Sentencing Law and Policy

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

With eight more executions scheduled, 2024 could conclude with most US executions in nearly a decade

I flagged here last month that a flourish of executions in multiple states had been scheduled over just a week, and all five of those executions were ultimately carried out.  I now see from this Death Penalty Information Center page that eight more executions are scheduled for the final few months of 2024.  If seven of those executions go forward as planned, the US will have completed 26 total execution in 2024, which would be more than in any calendar year since 2015.

Of course, 26 executions in a year is still a relatively paltry number in America's capital punishment history.  In the 1930s, for example, the US averaged well over 150 executions per year.  And from 1995 to 2014, the US states executed, on average, 56 persons per year, and hit a modern peak of 98 executions in 1999.  Still, I find it fascinating that state executions were trending down in the final years of the Trump Administration and now are trending up in the final years of the Biden Administration.  These trends seem especially notable given that candidate Joe Biden pledged to work to "eliminate the death penalty."    

Writing at Inquest, Lee Kovarsky highlights in this new essay how this year's presidential election could prove an inflection point in modern capital punishment history.  The substitle of the piece captures its main theme: "The presidential candidates are worlds apart on the death penalty. The winner could either jolt or sap the energy of the movement to end it."

Intriguing (though likely doomed) effort to alter South Carolina clemency process by condemned inmate

This new AP article reports on an interesting claim brough by a condemned inmate in South Carolina.  Here are the details:

A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.  The South Carolina constitution gives the governor the sole right to spare an inmate’s life, and Gov. Henry McMaster’s lawyers said he intends to retain it.

Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate’s request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state’s lead prosecutor and oversaw attorneys who successfully fought to uphold Moore’s death sentence. “For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.

McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore’s sentence when an execution date was a possibility, Moore’s attorneys said in court papers filed Monday.

Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.  Currently, nine states, including South Carolina, are run by former attorneys general.  Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas....

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded, while Mahoney died from a bullet to the chest. Moore didn’t call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.

State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted.  His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.  No South Carolina governor has ever granted clemency in the modern era of the death penalty.  McMaster has said he decides each case on its merits after a through review....

McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate’s life.

And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore’s death sentence upheld on appeal. “Clemency is an act of grace,” the governor’s attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”

Notably, a divided Supreme Cout in Ohio Adult Parole Authority v. Woodard interpretation the Constitution to mean that "some minimal procedural safeguards apply to clemency proceedings." But I would be shocked if that precedent (or any others) will enable the condemned defendant to prevail in this case.

A deep dive into sentencing patterns for NY felony crime of falsifying business records

This week the New York Times published this lengthy article, headlined "Will Trump Get Jail Time? We Looked at Similar Cases to Find Out," while provides some statistical context regarding sentences in New York for the crimes that Donald Trump will be sentenced for next month.  Here are excerpts from the piece:

The former president’s unruly behavior at the New York trial makes him a candidate for jail time, as does his felony crime of falsifying business records: Over the past decade in Manhattan, more than a third of these convictions resulted in defendants spending time behind bars, The Times’s examination found. Across New York State, the proportion is even higher — about 42 percent of those convictions led to jail or prison time....

Over the past decade or so, the most likely punishment for someone in New York State convicted on a top charge of felony falsification of business records was jail or prison time, according to data from the New York State Division of Criminal Justice Services. The data shows that 204 people ended up behind bars for that crime, while 174 received probation and no jail time.

The Times review of false records convictions in Manhattan alone — which was based on data from state and local agencies and verified by case files retrieved from the clerk’s office — similarly supports the notion that Mr. Trump could spend a few weeks or months in jail.

The Times found 30 cases in Manhattan since 2014 in which a person was convicted and sentenced on a top charge of felony falsification of business records. Of those cases, only five resulted in probation and no jail time, while 11 involved incarceration.

Defendants in nine of the 11 cases were first-time felony offenders like Mr. Trump and received sentences between one week and 364 days in jail, with the most frequent jail sentence being six months. The other two defendants, both of whom had been previously convicted of felonies, received more than a year in prison.

All but one of the other defendants received a so-called conditional discharge, a sentence that allows them to avoid probation or jail if they follow certain conditions, such as maintaining employment or paying restitution. The remaining man received only community service and a fine.

Still another variation on animal abuse produces another notable federal sentencing

Over the last month, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  I am not sure if I should keep blogging in this genre, but I am sure this latest story, headlined "Etna monkey torture video producer gets sentenced to federal prison," is another variation on an ugly theme: 

A federal judge sentenced an Etna man to more than four years in prison after he pleaded guilty to charges that he conspired to create and distribute videos depicting torture and sexual abuse against monkeys.

U.S. District Judge Edmund A. Sargus Jr. sentenced Ronald P. Bedra, 42, to 4½ years in prison Thursday, according to a news release. In April, he pleaded guilty to creating and distributing “animal crush” videos and distributing them, the release says.

Investigators say Bedra conspired with other people to create and distribute the videos, which depict sadistic violent acts against baby and adult monkeys. Using encrypted chat applications, Bedra sent money to people in Indonesia willing to commit the tortious acts on camera, the release says. Some of the videos contain images of monkeys’ fingers and limbs being severed and others abused with a heated screwdriver, according to investigators.

“We will punish participants of sadistic conspiracies like this one no matter their role in the crime,” U.S. Attorney Kenneth Parker said in the release. “As this case shows, even if you do not commit the torture firsthand, you will be held accountable for promoting this obscene animal abuse.”

Investigators also said Bedra mailed a thumb drive to a co-conspirator in Wisconsin containing more than 60 videos of monkeys being tortured.

“Defendant Ronald Bedra commissioned grotesque videos of torture of juvenile and baby monkeys,” Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division said in the release. “Such appalling conduct has no place in our society. The Justice Department stands ready to prosecute individuals engaging in this activity to the fullest extent of the law.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 
• Yet another wild (and wildlife) animal crime leads to notable federal sentencing

The Sentencing Project releases "Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction"

The Sentencing Project has this timely new report on felon disenfranchisement. Here is the text of the report's "Overview":

Laws in 48 U.S. states ban people with felony convictions from voting. In 2024, an estimated 4 million Americans, representing 1.7% of the voting-age population, will be ineligible to vote due to these laws, many of which date back to the post-Reconstruction era. In this historic election year, questions persist about the stability of democratic institutions, election fairness, and voter suppression in marginalized communities. The systematic exclusion of millions with felony convictions should be front and center in these debates.

This report updates and expands upon a quarter century of work chronicling the scope and distribution of felony disenfranchisement in the United States. As in 2022, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latino populations impacted. This year, we also present state-level data on the degree of disenfranchisement among men and women. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of U.S. felony disenfranchisement as of the November 2024 election.

Among the report’s key findings:

• An estimated 4 million people are disenfranchised due to a felony conviction, a figure that has declined by 31% since 2016, as more states enacted policies to curtail this practice and state prison, probation, and parole populations declined. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.6 million in 2000, 5.1 million in 2004, 5.7 million in 2010, 5.9 million in 2016, 4.9 million in 2020, and 4.4 million in 2022.
• One out of 59 adult citizens – 1.7% of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
• Seven out of 10 people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on felony probation or parole.
• In two states – Florida and Tennessee – more than 6% of the adult population, one of every 17 adults, is disenfranchised.
• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 961,000 people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 730,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
• One in 22 African Americans of voting age is disenfranchised, a rate more than triple that of non-African Americans. Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. In 15 states, 5% or more of the African American adult population is banned from voting due to a felony conviction.
• More than one in 10 African American adults is disenfranchised in five states – Arizona, Florida, Kentucky, South Dakota, and Tennessee.
• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 495,000 Latino Americans or 1.5% of the voting eligible population are disenfranchised.
• Based on available correctional data that records an individual’s sex, approximately 764,000 women are disenfranchised, comprising about 0.6% of the female voting eligible population and approximately one-fifth of the total disenfranchised population.3 We estimate that approximately 3.2 million men or 2.7% of the male voting eligible population is disenfranchised, consistent with the overrepresentation of men in the criminal legal system.

Supreme Court reveals (predictable) split during argument on Glossip capital case

Supreme Court watchers who know the current Justices' patterns, especially in capital cases, would have expected Justices Barrett and Kavanaugh to be likely key swing votes in the Glossip case argued today (previewed here).  This round-up of some press accounts of today's Glossip argument suggest those Justices are likely to deterimine the case's fate:

From NPR, "Okla. AG seeks new trial for death row inmate, but Supreme Court seems split"

From SCOTUSblog, "No clear decision as justices debate Richard Glossip’s death sentence"

From the New York Times, "Splintered Supreme Court Wrestles With Case of Oklahoma Death Row Inmate"

From the Washington Examiner, "Supreme Court appears divided over Oklahoma death row appeal"

From the Washington Post, "Supreme Court closely divided on new trial for Oklahoma death row inmate"

"Measuring Punishment Severity"

The title of this post is the title of this book chapter authored by Adam Kolber (for this forthcoming book on the philosophy of punishment), which was recently posted to SSRN. Here is its abstract:

If punishment is ever morally appropriate, it will only be so in amounts that fit the circumstances.  We cannot possibly punish justly without at least some ability to measure punishment severity.  Since punishment is often thought to require an intentional infliction, one might think punishment severity depends on the severity punishers intend.  But since real-world punishment practices include both intended and unintended inflictions, the "intent approach" to severity fatally ignores unintended harms.  Our punishment practices cannot be justified unless we justify their side-effect harms as well.  The "harm approach" to punishment severity, by contrast, focuses not on intentions but on foreseeably caused harms.  Because the harm approach measures what needs to be morally justified, it better fits theories that seek to justify punishment practices.  It also fits well with our intuitions about severity: those punished care little about what punishers intend and a lot about how much they are harmed.  Once harm is properly measured, however, our traditional notions of retributive proportionality look surprisingly unattractive, and two seemingly plausible ways of fixing proportionality fail.

Pennsylvania Supreme Court hears constitutonal challenges to mandatory LWOP for felony murder ... not long after Colorado Supreme Court rejects similar claims

As reported in this local article, the Pennsylvania Supreme Court yesterday heard oral arguments in a case challenging the state's mandatory life without parole sentencing scheme for all defendants convicted of second degree felony murder.  Here is a snippet from the report:

The Supreme Court agreed in February to consider the appeal of former Allegheny County resident Derek Lee, who was sentenced to life in prison without parole for a 2014 murder committed by his accomplice in a robbery.  Grote said Lee’s punishment is disproportionately harsh given the lack of intent to kill inherent in the crime and argued that it does little to deter others. He urged the court to find that the punishment violates both the Pennsylvania and U.S. Constitutions....

Lee, 36, was convicted of second-degree murder, robbery, and conspiracy in the Oct. 14, 2014, shooting death of Leonard Butler in Pittsburgh. Lee and another man entered the home Butler shared with his longtime girlfriend and forced them at gunpoint into the basement.  After Butler gave Lee his watch, Lee left the basement and the other man remained. Butler’s long-term partner Tina Chapple testified that Butler lunged at the man and she heard a gunshot. Butler was struck and died from his injuries, according to court filings.

Allegheny County Assistant District Attorney Kevin McCarthy noted that the felony murder rule has been Pennsylvania law since 1794 and that the penalty has been revised from death to include the option of a life sentence and most recently to require life without parole in 1974....  “Each and every member who participates is responsible to the same degree and can be punished to the same degree,” McCarthy said.

During the arguments, the Supreme Court justices grappled with the potential impact of a ruling that life without parole is unconstitutional and whether it should be retroactive.  More than 1,100 people are serving such sentences in Pennsylvania and finding them unconstitutional could require the state’s courts to revisit each person’s case.

Interestingly, similar constitutional claims about LWOP sentencing for felony murder were considered and recently rejected by a unanimous Colorado Supreme Court in Sellers v. Colorado, 2024 CO 64 (Colo. Sept. 30, 2024) (available here).  Here is how that opnion begins:

Petitioner Wayne Tc Sellers IV asks us to consider whether a life without the possibility of parole (“LWOP”) sentence for felony murder is categorically unconstitutional or, alternatively, grossly disproportionate to the offense of felony murder following the General Assembly’s 2021 reclassification of that offense.

Based on objective indicia of societal standards and evolving standards of decency as expressed in legislative action and state practice, as well as the exercise of our independent judgment, we now conclude that an LWOP sentence for felony murder for an adult offender is not categorically unconstitutional.

We further conclude that, even assuming without deciding that felony murder is not per se grave or serious, Sellers’s offense here was, in fact, grave and serious. Thus, his LWOP sentence, although severe, does not run afoul of the Eighth Amendment or article II, section 20 of the Colorado Constitution and therefore was not grossly disproportionate.

Certain offense facts might distinguish the case in Pennsylvania from the one in Colorado, and the Pennsylvania Supreme Court has broad authority to interpret its state constitution differently than how other state courts interpret their state constitutions. But the unanimous ruling by the Justices of the Colorado SUpreme Court, who were all appointed by Democratic governors, highlights the enduring challenge adult defendants face when seeking to challenge prison terms on certain constitutional terms.  

"On the Importance of Listening to Crime Victims . . . Merciful and Otherwise"

The title of this post is the title of this new essay authored by Paul Cassell recently posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.

This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

CCJ releases new report on "The Implications of AI for Criminal Justice"

The Council on Criminal Justice today released this notable report put together following a summer convening of researchers and various stakeholdersto discuss the potential and pitfalls of artificial intelligence for criminal justice systems.  Here is part of the report's introduction:

The rapid advancement of artificial intelligence (AI) technologies has implications for every sector of society, including the criminal justice system.  As AI tools for investigation, adjudication, prioritization, analysis, and decision-making proliferate and evolve, understanding their potential benefits and risks becomes increasingly important.

In June 2024, the Council on Criminal Justice (CCJ) convened a group of experts and stakeholders to discuss the implications of AI for the U.S. criminal justice system.  The meeting brought together a diverse group of three dozen leading stakeholders from across ideologies, disciplines, and sectors of the system — policymakers, practitioners, researchers, technologists, and advocates — for two days of discussion and the examination of three use cases. The event was hosted by the Stanford Criminal Justice Center at the Stanford University School of Law....

The key goal of the convening was to jump-start a national conversation about how to integrate AI into criminal justice in ways that promote justice, efficiency, and effectiveness and avoid exacerbating existing problems or creating new ones. This report summarizes key themes from the convening.

New PPI briefing highlights incarceration trends on tribal lands

Emily Widra writing at the Prison Policy Initiative has this lengthy new briefing titled "New, expanded data on Indian country jails show concerning trends extend to tribal lands." The subheading of the piece provides an overview: "In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands."  Here is how the briefing gets started:

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.  More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people.  Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country. In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land.  They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

Previewing SCOTUS's latest Glossip argument

Richard Glossip already has a significant Supreme Court ruling associated with his name; nearly a decade ago, SCOTUS considered and then rejected his Eighth Amendment challenge to Oklahoma's lethal injection protocol.  In addition, as the start of this AP article notes, Glossip has had eventful decades on death row after his conviction related to a 1997 murder-for-hire scheme: "Oklahoma has set execution dates nine times for death row inmate Richard Glossip.  The state has fed him three 'last meals.'  Glossip has even been married twice while awaiting execution."

Now, Glossip's case is coming before the Supreme Court again, and this thorough SCOTUSblog preview highlights the latest complicated chapter in an eventful capital punishment procedural.  Here is how that post starts and its framing of the key issues before SCOTUS:

Twice in the past decade the Supreme Court has blocked Oklahoma from executing Richard Glossip. Now the state has joined Glossip to argue that newly uncovered evidence shows prosecutors violated his rights at trial. But even with the Oklahoma’s rare confession of error, both the state’s highest court for criminal cases and te state’s pardon and parole board turned down Glossip’s pleas for relief. On Oct. 9, two former U.S. solicitors general -- Seth Waxman, representing Glossip, and Paul Clement, representing Oklahoma’s attorney general -- will appear before the justices, seeking to persuade them to set aside Glossip’s conviction and death sentence and order a new trial.

Oklahoma Attorney General Gentner Drummond told the court that the state is not looking for an exoneration “by fiat (or at all)” but that “justice would not be served by moving forward with a capital sentence that the State can no longer defend.”

In 1997, Barry Van Treese was bludgeoned to death with a baseball bat in the room he was staying in at his Oklahoma City motel, where Glossip worked as a manager. Another one of Van Treese’s employees, Justin Sneed, confessed to killing him while on meth. He is serving a life sentence. Glossip has maintained he had no part in the murder and is innocent over the decades he has been on death row.

The only evidence implicating Glossip in Van Treese’s death was testimony from Sneed, who worked as a handyman at the hotel. Sneed told jurors that Glossip paid him up to $10,000 to kill Van Treese. In exchange for his testimony, prosecutors promised Sneed that he would not face the death penalty....

In granting the case, the justices added a question for the parties to address: Whether the Supreme Court has the power to review the decision by the Oklahoma Court of Criminal Appeals at all, or whether it is instead barred from doing so because the decision rests on an “adequate and independent state ground.”...

The second question before the court goes to the heart of the case: Whether the justices should invalidate Glossip’s conviction and sentence because prosecutors failed to correct false testimony by Sneed and turn over evidence that might have helped to clear Glossip.

Because any grant of cert by the Justices in a case of this nature usually means more than a few are concerned about the rulings below, I suspect that both the claims of innocence and his support from Oklahoma's AG has prompted some of the more conservative members of the Court to want to take this new look at this long-running case. And yet, the more conservative member of the Court have, generally sepaking, been much more comfortable showing much more deference to state court capital procedings. It will be interesting to see which Justices at oral argument seem most troubled by Glossip's case.

"Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing"

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

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing.  This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice.

First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice.  Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime.  Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts.  Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process.  Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. S ixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance.  Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority.

This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility

Though California’s Proposition 36, the "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative," is arguably the biggest 2024 sentencing-related ballot initiative (discussed here), voters in Colorado also have a notable sentencing-related initiative to consider this fall.  Proposition 128 in Colorado, "Concerning Eligibility for Parole," is described by Ballotpedia this way:

A "yes" vote supports requiring offenders convicted of certain violent crimes on or after January 1, 2025, to serve at least 85% of their sentence before parole eligibility, and offenders with two prior violent crime convictions to serve their full sentence before beginning parole.

A "no" vote opposes making changes to parole eligibility, thereby maintaining current law providing parole eligibility to individuals convicted of certain violent crimes after completing 75% of their imposed sentence minus any time earned off of the sentence for good behavior.

This lengthy Denver Post piece discusses this initiative along with another focused on police funding under the headline "Should Colorado spend $350 million on police and require more prison time for some criminals? Voters will decide." Here is an excerpt discussing Prop 128:

People sentenced to prison in Colorado typically serve less than half of their total sentences before they are released on parole, state data shows. State law requires prisoners to serve at least 75% of their sentences, but that time can be reduced further if prisoners maintain good behavior while incarcerated — a reduction known as “earned time” or “good time.”

People convicted of Class 2 felonies — the second-most serious felony in Colorado — on average were sentenced to 28 years in prison and served 13 years before they were released, according to Colorado Department of Corrections data for the 2022 fiscal year. That’s about 46% of their sentences.

For certain crimes, Proposition 128 would change state law by increasing the amount of time a person must serve in prison to 85% of their sentence before the person could be eligible for earned-time reductions or parole.

The change would apply only to a handful of convictions beginning Jan. 1: second-degree murder, first- or -second-degree sexual assault, aggravated robbery, first-degree assault, kidnapping, first-degree arson and first-degree burglary.  Additionally, people convicted of a third crime of violence — a wider swath of crimes — would be ineligible for any type of early release and would be required to serve an entire sentence on their third conviction....

[P]roponents of the ballot measure say the extra prison time would improve public safety by keeping what Fields called the “worst of the worst” offenders in prison longer.  But opponents say that position is not supported by evidence, and they say earned time is a powerful incentive for prisoners to participate in rehabilitation while incarcerated.

Prisoners who can’t earn good time will feel more despair and be more likely to participate in violent and dangerous behaviors, said Dana Mueller, a Colorado Department of Corrections release case manager.  She spoke on behalf of her union, Colorado Workers for Innovative and New Solutions, which has come out against Proposition 128. “This would not reduce recidivism or crime, and it wouldn’t fix what is wrong in corrections,” she said. “Instead, it would make things worse, making conditions more dangerous both for workers and the inmate population.”...

If Proposition 128 passed, it would affect roughly 220 prison sentences annually.  The financial impact would come in about 20 years, when the longer time served by some inmates would add to the prison population — increasing state spending on prisons by an estimated $12 million to $28 million, state analysts found.

A few GVRs and lots of cert denials in first full SCOTUS order list of OT 2024

The Supreme Court formally kicks off its new term, October Term 2024, with oral arguments in two cases this morning.  But its first official product of OT 2024 is this 50-page order list with more cert denials than I can count.  The order list begins with a few G(ranted), V(acated), R(emanded) cases in federal criminal matters based on Rahimi and Erlinger, and I am a bit surprised that the GVR list is not longer. 

I am not at all surprised that the cert denial list is extreme long, and I suspect there may be a few surprises therein.  Readers are encourage to comment on any cases in (or not in) the denials that catch their eye.

The only big criminal case to be argued during the first SCOTUS sitting of OT 2024 is the capital case Glossip v. Oklahoma.  I hope to round up some of the press coverage and commentary on this case in the coming days.

Federal Bureau of Prisons announces new time credit and phone call policies

As detailed in this official announcement released Friday afternoon by the Federal Bureau of Prisons, the BOP "is introducing several important updates to its phone call policies and time credit systems, reflecting its commitment to improving the well-being of Adults in Custody (AICs) and supporting their successful rehabilitation and reintegration." The full announcement has all the details, and here are key parts:

[D]ue to budget constraints and in an effort to incentivize programming participation, the FBOP decided to change its approach and will provide free phone calls only to those who are on the waitlist for, or are participating in, an [Evidence-Based Recidivism Reduction program]. As mentioned, this is intended to incentivize programming and also to allow FBOP to reallocate resources to other critical needs, including programming, staffing, and contraband interdiction....

The FBOP is also updating its [First Step Act] Time Credit system to better support AICs as they engage in pre-release planning. Under the FSA, AICs earn time credits for completing approved programs while in custody, which can reduce the time before they are placed in community settings such as Residential Reentry Centers or home confinement.

Walter Pavlo has this Forbes piece, headlined "Bureau Of Prisons Announces Updates To First Step Act Calculations," seeking to explain what BOP is hoping to achieve on time credits.  As he explians, BOP's efforts here seem to be "an improvement but it is certain to bring more questions from prisoners."

"Taking Retributive Value Seriously"

The title of this post is the title of this essay authored by Douglas Husak recently posted to SSRN. Here is its abstract:

I present the following challenge to retributivists (including myself).  I stipulate that retributivism is the claim that inflictions of deserved punishment produce intrinsic value.  If this definition is accepted, it is curious that the academic writing of few if any retributivists express enthusiasm for punishing greater numbers of persons who commit serious crimes.  A great deal of intrinsic value could be added by increasing the clearance rates for serious offenses. 

In this paper I briefly explore five reasons that might explain and/or justify this reticence.  Perhaps any value that is created by these punishments is too small to give rise to much concern.  Or it is outweighed by competing disvalues.  Or maybe efforts to increase existing rates of punishment would be too uncertain or difficult to implement.  Or many of those we might seek to punish have viable excuses and are not blameworthy.  Or perhaps the personal and political costs of broadening the net of penal liability are too great to incur among those committed to racial justice.  Retributivists who are not eager to increase the number of deserving persons who are punished must choose from these five (or perhaps from other) options.

Supreme Court grants cert on 13 new matters, with a few of possible interest for sentencing fans

The US Supreme Court's new season, known as October Term 2024, officially gets started on Monday with oral arguments in two cases raising technical procedural issues.  But, for SCOTUS watchers, today feels like openning day because the Justices this morning released this big new order list detailing all the cases for which it granted cert following its "long conference" earlier this week. 

By my quick count, the Court appears to have granted cert on 15 cases to deal with 13 issues.  (In two instances, the Justices formally granted cert in two cases but consolidated the pair for oral argument.)  And from my too-quick review, it seems that there are four cases involving criminal law issues (or criminal-law adjacent), though is seems technical procedural issues may be at the heart of a couple of them. 

The only pure criminal case appears to be Thompson v. US dealing with what constitutes a "false statement" to sustain a federal bank fraud conviction.  But Fourth Amedment fans will certainly be excited because Barnes v. Felix takes on, in the context of a civil rights suit, the so-called "moment of the threat" doctrine in assessing excessive force claims under the Fourth Amendment. 

Technicalities come to the fore in Perttu v. Richards, another civil rights case, this one involving a state prisoner dealing with when the Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies prior to securing a jury trial.  And in Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a defendant to secure post-conviction DNA testing.

This AP piece previewing cases on the SCOTUS docket before today suggested the Term looks like it could be "relatively sleepy." None of these new grants, either in the criminal cases or any of the others, seems to be much of a wake-up call. But with a major election and a presidential tradition transpiriting in the next few months, I doubt there will be much dozing off among Justice or advocates in the Term to come  

Making a robut case for robust legal representation for the incarcerated

Inquest has this notable new essay on a topic that I think merits a lot more attention, namely on the needs of the incarcerated for legal assistance.  The piece, authored by Jennifer Soble, is headlined "Lawyerless No More: Once a person is imprisoned, indigent defense stops. But the gravity of mass incarceration demands legal representation to the very end." I recommend the full essay, and here are some excerpts:

Some of the most vulnerable incarcerated people are denied counsel even in proceedings explicitly designed to help them because of their vulnerability. For example, although most states have a process for releasing incarcerated people who are terminally ill or disabled, almost no state provides lawyers to people who are eligible for this relief. Under these schemes, people eligible for medical release — many of whom are actively dying, or who live with paralysis, or who are experiencing severe cognitive decline — are expected to not only draft compelling legal filings, but are also expected to find their own housing and outside medical care, all from behind prison walls.... Expecting sick and dying incarcerated people to represent themselves undermines the very existence of these laws.

People who have suffered some of the most extreme harms of the criminal legal system—such as unconstitutional conviction or a sentence that is punctuated by a serious medical diagnosis—need improved access to legal assistance. But so do people who have been harmed in quieter, more common ways. Few people outside the system know that departments of corrections have enormous power to both lengthen and reduce sentences. Prison systems can award sentencing credit for participation in programs, in work assignments, and sometimes for no reason at all. Conversely, and perniciously, prison systems can take that sentencing credit away. Prison officials use this power capriciously, sometimes for significant incidents of misconduct, sometimes for technical rule violations, and sometimes for seemingly no reason at all.... Legal advocates can significantly move up an incarcerated person’s release date simply by advocating to ensure that they get the sentencing credit that they deserve, while ensuring that credit is not taken away illegally or unjustly....

For [some], the only hope of freedom [is] clemency, an act of “grace” that is usually held exclusively by state governors or, for those in the federal system, the president. Unencumbered by the burdensome rules that govern other forms of post-conviction relief, clemency has historically been a nimble vehicle to correct excessive sentences, unjust prosecutions, or criminal legal events that feel unjust years or decades after the fact. Governors and presidents used to grant clemency routinely, but it has become extremely rare since the 1950s.

However, while the use of clemency has plummeted, the number of people for whom clemency is the only possible avenue for freedom has skyrocketed. Before the 1970s, only seven states authorized life-without-parole sentences, and even those states rarely imposed them. Today every state allows life or virtual life sentences, and more than 200,000 people are currently serving these draconian prison terms. For them, clemency is the most probable path out of prison, and it is generally the only way for an incarcerated person to ask for release from prison based on their rehabilitation and personal growth.

There are many reasons that clemency applicants should have representation. Clemency is a slow process, subject to rules that feel both pointless and burdensome. Successfully navigating it often depends on receiving help from someone with experience in clemency. Still, the right to counsel does not extend to clemency, leaving most incarcerated people to pursue their only hope for freedom on their own.