earn time in pre-release custody for taking these programs, a provision groups backing broader reforms say excludes too many prisoners who are at a high risk of reoffending and need prison programming the most.  “By cutting out or limiting so many people to get incentives to programming you are missing the point,” said Kevin Ring, the president of Families Against Mandatory Minimums.

In a letter to members of the House Judiciary Committee on Friday, dozens of groups opposed to the bill said it would do little good if it does not reduce mandatory minimum sentences.  “Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense,” the groups wrote.

The Collins–Jeffries bill has won support from groups on the right that have backed minimum sentencing reforms. “We’re big advocates for commonsense sentencing reform as well and we hope that happens, but we want to get the ball rolling and we think prison reform is a great place to start,” said Mark Holden, Koch Industries’s general counsel and senior vice president....

Advocates say Jeffries and Collins have been negotiating possible changes to their bill, and a markup that had been expected this week was pushed back to provide time for their work.  In a joint statement to The Hill, Jeffries and Collins said their bill will reunite families and help thousands of Americans get back on their feet.

Similar report on these debates and developments are in this Politico article, headlined "Kushner’s prison-reform push hits bipartisan resistance: The son-in-law of President Donald Trump is pressing for a criminal justice bill that’s narrower than a bipartisan one that has stalled in Congress."  And Van Jones has this new CNN commentary that highlights his work and his support for a prison-reform-only bill under the headlined "Prison reform is possible even in the Trump era."

As long-time readers likely know, I am a strong believer that the best should not be the enemy of the good.  In this setting, I am especially eager to urge federal criminal justice reform advocates to secure ASAP any and whatever improvements they can.  I still can recall, though it is now nearly five years ago, when commentators were asserting that "momentum for sentencing reform could be unstoppable."  But from 2013 through 2016, despite a President, Attorneys General and many members of both parties advocating all sorts of federal sentencing reforms, not a single statutory change could make it through Congress to the desk of the President.   Meanwhile, hundreds of thousands of defendants have been (often over) sentenced to federal prison since 2013.  And while there, as Craig DeRoche highlights in a letter in the New York Times, these prisoners are stuck within a prison system that "offers drastically less opportunity for prisoners to transition to community corrections before the end of their sentence compared with almost all states."

Advocates are right to complain that a compromise bill with only prison reform is insufficient, but the fact that broader bills have been pushed and stalled for half-a-decade leads me to be more than ready to settle for half a loaf.  I have grow so tired of the reform talk that produces no result, though I am sure I am not as exhausted and frustrated as hundreds of thousands of federal prisoners, defendants and their families who have been clinging on to still empty promises of reform potential for year after year after year after year.  Van Jones has a couple of lines in his commentary that capture well my feelings here, as well as my desire to preserve some hope for this process:

My big heartache -- on this topic and so many others -- is how much common ground there is when you get people talking -- and yet how little we actually do about it.  Taking a small but meaningful step together now could allow us to take more steps together later.

April 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim

I came across a Florida intermediate appellate court opinion today finding Sixth Amendment problems in a Florida statute, but I likely would not have blogged about were it not for the surname of the defendant: Booker!  The name Booker (Freddie J.) will be forever connected to the transformation of the federal sentencing system.  Another Booker (Reginald Lee) seems unlikely to have quite the same impact on Florida sentencing, but his case is still interesting for hard-core Apprendi/Blakely fans.  Here are excerpts from Booker v. Florida, No. 1D15-3558 (Fla. 1st Dist. April 18, 2018)(available here):

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions — thereby shifting incarceration of these offenders to county jails for a maximum of up to one year.  [But it also provided] "if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility."  [This provision], which was used to enhance Booker’s sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue....

Given the momentous role of the jury in our country’s legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker.  It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender’s sentence beyond the maximum allowable by the “facts reflected in the jury verdict alone.” Blakely, 542 U.S. at 303.  As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years — based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed....

Put simply, section 775.082(10)’s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction.  Protection of the jury trial right does not hamstring the Legislature’s ability to achieve its policy goals, however.  For example, if section 775.082(10) required a jury — rather than a judge — to make factual findings about an offender’s potential for future dangerousness, the check on personal liberty that the Sixth Amendment’s right to a jury trial provides would be retained.  A simple legislative fix might be to amend subsection (10) to say: “. . . if the court a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.”  Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

Notably, this opinion concludes by noting conflicts with other Florida appellate rulings and then certifying the issue as of "great public importance" for the Florida Supreme Court. So maybe we have not heard the last of the name Booker in Florida.

April 19, 2018 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

NY Gov Cuomo restores voting rights to parolees via executive order

Restoring_Voting_Rights_to_NYers_on_ParoleAs reported in this local article, New York's "Gov. Cuomo on Wednesday signed an executive order granting parolees the right to vote in New York." Here is more:

Cuomo announced the signing at the annual convention of Rev. Al Sharpton's National Action Network. He decried the state's current law blocking those who have been released from prison but are still on parole from voting, saying it didn't square with the goals of parole and re-entry.  "At the same time, we're saying we want you a part of society, we want you to get back into the community," he said.

Cuomo said he had proposed legislation to grant voting rights to parolees, but it was shot down by the State Senate — leading him to argue the state needs a new Legislature. But Cuomo said he wouldn't wait that long.  "I'm unwilling to take no for an answer," he said.  "I'm going to make it law by executive order and I announce that here today."

Cuomo signed the executive order later Wednesday afternoon.  There are about 35,000 New Yorkers on parole who could not vote, the governor’s office said.  The executive order will restore the right to vote upon release from incarceration, his office said, citing a disproportionate impact of disenfranchisement on communities of color and links between civic engagement and reduced recidivism.

Fourteen other states and the District of Columbia restore voting rights upon release....

Cuomo’s office pointed to other criminal justice reforms he’s enacted, including raising the age of criminal responsibility and naming the attorney general as a special prosecutor for police-related deaths, arguing he’s long cared about the issue.

Republicans, meanwhile, ripped the order. A "dumbfounded" Senate Majority Leader John Flanagan (R-Suffolk County) blasted it as “illegal and horrific public policy.”... Flanagan said that those on parole, including murderers and rapists, are still serving out their sentences and should not be entitled to their voting rights. He said he would not be surprised if a lawsuit is filed seeking to block the order and accused Cuomo of trying to "expand the universe of people who are eligible to vote."

Dutchess County Executive Marcus Molinaro, the front-runner for the GOP gubernatorial nomination, ... accused Cuomo of being a dictator. "Just months before an election, with the stroke of his pen, Andrew Cuomo, plans to restore the voting rights for cop killer Herman Bell and Palm Sunday killer Chris Thomas and calls it 'justice',” he said. “But if the dictator of a third world nation threw open it's prison doors and granted voting rights to the criminals right before a reelection, we all would be appalled.”...

The New York Civil Liberties Union praised the executive order, but also said Albany should push forward with legislation on same-day voter registration and early voting.

Gov. Cuomo's office issued this press release yesterday with this link to his executive order.  The press releases stressed additional points in support of Gov. Cuomo's decision:

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers. The executive order is available here. "I am issuing an executive order giving parolees the right to vote. It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society," Governor Cuomo said. "This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process. Withholding or delaying voting rights diminishes our democracy."

This executive action will reverse New York's current disenfranchisement of individuals released from prison who are under post-release community supervision. New York joins fourteen other states and the District of Columbia that restore the right to vote upon release from incarceration. There are roughly 35,000 individuals currently on parole in New York who cannot vote. These individuals are participants in society at large, despite the limitations placed on them by parole conditions. They work, pay taxes, and support their families, and they should be permitted to express their opinions about the choices facing their communities through their votes, just as all citizens do.

Additionally, the current law keeping people on parole supervision from voting is internally inconsistent with New York's approach to voting for people serving sentences of probation. People on probation never lose the right to vote, but many county election officials are unclear about the distinction between those on parole and those on probation, often resulting in illegal disenfranchisement. A 2006 Brennan Center study reported that one-third of all New York counties incorrectly barred people on probation from registering to vote, while another third of all counties illegally made individuals show proof of their voter eligibility status.

April 19, 2018 in Clemency and Pardons, Collateral consequences, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6)

Ohio Supreme Court unanimously rejects Sixth Amendment challenge to state's capital sentencing procedures

A couple of states have had their death penalty systems chewed up by the "post-Hurst hydra," the term I have used to describe the aftermath litigation in various courts in various states as judges apply the Supreme Court Sixth Amendment ruling in Hurst v. Florida. But yesterday in Ohio v. Mason, 2018-Ohio-1462 (Ohio April 18, 2018) (available here), the Ohio Supreme Court explained why Ohio's capital sentencing procedures are constitutionally sound. Here is how the opinion starts and some key passages:

At issue in this case is whether Ohio’s death-penalty scheme violates the right to a trial by jury as guaranteed by the Sixth Amendment to the United States Constitution. The Marion County Court of Common Pleas found that it does, but the Third District Court of Appeals reversed the trial court’s judgment. Because the Ohio scheme satisfies the Sixth Amendment, we affirm....

When an Ohio capital defendant elects to be tried by jury, the jury decides whether the offender is guilty beyond a reasonable doubt of aggravated murder and — unlike the juries in Ring and Hurst — the aggravating-circumstance specifications for which the offender was indicted. R.C. 2929.03(B).  Then the jury — again unlike in Ring and Hurst — must “unanimously find[], by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors.”  R.C. 2929.03(D)(2).  An Ohio jury recommends a death sentence only after it makes this finding. Id.  And without that recommendation by the jury, the trial court may not impose the death sentence.

Ohio law requires the critical jury findings that were not required by the laws at issue in Ring and HurstSee R.C. 2929.03(C)(2). Ohio’s death-penalty scheme, therefore, does not violate the Sixth Amendment.  Mason’s various arguments to the contrary misapprehend both what the Sixth Amendment requires and what it prohibits....

While we uphold our conclusion in Belton that weighing is not a fact-finding process subject to the Sixth Amendment, we further conclude that even if the weighing process were to involve fact-finding under the Sixth Amendment, Ohio adequately affords the right to trial by jury during the penalty phase.  Mason contends that it does not, because the process permits a jury only to recommend a death sentence.  See R.C. 2929.03(D)(2).  Here, he emphasizes the statement in Hurst that “[a] jury’s mere recommendation is not enough.” Hurst, ___ U.S. at ___, 136 S.Ct. at 619, 193 L.Ed.2d 504.  But he fails to appreciate the material difference between the process by which an Ohio jury reaches its death recommendation and the Florida process at issue in Hurst.

April 19, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Seeking reader input for possible blog redesigns/improvements

I have the great fortune of getting some terrific help from some terrific students exploring, in their words, a "number of different options to improve the layout and interface of the blog platform."  In furtherance of this work, these students have designed an easy survey for readers to gain insights into readership and blog users.

Here is a link to the survey, which can be completed in about a minute.

It would be very helpful if readers will take a minute to fill out this survey.  Many, many thanks!

UPDATE: Scrolling now to the bottom of the comments on this post will reveal that David Behar has agreed to not comment here for 30 days  to see if his absence can allow the comment discussion to grow in quality and quantity.  So, in addition to urging readers to take the survey linked above, I think some might find it especially useful to start commenting more on other posts.

April 19, 2018 in On blogging | Permalink | Comments (36)

Wednesday, April 18, 2018

"Why Public Defenders Matter More Than Ever in a Time of Reform"

The title of this post is the title of this interesting new commentary authored by John Pfaff for In Justice Today.  The extended piece is not readily summarized, so go read the whole thing.  Here are its closing paragraphs:

As criminal justice reform becomes more politically tenable, however, there is room for public defender offices to take on a lobbying role as well. They are well-positioned to tell legislators the stories about the costs of excessive and counterproductive harshness, to help put a human face on the costs of punitiveness — and, as lawyers, to suggest how to change specific statutes and rules to minimize those harms. But this too requires funding.

It’s worth pointing out that the proposals here would only work in counties or states with centralized public defender offices, as opposed to those that contract indigent defense to otherwise private lawyers.  But that could just mean that fulfilling Gideon’s more-meaningful promise also means pushing jurisdictions that don’t have public defender offices to adopt them.

Historically, public defenders have played primarily procedural roles  —  profoundly important, constitutional roles to be sure, and ones that should be far better funded than they are, even if you ignore all the arguments I’ve made here.  But mass incarceration and mass punishment are not really the products of procedural failings at the trial stage.  They are far more the result of discretionary choices by police and prosecutors, as well as judges and legislators.  Yet in this reformist moment, as voters demand smarter policies from still-opaque prosecutor offices, and as legislators seem more open to less-punitive approaches to social problems, public defenders are well positioned to play a critical role — which makes the role of Gideon all the more important.

April 18, 2018 in Who Sentences? | Permalink | Comments (4)

SCOTUS examining reach of restitution awards under MVRA in Lagos v. United States 

A somewhat non-traditional sentencing issue is the subject of Supreme Court oral argument this morning.  SCOTUSblog has this argument preview authored by Cortney Lollar which started and ends this way:

Next week, the Supreme Court has another opportunity to consider the scope of criminal restitution. Lagos v. United States raises the question of whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under 18 U.S.C. §3663A, the Mandatory Victim Restitution Act....

In recent years, both Congress and the Supreme Court have taken an increasingly expansive approach toward criminal restitution.  Although the MVRA’s language is undoubtedly distinct from that in other restitution statutes, the court may yet again take this opportunity to interpret the language capaciously, requiring a defendant to reimburse increasingly attenuated costs through restitution.

April 18, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?

The big Supreme Court vagueness ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), is properly being discussed as a significant immigration ruling: the Justice were considering (and struck down as vague) how Congress defined an offense of violence in 18 U.S.C. § 16(b) in a case involving a alien subject to deportation for committing a certain kind of crime.

But, critically, the now-unconstitutional definition of a "crime of violence" in § 16(b) is referenced throughout the federal criminal code within various criminal offenses and sentence enhancements.  And, notably, definitional language identical to § 16(b) appears in 18 U.S.C. § 924(c)(3)(B), which is part of a statute that adds significant amounts of prison time for any possession or use of a gun in connection with a crime of violence.  In other words, as the title of this post suggests, there are certainly some number of persons serving federal prison time based on a definition of a  "crime of violence" deemed unconstitutionally vague in Dimaya.

But, as my post title suggests, it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.  Helpfully, Leah Litman thoroughly covers, in this lengthy new Harvard Law Review blog posting, the array of procedural hurdles that Dimaya defendants are likely to face.  Here is how her extended piece starts and ends:

The Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.”  The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences....

Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review....

Dimaya spoke of “lesson[s] so hard learned” from Johnson and the ACCA debacle that Johnson corrected.  But another lesson that was hard learned from Johnson is that Johnson, or in this case Dimaya, will just be the beginning.  Whether those decisions will ultimately benefit the individuals who are currently wrongly incarcerated will depend on what comes next, and specifically on how courts interpret the many draconian restrictions on post-conviction review.

April 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Tuesday, April 17, 2018

"Will the Supreme Court Rein in Civil Forfeiture?"

The title of this post is the title of this new piece by Matt Ford at The Atlantic, and the question it poses strikes me as particularly timely in light of the notable discussion of civil sanctions by Justice Gorsuch in a concurring opinion this morning in Dimaya.  Here is part of the piece:

The state of Indiana really wants to take Tyson Timbs’s Land Rover, as punishment for dealing just a few hundred dollars’ worth of drugs. He’s now asking the U.S. Supreme Court to let him keep it.

Stories about civil forfeiture injustices are unfortunately common. What sets Timbs’s case apart is his legal argument: that the Eighth Amendment’s ban on excessive fines should shield his property from confiscation at the state level. If the Supreme Court takes up the case and agrees, the justices could impose some much-needed barriers on state and local governments’ voracious appetites for fees, fines, and forfeitures....

Undercover officers solicited from Timbs, buying just under four grams of heroin for less than $400. He was arrested and charged with dealing a controlled substance and conspiracy to commit theft. Timbs pleaded guilty and received a six-year sentence to be served outside prison walls. The state also tried to seize his Land Rover, kicking off the legal battle that ultimately brought him to the Supreme Court.

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared. Timbs, with his petition in January, is now asking the U.S. Supreme Court to overturn that ruling.... But the Excessive Fines Clause is ripe for consideration in the age of mass incarceration. Impoverished Americans often lack the resources to pay off the fines and fees that can come from even a casual brush with the criminal-justice system. In a cruel twist, the inability to pay these costs can result in jail time itself. Keeping oneself out of trouble is also no guarantee of immunity: A 2014 Washington Post investigation, for example, found that police in multiple states use “highway interdiction” to target thousands of motorists for seizures of cash and property....

Civil-asset forfeiture, though still common, has come under increasing scrutiny across the political spectrum. Attorney General Jeff Sessions’s push last year to revive the practice at the federal level drew harsh rebukes from the ACLU and congressional Republicans alike. Justice Clarence Thomas set off a signal flare of sorts last April suggesting he had doubts about the practice’s constitutionality.

The Indiana case revolves around different legal questions that the ones Thomas was asking last year, but the underlying injustices are the same. Taking up the issue would give the justices a chance to set new limits on excessive fines and forfeitures for cash-hungry counties and cities. For Timbs and thousands of other Americans, that intervention would be a welcome relief.

April 17, 2018 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Is Justice Gorsuch ready, willing, and eager to blow up the civil/criminal divide?

Justice Neil Gorsuch served as the swing vote and issued quite an interesting concurring opinion this morning in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here).  Various aspects of Judge Gorsuch's opinion may merit commentary, but the question in the title of this post was my reaction to his various comments about civil sanctions and criminal punishments.    Though many constitutional doctrines make critical and consequential distinctions between civil sanctions and criminal punishments, Justice Gorsuch seemingly does not think there is much "there there."  Here are the passages that I found especially striking in this regard:

[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes? Ours is a world filled with more and more civil laws bearing more and more extravagant punishments.  Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.  Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes — and often harsher than the punishment for felonies....

My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty.  But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions.  Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?  I can think of no good answer.

I find heartening Justice Gorsuch's obvious disaffinity for watered-down procedural rights (too) often applied to severe "civil" sanctions, and I think litigators challenging these kinds of sanctions can and should be sure to cite this concurring opinion along the way.

April 17, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Two notable opinions from SCOTUS on vagueness and habeas review

The US Supreme Court handed down two big opinions this morning that criminal justice fans will want to check out. Here are the basics with links from How Appealing:

Justice Elena Kagan announced the judgment of the Court and delivered the opinion of the Court in large measure in Sessions v. Dimaya, No. 15-1498. Justice Neil M. Gorsuch issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, Jr. joined. And Justice Thomas issued a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Justice Stephen G. Breyer delivered the opinion of the Court in Wilson v. Sellers, No. 16-6855.  Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Alito joined. 

The Dimaya opinion, which runs nearly 100 pages in total, starts this way:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The Wilson opinion is much shorter, but its start is much longer:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).  Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U.S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult.  It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons.  For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do?  We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale.  It should then presume that the unexplained decision adopted the same reasoning.  But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

April 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

"The Consensus Myth in Criminal Justice Reform"

The title of this post is the title of this new paper now available via SSRN authored by Benjamin Levin.  Here is its abstract:

It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually?  This Article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions.  The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article offers a typology of the two prevailing, but fundamentally distinct, critiques of the system:

(1) the quantitative approach (what I call the “over” frame); and

(2) the qualitative approach (what I call the “mass” frame).

The “over” frame grows from a belief that criminal law has an important and legitimate function, but that the law’s operations have exceeded that function.  This critique assumes that there are optimal rates of incarceration and criminalization, but the current criminal system is sub-optimal in that it has criminalized too much and incarcerated too many. In contrast, the “mass” frame focuses on the criminal system as a socio-cultural phenomenon.  This reformist frame indicates that the issue is not a mere miscalculation; rather, reforms should address how the system marginalizes populations and exacerbates both power imbalances and distributional inequities.

To show how these frames differ, this Article applies the “over” and the “mass” critique, in turn, to the maligned phenomena of mass incarceration and overcriminalization.  The existing literature on mass incarceration and overcriminalization displays an elision between these two frames. Some scholars and reformers have adopted one frame exclusively, while others use the two interchangeably.  No matter how much scholars and critics bemoan the troubles of mass incarceration and overcriminalization, it is hard to believe that they can achieve meaningful reform if they are talking about fundamentally different problems.

While many reformers may adopt an “over” frame in an effort to attract a broader range of support or appeal to politicians, “over” policy proposals do not reach deeper “mass” concerns.  Ultimately, then, this Article argues that a pragmatic turn to the “over” frame may have significant costs in legitimating deeper structural flaws and failing to address distributional issues of race, class, and power at the heart of the “mass” critique.

April 17, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, April 16, 2018

"Marijuana legalization can’t fix mass incarceration" ... but it should help a bit

German Lopez has this short piece on Vox, which carries the headline appearing in quotes in this post title and this subtitle: "A Republican and Democrat pointed to marijuana prohibition to explain mass incarceration. They’re both wrong." Here are key excerpts:

Over the past week, prominent political figures from both sides of the aisle have suggested that the prohibition of marijuana is to blame for mass incarceration.

Former House Speaker John Boehner, a Republican from Ohio, claimed, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head.  We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”  Sen. Brian Schatz, a Democrat from Hawaii, tweeted, “More than 2 million in jail, mostly black and brown, many for holding a small amount of marijuana.”

The suggestion, however, is wrong. It is true that a lot of people are arrested each year for marijuana. In 2016, nearly 600,000 people were arrested for simple marijuana possession. These arrests on their own can create huge problems — leading to criminal records that can make it harder to get a job, housing, or financial aid for college.

But these arrests are only a small part of America’s mass incarceration problem. First, most people in jail or prison are not in for drug charges at all. According to the Prison Policy Initiative, around 21 percent of people in jail or prison are in there for a drug crime, including marijuana possession....

How many of the 21 percent of drug offenders are in for marijuana possession? Unfortunately, we don’t have good data for jails, where people are held before they’re convicted of a crime and for shorter sentences. We also don’t have good data for state prisons, where more than 87 percent of US prison inmates are held, based on federal data. But we do know that a minority of state prisoners are in for drugs: In 2015, 3.4 percent of all state prisoners were in for drug possession and 11.7 percent were in for other drug-related crimes. So only a fraction of prisoners are locked up due to drug prohibition in general, much less marijuana prohibition in particular.

We do have some good data for the federal system. According to the US Sentencing Commission, 92 of nearly 20,000 people — fewer than half a percent — sentenced for drug offenses during fiscal year 2017 were locked up due to simple possession of marijuana.

I am glad to see efforts to correct (all-too-common) claims that much of mass incarceration can be attributed to marijuana prohibition, and it is especially galling to see Boehner and Schatz suggest that a significant portion of persons are imprisoned for mere possession of small quantities of marijuana. That is not the reality now, nor has it ever been.

That said, as the arrest data highlight, a whole lot of people get entangled with the criminal justice system because of marijuana prohibition. And trafficking in marijuana (which becomes legal with marijuana legalization) has landed tens of thousands of people in US prison in recent decades. The latest data from the US Sentencing Commission, interestingly, shows that the number of persons federally prosecuted for marijuana trafficking dropped from 6792 in Fiscal Year 2012 to only 3381 in Fiscal Year 2016.  These data suggest to me that the era of marijuana legalization in the states has had a real impact on marijuana prosecutions (and imprisonment) at the federal level.

So while marijuana legalization (nor any other single reform) will alone fix mass incarceration, there is a basis to believe it could help a bit.  (Also, I must add that if former House Speaker John Boehner was sincerely concerned about the number of people in our state and federal penitentiaries, there is a lot more he should be doing besides now advising a marijuana company.)

April 16, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Two notable recent sentencing commentaries on work ahead for Congress

Thehill-logo-bigIn recent months I have noticed lots of notable sentencing commentary in the publication The Hill.  And Friday The Hill published two sentencing commentaries of note. They are linked below with their first few paragraphs:

"Congress must act to fix our broken criminal justice system" by Reps. Cedric Richmond (D-LA.) & Mark Walker (R-N.C.):

Our criminal justice system is crumbling.  Over the last 40 years, our domestic incarceration rate has quadrupled, creating a crisis of more than 2 million people behind bars in the United States today.  Simultaneously, recidivism rates have grown or remained high across almost every identifiable demographic or cross section.  And yet, crime rates have steadily fallen.

This paradox exposes a simple fact: our criminal justice system is in desperate need of reform.  What’s more, almost everyone in Congress knows it. Passing significant reforms to our criminal justice system could bring relief to families and communities in every state, district and territory.

Over the past few weeks, at our respective retreats, members of Congress from both parties discussed our priorities.  We believe criminal justice reform needs to be on the top of that list.

Since arriving in Congress, we have seen increasing awareness, education, energy and interest in criminal justice reform, but, to date, we have not been able to enact necessary changes.  Senators have formed working groups.  The House Judiciary Committee passed strong, bipartisan legislation out of committee last year. But no tangible results.  That has to change.

"Reviving the war on drugs is exactly the wrong response to the opioid crisis" by Ames Grawert & James Cullen:

This week on Capitol Hill, lawmakers met to discuss a bill that would impose draconian mandatory minimum sentences on even minor crimes involving the synthetic opioid fentanyl.  The hearing follows news that the Trump administration will seek the death penalty for drug dealers, part of his overall “war on opioids.”

“You just can’t pass a law increasing punishment and expect the opioid crisis to go away,” Sen. Lindsey Graham (R-S.C.) appeared to acknowledge at the outset.  “But it’s a pretty good place to start.”

It’s not.  It’s a bad place to start.  This is the logic of mass incarceration, the instinct to always demand the harshest punishment possible. It animates the Trump administration and its Congressional allies on everything from drug policy to immigration.  And it doesn’t work.  Reform advocates can’t be lulled by the false promise of reform.  We need to fight back before we repeat the mistakes of the 1970s.

April 16, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

Sunday, April 15, 2018

"The Role of Age in Plea Bargain Decision Making"

The title of this post is the title of this intriguing paper recently posted to SSRN authored by Anton Gollwitzer.  Here is its abstract:

Research has elucidated that defendants in criminal cases behave differently depending on their age.  How age specifically affects plea bargain behavior, however, has only been sparsely investigated.  In four studies, we observed that age influences whether lay individuals’ plea bargain decision making is concordant (i.e., accept plea bargains if guilty and opt for trial if innocent) or discordant (i.e., accept a plea bargain if innocent and opt for a trial if guilty) in ‘mock’ criminal scenarios.

In line with emerging adults’ (18-28 years old) increased just-world beliefs and illusions of transparency, Study 1 provided indirect evidence that emerging adults’ plea bargain decision making is more concordant than mature adults (29-40).  Study 2, however, found that this effect is dependent on the defendant’s likelihood of conviction.  Studies 3 and 4 emulated Studies 1 and 2, however, they examined how parents of differently aged children advise their children regarding plea bargains decision making.  Parents of younger children (8-11 years old) advised their child similarly to how they themselves would act.  Parents of adolescents (12-18), on the other hand, adopted an entirely concordant approach, advising their adolescent child to behave according to their child’s culpability.  Overall, we find that individuals’ approach to plea bargain decision making depends on their age group (or the age group of their children), culpability, and probability of conviction.

April 15, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Friday, April 13, 2018

"President Trump has promised a top Senate Republican that he will support congressional efforts to protect states that have legalized marijuana"

The title of this post is the lead sentence of this new Washington Post article headlined "Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees." Here is more from the article:

In January, the Colorado Republican said he would block all DOJ nominations after Attorney General Jeff Sessions issued a memo that heightened the prospect of a federal marijuana crackdown in states that had legalized the substance. Gardner’s home state made recreational marijuana legal in 2014.

In a phone call late Wednesday, Trump told Gardner that despite the DOJ memo, the marijuana industry in Colorado will not be targeted, the senator said in a statement Friday. Satisfied, the first-term senator is now backing down from his nominee blockade.

“Since the campaign, President Trump has consistently supported states’ rights to decide for themselves how best to approach marijuana,” Gardner said Friday. “Late Wednesday, I received a commitment from the President that the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”

He added: “Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all. Because of these commitments, I have informed the Administration that I will be lifting my remaining holds on Department of Justice nominees.”...

Trump “does respect Colorado’s right to decide for themselves how to best approach this issue,” White House legislative affairs director Marc Short said in an interview Friday....

A bill has not been finalized, but Gardner has been talking quietly with other senators about a legislative fix that would, in effect, make clear the federal government cannot interfere with states that have voted to legalize marijuana. “My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position,” Gardner said.

In addition to Gardner’s holds, DOJ has faced notable bipartisan pushback from Capitol Hill when it comes to marijuana. Sens. Orrin G. Hatch (R-Utah) and Kamala D. Harris (D-Calif.) wrote to Sessions this week, urging him to back off efforts to curtail medical marijuana research at the Drug Enforcement Administration. The Washington Post reported in August that Sessions’s DOJ was effectively hamstringing the agency’s research efforts by making it harder to grow marijuana.

Separately, former House Speaker John A. Boehner (R-Ohio) announced this week he is joining the board of directors for a cannabis company and engaged in efforts to allow veterans to access marijuana for medicinal use. He has opposed decriminalizing the substance as an elected official.

A few recent related posts from Marijuana Law, Policy and Reform:

April 13, 2018 in Criminal justice in the Trump Administration, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6)

Prez Donald Trump officially pardons Scooter Libby

Today the White House issued this "Statement from the Press Secretary Regarding the Pardon of I. “Scooter” Lewis Libby." Here is what it says:

Today, President Donald J. Trump issued an Executive Grant of Clemency (Full Pardon) to I. “Scooter” Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for convictions stemming from a 2007 trial. President George W. Bush commuted Mr. Libby’s sentence shortly after his conviction. Mr. Libby, nevertheless, paid a $250,000 fine, performed 400 hours of community service, and served two years of probation.

In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said. The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law. The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”

Before his conviction, Mr. Libby had rendered more than a decade of honorable service to the Nation as a public servant at the Department of State, the Department of Defense, and the White House. His record since his conviction is similarly unblemished, and he continues to be held in high regard by his colleagues and peers.

In light of these facts, the President believes Mr. Libby is fully worthy of this pardon. “I don’t know Mr. Libby,” said President Trump, “but for years I have heard that he has been treated unfairly.  Hopefully, this full pardon will help rectify a very sad portion of his life.”

I sure hope that Prez Trump might think to use his pardon powers for lots of other persons that he doesn't know that he may "have heard [were] treated unfairly" by our federal criminal justice system. So far, only a quite unrepresentative sample of four men have gotten clemency relief from this President.

April 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)