Thursday, July 19, 2018

Another look at how Justice Kennedy shaped capital jurisprudence and what his departure entails

I noted here a few weeks ago a short piece on how death penalty jurisprudence is likely to be impacted considerably by a coming SCOTUS transition, and another longer piece in the same vein now comes from Matt Ford at The New Republic.  The piece is headlined "America Is Stuck With the Death Penalty for (at Least) a Generation," and here are excerpts (with links from the original):

With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles.  In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row prisoners.

“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,” Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but he was also often a fifth vote for determining that a particular death-penalty practice was unconstitutional.”

The high court will likely continue to intervene in death-penalty cases that stray too far from the legal mainstream.  But without Kennedy, it will no longer be the venue for a systemic attack on capital punishment as it had been in recent years.  “It seems likely that there will be a firm, five-person majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who specializes in the death penalty, told me....

With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears death-penalty cases compared to the other federal appellate circuits.

As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar manner, the court’s posture toward the death penalty would shift decisively away from limiting its scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s now whatever Chief Justice Roberts decides that it is,” Dunham said.

Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the 2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too much. “Some toxins are deadly in small doses,” he wrote.

Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of abolition efforts will now turn to the state and local level. “States are really where the story is happening,” she told me. “There are state constitutional challenges that can be brought. Seven state legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that a growing number of district attorneys are declining to seek the death penalty in cases where they otherwise could.

A local focus makes sense given the current geography of capital punishment. Death sentences increasingly come from only a handful of counties scattered across the country. Though state legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down dozens of death sentences have recently seen the election of district attorneys who are more skeptical of it.

For now, the rulings written by Kennedy will continue to mark the outer limits for American executions on a national level—unless the justices of a future generation choose to push them even further. “The law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it wanted to continue this project of reassessing the death penalty and its concordance—or not—with evolving standards of decency,” Steiker said.

Prior related post:

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence 

July 19, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Notable GOP Senators talk up mens rea reform while FIRST STEP Act and SRCA languish in their chamber

Senators Chuck Grassley and Orrin Hatch have this notable new commentary in the Washington Examiner under the headline "Mens rea reform and the criminal justice reform constellation." Here are excerpts:

A growing chorus of voices from across the country and political spectrum are calling out for reforms to our nation’s criminal justice system, and rightfully so.  Our criminal justice system should be tough but fair.  Criminal behavior should be punished, but the punishment should fit the crime. And those we send to prison should be afforded opportunities to participate in programs that prepare them to rejoin society when they complete their sentences.

As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization.  There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count.  And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.

Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation.  We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.

Fairness and justice demand that we clarify our criminal laws.  Statutes and regulations that impose criminal penalties should be clearly written so they prevent and punish criminal conduct even as they the safeguard the liberty of the innocent.  That’s why it is important that Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve introduced, to improve clarity in existing criminal laws and regulations and encourage greater care when crafting future ones.

Our bill recognizes that the mens rea standard that works for one crime might not be appropriate for another.  It improves on past proposals to impose a one-size-fits-all mens rea standard to all laws and regulations that lack such clarity.  Instead, it empowers Congress and federal agencies to fill in the gaps with the appropriate level of intent required to constitute a crime.  The bill calls on the federal government to identify the criminal statutes and regulations that lack a mens rea requirement.  This will allow Congress to clarify the mens rea standard in criminal statutes through the legislative process.  The bill then directs federal agencies to put in place a clear mens rea standard for all regulatory crimes through a transparent process that invites public input on what the appropriate mens rea standard should be. Under our bill, agencies have six years to issue new rules to clarify the required level of intent. If the agencies don’t offer this clarification, they won’t be able to enforce the regulation....

We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape.  Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.

While I share the Senators affinity for mens rea reform, at this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act.  One would hope that the current chair of the Senate Judiciary Committee (Grassley) and a powerful former chair (Hatch) could actually help get some legislation enacted, but the mysteries of government continue to mysterious prevent the passage of legislation that has widespread support in both houses of Congress.

It has now been nearly two months since the FIRST STEP passed the House by a huge margin (details here) and it has now been more than five months since the SRCA passed the Senate Judiciary Committee by a significant margin (details here). Prez Trump has suggested he will sign whatever bill gets delivered to his desk.  But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon. Sigh.

July 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Wednesday, July 18, 2018

"The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges"

The title of this post is the title of this article authored by Robert Conrad, Jr. and Katy Clements published earlier this year that I just came across and that is especially timely in light of the recent NACDL report on the "trial penalty" (discussed here). Here is its abstract:

Federal criminal jury trials are dying.  Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent.  During the same ten-year span, the portion of defendants’ cases disposed of by jury trial similarly declined by almost forty percent.  Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see.  The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.

This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s.  Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate.  Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline.  This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results.  Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.

By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels.  Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries.  The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public square openness of trials.  By doing so, the authors hope to embolden the players in the criminal justice system to not go gentle into a trial-less system, but rather, to rage against the dying of the trial light.

July 18, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Texas completes eighth execution of 2018 despite complaints about clemency process

This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system.  The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:

In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber.  Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.

The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store.  At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....

Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing.  Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....

Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.

In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.

They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....

The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s.  Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row.  The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....

Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....

Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure.  He also rejected board recommendations in at least two other cases.  The Whitaker clemency was the first and only board recommendation under Abbott so far.

Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades.  In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...

But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board.  Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.

July 18, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, July 17, 2018

Encouraging lawmakers to take a "face-to-face" approach to criminal justice reform

Connecticut Gov Daniel Malloy has this great commentary in The Hill under the headline "To reimagine the criminal justice system, start with a face-to-face connection." I recommend the piece in full, and here are excerpts:

Recently, the first lady and I convened a group of state officials, judges, prosecutors, victim advocates and other stakeholders to discuss Connecticut’s progress toward improving the state’s criminal justice system.  Sounds like a run-of-the-mill convening of policymakers and practitioners until you consider the venue: one of our state’s maximum-security prisons, the Cheshire Correctional Institution.

“Reimagining Justice 2018: Outside In” was the first-ever conference to be held inside such a prison, serving as a rare opportunity for those who shape and carry out Connecticut’s criminal justice policies to step into the confines of a prison and hear directly from those who are residents there.

During my time as governor, I’ve prioritized these types of meaningful interactions with people directly impacted by the correctional system, whether it’s been with people who are incarcerated, the corrections officers that supervise them or victims of crime.  Over the course of my 24 visits to date, interactions with victims, correctional officers and inmates have become a central part of my efforts to develop meaningful criminal justice policy changes.

These experiences have informed many policy discussions and have led to extraordinary progress in our state.  From 2008 to 2016, Connecticut has seen the complete closure of five prisons along with major portions of four other facilities.  More importantly our state has experienced the largest reduction in violent crime of any state in the nation over the past four years.  We’ve also seen our prison population reach its lowest level since 1994 due to fewer and fewer arrests and prison admissions and while continuing to see meaningful drops in recidivism rates....

Whether it be attending the reentry program graduation of someone preparing to return to the community after incarceration or meeting with corrections officers to discuss new ways to ensure a healthy working environment for them, these face-to-face engagements can help policymakers gain a deeper appreciation of the unique challenges people encounter when they are closely involved in the correctional system....

It’s critical for all elected leaders and policymakers at every level of government to understand the high value of these types of interactions.  That is why I, along with a group of 12 other Republican and Democratic governors across the country, have taken part in the Face to Face initiative, a call to action for all policymakers to personally connect with the people closest to the correctional system.

I urge all policymakers of all levels across the country to join these efforts and commit to following a thoughtful approach to policy that focuses not only on data, but the people behind those numbers.  Together, by considering the immeasurable human impact of our policy decisions, we can reimagine the way we approach criminal justice.

July 17, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (4)

Saturday, July 14, 2018

The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"

I spotlighted in this post last week this lengthy commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Now comes the second extended piece in a series appears here under the full headline "Law-and-Order Texas Takes on Criminal Justice Reform:Seeking alternatives to bloated prison populations and recidivism, the Lone Star state leads others to pursue to the same." Here are excerpts

Though Jerry Madden had no prior background in corrections or law enforcement, he helped change the course of both fields. Madden was serving in the Texas House in 2005 when he got called into the speaker’s office. Speaker Tom Craddock, a fellow conservative Republican, told Madden he would be chairing the corrections committee. Madden asked Craddock what he should do. Craddock uttered eight words that changed Madden’s life and altered the course of American corrections policy: “Don’t build new prisons, they cost too much.”

Texas, even more than most other states at the time, had been on a prison-building spree. It had reached a point where the return on investment was low. Madden used his training as a statistical engineer to hunt down the data about what wasn’t working, or could easily be changed, throughout the corrections system. Along with his counterpart in the state Senate, John Whitmire, Madden put together a package to overhaul parts of the state’s criminal justice system....

Recidivism fell quickly in Texas. Back in 2005, the state was paroling 21,000 prisoners, 11,000 of whom returned. A decade later, the state paroled 28,000 prisoners and about 4,500 came back. “It’s an effort to continue getting the gains in public safety we’ve been getting for 20 years now, while also reducing our extraordinarily high levels of incarceration,” says Vikrant Reddy, a senior fellow at the Charles Koch Institute.

The success of the Texas model stirred other states to replicate it, beginning with Kansas, Ohio, and South Carolina. The fact that Texas had a “hang ’em high” reputation, built not just on high incarceration rates but also on its status as the nation’s most active executioner, helped convince conservative legislators in other states that the idea of providing treatment for prisoners wasn’t some bleeding-heart proposal. Rather it was a skeptical redirection of government funds away from a strictly brick-and-mortar approach that demonstrably had not worked.

And so the Texas experiment became a model elsewhere. Cost savings and statistics that might on paper have been just as impressive out of California or Vermont wouldn’t have swayed so many red-state legislators, Reddy says, particularly the Deep South converts the criminal justice reform movement has found in places such as Louisiana, Mississippi, and Georgia. “It was a tremendous stroke of luck for the country that Texas was the first to step out of the gate,” says Adam Gelb, who directs the Pew Charitable Trusts’ public safety performance project, which provides technical assistance to states on criminal justice policies.

Nearly three-dozen states have now enacted policies that mirror, to a greater or lesser extent, the Texas template. Every state has done something to address prisoner reentry programs and employment. The impact of these efforts is now being felt in Washington.

Prior related post:

July 14, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Friday, July 13, 2018

Detailing how recent reforms have helped Louisiana shrink its incarceration rate to no longer be nation's leader

Ranking have a way of capturing attention, and this new Pew article reporting on a notable change in state rankings caught my eye.  The piece is headlined "Louisiana No Longer Leads Nation in Imprisonment Rate: New data show impact of 2017 criminal justice reforms," and here are excerpts:

Louisiana no longer leads the nation in imprisonment, one year after enacting a landmark package of 10 criminal justice reform laws. In June 2018, Oklahoma became the U.S. state with the highest imprisonment rate, replacing Louisiana, which had been the nation’s prison capital for nearly 20 years.

The numbers are based on calculations by The Pew Charitable Trusts, which analyzed data from the state corrections departments and population estimates from the U.S. Census Bureau. At the beginning of June, the imprisonment rate in Louisiana was 712 per 100,000 residents, compared with 719 per 100,000 residents in Oklahoma. Louisiana now ranks second in imprisonment. The numbers in both states far exceeded the national rate, including state and federal prisoners, which was 450 per 100,000 residents at the end of 2016.

The latest data reinforce a central lesson of criminal justice reform in the past decade: States’ policy choices can help control the size and cost of their prison systems and protect public safety. Although implementation of Louisiana’s reforms is still in the early stages, the Department of Public Safety and Corrections and the Commission on Law Enforcement released a report in June with some initial results that show quick and solid progress since the first pieces of legislation went into effect in August 2017....

After a year’s worth of data analysis and study by the task force, the Legislature in 2017 passed and the governor signed the most significant overhaul of criminal justice laws in state history. The package of 10 bills — sponsored by six Republicans, two Democrats, and one independent — steers people convicted of less serious crimes away from prison, strengthens incarceration alternatives, reduces prison terms for those who can be safely supervised in the community, removes barriers to re-entry into the community, and bolsters programs that support victims of crime.

Louisiana’s landmark reforms are perhaps the most dramatic example of a state taking greater control of its prison growth and spending, but many others have acted as well. More than 30 states have adopted reforms, spurring shifts in imprisonment rate rankings. In 2007, for example, Texas began investing hundreds of millions of dollars in various treatment and diversion programs.  The state dropped from third place in 2008 to seventh by the end of 2016, the most recent year for which complete national data are available. In South Carolina, comprehensive reforms enacted in 2010 helped move the state from ninth to 20th.

Pew also this week released this Fact Sheet on state reform efforts under the heading "35 States Reform Criminal Justice Policies Through Justice Reinvestment."

July 13, 2018 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3)

"'Finding' a Way to Complete the Ring of Capital Jury Sentencing"

The title of this post is the title of this paper newly posted on SSRN and authored by Maria Kolar. Here is its abstract:

In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death.  First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer — typically referred to as “aggravating circumstances.”  Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death.  Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be — even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring.  This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence.  This Article traces the Court’s use of the term “finding” in this context — from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016 — and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law.  This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring — aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law.  Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates.  There is still much work to be done.

July 13, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, July 12, 2018

AG Jeff Sessions "surges" federal war against synthetic opioids in select counties

This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):

Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.

As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.

"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug.  Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most.  Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...

In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.

To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity.  The effort resulted in the indictments of forty five traffickers of synthetic opioids.  Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.

I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:

It’s called Operation Synthetic Opioid Surge — or S.O.S.

I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.

We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.

Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.

In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.

As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.

Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.

July 12, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

Prior related posts:

July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)

Isn't it about time AG Jeff Sessions stops talking about "surging violent crime"?

The question in the title of this post is prompted by a comment appearing in this new Justice Department press release headlined "Attorney General Jeff Sessions Welcomes Brian A. Benczkowski as Assistant Attorney General for the Criminal Division."  Here is the start of this release with a key phrase highlighted:

Attorney General Jeff Sessions today welcomed the confirmation of Brian Allen Benczkowski as the Department of Justice’s Assistant Attorney General for the Criminal Division. “Brian is an outstanding lawyer with a diverse public service and criminal law background spanning over 20 years,” said Attorney General Sessions.  “This will be the sixth senior position Brian has held at the Department, and we are fortunate to have someone with his breadth of experience and strong leadership skills willing to serve again.  At a time like this — with surging violent crime and an unprecedented drug epidemic — this position is especially important.”

Had AG Sessions been speaking in January 2017, I could see a plausible basis for him to talk about it being "a time ... with surging violent crime."  But circa July 2018, all indications seem to be that violent crime is back to declining at least slightly: (1) the latest official FBI release reported that "overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016," (2) the violent crime survey from the Major Cities Chiefs association for year-end 2017 and for the first part of 2018 show violent crime decreasing, and (3) the Brennan Center recently found, in a "final analysis of crime rates in 2017, ... an overall decline in rates of violent crime, murder, and overall crime in the 30 largest American cities."

I understand why and how politicians end up being sloppy with crime and punishment rhetoric, and I am not troubled when AG Sessions says violent crime is too high or employs similar terminology when espousing his tough-on-crime philosophy and policies.  But facts matter and should matter to the Attorney General.  And, according to all the data of which I am now aware, the simple fact is that the United States is not right now experiencing "surging violent crime."

So, in addition to wanting also to welcome Brian Benczkowski as Assistant Attorney General for the Criminal Division, I want to request that he be a bit more conscientious with his crime rhetoric than his boss (and especially his boss's boss).

July 11, 2018 in National and State Crime Data, Who Sentences? | Permalink | Comments (4)

Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work

Over at his SDFLA Blog, David Oscar Markus has this helpful new post titled "A look into some of Judge Kavanaugh's criminal justice opinions." I recommend the whole post, and here are two particular opinions flagged there that ought to be of particular interest to sentencing fans: 

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.  Here's a portion:

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?....
3. Sentencing.  Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."

I am inclined to mostly agree with David's post's overall assessment of Judge Kavanaugh: "So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts.  He won't be a Scalia and he won't be an Alito.  But he'll probably be more sympathetic to criminal justice issues than Kennedy was."  But I would add that I expect Judge Kavanaugh to be less sympathetic to capital defendants that Justice Kennedy has been, but possibly just a bit more sympathetic to some (but not all) others. 

A few related posts:

July 11, 2018 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

Prior related posts:

July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

"The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It"

The title of this post is the title of this extraordinary big new report released today by the National Association of Criminal Defense Lawyers. Here is an overview of the 84-page report from the NACDL's website:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Former US District Judge John Gleeson authored a thoughtful Foreword to the report, and here are excerpts that also provide a partial account of what follows:

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial.  Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes, and this report nails that step.  Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.  Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.  The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.  Finally, the report correctly finds that federal sentencing judges are complicit as well.  In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big.  The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

The report’s principles and recommendations will stimulate some much-needed discussion.  Today’s excessive trial penalties, it concludes, undermine the integrity of our criminal justice system.  Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.  The report properly raises the “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.  But there’s an even larger hypocrisy problem.  Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt.  A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.

The report’s recommendations range from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.  A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.  The sentencing reform movement a generation ago disempowered judges and empowered prosecutors.  Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.  Our system is too opaque and too severe, and everyone in it — judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them.  Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises. Here’s hoping that this report will help us correct this problem before it is too late.

July 10, 2018 in Examples of "over-punishment", Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

9780190866044Not long after Justice Anthony Kennedy announced his retirement, I authored a post hoping to germinate an idea with criminal justice reformers and litigants: "With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers."  I am not especially optimistic that Judge Brett Kavanaugh, who has now been tapped as Justice Kennedy's replacement, will be chomping at the bit to reverse his old boss's troublesome Eighth Amendment work in Harmelin.  But I remain optimistic that a new generation of judges (including Chief Justice Roberts and Justice Gorsuch) may be significantly more open these days to "refreshing" an Eighth Amendment jurisprudence in order to put at least some limits on some extreme prison terms for some adult offenders.

With these thoughts swimming in my mental soup, an important new ingredient came to mind as a result of recent opportunities to talk with Sixth Circuit Judge Jeffrey Sutton about his terrific new Oxford University Press book titled "51 Imperfect Solutions: States and the Making of American Constitutional Law." Here is how the book is described by Oxford:

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system.  Yet much of our constitutional law is not made at the federal level.  In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion.  Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court.  But these explanations tell just part of the story.  The book corrects this omission by looking at each issue — and some others as well — through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges.  Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty.  In trying to correct this imbalance, the book also offers several ideas for reform.

I recommend Judge Sutton's book to all serious legal thinkers (and not-so- serious ones, too), and I mentioned to Judge Sutton that I viewed proportionality litigation around the Eighth Amendment and its state analogues to be another area full of dynamic (though often disconcerting) stories about the role of the state courts and state constitutions in a jurisprudential dialogue with federal courts.  Indeed, as some reader may recall, a little over five years ago I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this 51 state resource in the form of a "collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

As states continue to work through the implications of Graham and Miller and Montgomery, I sense and surmise there is plenty of interesting constitutional litigation over the Eighth Amendment still on-going in state courts, and Judge Sutton's work has me wondering how much of that litigation also involves state constitutional proportionality claims pressed in addition to federal claims.  (A key theme in Judge Sutton's book is that lawyers always should, when available, be pressing state constitution claims on behalf of their client as well as federal claims.)  I know I am overdue on a pledge to be updating these NACDL state-by-state resources, and I would be especially eager to hear from any and all state defense lawyers about whether there has been considerable new proportionality jurisprudence in their jurisdictions in recent years.

As thew title of this post suggest, I think Judge Sutton's book can and should serve as a suggestion to all state criminal defense lawyers to keep pressing state constitutional claims.  Doing so could not only lead to important state-level rulings, but also provide still further ideas and energy to perhaps help the US Supreme Court see a reason to overrule or at least recast its ugly work in Harmelin.

July 10, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

President Donald Trump pardons Oregon ranchers convicted of arson, and subject to mandatory minimum terms, who prompted protests over federal lands

As reported in this article from The Hill, headlined  "Trump pardons Oregon ranchers at center of 40-day standoff," Prez Trump has used his pardon pen yet again for another set of high-profile and politically notable defendants.  Here are the details:

President Trump on Tuesday pardoned a pair of Oregon ranchers whose arson conviction became a focus for opponents of federal government land ownership. Dwight Hammond, 76, and his son Steven Hammond, 49, were convicted in 2012 and sent to prison on arson charges. They had set a series of fires on their ranch that spread to federal land.

The Hammonds’ case became the inspiration for the 40-day armed occupation of the Malheur National Wildlife Refuge in 2016. The organizers wanted to protest federal land ownership. The Hammonds distanced themselves from the violent occupiers and didn't endorse the action. One of the occupiers, Robert LaVoy Finicum, died, and a handful pleaded guilty to charges related to the occupation. But brothers Ammon and Ryan Bundy, the accused leaders of the occupation, were not convicted.

In a statement Tuesday announcing the pardon, White House press secretary Sarah Huckabee Sanders emphasized uncertainties in the case and the prison terms and fines the Hammonds had already paid. “The evidence at trial regarding the Hammonds’ responsibility for the fire was conflicting, and the jury acquitted them on most of the charges,” the White House said.  “The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

Both men are currently in prison on five-year sentences, thanks in part to a 1996 anti-terrorism law that imposed a mandatory minimum sentence on certain crimes on federal land.  The length of their prison terms, in part, fueled outrage at their convictions.

Federal judge Michael Robert Hogan originally gave the Hammonds reduced sentences in 2012, arguing that the mandatory minimums were unjust. But the Obama administration appealed, and federal Judge Ann Aiken in 2015 imposed the full five-year sentences.  “This was unjust,” Sanders said in her statement.  Dwight Hammond has served about three years of his sentence and Steven Hammond has served about four of his, and Trump’s pardon will set them free.

Rep. Greg Walden (R-Ore.), who represents the area that includes the Hammonds’ ranch, cheered Trump’s pardon as a win against federal overreach. “Today is a win for justice, and an acknowledgment of our unique way of life in the high desert, rural West,” he said in a statement. “As ranchers across eastern Oregon frequently tell me, the Hammonds didn’t deserve a five year sentence for using fire as a management tool, something the federal government does all the time.”

I suspect some folks on the left will attack this latest act of clemency as another politicized action for the benefit of the Trump base.  But I still recall this story and 2016 post about the Hammonds case, "Excessive federal sentencing and strict mandatory minimums at center of armed 'militia' occupation in Oregon," which highlights how much the perceived injustice here is linked to mandatory minimums and excessive federal sentencing terms.  Though I remain chary about expecting Prez Trump to become as ambitious in his use of his clemency pen as was Prez Obama at the tail end of his time in office, the federal sentencing severity that sounds this latest pardons makes me just a hint more hopeful that Prez Trump will at least somewhat deliver on all his big clemency talk.

A few of many recent related posts about recent Trumpian clemency activity:

July 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, July 09, 2018

DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

The smart money, as reported here, has been on President Trump nominating DC Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy.  And, as reported here, that is who Prez Trump picked tonight.  This meaty SCOTUSblog profile of Judge Kavanaugh includes this criminal justice section:

In criminal cases outside the detainee context, Kavanaugh has tended to rule against defendants, although in doing so, he has largely agreed with his colleagues. In 2008, United States v. Askew, however, Kavanaugh dissented from an en banc ruling that found a Fourth Amendment violation when police officers unzipped a defendant’s jacket without his permission and without probable cause or a warrant.  And Kavanaugh has supported police officers’ claims of qualified immunity from civil-rights lawsuits.  For example, in Wesby v. District of Columbia, which was reversed this term by the Supreme Court, Kavanaugh dissented from denial of rehearing en banc, stating that because “[t]he officers were not “plainly incompetent” and did not “knowingly violate” clearly established law when they made these arrests,” they were entitled to qualified immunity.  But, dissenting from a 2012 en banc opinion upholding the application of a mandatory-minimum sentence in United States v. Burwell, Kavanaugh would have ruled for the defendant.  In his words, “The majority opinion holds that a person who committed a robbery while carrying an automatic gun – but who genuinely thought the gun was semi-automatic – is still subject to the 30-year mandatory minimum sentence. The majority opinion thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know. In my view, that extraordinary result contravenes the traditional presumption of mens rea long applied by the Supreme Court.”

I will likely blog about Burwell and about other significant sentencing rulings in the coming weeks, and I will also try to flag other commentaries about Judge Kavanaugh's approach to criminal justice issues.

July 9, 2018 in Who Sentences? | Permalink | Comments (2)

Criminally exciting start to what will be first SCOTUS Term without Justice Kennedy in a looooooong time

The SCOTUS excitement today is thick, with Prez Trump promising to name his choice for replacing retiring Justice Anthony Kennedy at 9pm EDT tonight.  But hard-core SCOTUS geeks will also be excited to see the Court already making plans for the new Term via today's release of the argument calendar for the Court's October sitting.  More than a few notable criminal cases are on tap for the first two weeks of October (links descriptions from SCOTUSblog):

Scheduled for argument on Tuesday October 2:

Gundy v. United States: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Madison v. Alabama: (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Scheduled for argument on Tuesday October 9:

Stokeling v. United States: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

United States v. Stitt & United States v. Sims:  Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Besides being excited by this part of the docket for the first few weeks of the new SCOTUS  Term, I am intrigued by the reality that, for the first time in a very long time, advocates and court-watchers will no longer be trying to figure out how Justice Kennedy is going to vote on a particular issue.  Justice Kennedy has served on the Court for 30+ years, meaning that the last SCOTUS Term without his involvement was way back when Ronald Reagan was Prez, when the Soviet Union still existed, when the federal sentencing guidelines were still not quite operational, when Back to the Future II was still in development, and when Adele and Kevin Durant and Rory McIlroy and Cam Newton and Rihanna and Taylor Swift all had not yet even been born!

Of course, not having Justice Kennedy to figure out does not mean counting SCOTUS votes will necessarily get easier in criminal cases or others.  As I have stressed in prior posts, the Chief Justice and new Justice Gorsuch have been a bit unpredictable on the criminal side of the docket, and I think there could be similarly unpredictability from anyone of the short-listers that Prez Trump has been considering.  Indeed, as we await a name from Prez Trump, I would be eager to hear from readers if they think one or another of the short-listers will be particularly good (or particularly bad) on criminal cases.

I am about to head off-line for the afternoon, but I expect to blog some late tonight about whp Prez Trump taps and his or her record on criminal justice issues.  As of 3:15pm EDT, I am still expecting Judge Kavanaugh to be the pick.  But I suppose I will not be too surprised if Prez Trump surprises us tonight.

Prior posts on Justice Kennedy's retirement and the possible impact of his replacement:

July 9, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Top DC court holds that threat of deportation, combined with jail time, sufficient to trigger Sixth Amendment right to jury trial

With the excitement of the ending of the SCOTUS Term and a new opening on the Court, I failed to blog about a fascinating opinion handed down District Of Columbia Court of Appeals late last month. The start of the majority opinion in Jean-Baptiste Bado v. US, No. 12-Cm-1509 (DC Ct.App. June 21, 2018) (available here), sets out the essentials effectively:

Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment.  The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days.  By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed ― "serious" and jury-demandable.  We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. T he conviction is reversed and the case remanded for a jury trial. 

In addition to an extended majority opinion, Bado also brings two concurring opinions that work through the rationale for and implications of the consequence of removal serving to trigger the Sixth Amendment jury trial right.  And a lead dissent penned by Judge Fisher highlights these implications and concerns:

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the very same offense does. This is a startling result, neither compelled nor justified by Supreme Court precedent.

July 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way

This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:

Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber.  The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.

"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."

The state pushed back against that suggestion.  "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.

But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses.  Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.

Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections.  The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.

Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time.  But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.

Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs.  Then on June 18, records show the addition of 15 five-gram vials.

In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places.  "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center.  Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.

"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said.  "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."

It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.

July 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Sunday, July 08, 2018

"No more pits of despair. Offenders are still humans."

The title of this post is the headline of this notable Washington Post commentary authored by Michael Gerson. I recommend the whole piece, and here are excerpts:

An administration not known for policy creativity is unlikely to have useful internal policy debates. But in the Trump administration, prison reform is a welcome exception.

This is largely because of the efforts of President Trump’s son-in-law and senior adviser Jared Kushner, who, in common with millions of poor and minority children in America, has had the searing experience of visiting a father in prison. Kushner has displayed considerable passion in recruiting conservatives to the cause of prison reform. He has been opposed by Attorney General Jeff Sessions, who seems stuck in a get-tough-on-crime time warp.

In the context of this disagreement — reflected in the broader conservative movement — the House has passed a worthwhile but watered-down bill called the First Step Act.  This legislation would make changes on the exit side of incarceration — increasing funding for education and job-training programs and allowing inmates to earn credits for early release.  As a result of opposition from Sessions and others, the bill does not focus on the entrance side of incarceration — sentencing reform that would encourage alternatives to imprisonment for less dangerous offenders....

Given that the main deterrent to crime is not the severity of punishment but its certainty, prison and sentencing reforms are designed to provide a broader range of penalties and treatment options to courts, along with greater discretion in employing them. This means that violent criminals get treated differently from nonviolent criminals, who get treated differently from addicts, who get treated differently from the mentally disabled, who get treated differently from parole violators — instead of sweeping them all into (expensive) prison beds.

States have done more than apply a theory. They have demonstrated something practical, hopeful and remarkable. “This renaissance has been led in large part by deep-red Texas,” Trautman and Rizer write, “which, by instituting a series of ‘smart-on-crime’ initiatives in the last decade, accomplished a feat previously believed to be impossible: the simultaneous reduction of its crime, recidivism and incarceration rates.” While the crime rate index fell by 20 percent nationally from 2007 to 2014, it fell by 26 percent in Texas. The state, meanwhile, closed eight prisons....

One of the reasons this good idea should succeed in Washington is to demonstrate that any good idea can succeed in Washington. Two other scholars, Steven Teles and David Dagan, have called prison and sentencing reform an example of “trans-partisanship,” which they define as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals look at mass incarceration and see structural racism. Libertarians see the denial of civil liberties. Fiscal conservatives see wasted resources. Religious activists see inhumane conditions and damaged lives.

All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair. 

July 8, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Saturday, July 07, 2018

Judge Jack Weinstein laments overuse of federal supervised release (and especially its revocation for marijuana use)

As regular readers know, US District Judge Jack Weinstein regularly produces interesting and important sentencing opinions, and his latest effort focuses on supervised release as well as marijuana reform. This New York Times article about this opinion, headlined "Brooklyn Judge Vows Not to Send People Back to Prison for Smoking Marijuana," starts with this accounting of the effort:

Noting that marijuana has become increasingly accepted by society, a federal judge in Brooklyn made an unusual promise on Thursday: He pledged he would no longer reimprison people simply for smoking pot.

In a written opinion that was part legal document, part mea culpa, the judge, Jack B. Weinstein, 96, acknowledged that for too long, he had been sending people sentenced to supervised release back into custody for smoking pot even though the drug has been legalized by many states and some cities, like New York, have recently decided not to arrest those who use it. Under supervised release, inmates are freed after finishing their prison time, but are monitored by probation officers.

“Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

The full 42-page opinion in US v. Trotter, No. 15-CR-382 (E.D.N.Y. July 5, 2018) (available here), is an interesting read and important for lot of reasons beyond the connections of criminal justice supervision and marijuana reform.  This first part of the introduction provides a taste for all the full opinion covers:

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release?  Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some.  As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

July 7, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Friday, July 06, 2018

The American Conservative explains "Where the Right Went Wrong on Criminal Justice"

JulyAugustArthur Rizer and Lars Trautman from the R Street Institute have this remarkable new commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Long-time readers are surely aware of my long-enduring contention that a lot of conservative ideology and rhetoric would seem to push toward advocacy for sentencing and other criminal justice reforms, and thus I really enjoyed this full lengthy piece (which, according the editors, is "the first in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform). I recommend the piece in full, and here is just a small snippet:

When it comes to criminal justice, the Republicans have for decades declared themselves to be the party of “law and order.” This commitment to “tough on crime” policies helped it win elections in the latter half of the 20th century, but at the cost of a society in which a third of working-age Americans have criminal records and more than 10 million people go to jail each year. The fact that the United States, with nearly 2.2 million Americans behind bars, incarcerates more of its citizens than any other nation is not a point of pride. This shameful position is put in even starker relief when one considers that the nations with the second and third highest number of incarcerated individuals are China and Russia, respectively.

These realities, products of the “lock ’em up and throw away the key” sensibility of yesteryear, have tarnished the image of Republicans and conservatives in the minds of many. Though Republicans have greatly increased their political power in recent elections, they have nevertheless alienated many of the fastest growing segments of the electorate, casting a pall across the impressive electoral successes of the past decade.

The extension of conservative principles to criminal justice policies offers a chance to court new constituencies and bring conservative messages to voting blocs that will dominate American politics in the future, all without risking the current base of conservative support. Already, right-leaning organizations, armed with polling data that show significant backing from many conservatives, are mobilizing on criminal justice issues. It’s time to leverage these efforts to rebuild the conservative identity. Perhaps no other policy area holds more potential than criminal justice reform....

The inherent dignity of every human life is another tenet of the Republican Party that lives on in the conservative movement today.  However, it is also an issue that permeates too few aspects of the criminal justice system.  From abhorrent prison conditions to the stigmatization of the formerly incarcerated to the negative public safety implications of ill-conceived criminal justice policies, there is no shortage of ways in which the justice system cheapens life.  Efforts to alleviate these various forms of suffering and protect our communities offer conservatives another path to better defend the intrinsic worth of every human life.

Given the Christian Right’s prominence within modern conservatism, it seems prudent to at least consider how current criminal justice policies compare to Christian values. While conservatives certainly do not hold dominion over Christian values, Christians represent a substantial portion of the conservative base.  Further, Christian interest groups hold special power within the conservative movement, with many, particularly on the Left, being wary of how this influence might be used.

Maybe the most obvious lesson is from Christ himself — a criminal in the eyes of the state, subject to a miscarriage of justice by an imperfect criminal justice system. Beyond the despicable treatment of Christ, however, are the lessons he gave on how those accused and those guilty of crimes should be treated.  He recognized the “legality” of stoning an adulteress but nonetheless shamed the crowd by asking for the one who had not sinned to “cast the first stone.”  This is an important lesson for conservatives—that the legality of punishment should not be the end of the inquiry of what is just.

While the Bible certainly has examples of harsh punishments, it’s important to note that throughout his life Christ spoke persistently and passionately about reconciliation over retribution.  He famously told his followers: “You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, do not resist one who is evil.  But if anyone strikes you on the right cheek, turn to him the other also.”

Criminal justice reform offers conservatives an opportunity to secure a more favorable image by returning to their roots and acting in concert with principles that most of them already hold.

The examination of principles and morality helps to answer “why” criminal justice reform nestles into a renewed conservative identity, but this does little to detail how such reforms will sustain this identity and propel it forward.  For these answers, it’s necessary to look at the problems that afflict each stage of the criminal justice cycle and how conservatives can reap political rewards from remedial action.  With the preamble of the Republican Party platform touting “limited government” and the “rights of the people” as bedrock principles, there is perhaps no better place to begin than pretrial jail reform.  Of the roughly 615,000 individuals held in our local jails at this very moment, around 465,000 are awaiting trial and have yet to be convicted of whatever crime has been alleged.  Too often, these incarcerated individuals are not the most dangerous, but the poorest—those unable to afford bond. Further, the incarcerated are hardly the only ones to suffer from this loss of freedom.  Even a short stay in jail raises the risk of criminal behavior after an individual’s release, meaning that unnecessary jailing is a public safety matter of concern to all.  We also pay dearly when we lock up so many of our fellow Americans, with the price tag of a single day in jail as high as $571.27 in some jurisdictions.

July 6, 2018 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

Notable District Judge struggles against mandatory minimums, especially stacked gun charges

This new Politico article, headlined "Manafort judge emerges as skeptic of long mandatory minimum sentences," reports on a notable federal judge expressing notable concerns with mandatory minimums.  Here are excerpts:

The judge overseeing former Trump campaign chairman Paul Manafort's looming trial on tax and bank fraud charges is known as a tough jurist, often snapping at attorneys for ignoring his directions and rebuking defendants he views as insufficiently contrite.  But, in recent years, U.S. District Judge T.S. Ellis has begun to direct his public ire at an unusual target for a Reagan-appointed judge: laws that impose lengthy mandatory minimum sentences judges have no authority to waive or reduce.

Ellis has complained directly to Congress about what he's called the "excessive" sentences required for some offenders. He's also publicly lamented the situation, as he did recently during a drug dealer's sentencing that took place in an Alexandria, Virginia courtroom packed with national media, high-powered prosecutors and others awaiting a key hearing in the case against Manafort.

"This situation presents me with something I have no discretion to change and the only thing I can do is express my displeasure," Ellis said last week as he sentenced Frederick Turner, 37, to a mandatory minimum of 40 years in prison for dealing methamphetamine.  "I chafe a bit at that, but I follow the law. If I thought it was blatantly immoral, I'd have to resign. It's wrong, but not immoral."  Ellis told Turner's lawyer that any relief for his client lies with Congress. "I think you're knocking on the wrong door for a remedy. The remedy is across the river," the judge said.

However, in another case, the 78-year-old judge is going even further.  In April, confronted by a 28-year-old armed robbery convict facing a mandatory minimum 82-year sentence, Ellis' frustration grew so intense that he balked at imposing what he called a "very severe" sentence.  Instead, the judge recruited a high-powered law firm to scour the law in search of some way to avoid imposing what is effectively a life sentence on Lamont Gaines, who was convicted of a string of robberies of 7-11 stores and a check-cashing business.

The judge appointed Daniel Suleiman, a former aide to Attorney General Eric Holder, to come up with any argument that might help Gaines win a more lenient sentence. Suleiman, a partner at Covington & Burling, set on one possibility: a Supreme Court ruling in April that invalidated a law very similar to the one requiring the lengthy sentence for Gaines.  In a brief filed last month, Suleiman argued that the April decision has "direct application" to Gaines' case and "would permit this Court not to sentence Gaines to 82 years."

Federal prosecutors rejected that argument last week, insisting that the 82-year sentence is still required in the case. Assistant U.S. Attorneys Alexander Blanchard and Rebeca Bellows filed a brief urging Ellis to consider Gaines "real-world conduct" and reminding the judge that the defendant "endangered...victims' lives and instilled them with the fear they would be physically harmed."  Ellis has yet to signal whether he'll buy into the new argument to cut down the potential sentence in Gaines' case.

Ellis' current preoccupation with federal sentencing laws is not that the mandatory minimums for specific crimes are too harsh, but that in cases involving multiple charges the result can be unjust, resulting in decades of extra incarceration for a defendant who chooses to go to trial rather than plead guilty.  While prosecutors often settle for a guilty plea to a single serious charge, carrying, say, a 10-year minimum sentence, the government will pursue several such charges when a defendant goes to trial.  Federal law typically requires that sentences for crimes involving use of a gun run consecutively, a phenomenon often referred to as "stacking."...

In 2015, Ellis wrote to Congress about the "stacking" practice, calling it "grossly excessive and unjust." He said the law was supposed to cover felons who re-offended after leaving prison, but is being applied to those "who never had the chance to learn a lesson from the sentence imposed for the first conviction."

While efforts have been underway in Congress for years to ratchet back some of the mandatory sentences, the Trump administration's policy on the issue has been confusing. White House officials, including President Donald Trump's son-in-law and senior adviser Jared Kushner, have shown interest in criminal justice reform proposals.  However, Attorney General Jeff Sessions sent a letter to the Senate in February slamming a bipartisan bill that would limit the application of mandatory minimum sentences, including by reining in "stacking" of charges.  Sessions said the measure was ill-advised at a time when the U.S. is struggling with an epidemic of opioid abuse and deaths....

Back in 2015, though, Sessions said he believed changes to "stacking" were called for.  "I think the stacking issue is a problem....I would support reform on the stacking provisions," the Alabama senator said at a Judiciary Committee session on a similar reform bill that never passed....

Criminal justice reform advocates say Congress needs to step in and that laments like the one from Ellis last week underscore the urgency of the issue.  "The federal gun stacking law isn’t tough. It’s stupid. It’s irrational.  That’s why even conservative judges like Judge Ellis are urging Congress to fix it," said Kevin Ring of Families Against Mandatory Minimums. "It's a no-brainer."

July 6, 2018 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

The latest SCOTUS nomination betting odds

Predictit1I am always intrigued by betting markets, and I suppose these markets have become more of a Supreme Court story in the wake of the Court's work earlier this Term in Murphy v. National Collegiate Athletic Association to allow states to move forward with sports betting.  And since I reported here last week on the early betting lines on Prez Trump's pick to replace retiring Justice Anthony Kennedy, I figured I would do this update post featuring this new article from The Action Network with the headline "Updated Odds for Next Supreme Court Justice: Clear Three-Person Race."  Here is some of its content:

Offshore sportsbooks across the market didn’t take long to post odds for Kennedy’s replacement. At Bovada, Brett Kavanaugh opened as the favorite at +175. Kavanaugh is a former White House lawyer for George W. Bush who was confirmed to the U.S. Court of Appeals in Washington in 2006....

[E]arly sharp action came down on Amy Coney Barrett, a 46-year-old Notre Dame Law School alum and staunch pro-life advocate. Barrett was nominated by Trump to the U.S. Court of Appeals for the Seventh Circuit and confirmed in 2017. Since opening, her odds moved from +450 to +155. She is now the favorite.

Kavanaugh dipped from +175 to +275, but late sharp money has brought him back to +180, putting him a relative dead-heat with Barrett.

Right on their heels is Kethledge. Over the past week, he’s quietly surged from +1000 to +350, giving him the third-best odds.

Other notable movement: Larsen has improved from +1500 to +800, keeping her in striking distance. Thapar has dipped from +500 to +900. Hardiman has fallen like a rock from +350 to +1200.

At one point it looked like Mike Lee (+1500 to +900) was on the rise, but he’s since fallen back to +2000. Pryor, Grant, Willett, Clement and Sykes have all ballooned to +5000, so you can likely cross them off the list....

Interesting to note: Trump said he wants to nominate someone to serve 40 to 45 years, which means he’s targeting a younger justice. And he’s also considering two women. Current ages of the top five candidates: Barrett 46, Kavanaugh 53, Kethledge 51, Larsen 49, Thapar 49.

At the political betting side PredictIt, Kavanaugh is the clear favorite as of July 5th. Barrett has been falling. Kethledge is an interesting value play. He’s the second most traded candidate and currently sits at +350 at Bovada.

Is Kavanaugh the play? Are you still backing Barrett even though she’s falling at PredictIt? Is Kethledge the dark horse? Is Larsen an under-the-radar value pick? Are there any other candidates being overlooked?

In my prior post, I suggested that Amy Coney Barrett at +450 and Amul Thapar at +500 would be good value plays. But a bet on Judge Barrett is now not such a good payoff, while Judge Thapar seems to me now an even better bet (though I think the "smart" money should still be on Kavanaugh).

Once we find out whom Prez Trump taps, I will turn from guessing about his selection to guessing about how his selection might approach sentencing and other criminal justices issues on the Supreme Court.  But, as always, I welcome early reader input on which of the possibilities might be seen as the most or least likely to follow Justice Kennedy's (unpredictable?) path on criminal justice issues.

Prior posts on Justice Kennedy's retirement and the possible impact of his replacement:

July 6, 2018 in Who Sentences? | Permalink | Comments (3)

Thursday, July 05, 2018

Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot

As reported in this local Ohio article, supporters of "a proposal to reduce penalties for nonviolent drug crime offenders submitted hundreds of thousands of signatures on Wednesday to put the measure on the November ballot." Here is more about the remarkable initiative that seems likely to generate some interesting debate in the midst of a big election year in Ohio:

The "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment is backed by a bipartisan coalition of community, law enforcement, faith and business leaders and groups. The Ohio Safe and Healthy Communities Campaign submitted 730,031 signatures Wednesday; 305,591 valid signatures of Ohio registered voters are needed to qualify for the ballot....

Under the drug treatment and rehabilitation amendment:

  • Possessing, obtaining or using a drug or drug paraphernalia would be a misdemeanor offense, with a maximum punishment of 180 days in jail and $1,000 fine. First and second offenses within a two-year period could only be punished with probation.
  • Convicted individuals could receive a half day credit against their sentence for each day or rehabilitative work or programming, up to 25 percent of the total sentence.
  • Individuals on probation for a felony offense would not be sent to prison for non-violent violations of that probation.
  • Individuals convicted of such crimes could petition a court to reclassify the offense as a misdemeanor, which could result in their release from prison.

The provisions would not apply to convictions for the sale, distribution or trafficking of drugs or to convictions for any drug offense that, based on volume or weight, are a first-, second- or third-degree felony.

Money saved from those affected by the amendment would be diverted to substance abuse programs (70 percent) and to crime victims services (30 percent.)

Among the many remarkable elements of the ballot initiative, which can be read in full at this link, is that it proposes a state constitutional amendment; voter approval would make it nearly impossible for the Ohio General Assembly to alter the amendment's terms without another initiative vote.  Here is how the summary of the amendment explains its goals at the outset:

This Amendment would add a new section 12 to Article XV of the Ohio Constitution to reduce the number of people in state prison for low-level, nonviolent drug possession or drug use offenses or for non-criminal probation violations and by providing sentence credits for participation in rehabilitative programs and to direct the savings achieved by such reductions in incarceration to drug treatment programs and other purposes.

I have already heard a few folks express support for the initiatives substantive goals but concerns about amending the Ohio Constitution to achieve those goals. Interesting times.

July 5, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Police, Race, and the Production of Capital Homicides"

The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:

Racial disparities in capital punishment have been well documented for decades.  Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death.  Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims.  These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.

This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police.  It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims.  We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place.  Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities.  Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.

July 5, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

"Strong safety net is crucial to Americans in life after prison"

The title of this post is the headline of this recent commentary in The Hill authored by Bruce Western. Here are excerpts:

The House recently voted to significantly cut the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, which helps fight hunger in America.  New work requirements have gained the most attention, but the House bill also includes lifetime bans for people with prior convictions for several kinds of violent crimes.  People with violent convictions keep their food stamp eligibility under the bipartisan Senate bill, setting up a showdown in the conference committee.  Cutting benefits for people with criminal convictions is a particularly mean display of “tough on crime” credentials and makes little sense as public policy.

In a study I directed at Harvard, a research team followed 122 men and women from Boston over the year after their release from prison.  Unlike many other states, Massachusetts allows people with criminal convictions to receive SNAP benefits.  The study found this was essential for income support and social integration immediately after release from prison.

Income right after incarceration is very low.  In the study, the median annual income was about $6,500.  This is about half the federal poverty line for people living alone, an income level that researchers call deep poverty....  Our respondents usually contributed their SNAP benefits to the household food budget if they were living with family or were required to turn over their benefits to a common pool if they lived in a shelter or a sober house.  Supporters of the House bill think people should work for SNAP benefits, but we found that the highest rates of SNAP enrollment were among those with disabilities that limited work.  Respondents with histories of mental illness and drug addiction were also more likely to be receiving SNAP than others. Former prisoners who were older, over age 45, or suffered from chronic pain were also more likely to be receiving SNAP benefits.

We also found little evidence that SNAP benefits deterred from people from working.  SNAP recipients were no more likely to be unemployed once age and health status were accounted for in the study.  Massachusetts has relatively good safety net programs, and these made a significant difference for the men and women leaving prison in Boston.

Besides receiving SNAP benefits, nearly everyone we interviewed in the study was enrolled in Medicaid either just before they were released from prison or a few weeks later. Medicaid was critical for ensuring continuity of medical care for the many people leaving prison with chronic conditions in immediate need of medication....  A year after release from prison, the rate of SNAP enrollment in the study had fallen to 40 percent from its peak at two months of 70 percent.  SNAP provided critical support that helped stabilize life after incarceration and allowed those who were able to move into the labor market to find work. The Massachusetts safety net was one of the real success stories of the study....

As Congress considers the final bill for SNAP funding, lawmakers should take account of the research evidence. A strong safety net is indispensable for helping people find their way back in life after incarceration and is one of the best reentry programs of all.

July 5, 2018 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Wednesday, July 04, 2018

Hey Prez Trump, how about honoring Independence Day by using your clemency power to give some more Americans more liberty?

It is now been nearly a month since Prez Donald Trump commuted the life sentence of Alice Johnson at the behest of Kim Kardashian West (basics here).  Immediately thereafter, there were reports here of "a growing list of potential pardons or commutations under consideration by President Donald Trump" and Prez Trump himself said: "We have 3,000 names.  We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly."  A week later it was reported Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn't do" and reported that Mrs. West had "assembled a large legal team and was pursuing clemency for several other nonviolent offenders."  And, as posts here and here highlighted, plenty of folks have been taking up the President's call to put forward worthy clemency candidates.

I have been more than a bit worried that all the buzz about all sorts of clemency action may be a lot of talk that may not be followed by a lot of action.  But, as the title of this post is meant to suggest, I think Independence Day — when we celebrate a great document that starts by stressing the "unalienable Rights [of] Life, Liberty and the pursuit of Happiness" — would be a fitting day for Prez Trump to help, through grants of clemency, at least a few more persons enjoy "Life, Liberty and the pursuit of Happiness."  

I am not yet going to get cynical about Prez Trump's clemency chatter because I am eager to hold out hope that he might have a desire to best Prez Obama's record-setting clemency numbers. But, as regular readers know, I am ever eager to criticize leaders who "talk the talk" but then fail to "walk the walk."  Today strikes me as a great time for the bold clemency walk to get started.

A few of many recent related posts about recent Trumpian clemency activity:

July 4, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (3)

Tuesday, July 03, 2018

Reviewing Justice Kennedy’s contributions to sentencing and corrections reform (in the form of a special FSR issue)

The University of California Press Blog has this new posting titled "Justice Kennedy’s Contributions to Sentencing and Corrections Reform: An Appreciation."  The piece is authored by Margaret Colgate Love, and here are extended excerpts:

In 2003, Justice Anthony Kennedy made a dramatic and surprising presentation to the American Bar Association’s Annual Meeting in San Francisco in which he raised fundamental questions about the fairness and efficacy of criminal punishment in the United States.  He recognized that arrests and highly publicized trials often command public attention, but that interest drops off sharply even among lawyers after a person has been convicted and sentenced.  He challenged the legal profession to consider what happens after “the door is locked against the prisoner,” remarking that “[e]ven those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections.”

Justice Kennedy lamented the sheer number of people in prison, the severity of mandatory punishments, and their disproportionate impact on racial minorities. He urged greater judicial discretion in sentencing, and he also called for reinvigoration of the pardon power.  Perhaps most significantly, he spoke in compelling terms about the dehumanizing experience of prison and the importance of rehabilitation as a punishment goal.  He ended by asking the ABA to “help start a new public discussion” about the American way of punishment. Incoming ABA President Dennis Archer moved quickly to begin that discussion by establishing a commission to which Justice Kennedy subsequently agreed to lend his name....

In 2008, the ABA commission to which Justice Kennedy had originally lent his name convened a Roundtable in Washington to discuss mechanisms that permit reduction of a court-imposed sentence.  These mechanisms are sometimes collectively referred to as “second look” provisions, a term that originated in the American Law Institute’s project to revise the sentencing articles of the Model Penal Code.  It includes not only rules that authorize reduction of a specific prisoner’s term, such as executive clemency, but also provisions available on a more routine basis to all or most similarly situated prisoners, such as parole or good time.

Foreseeing the importance of a thoughtful and interactive discussion of sentence reduction mechanisms, the ABA invited an extraordinary group of judges, practitioners, and academics to give these mechanisms a serious look. The Roundtable format involved a brief presentation of papers followed by discussion by Roundtable participants moderated by Jeremy Travis, then president of John Jay College.  Justice Kennedy himself joined the Roundtable for part of its afternoon session.  The papers prepared for the occasion, as well as a record of the Roundtable proceedings and recommendations, were published in the spring of 2009 in a dedicated issue of the Federal Sentencing Reporter.

In appreciation for the role Justice Kennedy has played in inspiring public discussion of sentencing and corrections reform, FSR is proud to make available to the public the articles and proceedings from that 2009 symposium issue on the “Second Look Roundtable,” on the occasion of his retirement from the Supreme Court.

A few prior posts on Justice Kennedy's sentencing jurisprudence:

July 3, 2018 in Who Sentences? | Permalink | Comments (0)

Two interesting takes on the Catholic faith and criminal justice by two persons newly prominently in political discourse

Images (13)Long-time readers know I have long been interested in this various connections between various religious faiths and various criminal justice issues.  Thus, I found quite interesting this recent commentary by the newest "star" in Democratic political circles, Alexandria Ocasio-Cortez.  (As most readers likely know, Ocasio-Cortez defeated in a recent primary a senior congressional representative and is now the Democratic nominee in New York's 14th congressional district.) This commentary is in thee Jesuit publication America, and the piece is headlined "Alexandria Ocasio-Cortez on her Catholic faith and the urgency of a criminal justice reform," here is how it ends:

Discussions of reforming our criminal justice system demand us to ask philosophical and moral questions. What should be the ultimate goal of sentencing and incarceration?  Is it punishment?  Rehabilitation?  Forgiveness? 

For Catholics, these questions tie directly to the heart of our faith.

Solutions are already beginning to take shape, which include unraveling the War on Drugs, reconsidering mandatory minimum sentencing and embracing a growing private prison abolition movement that urges us to reconsider the levels at which the United States pursues mass incarceration.  No matter where these proposals take us, we should pursue such conversations with an openness to change and an aim to rehabilitate our brothers and sisters wherever possible and wherever necessary.

By nature, a society that forgives and rehabilitates its people is a society that forgives and transforms itself.  That takes a radical kind of love, a secret of which is given in the Lord’s Prayer: Forgive us our trespasses, as we forgive those who trespass against us.

And let us not forget the guiding principle of “the least among us” found in Matthew: that we are compelled to care for the hungry, thirsty, homeless, naked, sick and, yes — the imprisoned.

As I was thinking about posting this Ocasio-Cortez commentary on the intersection of Catholic faith and criminal justice, a helpful reader reminded me that another newly prominent person in political (and legal) circles has spoken interestingly about these intersections.  Specifically, SCOTUS short-lister Judge Amy Coney Barrett co-wrote an interesting article back in 1998, titled Catholic Judges in Capital Cases, which explores whether and how Catholic judges can and should be involved in enforcing the death penalty as members of the judiciary.  That article runs 48 pages and has so much nuance that it merits a full read by all.  But its essentials can be reasonably captured with quotes from  part of the introduction and the full conclusion:

Amy-barrett-faith-attack[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death. Whether they may affirm lower court orders of either kind is a question we have the most difficulty in resolving. There are parts of capital cases in which we think orthodox Catholic judges may participate - these include trial on the issue of guilt and collateral review of capital convictions. The moral impossibility of enforcing capital punishment in the first two or three cases (sentencing, enforcing jury recommendations, affirming) is a sufficient reason for recusal under federal law. But mere identification of a judge as Catholic is not a sufficient reason. Indeed, it is constitutionally insufficient....

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot-nor should they try to-align our legal system with the Church's moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church's standard. Perhaps their good example will have some effect.

July 3, 2018 in Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (9)

Monday, July 02, 2018

US Sentencing Commission releases mid-FY 2018 sentencing data with re-engineered accounting of departures and variances

US Sentencing Commission has now released here its latest quarterly data report, and this one "contains preliminary quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2018" (which is the period from October 1, 2017, through March 31, 2018).  I do not believe the USSC released first quarter FY 2018 data, so this new report seems to be the first big data report of the "post-Sessions Memo era" -- i.e., since AG Jeff Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to pursue those offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences, and to more regularly seek within-guideline sentences.

From a quick glance and comparing this data from the last full year of sentencing data from the Obama Administration (in this FY 2016 data report), there does seem to be a noticeable uptick in mean sentences in some big crime categories.  For example (drawing from Table 6 in both data runs): the mean drug trafficking sentence was 75 months in the first half of FY 2018, the mean in FY 2016 was only 66 months; the mean fraud sentence was 27 months in the first half of FY 2018, the mean in FY 2016 was only 25 months.  But, interestingly, in other big crime categories there was a downtick in mean sentences: the mean firearm sentence was 70 months in the first half of FY 2018, the mean in FY 2016 was 75 months; the mean immigration sentence was 11 months in the first half of FY 2018, the mean in FY 2016 was 13 months.  Putt this all together with other less common offenses, and it turns out the cumulative mean federal sentence for the first half of FY 2018 was 45 months, the exact same mean for all federal sentences in FY 2016.

I would report some similar comparable data on departures and variances, but the USSC in this data run has significant altered how it accounts and reports this data.  Here is part of the USSC's explanation of its new accounting:

Beginning with this report, the Commission is again updating the way it presents quarterly data.  In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way.  Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances.  The former category comprises all cases in which the sentence imposed was within the applicable guideline range or, if outside the range, where the court indicated that one or more of the departure reasons in the Commission’s Guidelines Manual was a basis for the sentence.  Variance cases are those where the sentence was outside the guideline range (either above or below) and where the court did not cite any guideline reason for the sentence.  Data for important subgroups within these two categories are also reported.

In other words, within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances broken out distinctly.  It seems that all the key data previously reported on Table 8 of past USSC's data reports still appears in Table 8A of the new report.  But, fascinatingly, the new organization showcases now that roughly 3/4 of all sentences (74.7% to be exact) are "Sentences under the Guidelines Manual" with "variances" now accounting for only 25.3% of the sentences (with 2% being upward variances, 5.5% being "government motion" variances and 17.7% being "non-government" variances). 

Repackaging aside, we can still look at the "within-guideline" number on Table 8 and 8A for direct comparisons on this front between the first half of FY 2018 and all federal sentences in FY 2016.  Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50% in the first half of FY 2018.  Without a more intricate and sophisticated analysis controlling for caseloads and other factors, it is too hard to say there is conclusive evidence that the Sessions Memo is having a real impact on federal sentencing outcome.  But these data are suggestive of trends that seem likely to continue as move cases more through the pipeline and as a new set of federal prosecutors give effect to commands from Main Justice.

July 2, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?

As hard core sentencing fans know, Justice Anthony Kennedy has been a long-standing opponent of the Sixth Amendment jury trial rights that were recognized for defendants in Apprendi v. New Jersey and expanded in Blakely v. Washington.  He was in the dissent in both of those cases, as well as in every subsequent non-capital case that ruling in favor of defendants regarding Sixth Amendment jury trials rights (e.g., BookerCunningham, Southern Union, Alleyne).   In his separate Cunningham dissent, Justice Kennedy lamented "the Court continu[ing] in a wrong and unfortunate direction in the cases following Apprendi v. New Jersey."  But with his impending departure, Justice Kennedy will no longer have any say in the Court's  direction in the cases following Apprendi v. New Jersey.

Critically, because Chief Justice Roberts has been a supporter of some (though not all) expanded applications of the Sixth Amendment as shown through his votes in Cunningham and Southern Union, the Court already has five Justices who have voted for extensions of Apprendi and Blakely in some settings without counting the possible (and likely?) sixth vote of the new Justice Neil Gorsuch.  Since the next new Justice is almost certain to be at least somewhat more supportive of Sixth Amendment jury trial rights than Justice Kennedy has been, it seems to me that coming SCOTUS Terms could well have seven possible votes for extending Apprendi and Blakely jury trial rights in some settings.  (Justice Breyer has never, sadly, really heeded Justice Scalia's advice that he "buy a ticket to Apprendi-land," and Justice Alito does not seem to want to be in any land that gives criminal defendants more rights.)

These issues come to mind in part because of this interesting "Petition of the Day" spotlighted by SCOTUSblog.  The petition was filed by the feds in United States v. Haymond, a case in which the defendant prevailed in the Tenth Circuit on an Apprendi-type claim after the district court revoked a ten-year term of supervised released and imposed five years of reimprisonment following a preponderance of the evidence finding that the defendant violated the conditions of his release by knowingly possessing child pornography.  I am not sure fans of Apprendi and Blakely ought to be actively rooting for this case to be taken up by SCOTUS (in part because it is the feds appealing), but I am sure fans of Apprendi and Blakely should be welcoming a Court in which a new Justice more in the originalist mold of Justices Gorsuch and Scalia and Thomas will be replacing Justice Kennedy.

A few prior posts with thoughts on a post-Justice Kennedy Court:

July 2, 2018 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"The Institutional Design of Punishment"

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

For the past 40 years, policymakers have engaged in a debate over which institution should wield the principal power over punishment.  Should courts and parole boards have the dominant role at sentencing, or should that power be left to legislatures and sentencing commissions?  These debates are typically couched in policy terms, yet they also raise deeply philosophical questions, most notably: What is the morally justified sentencing system?

Perhaps surprisingly, criminal theorists have almost uniformly ignored this normative question, and that neglect has degraded the quality of the on-going institutional debates.  This paper seeks to address that shortcoming by exploring the moral ramifications of design choices in the sentencing field.  In particular, the paper identifies the institutional structure best suited for promoting utilitarianism, a widely-accepted moral theory of punishment.

Drawing insights from cognitive science and institutional analysis, the paper concludes that a properly structured sentencing commission is the institution best able to satisfy the moral theory’s demands.  Beyond this policy prescription, the paper has a broader goal:To start a conversation about the link between moral theory and institutional design, and to encourage policymakers to explore more fully the premises of their own institutional choices in the criminal justice field.

July 2, 2018 in Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (3)

Notable Sixth Circuit panel reverses as procedurally unreasonable big upward variance in cocaine sentence based on opioid overdoses

On Friday, the Sixth Circuit handed down a notable new sentencing opinion in US v. Fleming, No. 17-3954 (6th Cir. June 29, 2018) (available here). The start of the opinion reviews its essentials:

Marcus Fleming was convicted of a cocaine offense, and the United States Sentencing Guidelines provided for a recommended sentence of 60 months’ imprisonment.  At his sentencing hearing, the district court doubled that.  It did so based in large part on a brief local news article that described a recent surge in drug overdose deaths, mostly due to powerful opioids like fentanyl.  Neither this article, nor the underlying Ohio state report on which it was based, was provided to the parties before the start of the sentencing hearing.  Nor was Fleming notified before the hearing that the district court planned to consider the article or the issues it addressed.  Because this procedure denied Fleming a meaningful opportunity to comment on information that led to a substantial increase in his sentence, the resulting sentence was procedurally unreasonable.

Here is small part of the Sixth Circuit panel's analysis:

Here, the district court’s reliance on information about mixed cocaine-opioid overdose deaths in the Cleveland.com article was a surprise, and that surprise was prejudicial to Fleming’s sentencing presentation. Therefore, Fleming’s sentence was rendered in a procedurally unreasonable manner.

The district court’s consideration of information about mixed cocaine-opioid overdose deaths was a surprise because, before the sentencing hearing, there was no indication that opioids were relevant to this case, let alone that they would play a prominent role. Fleming was convicted for possession of cocaine, not opioids.  Nothing in the record suggested that opioids were found in Fleming’s car, or that Fleming had ever sold or possessed opioids, or even that any cocaine Fleming sold had ever been mixed with opioids. Of course, opioids have been a topic of grave public concern in recent years, as their devastating and tragic effects have been felt across the country. But it was far from apparent that they were relevant to Fleming’s sentence for possession of cocaine.

This ruling strikes me as notable or at least two reasons beyond its substantive particulars: (1) one of jurists on Prez Trump's SCOTUS short list, Judge Raymond Kethledge, was one of the judges on this Fleming panel, and (2) this Cleveland.com report highlights that the erroneous sentencing judge has a history of unreasonably long sentences:

An Akron federal judge who has been criticized by a federal appeals court had a sentence reversed again on Friday -- this time because of his reliance on a cleveland.com article....

Adams has been removed from cases a few times in recent years and has been the target of criticism by the 6th Circuit.  Most recently, the appeals court removed him from a case involving two men arrested in Cleveland with more than 200 pounds of cocaine. Both prosecutors and defense attorneys in the case agreed to recommend prison sentences of about three years, but Adams gave them both 10 years and did not give any good reasons for the higher sentences, the 6th Circuit ruled.

July 2, 2018 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, July 01, 2018

With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers

Afa20c10520c365bf6ac550a70c058e6There are lots of important Supreme Court precedents that lots of people will be discussing in the wake of Justice Anthony Kennedy's announced retirement from the Court.  Decisions like Roe v. Wade and Obergefell v. Hodges are, obviously, of great concern to a great many.  But for criminal justice reformers, there is one particular precedent, Harmelin v. Michigan, 501 U.S. 957 (1991), that I think should become a focal point for aggressive advocacy seeking to overrule a lousy Eighth Amendment precedent.

Harmelin, as many know, was the Supreme Court's 1991 fractured decision that rejected an Eighth Amendment challenge to Michigan's imposition of a (1) mandatory (2) life without parole sentence for (3) mere possession of 672 grams of cocaine.  I have numerically labeled the three potent essentials of Harmelin, because each part has worked in modern times to functionally preclude any successful constitutional challenges to just about (1) any mandatory sentencing statutes or (2) any life without parole sentences or (3) any drug possession sentences.  (Thanks to the recent Graham and Miller rulings, some juvenile offenders have some (small) protection against some extreme sentences, but those Eighth Amendment rulings have not been of any help to older offenders.)

As discussed here a few months ago, in a terrific recent First Circuit opinion while denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlighted not only questionable elements of the Harmelin ruling, but also stressed the possible impact of "two lines of Supreme Court precedent that have developed since Harmelin was decided" (referring to Alleyne and Graham/Miller).  Though not quite calling for Harmelin to be overruled, Judge Barron, writing on behalf of the entire First Circuit, makes clear that he is urging SCOTUS to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

The author of the key "three-Justice concurrence in Harmelin" was, of course, Justice Anthony Kennedy, and no other member of the current Court was serving when Harmelin was decided.  So, once Justice Kennedy's replacement is seated, it will be a whole new Court available to reconsider Harmelin without any existing member eager to make the case that Harmelin was right.  Moreover, as the retired Justice Stevens noted in this interesting 2010 speech about Harmelin, Chief Justice Roberts' concurrence in Graham could be read as an indication he might be open to a return to the more defendant-friendly Eighth Amendment approach as set forth in Solem.  And, as noted in this prior post, the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.   We know Justice Thomas does not like the Harmelin precedent, but that is because he does not think the Eighth Amendment limits the length of prison sentences at all.  And Justice Alito seems unlikely to want to expand the reach of the Eighth Amendment (though I have long believed he nearly signed on to Chief Justice Roberts' Graham concurrence).  We do not know who will be replacing Justice Kennedy, so we cannot yet make informed speculations about how he or she might vote on this issue.  But if Prez Trump picks someone in the mold of Justice Gorsuch, that could mean yet another Justice with an open mind on these kinds of issues.

Notably, the Justices have already decided to take up a case concerning the Eighth Amendment for next Term, Timbs v. Indiana.  Though that case only technically concerns "whether the Eighth Amendment's excessive fines clause is incorporated against the states under the Fourteenth Amendment," perhaps Justices engaged already by the topic of possibly excessive financial sanctions might want to give some more thought to possibly excessive prison punishments.  More to my main point, I sincerely think criminal defense lawyers and advocates should be trying regularly and persistently to "litigate against" each of the three potent essentials of Harmelin by arguing against the constitutionality of (1) extreme applications of mandatory sentences and/or (2) extreme applications of life without parole sentences and/or (3) extreme applications of drug possession sentences.  Shrewd arguments for those facing extreme sentences ought to include a claim of unconstitutionality even applying Harmelin, but also be sure to preserve a claim that Harmelin is no longer good law.

I am not confident the Court will be eager to reconsider Harmelin anytime soon, but very slim chances may have gone up just a little with Justice Kennedy's retirement.  And the best and really only chance to get Harmelin before the Court is to keep asking and asking and seeking and seeking and knocking and knocking.

July 1, 2018 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, June 30, 2018

"Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence"

The title of this post is the title of this new paper authored by Tonja Jacobi and Ross Berlin now available via SSRN. Here is the abstract:

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system.  The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system.  These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities.

For each major stage of a person’s interactions with the criminal justice system — search and seizure, plea-bargaining, and sentencing — the Court develops doctrines that protect only a tiny percentage of people.  This is because the Court focuses nearly all of its attention on the small fraction of cases implicating the exclusionary rule, trial rights, and the death penalty, and it ignores the bulk of real-world criminal procedure — searches and seizures that turn up no evidence of crime, plea bargains that occur outside of the courtroom, and the sentencing of convicts for terms of years — leaving constitutional rights unrecognized and constitutional violations unremedied.  Consistently, each issue the Supreme Court neglects has a disparate impact on traditionally disadvantaged racial minorities.  Together, this constitutes an abdication of the Court’s responsibility.

June 30, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, June 29, 2018

A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence

This new HuffPost piece, headlined "Justice Kennedy’s Retirement Is A Setback For Death Row Inmates," provides a quick account of one area of sentencing jurisprudence likely to be impacted considerably by a coming SCOTUS transition. Here are excerpts:

President Donald Trump’s likely choice of a deeply conservative justice to replace Anthony Kennedy on the Supreme Court could have a significant impact on death penalty cases, experts say.

“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”

Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment.  “Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost.  “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”

Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child.  And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional.  The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”...

“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered.  The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.

“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said.  “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”

The final quote by Robert Dunham here rightly flags that Chief Justice Roberts in now likely to be the closest thing to a swing vote in capital cases (and maybe in an array of criminal cases). The Chief has voted along with Justice Kennedy and the liberal justices in more than a few capital cases (see DPIC case list here) as well as one some other criminal justice issues, and his criminal jurisprudence has just become a lot more important to a lot more defendants and their lawyers.

Prior posts on Justice Kennedy's retirement (including one from MLP&R):

June 29, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases notable list of proposed priorities for 2018-19 amendment cycle

6a00d83451574769e201b8d28f7af6970c-320wiThe US Sentencing Commission around this time of year typically releases a set of proposed priorities for the coming year's guideline amendment cycle.   For a bit of context, here are links to posts about its release of priorities for the 2016-17 amendment cycle and for the 2017-18 amendment cycle.   As informed readers may recall,  the USSC is still working with a reduced membership — it is supposed to have seven members and right now has only four — and there seems to be no movement on the controversial slate of additional nominees that Prez Trump put forward in March (basics here and more here).  I suspect the reduced membership might in part account for what this year's list of proposed priorities may be a bit shorter than usual.

But the reduced membership has not prevented the USSC from still producing a set of proposed priorities for 2018-19 amendment cycle that have more than a few interesting elemtns.  Nine total priorities were released yesterday and appear on the USSC website and in this new federal register notice.  Here excepts from the notice that especially caught my eye (with some added emphasis in a few spots):

Pursuant to 28 U.S.C. § 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

As so prefaced, the Commission has identified the following tentative priorities:

(1) Continuation of its multiyear examination of the structure of the guidelines post-Booker and consideration of legislative recommendations or guideline amendments to simplify the guidelines, while promoting proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct.

(2) A multiyear study of synthetic drug offenses committed by organizational defendants, including possible consideration of amendments to Chapter Eight (Sentencing Organizations) to address such offenses.

(3) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2016 report to Congress, Career Offender Sentencing Enhancements, including its recommendations to revise the career offender directive at 28 U.S.C. § 994(h) to focus on offenders who have committed at least one “crime of violence” and to adopt a uniform definition of “crime of violence” applicable to the guidelines and other recidivist statutory provisions.

(4) Continuation of its work with Congress and others to implement the recommendations of the Commission’s 2011 report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c) — and preparation of a series of publications updating the data in the report....

(9) Consideration of other miscellaneous issues, including (A) possible amendments to the commentary of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of Koons v. United States, No. 17-5716 (June 4, 2018); (B) study of the operation of §5H1.6 (Family Ties and Responsibilities (Policy Statement)) with respect to the loss of caretaking or financial support of minors; and (C) study of whether §1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)) effectively encourages the Director of the Bureau of Prisons to file a motion for compassionate release when “extraordinary and compelling reasons” exist.

As the USSC notice highlights, this notice indicates the USSC is "seeking comment on these tentative priorities and on any other issues that interested persons believe the Commission should address during the amendment cycle ending May 1, 2019.  To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority."  Public comments "should be received by the Commission on or before August 10, 2018."

June 29, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, June 28, 2018

Some GVRs, summary reversal of the Ninth Cirucit and Justice Breyer dissenting to contend "the death penalty today lacks requisite reliability"

This lengthy final order list finishing up the current SCOTUS Term has its most exciting news for criminal justice fans from the single line  granting cert in Gamble v. United States so the Justices can reconsider the Double Jeopardy Clause's "dual-sovereignty doctrine" (discussed here).  But the order list also includes a number of GVR cases citing Carpenter and Rosales-Mireles and a number of notable summary reversals and statements concerning the denial of cert.   Of greatest interest to sentencing fans are:

 This per curiam summary reversal of the Ninth Circuit judgment in Sexton v. Beaudreaux, No. 17-1106 (which led to Justice Stephen Breyer dissenting without opinion).  Here is how the lengthy summary reversal starts:

In this case, the United States Court of Appeals for the Ninth Circuit reversed a denial of federal habeas relief, 28 U.S.C. §2254, on the ground that the state court had unreasonably rejected respondent’s claim of ineffective assistance of counsel. The Court of Appeals’ decision ignored well-established principles. It did not consider reasonable grounds that could have supported the state court’s summary decision, and it analyzed respondent’s arguments without any meaningful deference to the state court. Accordingly, the petition for certiorari is granted, and the judgment of the Court of Appeals is reversed.

This dissent from the denial of certiorari in Jordan v. Mississippi authored by Justice Breyer (which did not garner any additional votes).  Here is how his lengthy dissent starts:

In my dissenting opinion in Glossip v. Gross, 576 U.S. ___ (2015), I described how the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability. Id., at ___ (slip op., at 2).  I write to underline the ways in which the two cases currently before us illustrate the first two of these problems and to highlight additional evidence that has accumulated over the past three years suggesting that the death penalty today lacks “requisite reliability.” Id., at ___ (slip op., at 3).

June 28, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

SCOTUS grants cert to reconsider Double Jeopardy Clause's "dual-sovereignty doctrine"

This lengthy final order list finishing up the current SCOTUS Term includes lots of little items that will be of interest to sentencing fans, and one big item that could be really interesting for criminal law.  That big item is a cert grant in Gamble v. United States, which presents only this question: "Whether the Court should overrule the 'separate sovereigns' exception to the Double Jeopardy Clause." Here is how the Gamble cert petition's introduction starts:

The Fifth Amendment enshrines a promise that “No person shall . . . be twice put in jeopardy” “for the same offence.”  Yet Terance Martez Gamble has been subjected to exactly that: two convictions, and two sentences, for the single offense of being a felon in possession of a firearm.  As a result of the duplicative conviction, he must spend three additional years of his life behind bars.  The Double Jeopardy Clause prohibits that result.

The so-called dual-sovereignty doctrine has been around since the 1950s, but both Justices Ginsburg and Thomas have called for giving it another look in light of changed criminal justice realities. I am very excited SCOTUS is now taking up this issue and I will be the first (but surely not the last) to say I hope SCOTUS is willing to Gamble with abolishing the Double Jeopardy Clause's dual-sovereignty doctrine.

June 28, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20)

"Betting Odds for Next Supreme Court Justice: Who Will Replace Anthony Kennedy?"

Especially in light of the Supreme Court's work earlier this Term in Murphy v. National Collegiate Athletic Association to allow states to move forward with sports betting, I could not resist posting this article from The Action Network with the headline that serves as the title for this post. Here is some of its content:

Justice Anthony Kennedy, 81, dropped a political bombshell on Wednesday afternoon, unexpectedly announcing his retirement from the Supreme Court. Kennedy’s retirement, which will take effect on July 31, has massive ramifications on the political landscape. Kennedy was considered the swing vote on the Supreme Court. He was a Republican, but switched sides often to vote with the Democrats, most notably in favor of abortion rights and same-sex marriage.

With Kennedy gone, President Trump gets a second Supreme Court pick. Trump is expected to nominate a staunch conservative in the mold of Neil Gorsuch, whom he tapped in 2017. Republicans will look to fill the seat before midterm elections in the fall....

Pres. Trump says his potential nominee to replace Justice Kennedy will come from a previously released list of 25 names, including judges, retired judges, and a member of Congress.... Offshore sportsbooks across the market didn’t take long to post odds for Kennedy’s replacement.

At Bovada, Brett Kavanaugh opened as the favorite at +175. Kavanaugh is a former White House lawyer for George W. Bush who was confirmed to the U.S. Court of Appeals in Washington in 2006.  Thomas Hardiman, a U.S. Court of Appeals judge for the Third Circuit, is next on the list at +350.  Hardiman was considered a finalist to succeed the late Antonin Scalia in 2016, but lost out to Gorsuch.

If I was inclined to bet on this kind of stuff, I think I would see Amy Coney Barrett at +450 and Amul Thapar at +500 to be good value plays.  But Don Willett at +2500 might be fun and worth a few bucks just for the Twitter fun.

June 28, 2018 in Who Sentences? | Permalink | Comments (1)

Wednesday, June 27, 2018

"The Hidden Law of Plea Bargaining"

the title of this post is the title of this notable new article available via SSRN authored by Andrew Manuel Crespo. Here is its abstract:

The American criminal justice system is a system of pleas.  Few who know it well think it is working.  And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.”  That assumption holds true with respect to substantive and constitutional criminal law — the two most studied bodies of law in the criminal justice system — neither of which significantly regulates prosecutorial power.  The assumption is misguided, however, insofar as it fails to account for a third body of law — the subconstitutional law of criminal procedure—that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed.

These hidden regulatory levers are neither theoretical nor abstract.  Rather, they exist in strikingly varied forms across our pluralist criminal justice system.  This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content.  In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform.

June 27, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Just a few Justice Kennedy sentencing jurisprudence highlights

The fine folks at the Legal Information Institute appear to have all of retiring Justice Anthony Kennedy's Supreme Court opinions assembled at this link.  Here is my quick accounting of just a few of his significant sentencing rulings (in chronological order):

This list includes only lead opinions for the Court (though technically Harmelin is a concurrence), and I am sure I have not listed every opinion that sentencing fans might consider a big part of the Kennedy legacy.  But this abridged list alone showcases what a extraordinarily consequential "Sentencing Justice" that Anthony Kennedy has been during his 30+ years on the Court.  

For a variety of complicated personal reasons, Koon may be my favorite of the opinions on this list and Harmelin is certainly my least favorite.  And I would be eager to hear in the comments about favorites or opinions not mentioned above that are part of the "sentencing footprint" that Justice Kennedy is leaving.

Prior related post:

June 27, 2018 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

After a few years of speculation, Justice Anthony Kennedy has now finally announced his retirement.  This is huge news for all areas of law, and starts another round of speculation about who Prez Trump will name to replace him on the Court.  Here is a USA Today story with some context:

Supreme Court Justice Anthony Kennedy is retiring, giving President Trump and Senate Republicans an opportunity to create a solidly conservative court that could last for decades. Kennedy's long-rumored decision to step down July 31 will touch off a titanic battle between conservatives and liberals in the nation's capital, on the airwaves, and in states represented by key senators whose votes will be needed to confirm his successor.

Kennedy, 81, has held the most important seat on the court for more than a decade: He is the swing vote on issues ranging from abortion and affirmative action to gay rights and capital punishment, often siding with the court’s more liberal justices....

Kennedy’s departure will leave a hole in the middle of the court that Republicans are eager to fill with a more reliable conservative. Trump has said he would choose from a list of 25 potential nominees assembled with the help of the conservative Federalist Society and Heritage Foundation. That list was expanded in November to include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit – a front-runner for the seat who, like Gorsuch, once clerked for Kennedy....

Among the other judges on Trump’s list most often mentioned as potential Kennedy replacements are Thomas Hardiman of Pennsylvania, who serves on the U.S. Court of Appeals for the 3rd Circuit, and Raymond Kethledge of Michigan, who serves on the 6th Circuit.  More intriguing are fresh faces such as newly confirmed federal appeals court judges Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

Kennedy’s ultimate decision to wait until 2018 gave the Supreme Court time to settle into a new pattern with Gorsuch shoring up its right flank. Had he waited until next year, it would have given Democrats a chance to regain the Senate majority this November and block Trump's nominee.  Republicans have a 51-seat majority now, giving them the ability to withstand Democratic opposition.  The traditional 60-vote threshold for high court nominees was abolished last April when Democrats threatened to block Gorsuch’s confirmation, prompting Senate Republican leader Mitch McConnell to push through a rules change allowing justices to be confirmed with simple majority votes.

Still, the upcoming battle over Kennedy’s replacement is certain to be one of the most intense ever, with conservative and liberal interest groups poised to spend tens of millions of dollars in advertising and grass-roots activity. Much of the liberals’ effort likely will focus on moderate GOP senators such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, who might be wary of adding a hard-line conservative and risking decades-old precedents such as Roe v. Wade, which legalized abortion in 1973. Conservatives will focus on moderate Democrats running for re-election in Trump country, such as Indiana's Joe Donnelly, North Dakota's Heidi Heitkamp and West Virginia's Joe Manchin.

That battle is likely to play out over the next few months. Republicans are determined to fill Kennedy’s seat before the court’s 2018 term begins in October, as well as the November elections.

This USA Today piece rightly mentions capital punishment as an area in which Justice Kennedy has often been a swing vote, and that might be expanded to include Eighth Amendment jurisprudence more generally in light of his decisions in Graham and Miller and Montgomery. Justice Kennedy has also tended to be a key fifth vote on non-constitutional issues as well, though he has generally been (along with Justice Breyer) a long-standing opponents to criminal defendants' Sixth Amendment rights as articulated in the Apprendi-Blakely line of cases.

In some coming posts, I will review some of Justice Kennedy's biggest sentencing opinions as well as some of the sentencing history of some of the top candidates to replace him. But for now I will be content to thank Justice Kennedy for his service and to wish him a happy and healthy retirement.

June 27, 2018 in Who Sentences? | Permalink | Comments (0)

Recommending FAMM's great new report "Everywhere and Nowhere: Compassionate Release in the States"

FammFamilies Against Mandatory Minimums (FAMM) now has at this link its big new report on compassionate release programs authored by Mary Price under the title "Everywhere and Nowhere: Compassionate Release in the States."  Here is how the report and related resources are introduced:

“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.

The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.

Here are more links to the resources from this report:

And here is an excerpt from the Executive Summary:

We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure compassionate release.  But we were dismayed to discover that very few prisoners actually receive compassionate release.

This report summarizes our findings. It describes the barriers and the best practices we uncovered and illustrates them with selected examples drawn directly from our research on individual states. Above all, we found that every state could improve compassionate release. Accordingly, this report closes with a set of recommendations for policymakers interested in bringing their state programs in line with best practices.

June 27, 2018 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, June 26, 2018

"For Justice and Decarceration, Enact Second-Look Sentencing"

The title of this post is the headline of this new commentary authored by Steven Zeidman in the Gotham Gazette. Here are excerpts:

Regardless what one thinks of presidential pardons, we should reflect upon a simple truth — convictions and sentences meted out at one point might not be appropriate decades later.  That is especially true for many people currently serving life or massive prison sentences.

Many have argued for sentence commutations for specific classifications of people. In recent years, the Supreme Court has recognized that judges sentencing young people, even for violent crimes, must consider lack of maturity, impulsivity, and the inherent potential for change, and so reformers are asking courts to resentence those serving long prison terms for crimes committed when they were young. Many people advocate for medical parole or compassionate release for the elderly and infirm.  Others focus on people deemed to be low-level, non-violent drug offenders.

At the heart of the problem, however, are all the people serving draconian sentences for crimes committed when they were adults and who are not, at least not yet, suffering from any debilitating illness or in any other “special” category. In fact, it is the “normalcy” of so many cases that highlights the issue we must confront....

Last year, the venerable American Law Institute, a non-governmental organization of judges, lawyers and academics, approved the first-ever revisions to the historic Model Penal Code.  The MPC, taught in virtually every law school, was developed in 1962 to introduce uniformity and coherence to the myriad criminal codes in the 50 states, and serves as a model across the country.  The update to the Code took more than 15 years to complete and yielded a comprehensive 700-page report.

The ALI focused specifically on sentencing in order to address the decades of punitiveness that led to the current state of mass incarceration, made all the more shameful by the significant racial disparities in American jails and prisons. One recommendation in particular addresses the epidemic of 2.2 million people behind bars. The Code now calls for state legislatures to enact a “second look” provision; to create a mechanism to reexamine a person’s sentence after 15 years no matter the crime of conviction or how long the original sentence. If the original sentence remains unchanged, it would be revisited every ten years thereafter.

While many will sound the alarm for “truth-in-sentencing” or the need for finality, the second-look provision asks a very basic question — are the purposes of sentencing better served by a sentence modification or by adhering to the original sentence imposed many years earlier? The commentary to the Code cites a host of utilitarian reasons why long sentences should not be frozen in time, suggesting that “governments should be especially cautious” and act with “a profound sense of humility” when depriving people of their freedom for most of their adult lives.

The commentary notes further that new developments might show that old sentences are no longer empirically valid, as current risk assessment methods claim to be better at predicting risk of recidivism than those previously used. Similarly, new rehabilitative approaches might be discovered for people who at the time of their sentencing were thought resistant to change.

The second-look provision is bold and unprecedented — to actually redress the past 50 years of mass incarceration requires nothing less, as most proposed criminal justice solutions and reforms are prospective and have no impact on those people currently in prison. Further, executive clemency in the form of sentence commutation has also proven to be of limited utility as Presidents and Governors are loath to exercise this power to any serious and meaningful degree.

Second-look allows for mid-course correction if warranted by some measure of changed circumstances -- major changes in the offender, his family situation, the crime victim, or the community — that merit a different sentence.  It is consistent with the growth of restorative justice that seeks to move away from the punishment paradigm of the last several decades.  Second-look also allows the sentencing determination to be made in a calmer atmosphere than existed at the time of the original sentencing, so that any notoriety, outside pressure, or inflamed passions may have abated.

Bills have been introduced in the New York State Legislature regarding parole eligibility for people who are least 55 years old and have served at least 15 years of their sentence, and while the devil may be in the details, they are not insurmountable.  There will be costs associated with establishing second-look processes but money will ultimately be saved as more people are sent home.  Releasing people from prison is often controversial and even one crime committed by a releasee can threaten to shut down any second-look process, so there must be carefully constructed guidelines, created by myriad stakeholders, to ensure the independence of the decision-makers, and that all decisions are consistent, defensible, and transparent.

Mass incarceration is not just about unnecessarily incarcerating masses of people.  It is about unnecessarily keeping masses of people in prison for decades.  A sentence once imposed is not thereby automatically rendered, just, fair and appropriate in perpetuity.  Ultimately, second-look mechanisms are meant to recognize and value the possibility of change and transformation, and to intervene when drastically long sentences are indefensible.

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am a fan of this commentary even though it does not fully engage with the reality that second-look provisions in the new MPC are only critical because of the MPC's advocacy for abolishing parole mechanisms. Parole mechanisms (as well as robust use of clemency powers) served for the bulk of the 20th Century to help address many of the problems identified in this commentary. That said, I would favor a world with both a well-structured parole mechanism and second-look sentence provisions so that both the executive branch (via parole) and the judicial branch (via resentencings) can and will review the propriety and necessity of a sentence over time.

I have written about a number of second-look concerns and related issues in a a number of article through the years, and here is just a sampling of these writings:

June 26, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)