Friday, June 22, 2018

"Gideon Incarcerated: Access to Counsel in Pre-Trial Detention"

The title of this post is the title of this new article authored by Johanna Kalb now available via SSRN.  Here is the abstract:

As the population of incarcerated persons has swelled in local, state, and federal facilities around the country, the infrastructure supporting the attorney-client relationship is under increasing stress.  The result is an array of new cases about the difficulties of lawyering in jails and prisons.  These cases challenge the lack of private space for legal visits, reductions in visiting hours, remote carceral placements, interference with legal mail, and monitoring of legal phone calls and legal email.  Despite (or perhaps because of) these mounting challenges, many courts have become less receptive to Sixth Amendment claims from people behind bars, putting the right to counsel at risk.

This Article traces the hidden ways in which mass incarceration has worked to degrade the right to counsel, both in fact and in law, for incarcerated criminal defendants.  It then proposes possibilities for reinvigorating the Sixth Amendment’s protections for incarcerated defendants, through intersecting strategies for regulation and structural litigation, with the ultimate goal of breaking our national reliance on pretrial detention.  Building on a 50-state survey of the jail standards governing the attorney-client relationship, the Article illustrates how the Sixth Amendment’s protections are currently understood by those who must facilitate them, and then proposes a new litigation strategy to catalyze reform.

June 22, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

SCOTUS rules 5-4 to extend Fourth Amendment protections to cell-site records in Carpenter

The Supreme Court this morning handed down the biggest criminal case of its concluding Term, Carpenter v. US, No. 16-402 (S. Ct. June 22, 2018) (available here). Though I will leave it to Fourth Amendment experts to unpack the majority opinion (authored by Chief Justice Roberts and joined by all the more liberal Justices) and all the separate dissenting opinions (there are four), my first-cut sense is that this is a "big but narrow" win for criminal defendants and privacy advocates.  Here are a few key passages from the majority opinion leading me to that conclusion:

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.  The location information obtained from Carpenter’s wireless carriers was the product of a search....

We therefore decline to extend Smith and Miller to the collection of CSLI.  Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

* * *

Our decision today is a narrow one.  We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).  We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.  Nor do we address other business records that might incidentally reveal location information.  Further, our opinion does not consider other collection techniques involving foreign affairs or national security.  As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”  Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944).

June 22, 2018 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (3)

SCOTUS rules 5-4 against finding Double Jeopardy Clause limits prosecutors over severed trials

The Supreme Court this morning handed down Currier v. Virginia, No. 16-1358 (S. Ct. June 22, 2018) (available here), dealing with the reach of the Double Jeopardy Clause. Here is how Justice Gorsuch's lead opinion gets started (ending with a question that the Court answers "no"):

About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one.  But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy.  All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause?

The dissent authored by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan, starts this way:

Michael Nelson Currier was charged in Virginia state court with (1) breaking and entering, (2) grand larceny, and (3) possessing a firearm after having been convicted of a felony. All three charges arose out of the same criminal episode.  Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction.  Virginia maintains this practice recognizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials.

After trial for breaking and entering and grand larceny, the jury acquitted Currier of both charges.  The prosecutor then chose to proceed against Currier on the severed felon-in-possession charge.  Currier objected to the second trial on double jeopardy grounds.  He argued that the jury acquittals of breaking and entering and grand larceny established definitively and with finality that he had not participated in the alleged criminal episode.  Invoking the issue-preclusion component of the double jeopardy ban, Currier urged that in a second trial, the Commonwealth could not introduce evidence of his alleged involvement in breaking and entering and grand larceny, charges on which he had been acquitted.  He further maintained that without allowing the prosecution a second chance to prove breaking and entering and grand larceny, the evidence would be insufficient to warrant conviction of the felon-in-possession charge.

I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquittals of breaking and entering and grand larceny.

June 22, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Fourth Circuit affirms ruling that DC sniper Lee Malvo entitled to resentencing due to Miller and Montgomery

Last year, as reported in this prior post, a US District Judge concluded that infamous sniper Lee Boyd Malvo was entitled to re-sentencing as a consequence of Supreme Court rulings precluding mandatory life sentences for juvenile murderers.  Yesterday, the Fourth Circuit affirmed that decision in a unanimous panel ruling in Malvo v. Mathena, No. 17-6746 (4th Cir. June 21, 2018) (available here). This ruling gets started this way: 

In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence.  After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.  Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder — both of which he also committed when 17 years old — and received two additional terms of life imprisonment without parole.

After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18.  It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court’s new rules.  See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.  Accordingly, we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole.  Montgomery, 136 S. Ct. at 734.

June 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, June 21, 2018

Fascinating accounting of prosecutorial role in considerable racial disparity in Florida sentencing

Back in 2016, as highlighted in this post, the Sarasota Herald-Tribune published an extraordinary series of articles in examining disparities in Florida's sentencing system under the heading "Bias on the Bench."  The paper now, working with the Florida Times-Union, has this new remarkable series under the headline "Influence & Injustice: An Investigation Into The Power Of Prosecutors."  Here is part of the lead article:

Academics and judges argue that prosecutors are the most powerful players in the criminal justice system and most to blame for bias.  But at 34 and just three years out of law school in 2016, was Bustamante really responsible for locking up black defendants for nearly quadruple the time of whites?

The Herald-Tribune and Times-Union set out to answer this question by measuring the influence of other players in the criminal justice system on cases prosecuted by Bustamante.  Those players include two powerful judges she appeared before; her former boss, Angela Corey — regarded as one of the toughest state attorneys in the nation; the Jacksonville Sheriff’s Office, which heavily polices minority communities; and residents of the city’s black neighborhoods, notorious for gun violence....

Reporters and editors spent at least 500 hours over three months opening more than 3,500 felony drug cases by hand.  The result is a first-of-its-kind spreadsheet tracking Bustamante and 22 other prosecutors based on the race of defendants, points scored under Florida’s sentencing guidelines, time spent behind bars and other factors such as possession of guns or resisting arrest.

From these records, the newspapers created two sentencing indexes: one that measures leniency and another that calculates harsh punishment.  Those indexes reveal that 43 percent of white drug defendants in Duval County were shown some sort of leniency in 2015 and 2016.  That rate falls to 27 percent for blacks.

When it comes to punitive sentences, the trend flips.  Fifteen percent of blacks received severe sentences, according to the index.  That compares to 10 percent of whites.

June 21, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

New Hampshire Gov (finally) vetoes state legislature's repeal of the state's death penalty

Back in April, as reported here, New Hampshire's legislature voted to repeal the state's rarely used death penalty.  But, as reported in this new article, "Gov. Chris Sununu delivered Thursday morning on his promise to veto a measure passed in the New Hampshire House and Senate to repeal the state's death penalty law."  Here is more: 

The governor was flanked by law enforcement officials from departments across the state as he vetoed the bill. "To repeal the death penalty today would deprive future victims of the justice they deserve," Sununu said. "Abolishing the death penalty would send the wrong message to those who would commit the most heinous offenses within our state borders."

The House passed Senate Bill 593 in April, but the vote fell short of the two-thirds supermajority that would be needed to override the veto. "While I very much respect the arguments made by the opponents of this bill, I stand with crime victims, members of the law enforcement community and advocates for justice in opposing this bill," Sununu said....

The last time a convicted murderer was put to death in New Hampshire was in 1939. State lawmakers last sent a death penalty repeal bill to the governor's desk in 2000, when then-Gov. Jeanne Shaheen vetoed it.

"We have made our arguments in front of both houses in the Legislature, and we believe that this is the right thing to do," Franklin Police Chief David Goldstein said.

Barbara Keshen, who chairs the Coalition to Abolish the Death Penalty, said many of the victims her group represents are against capital punishment. "They don't want to be part of a system that creates another grieving family, which is what the death penalty does," Keshen said. "That is not justice. Life in prison is sufficient justice for them."

The bill will head back to the Legislature, but death penalty opponents would need to get more votes in the House and Senate to reach the two-thirds majorities needed to overturn the veto.

June 21, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

"N.F.L. Players to Trump: Here’s Whom You Should Pardon"

The title of this post is the headline of this op-ed in today's New York Times authored by Doug Baldwin, Anquan Boldin, (former OSU Buckeye) Malcolm Jenkins and Benjamin Watson. I recommend the piece in full, and here are extended excerpts:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.”  If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice.  Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump.  He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting.  These are problems that our government has created, many of which occur at the local level.  If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality.  The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability....

President Trump could help.  He could use his powers, including the clemency power, to make a real dent in the federal prison population.  People like Alice Johnson, for example, should not be given de facto life sentences for nonviolent drug crimes in the first place.  The president could stop that from happening by issuing a blanket pardon for people in that situation who have already served long sentences.

Of the roughly 185,000 people locked up in federal prisons, about 79,000 are there for drug offenses of some kind — and 13.5 percent of them have sentences of 20 years or more.  Imagine how many more Alice Johnsons the president could pardon if he treated the issue like the systemic problem it is, rather than asking professional football players for a few cases.

There is also a systemic problem in federal prison involving the elderly, who by next year will make up 28 percent of the federal prison population. Releasing these prisoners would pose little to no risk to society.  And yet from 2013 to 2017, the Bureau of Prisons approved only 6 percent of roughly 5,400 “compassionate release” applications.  About half of those applications were for people who had been convicted of nonviolent fraud or drug offenses.  Of those denied release, 266 died in custody. 

President Trump could order the release of any drug offender over the age of 60 whose conviction is not recent.  That would be the morally right thing to do.

Apart from using the pardon power, there are policies the president and the attorney general could implement to help.  For instance, they could eliminate life without parole for nonviolent offenses.  Currently, more than half of those sentenced to die in federal prison are there for nonviolent offenses, and 30 percent of people sentenced to life (or de facto life) are there for a nonviolent drug crimes. Compare that with the state level: Only 2 percent of those sentenced to life (or de facto life) are there for drug offenses....

President Trump, please note: Our being professional athletes has nothing to do with our commitment to fighting injustice.  We are citizens who embrace the values of empathy, integrity and justice, and we will fight for what we believe is right.  We weren’t elected to do this.  We do it because we love this country, our communities and the people in them. This is our America, our right.

We intend to continue to challenge and encourage all Americans to remember why we are here in this world.  We are here to treat one another with the kindness and respect every human being deserves. And we hope our elected officials will use their power to do the same.

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

June 21, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

June 21, 2018 in Assessing Miller and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail

This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:

Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection.  Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.

It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet.  There also were concerns that some of the state's drugs would have expired.  "We have what we need to complete the execution order," Santina told The Associated Press.  "The same three drugs. We have some that are not expired."

Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering.  The warrant didn't address her previous concerns.

Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30.  The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state.  Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.  Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006.  His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.

Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday.  Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.

Prior related posts:

June 21, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Wednesday, June 20, 2018

Is it too early to conclude the new guy, Justice Neil Gorsuch, is going to often(?) favor federal criminal defendants in close cases?

There are still a couple of criminal cases left on the SCOTUS docket, including the big Fourth Amendment case Carpenter, so it is too soon to do any big "review of the Term" posts.  But I have seen Kenneth Jost already has this a mini-accounting in recent tweets:

Rosales-Mireles was 10th signed decision favoring defendants or habeas petitioners; Chavez-Meza was 3d signed decision favoring govt. Still pending: Currier v. Virginia (double jeopardy).

In criminal law cases, govt's s three wins are relatively insubstantial (e.g., Chavez-Meza); the 10 wins for defense include two significant 4th A decisions (Byrd, Collins); two on federal sentencing (Hughes, Rosales-Mireles); etc.

The rulings in the last two federal sentencing cases this Term on Monday (basics here) also has me looking back on some of the cases I have been watching closely this Term.  And that look back has led me to notice that the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.

At the end of the Term, the SCOTUSblog folks always do a great run of the numbers on various voting patterns.  But my cursory review suggest that Justice Gorsuch is most consistently breaking from his conservative colleagues in cases involving federal criminal appeals in order to vote for the defendant.  Specifically, Rosales-Mireles and Marinello are cases in which Justice Gorsuch broke from two of his conservative colleagues, Class and Hughes are examples of federal criminal appeals in which Justice Gorsuch broke from three of his conservative colleagues, and in Dimaya (which is quasi-criminal) he broke from all four of his conservative colleagues.

Critically, the story here is not one that entails a vote for the criminal defendant in all contested criminal cases: Justice Gorsuch was on the state's side in the habeas capital case McCoy and was also a key vote for the government in Jennings (which is quasi-criminal).

Though this voting record reflects only one full Term of service, I am prepared to assert that Justice Gorsuch may already be a more "gettable" vote for federal criminal defendants than was the late Justice Scalia, the jurist he replaced on the High Court.  In the years to come, this reality may prove important not only with respect to how the Justice decided key cases, but also with respect to how the Justice decide which cases to decide.

June 20, 2018 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is Gov Cuomo soon to have a worse record than Prez Trump on the clemency front?

The question in the title of this post is prompted by this new piece at The Appeal headlined "Cuomo The Merciless: New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors."  Here are excerpts: 

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation.  The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families....

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions.  Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state. But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations.  One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056.  (Clark was denied parole and remains in prison.)  Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations — this time, it was only to two men. He has not granted any clemencies since then.  His office did not respond to The Appeal’s queries about the possibility of future commutations.  Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records.  He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants.  She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017.  But, she told The Appeal, “we have many deserving clients whose applications are still pending. Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help.  “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls.  As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

I am more than a bit concerned that all the recent clemency talk coming from the White House could turn out to be the source of false hope, especially as Prez Trump gets consumed by other matters.  But among the many reasons I am rooting so hard for Prez Trump to keep using his clemency pen is because it should then become even easier for advocates to urge Governors to keep up the clemency pace.

June 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

June 20, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, June 19, 2018

SCOTUSblog reviews of SCOTUS work in Rosales-Mireles and Chavez-Meza

When I get some more time to re-read the opinions and to think more about their possible echoes, I may do some additional commentary concerning the Supreme Court's sentencing work yesterday in Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), and Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here).  In the meantime, the SCOTUSblog folks have up an "Opinion analysis" for each case:

June 19, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Georgia Supreme Court rules individual has essentially no procedural rights before being placed on state's child abuse registry

I saw yesterday a notable ruling by the Georgia Supreme Court in Georgia Department of Human Services v. Steiner, No. S18A0281 (Ga. June 18, 2018)(available here).  As I read the case, a 13-year-old's written statement that an older individual (age 52) hugged her and twice "started to hump me a way a dog would" led to his placement on the Georgia child abuse registry.  Upon getting a subsequent notice of his placement on the registry, Steiner challenged the (lack of) procedures on various grounds, and prevailed in lower courts. But on appeal to the Georgia Supreme Court, Steiner loses and the majority opinion gets started this way:

The Georgia Department of Human Services, Division of Family and Children Services (“DFCS”) appeals from the decision of the Lamar County Superior Court finding that Georgia’s central child abuse registry is unconstitutional, both on its face and as applied to appellee Christopher Steiner.  The trial court also found that DFCS failed to prove that Steiner committed an act of child abuse by a preponderance of the evidence as required to maintain Steiner’s listing in the registry.  This Court granted DFCS’s application for discretionary review. 

We hold that Steiner failed to demonstrate a constitutionally protected liberty or property interest sufficient to trigger the due process protections that he claims were violated by operation of the registry, and because the Act was constitutionally applied to Steiner, he lacks standing to bring his facial challenge on that ground.  We further hold that the child abuse registry is not criminal in nature, and that the superior court therefore erred in finding it to be so.  And because an abuse investigator’s determination about whether a report of child abuse is supported by the evidence is not a judicial function, the superior court erred in finding that the statute requiring the investigator to report such cases to DFCS for inclusion in the child abuse registry violates the separation of powers provision of the Georgia Constitution.  Finally, because at least “some evidence” supported the administrative hearing officer’s conclusion that DFCS had proved an act of child abuse as defined for purposes of the child abuse registry, the superior court erred in reversing the administrative law court.  We reverse.

June 19, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"

The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz.  Here is its abstract:

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors.  It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it.  Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice.  It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725).  Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable.  Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms.  Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.

The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence.  In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed.  This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.

June 19, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts

The Marshall Project has this notable new Q&A under the full headlined "Van Jones Answers His Critics: The CNN host defends his involvement with a controversial prison reform bill and the Trump White House." I recommend the piece in full, and here are snippets reflecting intriguing parts of Jones's thoughtful perspective on the politics and people impacting federal criminal justice reform efforts:

[W]e need a stable bipartisan consensus to undo mass incarceration. In order to get there, we have to break this logjam that existed under President Barack Obama and in Congress. When we had Obama in the White House and [former U.S. Attorneys] Eric Holder and Loretta Lynch in the Department of Justice, we had a pretty robust bill that I fought tooth and nail to try to get passed. It had sentencing reform, prison reform, and every other kind of reform in there. In the fall of 2016, a bunch of people said, “Well, let's not pass this right now. The Democrats are going to have an epic victory. We'll have Hillary Clinton, more Democrats, and we can get an even better bill.” You see what happened. The lesson I learned from that was take the reform you can get when you can get it and keep going....

[Debates over which bill to support] became more of a split between some of the inside-the-Beltway organizations that have a particular worldview that is important, versus a lot of the grassroots groups who are really dealing on a daily basis with incarcerated people looking at the actual content of the bill. There were black people and white people on all sides of that. So as somebody who has been frontline 25 years on criminal justice, you would want people to give you the benefit of the doubt. But if folks choose not to, that's just called democracy.

I get outraged when people like Topeka Sam, an African American woman who was incarcerated, brings a dozen formerly incarcerated women to the White House to advocate for reform and is attacked. I get outraged when Shaka Senghor, who did 19 years in prison and almost 10 years in solitary confinement, speaks up for the bill and gets attacked. On Facebook they were called sellouts, Uncle Toms. I don't think it's appropriate when formerly incarcerated African Americans are vilified this way....

Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can't start there with a critical mass of their other colleagues.

I think that because this is one of the very few areas of bipartisan agreement, there will be multiple opportunities to come back again on criminal justice reform and to make progress.... I would love to see sentencing reform. Fought for it my whole life. Fought for it before it was popular. I just didn't understand why some people in the Senate want us to try to carry a camel through a keyhole in the House. If they have the votes to get sentencing reform in the Senate, God bless them. We couldn't find those votes in the House. We had to carry through the House what we could carry through the House. Nobody would be happier than me to see sentencing reform taken up by either chamber. But we had to get through the House what we could get through the House.

Here's the irony: If sentencing reform does now get taken up, or it's introduced as a part of the First Step Act, or there's some amalgamation between the two and something does get passed with sentencing reform in it, it will only get passed because we got something more modest through the House first.

Some of many prior related posts:

June 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

Monday, June 18, 2018

Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio

As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:

After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month.  Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.

The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat....  Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.

The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time.  More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.

In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed.  Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.

Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.

In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.

Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.

His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension.  “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.

The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.

Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.

Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.

Recent prior related posts:

June 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Attorney General Sessions laments state recidivism data and impact of Johnson ACCA ruling

Attorney General Jeff Sessions today delivered these remarks to the National Sheriffs' Association Annual Conference, and his comments covered lots of criminal justice ground that I do not recall him previously speaking about directly. The speech is worth reading in full because of all it reveals about how AG Sessions' looks at crime and criminals, and here are just some of the comments that caught my attention:

This is a difficult job, but when rules are fairly and consistently enforced, life is better for all — particularly for our poor and minority communities.  Most people obey the law. They just want to live their lives. They’re not going to go out and commit violent crimes or felonies.

As my former boss, President Reagan used to say, “Most serious crimes are the work of a relatively small group of hardened criminals.”  That is just as true today as it was back then.  That’s why we’ve got to be smart and fair about how we identify criminals and who we put behind bars and for how long....

I want to call your attention to something important.  A few weeks ago, the Department of Justice’s Bureau of Justice Statistics released a new report on the recidivism rate of inmates released from state prisons in 30 states.  This is the longest-term study that BJS has ever done on recidivism and perhaps the largest.  It was designed by the previous administration. The results are clear and very important. The results are of historic importance.  The reality is grim indeed.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.  The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years. Almost half were arrested within a year — one year — of being released.

The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.  Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place. It will not surprise you that this is often true for drug offenders.

Many have thought that most drug offenders are young experimenters or persons who made a mistake.  But the study shows a deeper concern.  Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also.  Importantly, nearly half of those arrests were for a violent crime. We can’t give up....

This tells us that recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime.  We’ve been studying this and working on this for 40 years.

From 1964 to 1980, the overall violent crime rate tripled.  Robbery tripled. Rape tripled.  Aggravated assault nearly tripled. Murder doubled.  And then, from 1991 to 2014, violent crime dropped by half. Murder dropped by half.  So did aggravated assault.  Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

That wasn’t a coincidence.  Between that big rise in crime and that big decline in crime, President Reagan and the great Attorney General Ed Meese went to work.  There was the elimination of parole, the Speedy Trial Act, the elimination of bail on appeal, increased bail for dangerous criminals before trial, the issuing of sentencing guidelines, and in certain cases, mandatory minimum sentences.

We increased funding for the DEA, FBI, ATF, and federal prosecutors. And most states and cities followed Reagan’s lead.  Professionalism and training dramatically increased in local law enforcement.  These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing public safety.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to confess and cooperate with prosecutors.  On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance....

The certainty of a significant and fixed sentence helps us get criminals to hand over their bosses, the kingpins and the cartel leaders — and helps remove entire gangs and criminals from the street.  Left unaddressed these organizations only get richer, stronger, more arrogant and violent placing whole neighborhoods in fear.

Law enforcement officers understand that. Sheriff Eavenson and NSA have been critical allies in the fight to preserve mandatory minimums for a long time — and I want to thank you for your strong advocacy.  Many doubt their value.  Maybe this is obvious, but a recidivist can’t hurt the community if he is incarcerated.  A lot of people who would have committed crimes in the 1990s and 2000s didn’t because they were locked up.  Murders were cut in half after 1980....

Look, our goal is not to fill up the prisons.  Our goal is to reduce crime and to keep every American safe.  We should not as a policy keep persons in prison longer than necessary. But clear and certain punishment does in fact make America safer....

One of the most important laws that President Reagan signed into law was the Armed Career Criminal Act.  That’s the law that requires a minimum 15- year sentence for felons caught with a firearm after their third robbery or burglary conviction.

These are not so-called “low-level, nonviolent drug offenders” who are being picked on.  These are criminals who have committed multiple serious offenses.  In 2015 — after 30 years on the books — one critical line of the law was struck down by the Supreme Court as being too vague.

But because of this impactful ruling, every federal prosecutor lost one of their most valuable tools and they ask me for help regularly.  Just one example is Jeffrey Giddings of Oregon.  He had more than 20 convictions since 1991. He was let out of jail after the Court ruling and only 18 days later shot a police officer and held two fast food employees hostage.  He has now been sentenced to another 30 years in prison.  And the last thing he did before being put back in jail was to lash out in a tirade of profanity at police....

More than 1,400 criminals — each convicted of three felonies — have been let out of jail in the three years since the Court ruling.  And so far, more than 600 have been arrested again.

On average, these 600 criminals have been arrested three times since 2015.  A majority of those who have been out of prison for two years have already been arrested again. Here in Louisiana, nearly half of the released ACCA offenders released because of this court ruling have already been rearrested or returned to federal custody....

In this noble calling, all of us in this room are leaders. The NSA is fulfilling its responsibility in this regard. We must communicate sound principles to our policy leaders and to the American people when it comes to reducing crime:

  • A small number of people commit most of the crimes;
  • Those who are jailed for crimes are very likely to commit more crimes—often escalating to violent crimes — after their release; and
  • Congress and our legislatures must consider legislation that protects the public by ensuring that we incapacitate those criminals and deter others

And so the point is this: we should always be looking for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

This Department of Justice under President Trump is committed to working with you to deliver justice for crime victims and consequences to criminals. We want to be a force multiplier for you.

The President has ordered us to back the women and men in blue and to reduce crime in America. And that’s what we intend to do. We embrace that mission and enforce the law with you.

There is a bit of rich irony to the Attorney General extolling the importance and value of "clear and certain punishment" just before lamenting a SCOTUS ruling that struck down a punishment as too vague to be clear or certain in any way.  That irony aside, I am not at all surprised to see him highlight the depressing new data, first blogged in this prior post, revealing terrible recidivism numbers among those released from state prisons in 2005.  I am not sure from where the ACCA-post-Johnson-release recidivism data comes, but I am sure all these numbers fuel the AG's belief that we should always be inclined to (over-)incarcerate in efforts to improve public safety.

June 18, 2018 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Split SCOTUS outcomes for federal defendants: a plain error win in Rosales-Mireles and an explanation loss in Chavez-Meza

The Supreme Court has handed down this morning its last two sentencing cases, Rosales-Mireles v. United States and Chavez-Meza v. United States, and they are split decisions in every sense. 

In Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), Justice Sotomayor writes for the Court ruling in favor of the federal defendant, with Justice Thomas writing the chief dissent joined by Justice Alito.  In Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here), Justice Breyer writes for the Court ruling in favor of the federal government, with Justice Kennedy writing the chief dissent joined by Justices Kagan and Sotomayor.

Here is the Court's opening paragraph in Rosales-Mireles:

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal.  This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence.  The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Here is the Court's opening paragraph in Chavez-Meza:

This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines.  Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’.  The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence.  The Court of Appeals held that the judge’s explanation was adequate.  And we agree with the Court of Appeals.

As regular readers should now come to expect, sentencing cases have a way of producing notable voting patters. Criminal defendants and defense attorneys should be intrigued and encouraged by that both Chief Justice Roberts and the new Justice Gorsuch signed on to the majority opinion in Rosales-Mireles. But defendants and defense attorneys surely will also be troubled that the Chief along with Justices Breyer and Ginsburg were all willing to embrace the "close enough for government work" approach in Chavez-Meza.

June 18, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

SCOTUS finally grants cert on new cases, including two criminal justice cases

Last Monday, because the Supreme Court issued an order list and opinions with little of interest for criminal justice fans, I sought to keep up my end-of-Term excitement by blogging here about the five remaining SCOTUS criminal cases to be decided in this coming weeks.  Some of those cases are likely to be decided today or later list week, but we already have something exciting from the Justices via this new order list granting cert on five new cases, including two criminal cases (links and descriptions via SCOTUSblog):

Garza v. Idaho: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."

Timbs v. Indiana: "Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment."

The order list also includes a short dissent from the denial of cert in a Florida capital cases in which Justice Sotomayor laments yet again the Court's failure to take up a claim that Florida's jury instructions "impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death, in violation of Caldwell v. Mississippi, 472 U. S. 320 (1985)."

Especially during a time in which financial sanctions are (finally) getting a lot more attention and there is a ever-growing libertarian/conservative concern about fines and forfeitures, the Timbs case if very interesting and is now my favorite "what to watch" case going into the next Term.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger has a bit of an early preview of Garza in a post titled "Clients, Lawyers, and Appeals."  And this second C&C post, titled "Excessive Fines and Incorporation," takes a quick look at Timbs.

MORE:  SCOTUSblog has more on Timbs and Garza (and the other grants) in this post by Amy Howe.

June 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Sunday, June 17, 2018

"What Tocqueville Would Think of Today’s Criminal Justice Reforms"

The title of this post is the headline of this interesting commentary authored by Emily Ferkaluk which leans on a historic figure while advocating for the FIRST STEP Act.  Here are excerpts:

Alexis de Tocqueville, a French aristocrat who toured American penitentiaries at the height of the 19th-century penal debate in order to help guide French penal reform, would commend us for the reform measures contained in the First Step Act.

In his report, “On the Penitentiary System in the United States and Its Application to France,” Tocqueville stressed that any criminal justice reform must moderately balance two goals: preserving the rights of society, and preserving the rights of prisoners.  Society, he argued, has a right to promote and protect public safety and order by punishing those who break the law—and to regain at least some of the money it spends in doing so.  On the other hand, the prisoner has a right to an education that prepares him to re-enter society as a productive citizen.

Both rights are preserved through the right application of corrective justice — a balance of proportional retribution and rehabilitation.  The First Step Act protects both of these rights—the rights of society and of the prisoner — by proposing a recidivism program that conducts risk assessments of prisoners.  These assessments would weigh the likelihood of individual prisoners recommitting a crime....

Furthermore, time credit programs that are joined to a risk assessment system work because they let wardens and prison administrators determine whether a prisoner presents a low risk to the community.  Tocqueville would have approved of this kind of localized authority.  In fact, during his visit to America, he was pleasantly surprised at the amount of authority the superintendent of prisons wielded over prison discipline.  He believed superintendents were best suited to make those decisions, being the closest to prisoners and having observed their behavior and reformation.

Tocqueville also identified certain types of incentives that truly rehabilitate prisoners — particularly family-oriented incentives. His interviews with prisoners in solitary confinement in the Philadelphia Penitentiary led him to remark that “memories of their family have an extreme power over their souls,” thus disposing them to rehabilitation.

These very incentives are present in the First Step Act. One incentive is to be relocated to a facility closer to home. Another is to enroll prisoners in a program that gives them “family relationship building, structured parent-child interaction, and parenting skills.”  A third option is to allow certain prisoners to go home for pre-release custody.  All of these cohere with Tocqueville’s findings....

When Tocqueville was first inspecting American penitentiaries, only a handful of states (predominantly New York and Pennsylvania) had begun to implement new prison disciplines such as solitary confinement and prison labor.  These penal disciplines proved effective, and despite their relative newness, Tocqueville recommended the French adopt the same disciplines.

Tocqueville preferred democratic politics to theory, and action in one direction over endless debate.  Commenting on the penal reforms made by the people through their state legislatures, he said, “Perhaps this prudent and reserved reform, effected by an entire people, whose entire habits are practical, will be better than the hasty trials that would result from the enthusiasm of ardent minds and the seduction of theories.”

Tocqueville’s words of wisdom should encourage us to pass the proposed recidivism reform measures without fear of killing any future criminal justice reform.  This first step toward penal reform is not our last.

Some of many prior related posts:

June 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

Saturday, June 16, 2018

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

June 16, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

"Disclosing Prosecutorial Misconduct"

I just came across this article authored by Jason Kreag available via SSRN.  Here is its abstract:

Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system.  Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the system.  Commentators have responded by proposing a range of reforms to increase Brady compliance going forward.  Yet these reforms have largely ignored the need to remedy the harms from past Brady violations.  Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors’ Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure.

This Article proposes a new remedy to supplement the current responses to Brady misconduct: the Brady Violation Disclosure Letter.  It proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation.  This disclosure is a partial remedy for the range of harms Brady violations create.  It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque. Importantly, this proposal can be implemented immediately without adopting new rules or statutes and without expanding Brady’s exiting constitutional protections.

June 16, 2018 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 14, 2018

Kentucky Supreme Court finds state's statute for assessing intellectually disability in capital cases does not comply with Eighth Amendment

As reported in this local article, the "Kentucky Supreme Court ruled Thursday that the state's practice for determining if someone is intellectually disabled and not eligible to receive the death penalty is “unconstitutional” and has established new guidelines."  Here is more about the ruling:

The order changing Kentucky’s rules on capital punishment came in the case of Robert Keith Woodall, who was sentenced to death for raping and killing a 16-year-old girl in Greenville two decades ago. The high court ordered a lower court to hold a hearing to determine if Woodall is intellectually disabled, preventing him from being executed.

It is unconstitutional to sentence a mentally disabled person to death – which has been defined in Kentucky as someone with an IQ below 70. However, Kentucky's high court ruled a person cannot be found intellectually disabled simply because they have an IQ of 71 or above. Instead, the justices determined defendants must undergo a “totality of the circumstances test,” including whether they have the ability to learn basic skills and adjust their behavior to circumstances, among other guidelines.

Those standards are in line with guidelines established by the U.S. Supreme Court that take other factors into account, according to the ruling. The federal court, for example, bars states from using a single, strict IQ standard to determine a prisoner's death penalty status.

In its ruling, the Kentucky high court found the state's current law to be “an outdated test for ascertaining intellectually disability." Kentucky was one of only a few states still using the fixed score cutoff to determine mental disability.

The full ruling from the Kentucky Supreme Court is available at this link, and here are few key paragraphs from the majority opinion:

Admittedly, the U.S. Supreme-Court has not provided crystal-clear guidance as to what exactly constitutes a constitutional violation regarding the determination of whether a defendant is intellectually disabled to preclude the imposition of the death penalty.  It is also true that the U.S. Supreme Court seems to suggest that a defendant's IQ score, after adjusting for statistical error, acts as the preliminary inquiry that could foreclose consideration of other evidence of intellectual disability, depending on the score.

Two things are clear, however: 1) regardless of some of the statements the U.S. Supreme Court has made, the prevailing tone of the U.S. Supreme Court's examination of this issue suggests that a determination based solely on IQ score, even after proper statistical-error adjustments have been made, is highly suspect; and 2) prevailing medical standards should be the basis for a determination as to a defendant's intellectual disability to preclude the imposition of the death penalty.

June 14, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sixth Circuit panel struggles to figure out Tennessee law to assess Miller challenge in high-profile case

As reported in this local article, headlined "While considering Cyntoia Brown's case, appeals court scrutinizes conflicting sentencing laws," an interesting federal circuit panel struggled during oral argument today to sort through applicable state sentencing law in an interesting Eighth Amendment habeas case. Here are the details:

A federal appeals court seems poised to consult the Tennessee Supreme Court before they rule on the case of Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.  Brown's attorneys this year appealed to the Sixth Circuit Court of Appeals in Cincinnati, arguing her life sentence was unconstitutional. The U.S. Supreme Court ruled in 2012 that giving juveniles life sentences without parole was cruel and unusual in most cases.

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Allen had picked her up at an East Nashville fast food restaurant and drove her to his home.  Prosecutors said she committed a cold blooded murder, then robbed Allen before she fled with his car. Advocates for Brown say she was a victim of child sex trafficking who feared for her life, and that her age and fetal alcohol syndrome made it impossible for her to consider the full ramifications of her actions.

Attorneys representing the state have argued the 2012 ruling from the U.S. Supreme Court does not apply in Brown's case because she is not serving a true life sentence. They cite parts of Tennessee law that suggest Brown could be eligible for release after 51 years behind bars.  The three-judge panel in Cincinnati suggested at multiple points that if she was serving a 51-year sentence, the U.S. Supreme Court ruling might not apply.

But Brown's attorneys pushed back, citing another section of the law that says "there shall be no release eligibility" for offenders convicted of first degree murder, like she was. Thorny questions on sentencing law in Tennessee dominated the debate on both sides of the oral arguments Thursday morning, which lasted less than an hour....

At multiple points, the judges read directly from contradictory passages in Tennessee code, as they tried to decipher what portions applied to Brown's case. They suggested that they might seek clarification from the Tennessee Supreme Court before moving forward.  Judge Joan L. Larsen, who was appointed by President Donald Trump, asked multiple questions about the proper way to do so.

Judge Amul Thapar, another Trump appointee, aggressively questioned the argument from state attorneys that case law had established a way to cherry pick parts of Tennessee sentencing law to apply to Brown while ignoring other parts. Thapar rubbed his face and shook his head while questioning attorneys on dueling sections of the law. "We're trying to guess what Tennessee is doing here," Thapar said, later adding, "The way I read this statute is that she's got life without the possibility of parole."

The Tennessee Court of Criminal Appeals has already sided with the state on this issue, saying that Brown's sentence is not entirely for life.  But Brown's attorneys say the Tennessee Court of Appeals issued a conflicting ruling.

Judge Julia Smith Gibbons, who was appointed by former President George W. Bush, said she couldn't believe a Tennessee court hadn't issued a definitive ruling on the appropriate reading of the sentencing law.  Gibbons said Brown's case "raises some interesting, tricky issues."

If the panel does ask the Tennessee Supreme Court to clarify sentencing in this case, that court could decide whether or not it would offer an answer. The appeals court would then take the response into consideration while ruling on the broader case.  "Can we certify that to the Tennessee Supreme Court and ask them?" Thapar said.  "If they're ever going to answer one question that's the one to answer."...

The judges did not address the argument from Brown's attorneys that she should not be held responsible for a premeditated murder at 16 because fetal alcohol syndrome had slowed her mental development.

The pending federal appeal is one of multiple tracks Brown's attorneys are pursuing in their high-profile attempt to get her out of prison.  Brown also is asking Gov. Bill Haslam for clemency; the state parole board made conflicting recommendations to the governor after a hearing in May. Brown's previous appeals have been denied.  But a surge of interest from news outlets, celebrities and national legal groups has galvanized efforts that are unusual for a case like hers.

Brown was featured in the documentary "Me Facing Life: Cyntoia's Story" by filmmaker Dan Birman. In 2016, a joint reporting project on juvenile sentencing laws by the USA TODAY NETWORK - Tennessee, Dan H. Birman Productions and "Independent Lens" explored Brown's trial and conviction in depth.  Then, in 2017, celebrities including Rihanna and Kim Kardashian West called for Brown's release, dramatically increasing the scrutiny of the case.  On social media, the hashtag #FreeCyntoiaBrown went viral.

June 14, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Kim Kardashian West pushes White House for more drug sentence commutations"

Because the Supreme Court decided this morning not to decided any of the five remaining criminal law cases on its docket for this Term, I am left to blogging some more about clemency developments.  On that front, the breaking news came through the Today show, which led to this NBC News article with the headline that I have used for the title of this post.  Here are excerpts from the article (with emphasis added):

Kim Kardashian West has given the White House reports on several other nonviolent criminal offenders for possible commutation after she persuaded President Donald Trump to commute the sentence of Alice Marie Johnson, she told "Today" in an exclusive joint interview with Johnson.

Kardashian West said she "saw compassion" when she met with Trump, who as recently as March promised to "seek the death penalty against drug traffickers, where appropriate under current law." "I saw a different side," Kardashian West said Wednesday. "And I think that this is just the beginning of something greater. ... The reality is people change their mind."...

Kardashian West, the star of several reality TV shows and the wife of music superstar Kanye West, visited Trump at the White House with her attorney in late May to plead for Johnson's release, pointing to corrections officers' assessment of her as a model prisoner who became an ordained minister...

In the interview — during which the two women met in person for the first time — Kardashian West said she had assembled a large legal team and was pursuing clemency for several other nonviolent offenders — whose cases she said she has forwarded to the White House for review. "This is like, 'OK, we did this,'" Kardashian West said. "Let's open up this conversation."

Johnson said that because of Kardashian West's advocacy, "the Red Sea has opened" for possible leniency for nonviolent drug offenders, a campaign she said she intends to be part of. "I plan on continuing to magnify this issue," Johnson said. "I'm just an example, but I'm not the only one.

"There are so many others like me whose faces are not here, who are not sitting next to a war angel, who deserve clemency as much as I did and who deserve another chance in life," she said. "And I can't stop. I can't stop."

Regular readers are likely tired of seeing me recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this law review article.  At the end of that article, I urged the President "to seriously consider creating some form of a 'Clemency Commission' headed by a 'clemency czar' ... [in the form of] an expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. "  I will be the first one to say that I could never have expected, eight years later during a Donald Trump presidency, that we would have a  Kim Kardashian West emerging as a de facto "clemency czar" serving with a "large legal team" operating as a de facto "Clemency Commission."

Simply put, we live in interesting times.

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

June 14, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Lamenting the ripples of Judge Persky's recall

John Pfaff has authored this recent Washington Post commentary under the full headline "California ousts an elected judge. Everybody loses. The recall of Aaron Persky in the Stanford swimmer sexual assault case will make judges harsher, and thwart progress on perils of mass incarceration."  Here are excerpts (and readers should click through to the original for the multitude of links supporting the various points presented):

California voters last week recalled a judge for the first time in more than 85 years.  The politics of punishment are already pathological; the recall will make them worse.... As an academic who studies criminal justice, I have opposed the recall effort since I first heard about it because of potential consequences that reach well past Persky’s now-former courtroom: The recall will make judges more punitive, thwart progress toward scaling back mass incarceration and — though Turner and Persky are both white — hurt minorities disproportionately.

A central reason the United States punishes its citizens more than any other country is that actors in our criminal justice system face more political pressure than they do elsewhere.  Only this country allows judges to be elected, which 39 states choose to do. It’s a consistent theme: We are also the only country that elects its prosecutors. While a concern in the Andrew Jackson era about corrupt appointment processes drove the decision to elect judges, more recent concerns about the costs of a politicized judiciary have led to increasing calls to return to appointing them.

In criminal justice, the costs of politicization are unambiguous: They make judges more punitive.  The empirical studies on judges and crime tell a consistent story.  Judges sentence more aggressively as their election dates near and as their elections become more contested.  Elections make judges nervous, and nervous judges are harsh judges.

This harshness is entirely logical.  Judges are harsh because the costs of mistakes are asymmetric.  There is little downside to harsh sanctions, because the error costs are invisible: How do you show that someone would not have reoffended had they left prison sooner?  The costs of being overly lenient, however, are inescapable.  That sort of failure produces an identifiable victim for political opponents to capitalize upon.

The recall turned on a slightly different asymmetry but one that equally pushes judges toward severity. An overly lenient sentence will be seen as insulting the victim, while an overly harsh one will be seen as unfair to the defendant.  The former error, as the Persky recall demonstrates, is costlier (unless, perhaps, the defendant is politically powerful).

Defenders of the recall dismiss this concern by pointing out that recalls are rare. But the lesson here isn’t only about recalls.  The Persky case makes clear to judges and their detractors alike that judges can lose their jobs — in a recall, in a primary, in a general election — if just one or two decisions anger someone with sufficient political capital to oppose them.  The Persky recall campaign highlighted only five decisions out of thousands that the judge handed down.  Persky was cleared of any wrongdoing by California’s Commission on Judicial Performance, and public defenders in Santa Clara were quick to argue that he was a fair judge.  Even the prosecutor in Santa Clara opposed the recall. [Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties.  The success of her campaign tells judges, and the politically powerful who are unhappy with their decisions, that these campaigns can work even with little evidence, as long as there are one or two bad cases to point to.

The recall’s political costs are already apparent.  Not only did Democratic legislators pass new mandatory minimum sentences for sex offenses in response to the recall to make sure they looked tough enough on crime, but public defenders in California also report that judges seem harsher now, out of fear of being targeted next.

Some defenders of the recall concede that it may make judges harsher, but only regarding sex crimes.  The judges, they say, are smart enough to limit what they have learned to the facts of the recall. But this is overly optimistic. Judges have no idea what issue will trigger the next recall or primary challenge, only that such campaigns can work....

The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases.  More people will be sent to prison, and that increase won’t make us safer. And since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities.  For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

A few of many prior posts on the Persky recall:

June 14, 2018 in Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, June 13, 2018

Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"

Vanity Fair is not usually my go-to source for sentencing news, but this new piece includes both White House gossip and a closing paragraph that suggest a lot of sentence news with be forthcoming from that building. The full headline of the piece reveals some of the gossip: "“He Hate, Hate, Hates It”: Sessions Fumes As Kushner Gets Pardon Fever; With Kim Kardashian and liberals like Van Jones, the princely Trump son-in-law is trying to reset his reputation. But not everyone in the administration is happy about it."   And here are the most sentencing-specific parts of the piece:

In recent months, Kushner has cultivated a close relationship with CNN host and criminal-justice reform advocate Van Jones. “Jared is obsessed with Van,” one Trump adviser said. Kushner invited Jones to the White House multiple times and the two communicate frequently, Jones told me. “Jared and I have 99 problems but prison ain’t one,” Jones said. “I’ve found him to be effective, straightforward, and dogged.” Jones has lavished praise on Kushner publicly. In January, Jones wrote a CNN op-ed headlined, “Kushner’s effort to sway Trump on prison reform is smart.”

The Kushner-Jones alliance has infuriated some Republican members of the administration, especially Attorney General Jeff Sessions. “He hate, hate, hates it,” a person close to Sessions said. But Sessions, who is hanging on for survival amidst frequent Trump attacks, has no power to move against Kushner. Sources say Trump may even like that Sessions is outraged because Trump is looking for anything that will get Sessions to quit so he can appoint an attorney general who isn’t recused in the Russia investigation. (The White House did not respond to a request for comment.)

Jones told me Trump liked the positive media coverage that followed his pardon of Alice Johnson at the urging of Kardashian and Kushner. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

One person who recently spoke with Kushner said the president’s son-in-law is gearing up for a big pardon push. The source said Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people—pardons that even Obama wouldn’t do,” the person said.

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

June 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (1)

Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Spotlighting lower-court divides over AEDPA's savings clause and consideration of sentencing errors

At the intersection of hard-core habeas and sentencing issues is whether the so-called savings clause of the Antiterrorism and Effective Death Penalty Act can be used by a federal prisoner to get federal court to hear a claim of sentencing error.  The Fourth Circuit yesterday, via this order, refused to reconsider en banc its pro-access ruling on this matter in US v. Wheeler, and two judges wrote separately to spotlight what is at stake.  First, a "Statement of Circuit Judge Agee respecting denial of petition for rehearing en banc" starts this way:

The issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.

The opinion in this case casts 28 U.S.C. § 2255(e) in a way that rewrites the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) — a valid congressional act that falls squarely within Congress’ power to define the scope of the writ.  As a consequence, federal prisoners who are detained in this Circuit pursuant to a valid and final criminal judgment may evade the careful limitations placed by Congress upon the writ of habeas corpus in § 2255(h) and, most likely, § 2255(f) as well.  These prisoners may now file § 2241 petitions challenging their sentences whenever circuit court precedent changes, so long as a given majority decides the change created a fundamental sentencing defect. Among the circuits that have addressed the question of the reach of the § 2255(e) saving clause, we stand alone in this most expansive view.

Only two circuits permit a sentencing-based claim to proceed via the saving clause: the Sixth and Seventh.  Hill v. Masters, 836 F.3d 591 (6th Cir. 2016); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).  The opinion here relies on these cases in error, however, because none gives the expansive reference to “fundamental defect” that is put forth here. In short, even those few circuits that have opened the saving clause portal to sentencing-based claims have only opened it wide enough to allow for a claim that the prisoner is being, or at some point will be, detained by the warden beyond the time legally authorized by Congress for his offense of conviction.

Second, a "Statement of Judge Thacker on Petition for Rehearing En Banc" starts this way:

When this court decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and rendered it retroactive in Miller v. United States, 735 F.3d 141 (4th Cir. 2013), it became clear that the mandatory minimum for Gerald Wheeler’s sentence was double what it should have been.  But Wheeler was left with a conundrum -- how could he test the legality of his detention?  He had already filed a direct appeal and motion pursuant to 28 U.S.C. § 2255, and he could not meet the requirements to file a second or successive motion because his mandatory minimum was not increased by a new rule of constitutional law made retroactive by the Supreme Court.  See § 2255(h)(2).  Yet he was nonetheless sentenced under the mistaken understanding that ten years was as low as the sentencing court could go. Indeed, that was precisely the sentence he received.  The district court recognized this sentence was “harsh,” but believed that its “hands [we]re . . . tied.” J.A. 85.

The savings clause, set forth in § 2255(e), allows a court to entertain a traditional § 2241 petition for habeas corpus if “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [the prisoner’s] detention.”  This circuit, see In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000), as well as nine other circuits, interpret the savings clause to provide an opportunity for prisoners to demonstrate they are being held under an erroneous application or interpretation of statutory law.  Two circuits, however, read the clause so narrowly that the savings clause may only be satisfied under the limited circumstances when the sentencing court is unavailable, “practical considerations” prevent the prisoner from filing a motion to vacate, or a prisoner’s claim concerns “the execution of his sentence.” McCarthan v. Director of Goodwill Indus., 851 F.3d 1076, 1092–93 (11th Cir. 2017) (en banc); see also Prost v. Anderson, 636 F.3d 578, 587–88 (10th Cir. 2011).

To adopt the minority view and deny Wheeler the chance to test the legality of his detention under the circumstances at hand would fly in the face of the Supreme Court’s pronouncement that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene v. Bush, 553 U.S. 723, 779 (2008) (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).

I am inclined to predict that this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, "Hey, I was wrong." But I don’t know that I'll ever admit that, but I'll find some kind of an excuse for why my SCOTUS prediction was off.

June 12, 2018 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, June 11, 2018

"Trump asks for clemency names and lists promptly arrive at White House"

The title of this post is the headline of this notable new article in the Washington Examiner.  Here are excerpts (with one line stressed for commentary):

President Trump told reporters Friday that he wanted to give clemency to more people treated unfairly by the legal system, particularly cases involving people like Alice Johnson, who he released from a life sentence for drug dealing at the request of Kim Kardashian West.  "I want to do people that are unfairly treated like an Alice," he said before boarding a Marine helicopter on the South Lawn of the White House. Hours later, lists of additional names were hand-delivered to the West Wing.

White House counsel Don McGahn and presidential adviser and son-in-law Jared Kushner sat down for separate meetings with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions.

McGahn invited the advocate about a week earlier, requesting names, and seemed to react favorably to the case of Chris Young, a 30-year-old from Tennessee with a life sentence since age 22 for a drug conspiracy, the source said. The sentencing judge called Young's penalty "way out of whack," but said he had no choice.

Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Johnson. Dozens of additional names were supplied by the CAN-DO Foundation, which championed Johnson, as well as Families Against Mandatory Minimums. Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are serving life sentences for smuggling marijuana and unsuccessfully requested clemency from former President Barack Obama.

Pelletier, a paralyzed inmate, received a life sentence for smuggling pot from Canada into Maine, jurisdictions where the drug is now legal or soon will be. Knock’s sentence inspired his sister Beth Curtis to create the advocacy website LifeforPot.com documenting similar cases. "I will die in prison if President Trump does not commute my sentence," Pelletier recently told the Washington Examiner. "Sometimes, I wonder if I'm dead already because I'm living in hell.”

A list of 17 women and six men prepared by CAN-DO was topped by drug-conspiracy convict Michelle West and mail-fraud inmate Connie Farris, women who recently expressed optimism about Trump’s clemency moves, saying they hoped to rejoin their families....

The advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

In his remarks Friday morning, Trump claimed he was reviewing 3,000 names of clemency aspirants and invited football players who claim unfairness in the legal system to submit more names.  It’s unclear if Trump actually has a list of 3,000 names.  It’s possible he was referring to the about 3,000 clemency applications — for pardons and commutations combined — that the Office of the Pardon Attorney received during his administration.  But the OPA, which clemency advocates consider slow and biased, has about 11,000 open cases that rolled over from Obama.

Although Trump referred to a clemency-reviewing “committee” on Friday, a White House official said that clemency petitions currently are being reviewed through the standard process, featuring the pardon attorney's office. There's some indication that's the case. Before Trump issued his second pardon to former Navy sailor Kristian Saucier, for example, the OPA abruptly reopened Saucier's case and sent him a detailed personal questionnaire.

“The White House will continue to review pardons and make decisions on a rolling basis,” the official said. “The White House and the Department of Justice receives thousands of clemency applications per year. The Office of the Pardon Attorney at the Department of Justice and the Deputy Attorney General review these applications in order to make recommendations to the White House on potential pardons."...

Amy Povah, the leader of the CAN-Do Foundation, said she’s pleased with Trump’s recent emphasis on clemency. So far, Trump has issued two prison commutations and five pardons, but the quickening pace is giving aspirants hope. “I have always felt that President Trump would be interested in clemency if he understood the fundamental problem with the Office of the Pardon Attorney being controlled by DOJ,” Povah said. “It's a conflict of interest for DOJ to have final say, which is why some of the best cases never made it to the White House during the Obama administration, like Alice Johnson.”

Margaret Love, who served as U.S. pardon attorney between 1990 and 1997, said she’s also optimistic. “It’s great news that the president may be interested in considering additional cases involving harsh prison sentences,” Love told the Washington Examiner. “President Obama’s clemency program was a good start but he left many deserving cases behind.”

As regular readers may recall, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  I that article I suggested, as a number of commentators have, that the President set up some kind of "Clemency Commission" that would be apart from the work and workings of the Justice Department.  It seems that Prez Obama did not really heed my clemency commission advice (though he ended up doing some good clemency work at the very tail end of his Presidency).  Here is hoping maybe Prez Trump will engineer some needed structural changes. 

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

June 11, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Pew Research Center reports uptick in support for death penalty

FT_18.06.08_DeathPenalty_widening-partisan-gapThe folks from Pew have some notable new survey research on the death penalty reported here under the headline "Public support for the death penalty ticks up." Here are the details:

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then.  Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s.  As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Since 1996, support for the death penalty has fallen 27 percentage points among independents (from 79% to 52%) and 36 points among Democrats (71% to 35%).  By contrast, the share of Republicans favoring the death penalty declined 10 points during that span (from 87% to 77%)....

Support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it. A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Young people are somewhat less likely than older adults to favor capital punishment.  Those younger than 30 are divided — 47% favor and 46% oppose it — but majorities in older age groups support the death penalty.

There are educational differences in views of the death penalty. Adults who have a postgraduate degree are more likely to oppose the use of the death penalty in cases of murder (56%) than those whose education ended with a college degree (42%) and those who never received a postsecondary degree (36% some college experience; 38% high school degree or less).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (73% favor, 19% oppose). White mainline Protestants also are substantially more likely to support (61%) than oppose (30%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 53% of Catholics favor capital punishment, while 42% oppose it. And while 45% of those who are religiously unaffiliated oppose the death penalty, 48% support it.

Especially because the spike in support for the death penalty here seems to be greater among Republicans and independents, I am inclined to describe these results as reflecting a "Trump Effect."   Notably, this poll was taken only a month after Prez Trump and his Attorney General were actively talking up the idea of the death penalty for some drug dealers (see all the links in this post), and I cannot help but wonder if these results somewhat reflect that particular use of the bully pulpit.

June 11, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2)

SCOTUS keeps us waiting on remaining big (and little) criminal justice cases

The Supreme Court issued a new order list and opinions in four argued cases this morning, but this activity carried little of interest for criminal justice fans.  There were no grants of certiorari on the order list, though there were, unsurprisingly, a handful of cases in which the judgment was "vacated, and the case is remanded ... for further consideration in light of Hughes v. United States."  Hughes, readers should recall, was the case decided last week (discussed here and here) in which the Court embraced a broadened interpretation of who is eligible for sentence modification under retroactive guideline reductions in certain plea settings.

Lacking a new SCOTUS case to review, I figured it might be useful to review the still-pending SCOTUS cases that should be of interest to criminal justice fans.  SCOTUSblog is reporting that the Court has already announced an added decision day for this coming Thursday, so some of these cases might be decided before the end of this week.  And all should be resolved over the next few weeks.  I believe there are a total of 21 SCOTUS cases outstanding, with these on the criminal side of the docket (links and descriptions via SCOTUSblog):

Carpenter v. United States: Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Currier v. Virginia: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

Rosales-Mireles v. United States: Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”

Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

Chavez-Meza v. United States: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

So, roughly speaking, about a quarter of the cases still on the docket involve criminal justice matters.  The real big one of this bunch, of course, is Carpenter; that case has been identified as a potential Fourth Amendment "game changer" even before a cert petition was filed in this case nearly two years ago.  And if sentencing fans are looking for a "sleeper" among this quintet, I am inclined to nominate Chavez-Meza.  Though I am not expecting or predicting a major opinion in Chavez-Meza, the Justices could directly or indirectly jolt federal sentencing procedure and practice if it happened to say something consequential about the preferred form or substance of sentencing explanations for district courts.  (Notably, I might be inclined to predict something significant in Chavez-Meza if Justice Gorsuch was involved in this case, but on this one he is recused because the case comes from the Tenth Circuit.)

June 11, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Sunday, June 10, 2018

Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"

Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:

President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program.  But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional.  His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.  While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.

Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated.  That is how the pardon power was designed to work by the framers of the Constitution.

But while Trump’s pardons are hardly unique, the process that produced them is troublesome.  Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.  This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.  President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....

As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor.  Significantly, the Delaware attorney general’s role is strictly one of an advocate.

While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance.  Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light.  This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.

There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power.  But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.

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

June 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Saturday, June 09, 2018

Latest notable statements by AG Jeff Sessions about crime rates and overdose deaths

Just like US Presidents gets to see official jobs numbers before they are officially made public, I suspect US Attorneys General get to see crime data before they are officially made public.  I am thus always eager to see what AG Jeff Sessions has to say about crime trends, and so these comments made Friday as part of these extended remarks to the Western Conservative Summit caught my eye:

In the Trump administration, we know whose side we’re on.  We’re on the side of law and order — and we back the blue, not the criminals.  We want every American to live in peace.

In recent weeks I sent in reinforcements: more than 300 additional federal prosecutors to high-crime parts of this country.  This is the biggest surge in prosecutors in decades.

These efforts are especially important because, when President Trump took office, the country had been reeling from a sudden increase in crime.  Crime had been declining for two decades. The violent crime rate had been cut in half.  The murder rate was cut in half.  Aggravated assault was cut almost in half. Robbery fell by 62 percent.

But from 2014 to 2016, those trends reversed. In the last two years of the Obama administration, the violent crime rate went up by nearly seven percent.  Robberies went up. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent.  Murder increased by more than 20 percent.

But under President Donald Trump, we are stopping these trends. He is a strong supporter of our law enforcement efforts. As he said during Police Week, “If we want to bring violent crime down, then we must stand up for our police.”  And make no mistake, our goal is to bring crime down.

In the Trump era, the ACLU isn’t making our law enforcement policies.  The professionals are. And we’re seeing results. In the first six months of last year, the increases in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress.

Preliminary data for 2018 look even better.  The Major City Police Chiefs Association has reported a 3.8 percent decline in violent crime and 4.7 percent decline in murders, based on 65 reporting agencies.

New CDC preliminary data show that last fall, drug overdoses finally started to decline.  Heroin overdose deaths declined steadily from June to October, as did overdose deaths from prescription opioids.

We need this progress right now — because not only was crime increasing at the end of the Obama administration, but drug overdose deaths in this country increased by more than a third in just two years.

June 9, 2018 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences? | Permalink | Comments (0)

Interesting perspective on "micro justice" and "macro justice" in the criminal justice system

Over at Governing, Greg Berman (no relation), who is the Director of the Center for Court Innovation, has this interesting commentary under the heading "Our 2 Kinds of Criminal Justice, and How to Reconcile Them: We need both micro justice and macro justice. But they aren't always in sync."  Here is how it starts and ends:

Recently I was asked to speak to a group of idealistic young people just starting their careers in public-interest professions.  After my spiel concluded, the first question I was asked caught me completely off guard: "What is justice?"

Somehow, I have managed to work in the field of criminal justice for 25 years without developing a satisfactory response to this question.  In the days since, as I have rehearsed what I should have said, I have come to realize that, for me, there are two kinds of justice: micro justice and macro justice.

Micro justice focuses on individual people and asks, "What is an appropriate response to the circumstances presented by this specific case?"  Macro justice looks at the bigger picture, examining social impacts, both positive and negative, and tries to determine whether they have been distributed in a way that conforms to basic tenets of fair play.

One of the challenges that confronts the field of criminal justice is that micro justice and macro justice are not always in sync.  Every day, police officers, prosecutors and judges are making decisions in individual cases that are rational, that follow all of the proper procedures, and that many would argue are correct on the merits.  Unfortunately, the cumulative effect of these decisions is to achieve outcomes that, viewed in the aggregate, do not seem just....

So where does this leave us? How do we reconcile the reality that at the ground level many of the people in the justice system are trying to do the right thing with an overarching analysis that the system is not achieving just results?

Many of the potential answers being advanced at the moment -- for example, eliminating cash bail or closing private prisons -- are macro justice solutions that tend to limit the discretion of system actors. We need big ideas like these if we are going to improve justice in this country.

But big ideas alone are not enough.  We need micro justice solutions too. Small changes in daily practice can also have far-reaching implications. We need to give front-line justice professionals the training they require to understand the traumatic life circumstances that bring people into the justice system, whether as defendants or victims. And we need to give them the encouragement and flexibility necessary to treat every person they encounter with decency, respect and individualized attention.

Perhaps most important of all, we need to convince bright young people, like the ones who initially befuddled me, to become front-line criminal-justice practitioners.  The fight to transform the American justice system cannot be won from the offices of our foundations, elected officials or editorial boards.  To create a fair, effective and humane justice system, we need judges, probation officials and correctional officers who are willing to wrestle with the question "what is justice?" on the ground each and every day.

June 9, 2018 in Who Sentences? | Permalink | Comments (0)

Friday, June 08, 2018

ACLU brings novel lawsuit against Kansas DA for failing to disclose diversion options to defendants

Late last year, the ACLU of Kansas last year produced this report titled "Choosing Incarceration" lamenting that prosecutors in Kansas often sought incarceration over available diversion programs.  Now, as details in this press release, the ACLU has taken its complaints to court:

The American Civil Liberties Union and the ACLU of Kansas filed a lawsuit today on behalf of a faith-based organization against a county prosecutor for failing to implement diversion programs in accordance with Kansas law and for pursuing the expensive and disproportionately harsh prosecution of individuals posing minimal community risks.

The lawsuit was filed today in the Kansas Supreme Court against Montgomery County Attorney Larry Markle. At a time when Kansas prisons have swelled beyond capacity, costing taxpayers millions of dollars, Markle and Montgomery County drastically underutilize diversion compared to the national and state average, despite the fact that diversion programs that allow defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, staff attorney with the ACLU’s Trone Center for Justice. “Ignoring the legal requirements to provide notice to defendants of the existence of these programs, and to not discuss these options with those who qualify, is against the law. We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

Markle’s failure to follow Kansas diversion law negatively impacted the work the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and economic development services to Wilson and Montgomery County defendants convicted of drug offenses. Since many KCF clients were likely not given the opportunity to apply for diversion, KCF has had to divert critical resources away from rehabilitation programs to conduct jail counseling sessions and help defendants comply with the terms of their probation or parole....

Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed against active district attorneys since October as a part of nationwide efforts to reform prosecutorial practices nationwide.

The complain in his matter is available at this link.  

June 8, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more names from NFL players

Another day, another round of clemency craziness thanks to Prez Trump.  These two new headlines about what Prez Trump said today account for the new craziness: 

Here is a little context from the Reuters piece (with one phrase highlighted):

U.S. President Donald Trump said on Friday he is considering pardoning some 3,000 people “who may have been treated unfairly,” including late heavyweight boxing champion Muhammad Ali.

“We have 3,000 names. We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly,” Trump told reporters on the White House lawn before he departed for a Group of Seven summit in Canada. In some cases, their sentences are “far too long,” he said.

Trump said he was considering a pardon for Ali, who died in 2016. The boxer refused to be inducted into the U.S. Army in 1967, claiming conscientious objector status, and was sentenced to five years in prison. He never went to prison while his case was under appeal and in 1971 the U.S. Supreme Court overturned the conviction.... It was unclear why Trump would be considering a pardon, given that Ali’s conviction was overturned.

Trump also said he will reach out to National Football League players who have been urging criminal justice reforms for their recommendations of people who have been treated unfairly.

The peculiar discussion of Ali and the olive branch of sorts to NFL players is sure to garner the most attention, but the statement by Prez Trump that some federal defendants get sentences that are "far too long" strikes me as most interesting and perhaps consequential. Specifically, in the on-going debate over federal statutory sentencing and prison reforms, this comment leads me to wonder (and hope) that Prez Trump might be convinced to be support of some statutory sentencing reforms before too long, if not now.

June 8, 2018 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6)

Thursday, June 07, 2018

Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?

The question in the title of this post is prompted by this ABC News article headlined "Trump’s ‘solo act’ push for presidential pardons likely to grow, WH officials say." Here are excerpts:

The White House has been working to prepare documents for a growing list of potential pardons or commutations under consideration by President Donald Trump, two senior administration officials told ABC News Thursday. "You don't want to be the person empty-handed when he's asking," one of the officials said. "Need to be ready when the boss is ready to go.”

Officials describe the push for pardons as "a solo act," pointing directly to Trump’s pushing for more and more names. White House aides believe Trump is grasping for names he knows like Martha Stewart and former Illinois Gov. Rod Blagojevich, sources told ABC News, while the aides lobby the president to consider also more unknown Americans who have been behind bars for nonviolent crimes.

The sources said they expect the president's list to grow in the coming weeks. "He's doing it his way and he likes seeing how quick the process has been," one of the sources said. The White House, as ABC News has reported, has been going around the Department of Justice, which is usually heavily involved in such cases.

I sincerely doubt Prez Trump or his aides read this blog and its comments, but one never knows.  So, dear readers, with Prez Trump reportedly "pushing for more and more names," let's give him more and more names.

Especially in light of modern marijuana reforms, I hope someone points Prez Trump and his aides to the Life for Pot site which has detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuana and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  And I cannot help but view John Knock as the first among equals on that list, in part because of the amazing work his sister has done to bring attention to his story and those of other similarly over-sentenced federal defendants.

The amazing Shon Hopwood and FAMM's Kevin Ring has been championing the cause of Matthew Charles (discussed in this recent post), so I am hopeful that his name is already on the radar of folks at the White House.   But I know there are thousands, likely tens of thousands, of persons who can make a reasonable case for receiving clemency in the form of a commutation or pardon.  I welcome names to be listed and cases to be made in the comments.   

UPDATE: This Washington Post WonkBlog piece spotlights a ready source for clemency candidates. The piece is headlined "It’s not just Alice Marie Johnson: Over 2,000 federal prisoners are serving life sentences for nonviolent drug crimes," and it starts this way:

On the advice of Kim Kardashian, President Trump on Wednesday commuted the prison term of Alice Marie Johnson, a 63-year-old great-grandmother, who in 1996 was sentenced to life without parole in federal prison on nonviolent drug and money laundering charges.

It's a somewhat surprising move coming from Trump, a president who has publicly called for executing drug dealers. But Jordan's case underscores how many nonviolent drug offenders are serving life terms in federal prison. According to federal corrections data analyzed by the Sentencing Project, a criminal-justice-reform group, as of 2016 1,907 federal inmates were serving life sentences for drug offenses, which are by definition nonviolent (more on that below).

An additional 103 offenders found guilty of those crimes were serving “virtual life sentences,” which the Sentencing Project defines as sentences of 50 years or more. Under federal law, there is no possibility of parole for crimes committed after Nov. 1, 1987.

June 7, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

June 7, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act

As reported in this article from The Hill, a "group of 40 former state and federal inmates is pushing Senate leaders to take up the White House-backed prison reform bill that has divided Democrats and liberal groups, as well as GOP senators." Here is more:

In a letter Wednesday to Senate Majority Leader Mitch McConnell (R-Ky.), Minority Leader Charles Schumer (D-N.Y.), Judiciary Committee Chairman Chuck Grassley (R-Iowa) and ranking member Dianne Feinstein (D-Calif.), the former prisoners argue the First Step Act, while modest, offers some meaningful reforms....

The former inmates say they know the bill isn’t perfect, but it’s something. “All of us would change the bill in different ways and many of us wished it addressed excessive federal mandatory minimum sentences,” they wrote.  “But we also know that the bill would provide some long overdue relief and hope to more than 180,000 people in federal prison and millions of their family members and loved ones on the outside.”...

Supporters of prison reform say demands for all or nothing is the wrong approach. “We’ve been disturbed by some of the comments we’ve heard that doing nothing is better than doing something and that is not at all what we hear from the tens of thousands of prisoners we’re in touch with,” said Kevin Ring, president of Families against Mandatory Minimums, who spent one-and-a-half years in federal prison. “It’s also inconsistent with our own experiences being in federal prisons and knowing how much reform is needed. Waiting to do anything until you get everything is deeply misguided.”

The full letter and the list of signatories is available at this link. Here is an excerpt of a missive that merits a full read:

Despite the bill’s clear benefits, we have heard some people suggest it would be better for Congress to do nothing rather than pass this bill.  Such talk reflects a disturbing detachment from the hardships that so many families are experiencing today because of our counterproductive federal sentencing and prison policies.

While we do not claim to speak for all people who are serving time in federal prison or their families, we (or the organizations at which we work) are in touch with tens of thousands of these incarcerated individuals and their families every week.  Many of us still have friends and loved ones behind bars.  The people we talk to have no use for abstract debates about whether to pass comprehensive or narrow reform, speculative theories about how passing reform today might impact future reform or, worst of all, political gamesmanship.  These families just need some help.  They shouldn’t have to wait any longer.

We also know from our personal experience that meaningful programming, educational, and job training opportunities in the federal system are lacking.  All too often people are warehoused for decades with no hope.  We know that too many parents are incarcerated so far away from their children that they rarely get to visit them — just imagine seeing your kids once or twice a year, if that.  Going without the hugs and kisses of our loved ones for weeks and months was the most difficult part about being in prison.  We know others who have gone for years without that critical physical contact.  We also know that the Federal Bureau of Prisons’ incorrect calculation of good time credit has deprived people of shortening their lengthy prison sentences.  If anyone tells you these reforms are not “real” or “meaningful” to vulnerable families and individuals across the country, they simply don’t know what they are talking about.

Some of many prior related posts:

June 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

After SCOTUS rejected its standards, Texas Court of Criminal Appeals again rejects Bobby Moore's intellectual disability claim to preclude death penalty

As noted in this post last year, the US Supreme Court in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), rejected the restrictive factors then being used by the Texas Court of Criminal Appeals to assess intellectually disability for death penalty ineligibility under the Eighth Amendment.  But the defendant in that case, as reported in this local article, has now had his intellectually disability claim rejected again by the Texas Court of Criminal Appeals.  Here are the basics:

The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.

More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore's case, ruling the state used outdated medical standards and rules invented by elected judges without any authority. In a 5-3 ruling on Wednesday, the all-Republican Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.

Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents....

In a new evaluation using the current medical framework, the majority of the Court of Criminal Appeals ruled that Moore still did not show enough adaptive deficits to qualify as intellectually disabled, citing the fact that he learned to read and write in prison and buys items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.

The court’s opinion also noted that before the U.S. Supreme Court ruled in 2002 that people with intellectual disabilities were exempt from execution, Moore had claimed in court that he did not have a disability and that his difficulties were due to an abusive childhood and his lack of learning opportunities.

In a 67-page dissent, death penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said the court’s majority erred in its use of the current medical standards and that Moore is intellectually disabled. Alcala said the court disregarded the standards by improperly weighing Moore’s strengths against his deficits in his adaptive functioning and put too much weight on his progress in a controlled death row environment.

She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies and many observations in the Supreme Court ruling that appeared to agree Moore was disabled. “I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”...

Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.

Though Moore will remain on the row in solitary confinement, it seems unlikely he will get an execution date set while Ogg, a Democrat elected in 2016, is in office. Execution dates are set by convicting county courts after appeals have been exhausted, usually prompted by the district attorney’s office. And Ogg asked the Court of Criminal Appeals to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. Ogg did not answer a question from The Texas Tribune about seeking an execution date for Moore. Instead, she said in an emailed statement Wednesday afternoon that she anticipated the court’s decision to use “correct scientific standards” would immediately be applied to assess intellectual disability claims of other death row inmates, without mentioning Moore at all.

The 35-page majority opinion in Ex parte Bobby James Moore is available here, the 67-page dissenting opinion is available here.

June 7, 2018 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 06, 2018

Reviewing the Supreme Court's work in sentence modification cases of Hughes and Koons

So much of interest has already happened this week, I almost forgot that on Monday the Supreme Court resolved two of the most notable sentencing cases on its docket this Term.  (Sentencing fans still have Rosales-Mireles v. United States on plain error review of sentencing errors and Chavez-Meza v. United States on required sentencing explanations to keep our interest the next few Mondays.)  Helpfully, I have seen on line a few reviews and round-ups of Hughes and Koons, and I figured it would be useful to link here:

June 6, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

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

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

June 6, 2018 in Elections and sentencing issues in political debates, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, June 05, 2018

Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"

The latest dispatch from inside the Beltway on the clemency front comes in the form of this juicy new Washington Post article headlined "Trump fixates on pardons, could soon give reprieve to 63-year-old woman after meeting with Kim Kardashian." The entire article is a must-read, and here are just a few highlights:

President Trump has become fixated on his ability to issue pardons, asking his aides to compile a list of candidates and stirring dissent in the West Wing with his mercurial and seemingly celebrity-driven decisions.

Trump is telling aides that he is now strongly considering pardoning Alice Marie Johnson, a 63-year-old woman serving a life sentence for a nonviolent crime, after meeting with Kim Kardashian last week to discuss her case — a move being resisted by his chief of staff and a top White House lawyer....

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

“It’s all part of the show,” said veteran Republican consultant Ed Rollins, a former strategist for a pro-Trump super PAC. “It’s not a rational or traditional process but about celebrity or who they know, or who he sees on ‘Fox & Friends.’ He’s sending the message, ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”

The pardon for Johnson could come soon, with the paperwork being finalized Tuesday morning, according to a person familiar with the discussions. Trump’s aides and associates see Kardashian’s celebrity imprimatur as crucial and alluring to the president. But the potential pardon of Johnson has caused consternation in the West Wing, with top advisers — including chief of staff John F. Kelly and White House counsel Donald McGahn — disturbed by the process, according to two people familiar with the discussions.

Kelly has reviewed Johnson’s background and her 1996 conviction — she was sentenced to life in prison on drug possession and money laundering charges — and is not convinced she deserves a pardon, an administration official said. And McGahn has also argued against the possible pardon as an unnecessary action by the president, a second official said.

Jared Kushner, the president’s son-in-law and senior adviser who helped arrange the meeting with Kardashian in the Oval Office last week, has heavily pushed for a pardon for Johnson within the West Wing, these officials said. Kushner attended the meeting between Trump and Kardashian, and having recently had his security clearance reinstated, has been described as newly emboldened by White House aides.

A White House spokesperson said the administration had no current announcements to make on pardons and declined to discuss the specifics of ongoing deliberations....

Trump’s pardons so far have been scattershot, driven by television segments, celebrities, friends and White House advisers who have pressed their cases for pardons that include controversial Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and Lewis “Scooter” Libby, former chief of staff to Vice President Richard B. Cheney. He also posthumously pardoned heavyweight boxing champion Jack Johnson in May, after being lobbied by actor Sylvester Stallone....

Trump has begun asking friends who else he should pardon, according to an adviser who frequently speaks to the president, and some have offered suggestions. The president has asked McGahn to prepare a list of other pardons for him to consider, administration officials said.

Some people seeking pardons are now making their case on Fox News, the president’s favorite channel, knowing he may be watching. Patti Blagojevich, the former governor’s wife, appeared on “Justice with Judge Jeanine” Saturday night.... On Monday, the wife of former Trump foreign policy adviser George Papadopoulos went on Fox News’ “Tucker Carlson Tonight” and for the first time said she believed Trump should pardon her husband, who pleaded guilty in October to lying to the FBI about Russia contacts during the campaign. Papadopoulos is awaiting sentencing on the felony charge....

The White House is also now weighing whether to grant a presidential pardon to two ranchers from eastern Oregon, Dwight and Steven Hammond, whose 2016 imprisonment on arson charges inspired the 41 day-armed occupation of the Malheur National Wildlife Refuge. Ranching and farming groups, as well as some militia adherents, have pushed for clemency to send a signal that federal officials won’t engage in overreach out West.

The Hammonds’ supporters argue that the two men, originally convicted in 2012 on two counts of arson, shouldn’t have been forced to serve jail time on two separate occasions. While they would have normally served a mandatory minimum sentence of five years, U.S. District Judge Michael Hogan initially gave Dwight Hammond three months and his son Steven a year and a day behind bars. But the government won an appeal over the Hammonds’ sentence in 2015, so they were resentenced to serve out the remaining years of a five-year minimum.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Open Roads and Overflowing Jails: Addressing High Rates of Rural Pretrial Incarceration"

The title of this post is the title of this new report authored by Marc Levin and Michael Haugen. Here is its executive summary:

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system.  Yet in many jurisdictions, it appears to have been forgotten. The pretrial population of defendants has significantly increased — particularly in rural areas of the country. Jails in smaller jurisdictions are responsible for an outsized share of jail population growth.  Indeed, from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties.

This paper explores why this growth may have occurred and makes numerous recommendations to reduce pretrial populations, particularly in rural America.  The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time — the overcriminalization of our society must be reversed.  The next step is to restore our historical commitment to individual liberty and the presumption of innocence by following these five guiding principles of pretrial justice policy:

•  There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty.

•  Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•  Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance.

•  The burden should be on the state to prove the need for conditions of release or denial of bond in an adversarial proceeding where the accused is present.

•  Individual judicial consideration should be required for each accused.

For a host of reasons, ranging from limited resources to dispersed populations, addressing pretrial incarceration in rural areas is a particularly complex undertaking.  Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.  Ultimately, as rural communities across the country take many different paths to addressing the meteoric rise in rural pretrial incarceration over the last few decades, they must not lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage.

June 5, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Guest post: "The Eleventh Circuit’s Take On Handling The Wave of Dimaya-Related Litigation"

6a00d83451574769e201b7c9134b4d970b-320wiA helpful reader alerted me to an order recently issued by the Eleventh Circuit concerning how it wished to handle prisoner litigation in the wake of the Supreme Court's big recent Dimaya vagueness ruling.  In response, I reached out to the academic rock-star who comes to mind in conjunction with federal habeas litigation, Leah Litman, as she was kind enough to write up this terrific guest post:

In the wake of Sessions v. Dimaya, at least one court of appeals has changed its practice from the post-Johnson days, and happily so.  Even better, that court is the U.S. Court of Appeals for the Eleventh Circuit.

By way of background: Dimaya, like Johnson before it, immediately precipitated a wave of resentencing requests by prisoners seeing to have their sentences corrected in light of the decision. Some of these prisoners were sentenced under statutes that incorporate section 16(b); others were sentenced under statutes that merely resemble section 16(b) (sometimes resembling section 16(b) in every possible way, such as section 924(c)).  Some of these prisoners are seeking to file their first section 2255 motion; others seeking permission to file a second or successive section 2255 motion. 

In a post for the Harvard Law Review blog, I wrote about some of the obstacles that prisoners in these situations will face.  Prisoners seeking to file second or successive 2255 motions face significantly more obstacles than prisoners seeking to file their initial section 2255 motions.  For example, prisoners seeking to file second or successive 2255 motions have to obtain authorization from a court of appeals before they can file in the district court.  And to obtain that authorization, prisoners have to show not only that the decision on which they are relying is retroactive, but that the Supreme Court has made it retroactive.  By contrast, prisoners seeking to file their initial section 2255 motions have to show only that the decision on which they are relying is retroactive.   

In the post-Johnson litigation, the U.S. Court of Appeals for the Eleventh Circuit adopted an approach under which it would adjudicate all section 2255 motions relying on Johnson.  It maintained that approach even after the Supreme Court had granted certiorari in Welch to decide whether Johnson is retroactive (the Court likely granted certiorari in Welch just to make Johnson retroactive).  It also maintained that same approach after the Court granted certiorari in Beckles to decide whether an analogous provision in the U.S. Sentencing Guidelines was also unconstitutionally void for vagueness.

The Eleventh Circuit’s case-management decision was fairly high stakes, as I explained in this essay in the Northwestern Law Review with Shakeer Rahman and in this Take Care post with Lark Turner.  For one thing, processing defendant’s initial section 2255 motions would push defendants’ cases toward second or successive 2255 motions, at which the obstacles to recovery would be greater.  Processing so many section 2255 motions in short order also risked losing cases in the fray, particularly given that defendants have no constitutional right to counsel in their section 2255 motions.  Moreover, the Eleventh Circuit had also interpreted section 2244 to require it to dismiss any claim in a second or successive 2255 motion that had been presented in a previous petition.   The Eleventh Circuit’s practice was also contrary to the other circuits:  In In re Embry, the U.S. Court of Appeals for the Sixth Circuit, in a decision by Judge Sutton, explained why holding cases in abeyance of Beckles made the most sense.  Other courts of appeals did the same.

In the wake of Dimaya, the U.S. Court of Appeals for the Eleventh Circuit has brought its practices into line with other circuits.  The Eleventh Circuit issued an order (“General Order 43”) in which it ordered all second or successive 2255 motions involving section 924(c) to be held in abeyance for the Eleventh Circuit’s decision in Ovalles v. United States.  The Eleventh Circuit took Ovalles en banc to decide whether section 924(c) is unconstitutionally void for vagueness in light of Dimaya (the court ordered briefing on whether courts must use the categorical approach to interpret section 924(c), but General Order 43 recognizes the court will decide the constitutionality of section 924(c) as part of the case).   Thus, Ovalles is to Dimaya as Beckles was to Johnson:  Both cases will or would decide whether an analogous provision is unconstitutionally vague in light of the preceding Supreme Court decision.  But whereas the Eleventh Circuit refused to hold cases in abeyance for Beckles, it is doing so for Ovalles.

I am not exactly optimistic that the Eleventh Circuit is going to invalidate section 924(c) in light of Dimaya.  I think the Eleventh Circuit is likely to hold that courts need not use the categorical approach when interpreting section 924(c), and distinguish section 924(c) from 16(b) on that basis.

Nonetheless, I think a rare kudos is appropriate here for the Eleventh Circuit’s decision in General Order 43.  By electing to hold cases for Ovalles, the Eleventh Circuit is avoiding unnecessary duplication in litigation, which would waste everyone’s (the courts, public defenders, and litigants) time.  It is also avoiding generating a slew of unfavorable precedents for defendants:  In the wake of Johnson, the Eleventh Circuit disposed of many Guidelines cases by holding that the defendant’s prior convictions qualified as violent felonies under the enumerated offense or element of force clauses, even assuming the Guideline’s residual clause was vague.   Doing so ensured that the court’s decisions would be insulated from having to go through another round of review in the event the Supreme Court ultimately held the Guideline unconstitutionally vague.  But it also generated a ton of unfavorable precedent to the defendants, without argument and even without full briefing, given that that is how courts of appeals dispose of requests to file second or successive motions.  By changing course and holding cases for Ovalles, the Eleventh Circuit is avoiding repeating the same error.  And that’s something, these days.

June 5, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018"

NATO_OH_2018A pair of new reports from the Prison Policy Initiative compares US states to 166 countries on incarceration in order to highlight how each state relies on prisons and jails relative to the rest of the world. These report are titled "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018." Here are snippets from the first (and clicking through to see the graphics is a must for both):

Oklahoma now has the highest incarceration rate in the U.S., unseating Louisiana from its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth . Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation, ... every state appears extreme.  23 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 9th in the world, just below Brazil and followed closely by countries like Belarus, Turkey, Iran, and South Africa.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts.  Others struggle with violent crime on a scale far beyond that in the U.S.: El Salvador, Russia, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “land of the free,” tops them all....

For four decades, the U.S. has been engaged in a globally unprecedented experiment to make every part of its criminal justice system more expansive and more punitive.  As a result, incarceration has become the nation’s default response to crime, with, for example, 70 percent of convictions resulting in confinement — far more than other developed nations with comparable crime rates.

Today, there is finally serious talk of change, but little action that would bring the United States to an incarceration rate on par with other stable democracies.  The incremental changes made in recent years aren’t enough to counteract the bad policy choices built up in every state over decades.  For that, all states will have to aim higher, striving to be not just better than the worst U.S. states, but among the most fair and just in the world.

June 5, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2)