October 6, 2018
"Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
The title of this post is the title of this new paper authored by Kevin Morrow available via SSRN. Here is its abstract:
With the declining ability to use lethal injection in executions, states are beginning to take serious consideration of using nitrogen gas in capital punishment. The article first examines the recent shift away from lethal injection and whether nitrogen hypoxia will survive under current legal jurisprudence. Next, the article identifies human studies on accidental deaths from nitrogen. Third, the article examines the recent rise in nitrogen use in suicides and by right to die advocates. Finally, the article compares the use of nitrogen as an execution method with its use as a euthanizing agent in veterinary medicine.
October 5, 2018
So how might recent events impact Judge Kavanaugh's views on criminal cases?
I have been thinking about the question in the title of this post for the last few weeks. Today seems like the right time to encourage readers to weigh in given this morning's Senate vote suggesting that we will soon be using the label "Justice" rather than "Judge" in front of Brett Kavanaugh's name.
I have been blogging in various ways ever since Justice Anthony Kennedy announced his retirement (see posts below) that the next Justice could be a critical vote on a lot of criminal justice issues. The optimist in me wants to believe that the last few weeks have given Judge Kavanaugh an even deeper appreciation for the rights of accused individuals (as noted in post below, he has already expressed concern about sentencing based on acquitted conduct). This new Crime Report piece, headlined "Would a Resentful Justice Kavanaugh Derail Juvenile Justice Reform?," highlights how one can readily take a negative view on the consequences of the events of recent weeks on coming SCOTUS jurisprudence. Here are excerpts from the Crime Report piece:
The furor over Supreme Court nominee Brett Kavanaugh’s alleged sexual misconduct as a 17-year-old raises questions about how he would rule on key juvenile justice cases if he is confirmed by the Senate, a John Jay College conference was told Thursday. “I bet you [Kavanaugh] is going to be pretty pissed off about how we all tried to derail his nomination with something he did when he was 17,” said Elton Anglada, president of the Juvenile Defender Association of Pennsylvania.
Anglada said that if Kavanaugh were asked to rule in cases that required the Court to re-examine previous rulings establishing that youths under 18 could not be held legally responsible for criminal acts, based on scientific findings about adolescent brain development, he might be tempted to turn his current critics’ words against them....
“These [juvenile justice] cases are going to go back up to the Supreme Court,” Anglada predicted. “And I think about myself standing in front of Kavanaugh three or four years from now arguing that you shouldn’t revisit Graham, Miller and Roper and my client should be treated differently because he’s a juvenile, and we don’t want to hold a juvenile responsible for his entire life for something he did 35 years ago. “Say that to Brett Kavanaugh with a straight face and see what answer you get.”
I am not inclined to believe Chief Justice Roberts or Justice Gorsuch is eager to revisit Graham, Miller and Roper, so I am not sure a future Justice Kavanaugh is the only key vote in future Eighth Amendment juvenile justice cases. But even if there are not five votes to reconsider Graham, Miller and Roper, there are a host of on-going uncertainties about the reach and application of these cases and their possible future expansion. Again, I kind of want to believe that the events of the last few weeks might make actually make a fair-minded person even more open-minded about the idea that we should not "hold a juvenile responsible for his entire life for something he did 35 years ago," but I may be fooling myself here and elsewhere.
So, dear readers, thoughts on the question in the title of this post (on the juvenile justice issue or any others covered in prior posts linked below)?
A few prior posts with thoughts on sentencing jurisprudence in a post-Justice Kennedy Court:
- Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more
- With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
- Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?
- DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy
- Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work
- Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?
- An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct
- Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
- After 40+ years as a senator, Orrin Hatch now expresses concerns about acquitted conduct to promote Judge Kavanaugh's elevation
October 4, 2018
En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge
If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here). Here is part of the start of the majority opinion:
The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed.... In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).
On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....
The obvious (and decisive) question, then: Which is it here — categorical or conduct-based? Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895)....
Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be. Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.
The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.
October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)
Massive new report on the state of federal criminal defense by Ad Hoc Committee to Review the Criminal Justice Act
Released today is this 300+-page report that should be of interest to anyone who follows the federal criminal justice system. The report is titled simply 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act, and here are some excerpts from the report's executive summary:
This Committee was tasked to study one of the most fundamental of rights in America, the right of an accused person to legal counsel. Enshrined in the Constitution under the Sixth Amendment, the right to assistance of counsel is a pillar of our adversarial system of justice and our government....
Chief Justice of the United States John G. Roberts, Jr. tasked this Committee with studying the current quality of public defense in federal courts nationwide provided under the auspices of the Criminal Justice Act — groundbreaking legislation passed in 1963 and expanded in 1970. That the United States has a fully developed system of public defense at the federal level is evidence of considerable progress in making the Sixth Amendment right to counsel real in practice.... While it has been decades since people charged with crimes — in many cases facing life-altering punishments — faced prosecutor, judge and jury alone, representation by a skilled and devoted advocate with sufficient resources to mount a vigorous defense is far from guaranteed. Indeed, the quality of defense appears to be highly uneven across the country and from case to case within districts.
Fully 90 percent of defendants in federal court cannot afford to hire their own attorney. Justice in their cases, and indeed the future course of their lives, depends on the quality of the system that provides lawyers to represent them. The subject of the Committee’s Report is the examination of that system’s successes and failures, as well as a course of action for improving it....
It was only in studying the federal defender system as a whole and hearing from witnesses across the country that the members of this Committee have come to the unanimous conclusion that despite the best efforts of all parties involved in delivering effective representation under the Sixth Amendment, the current structure for providing public defense results in disparities in the quality of representation that have serious consequences for some defendants. The Committee hopes its report illuminates the scope and nature of these problems and underlying structural flaws from which they arise — and makes a persuasive case for meaningful change.
Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence
In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences. The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:
A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED. The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019. The opinion and judgment entered April 9, 2018 are hereby vacated.
In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old. After Graham and Miller, he was resentenced to a 65-year federal prison term. The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform." The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.
October 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
"The Cure for America's Opioid Crisis? End the War on Drugs"
The title of this post is the title of this new paper now available via SSRN and authored by Christine Minhee and Steve Calandrillo. Here is its abstract:
The War on Drugs. What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined. With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma. To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound.
This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates. We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy — a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health. We argue that the legal and political acceptance of addiction as a public health issue — not the view that addiction is a moral failure to scourge — is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.
Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
For months I have been flagged here and elsewhere the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio. Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1. With early voting in Ohio now just days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has its latest Issue 1 program taking place today.
Specifically, at the College of Law at 12noon, is the second of our five public panels under the title Ballot Insights. (Registration for these panels is available at this link, where you can also find more details on the focus for each of the panels.) Today's panel is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming, and we have the pleasure of hosting Shon Hopwood as one of the panelists.
In addition to the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage. DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited.
Prior related posts:
- Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot
- Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
- Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1
October 3, 2018
Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"
As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years. But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again. Here is an excerpt that leads me to this view:
Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons. Our goal is to reduce crime, just as President Trump directed us to do. Our goal is to make every community safer — especially the most vulnerable....
Our prosecutors in Utah are running up the score against the criminals. They charged 29 percent more defendants in 2017 than they did in 2014. That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....
In 2018, the Department of Justice prosecuted more violent criminals than in any year on record. At the same time, we charged the highest number of federal firearm defendants in history. Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.
This past year we broke our own record — and it wasn’t even close. Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year. That’s 20 percent more violent crime defendants than we charged in fiscal 2016.
We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016. We’ve been so tough on illegal guns that we’re actually getting attacked in the press for it — if you can believe that.
Here’s what the critics don’t understand: we are going after violent felons. We are targeting the most dangerous people in the most violent areas who have guns....
Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish. And so we are going to keep up this pace. We are going to keep supporting Utah’s state and local police. We’re going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.
"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"
The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute. Here is how it gets started and part of its conclusion:
Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years. Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor. Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.
The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances. This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....
Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.
The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country. Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma. State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.
But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options. Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.
A publisher's request for submissions from formerly and currently incarcerated individuals
This webpage provides this basic information about an interesting new project: "The New Press, a public interest book publisher, and the Center for American Progress (CAP), a public policy think tank, request submission of essays for consideration to be included for publication in a book featuring criminal justice reform ideas from formerly and currently incarcerated individuals." This document provides these additional details:
The book has the working title of What We Know and is expected to be edited by Daryl Atkinson and Vivian Nixon, both formerly incarcerated individuals now leading criminal legal reform organizations. They are also members of the steering committee of the Formerly Incarcerated Convicted People’s Family Movement (FICPFM), a national effort to bring the voices of formerly incarcerated people and their families to the justice reform table.
Essays may be from 2500-5000 words and should be focused on a specific, serious, welldefined suggestion for how to improve a particular aspect of any part of our current system, from police encounters and arrests, to sentencing, incarceration, and re-entry. Essays should contain elements of the author’s personal story in service of illuminating the suggested reform. Thoughtful, original ideas that are not already widely in circulation and under discussion are especially welcome.
The top 12-20 essays will be published in the finished book, and the authors will receive $500 each. Authors of the top 50 essays that were not selected for publication will also receive $50 each. Co-authored pieces will be considered; additional payment for additional authors will be at the discretion of The New Press and CAP. The New Press, CAP, and the editors retain full and final authority over the selection of the pieces that are published and/or receive a financial award.
The New Press, CAP, and the editors reserve the right to reject or select essays for any reason allowed under law. However, essays will be selected based on the following:
I. Policy Recommendation: Applicants should clearly identify a specific issue or problem within the criminal justice system and propose a well-developed, targeted policy solution to address it.
II. Concept: Applicants are encouraged to propose new and progressive ideas for improving the criminal justice system. Policy proposals should be informed by lived experiences with the justice system.
III. Feasibility & Impact: Proposed reforms should be realistic and actionable, with the potential to create meaningful change within the criminal justice system.
IV. Readability: Successful essays will be engaging and combine narrative storytelling from the author’s own experience or knowledge, which illustrates a specific problem, with an original, constructive idea for how the problem might reasonably be remedied.
October 2, 2018
"Sentencing Reform: Fixing Root Problems"
The title of this post is the title of this new paper now available via SSRN authored by Peter Joy and Rodney Uphoff. Here is its abstract:
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.
In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty — approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”
Why, then, are criminal defense lawyers able to persuade the vast majority of their clients to plead guilty, even those who are actually innocent? Put simply, it is because our system punishes so severely those who go to trial and lose. If we are serious about both minimizing the conviction of the innocent and sentencing reform, we must address this reality. This essay, therefore, focuses on two pernicious features of our current criminal justice system — misuse of plea bargaining and misuse of informants — that explain why so few criminal defendants exercise their right to trial. We conclude with proposals that might ameliorate those features of our system.
Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always
On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center. Here is SCOTUSblog's overview via this round-up post:
Today the eight-justice court will tackle two more cases. The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine. Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review. Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime. This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here. Tucker Higgins reports on the case for CNBC.
As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence. The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons. But I cannot help but note what seems to me to be relatively small stakes in Madison.
I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state. In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."
Prior related preview posts:
- SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
- Another effective preview of coming SCOTUS review of SORNA delegation in Gundy
- Previewing the two capital punishment administration cases before SCOTUS this fall
- Previewing SCOTUS consideration of capital competency (and making a case for abolition)
UPDATE via SCOTUSblog: The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?"
October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)
New "Square One Project" already producing terrific paper on re-imagining criminal justice policy
This posting from the Laura and John Arnold Foundation (LJAF) describes a notable new criminal justice reform effort that formally launched a few weeks ago:
The Square One Project, a three-year initiative to rethink justice policies from top to bottom, launched [on September 20] at D.C.’s National Press Club. Square One brings together a diverse cross-section of academics, policymakers, and community organizers to re-examine traditional responses to crime and envision a new paradigm that can address systemic inequalities such as poverty and racial discrimination. The Columbia University Justice Lab, John D. and Catherine T. MacArthur Foundation, and Laura and John Arnold Foundation (LJAF) support the project.
Square One seeks to reform a criminal justice system in urgent need of change . Over the last four decades, the number of people in America’s prisons and jails has increased 500 percent. Prisons are overcrowded, states struggle to fund basic services, and racial inequities inherent in the system have devastated communities. “The project asks: If we set aside the traditional response to crime, and ask first whether other responses might be more effective — if we begin at ‘square one’ — how would criminal justice policy be different?” said Kelli Rhee, President and CEO of LJAF.
The initiative consists of three core components: an executive session focusing on justice policy; roundtables in cities across the country; and a comprehensive community engagement and communications strategy. In the executive session, about 30 leading experts, practitioners, and scholars will meet twice a year to develop and refine proposals. “This format will test and push participants to challenge their own thinking and consider new options,” said Bruce Western, co-director of the Columbia University Justice Lab. “These frank, off-the-record discussions will ultimately yield fresh discourse and new research among academics, policymakers, practitioners, and communities.”
Roundtable sessions will invite broader engagement with community members and a variety of stakeholder groups, tackling a single, complex policy challenge. The first Square One roundtable is scheduled for Oct. 11-13 in Durham, N.C., in partnership with North Carolina Central University. The discussions, held at the NCCU School of Law, will be live-streamed.
As shown in this page at Square One's website, the executive session part of the project is already producing some very interesting papers by some very interesting people:
Bruce Western, The Challenge of Criminal Justice Reform
Arthur Rizer, A Call for a Revised Set of Values in Criminal Justice
Though I am not sure if additional papers will be emerging from the Square One executive sessions or the roundtables, I am sure folks interested in thinking deeply about the present and future of criminal justice policies and practices in the United States should be watching what this project continued to produce.
October 1, 2018
Previewing SCOTUS consideration of capital competency (and making a case for abolition)
The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases." Her post starts this way:
It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.
Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”
Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial. After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.
Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty." Here are excerpts:
The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols. As the mills have ground on, life has ground Madison, 68, down to wreckage. After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....
The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry. Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment. Deterrence is another. But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial. Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....
Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.” That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.
Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.
UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."
A bunch of Dimaya GVRs and a hundreds of criminal case cert denials in first SCOTUS order list of October Term 2018
As noted in this post a few weeks ago, law professor Rory Little had this great lengthy post at SCOTUSblog previewing the criminal side of the Supreme Court's docket under the heading "Criminal cases in the October 2018 term: A law professor’s dream." But as the Court's term officially gets started today, this first SCOTUS order list may seem a bit like a criminal defense lawyer's nightmare because of the extraordinary number of criminal cases in which cert is denied. Of course, every first order list to start every new Term includes a huge number of denials of cert in all the criminal cases that stack up over the summer break. But it still is a bit startling to scroll through page after page after page after page of what all appear to be criminal cases in which cert has been denied this morning.
That all said, the SCOTUS order list does include a bunch of GVRs based on the vagueness ruling in Sessions v. Dimaya, most of which appear to involve criminal cases. I have not been able to follow all the Dimaya fall-out as closely as some true experts, but I suspect that these GVRs are noteworthy not only because they come amidst a sea of cert denials. Also, there might well be some significant criminal case relists hiding in the certiorari carnage that today's order list reflects. So criminal justice fans and sentencing fans may still be able to find a SCOTUS silver lining in today's order list. And, of course, on so many fronts, SCOTUS activity is just getting heated up.
California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly
In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws. This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:
Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing. The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.
For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.
The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society. State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.
Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1. But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....
Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide. The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....
On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules. “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday. “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”
September 30, 2018
Former Illinois Gov Rod Blagojevich makes "plea for prison reform"
The federal prison inmate formerly known as Blago has authored in the Washington Examiner this commentary published under the headline "Rod Blagojevich: My plea for prison reform." Here are excerpts:
I am living the reverse American dream — a bad dream that I share with other inmates at a prison in Colorado where I am currently serving a 14-year sentence. So what happened?
Carved in stone on the front portico of the U.S. Supreme Court building are the words “Equal Justice Under Law.” But as I sit here in prison, I can’t help but reflect on those four words and feel an overwhelming sense of sadness — not just for me, but for many of my fellow inmates as well. Here’s why.
It is not equal justice under law when over-sentencing is the rule rather than the exception; when our incarceration rate has increased by more than 500 percent over the last forty years; when an American citizen in good faith trusts the integrity of the courthouse, but to their horror discovers that the game is rigged, and that they are being denied a fair trial before proceedings even begin.
The national debate in Congress on prison and sentencing reform is a conversation that is long overdue. And as that debate heats up, I’d like to offer a few points of my own and share some things I’ve learned on this painful journey.
As a dishwasher, I start work at 3:30 each morning and earn a total of $8.40 a month. Did you know that the average wage for an inmate is 23 cents to $1.15 an hour? In some states, inmates have to work for free. I never expected to get rich in prison, but am I wrong in viewing this rock-bottom wage as society's way of showing its contempt, telling us that we are all worthless? Is that a good message to send to people we plan to release someday, and whom we'd rather not see offend again? To people we hope will survive on their own without resorting again to crime?...
Did you know that the average cost to the taxpayer to house each inmate is around $33,000 a year? In California, taxpayers pay $75,000 a year per inmate. In total, taxpayers are left with a $39 billion invoice each year. And what’s the government’s solution? Increase our prison population and force hard working Americans to pay even higher taxes.
Did you know that federal prosecutors like to boast about their 97 percent conviction rate? Yet when you think about it, shouldn't that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted. And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused. It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.
Did you know that from 2013 to 2017, the Federal Bureau of Prisons denied 94 percent of the applications from inmates requesting a “compassionate release” due to a terminal illness? And in all of these cases, instead of dying with dignity surrounded by loved ones, terminally ill inmates were left to die alone in prison. Did you know that if a spouse or child passes away while you are in prison, that you’re not even allowed a furlough to attend the funeral services? Did you know that when incarcerated women give birth, that they are chained and handcuffed to the hospital bed?
My time in prison has taught me that we need serious reforms. It’s also taught me that there are a lot of people in here with good hearts. Instead of creating a system that punishes and dehumanizes inmates, let’s create a system that rehabilitates prisoners and prepares them for life outside of prison. So here is my message: We can never reach our potential until we as a people rise up and demand that our elected representatives bring about reform; until freedom is safeguarded by a renewed and unwavering commitment to the rule of law; until mercy seasons justice, and fair play governs those who govern us.
Noting some worrisome trends in latest official FBI crime data
The folks at Crime & Consequences have two recent posts spotlighting some notable state-specific trends in the latest FBI crime data. As noted in this post from last week, the FBI reported that violent crimes in the US appeared to "decrease 0.2 percent in 2017 when compared with 2016 data" and that property crimes also "dropped 3.0 percent" in 2017. But, for fans of sentencing reforms and/or marijuana reform, these two posts at C&C suggest a different tale:
Crime in the United States and California, 2008-2017 by Kent Scheidegger
Excerpt: California and United States [had] violent crimes rates falling in tandem prior to Realignment. That bill took effect in October 2011, so 2011 is mostly a pre-Realignment year. We would expect effects to show up in later years. There is a bump in 2012, while the national number is flat, followed by a drop the year after that. Beginning in 2015, California's violent crime rates have been above the national rate to a larger extent than previously. Overall, the California rate averaged 9% above the national rate before Realignment and 12% above since Proposition 47....
So what degree of proof would we say the simple comparison above establishes that California's soft-on-crime legislation has increased crime? In terms familiar to lawyers, is it "proof beyond a reasonable doubt"? Certainly not. "Preponderance of the evidence." No, I wouldn't claim that. "Probable cause"? Arguably. "Reasonable suspicion"? Certainly.
UCR Data Raises Concerns by Michael Rushford
Excerpt: Looking at significant recent changes in state criminal justice policy, states which have legalized recreational marijuana and states which have engaged in major sentencing reform to reduce sentences were more likely to have suffered increases in violent crime that those who have not.
Of the nine states and the District of Columbia which have legalized recreational marijuana six had increases in violent crime. The increase in Vermont, which legalized recreational marijuana in July, was the highest at 21.4%, with Colorado coming in second at 7%. Of the legalized marijuana states and DC, six had significant increases in homicide, with Vermont not reporting. Massachusetts' increase was 27.5%, with Alaska's was 19.5%, followed by Nevada (17.8%), Washington (16%), Colorado (15.3%), and Maine ((14.5%). All nine legalized marijuana states had increases in rape, with Vermont (28.2%), Maine, (14%), and Nevada (10.5%) in double digits.
Of the eight states which have enacted the most significant reforms to reduce sentences, seven had increased violent crime, and five had increases in homicide. Three of these states had double digit increases in homicide lead by Arkansas (18.3%), and followed by Washington (16%) and Hawaii (11.5%).
One of these posts stresses the important point that "correlation does not prove causation." But it is at least worth nothing that some are eager to note certain correlations.