Friday, December 9, 2022

Notable review of (increasing?) number of botched lethal injection executions

The Death Penalty Information Center has this notable new posting to mark a notable anniversary under this heading: "As Lethal Injection Turns Forty, States Botch a Record Number of Executions."  Here is how the lengthy posting gets started (with links from the original):

On December 7, 1982, Texas strapped Charles Brooks to a gurney, inserted an intravenous line into his arm, and injected a lethal dose of sodium thiopental into his veins, launching the lethal-injection era of American executions.  In the precisely forty years since, U.S. states and the federal government have put 1377 prisoners to death by some version of the method.  Touted as swift and painless and a more humane way to die — just as execution proponents had said nearly a century before about the electric chair — the method has proven to be anything but.

Experts say lethal injection is the most botched of the execution methods, estimated to go wrong more frequently than any other method.  And autopsies of more than 200 prisoners put to death by lethal injection found that, regardless of the outward appearance of a tranquil death, 84% of those executed showed evidence of pulmonary edema — a fluid build-up in the lungs that creates a feeling of suffocation or drowning that experts have likened to waterboarding.

Moreover, American pharmaceutical companies universally oppose what they consider the misuse of their medicines to take the lives of prisoners, and the medical community universally deems it unethical for medical personnel to participate in executions.  That means states are relying on what drugs they can lay their hands on — increasingly obtained illegally or by subturfege — from often unreliable sources and administered by inadequately trained prison personnel ill equipped to handle the job and performing it behind an expanding veil of secrecy provisions.

As lethal injection turns forty, states are botching executions in record numbers — seven alone in 2022 in 19 execution attempts, an astonishing 37%.  In articles in Slate and The Conversation on November 21 and November 29, 2022, Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and author the 2014 book, Gruesome Spectacles: Botched Executions and America’s Death Penalty, says that from Brooks’ execution through 2009, “more than 7 percent of all lethal injections were botched … [and] things have only gotten worse.”

The parenthetical in the title of this post is prompted by the fact that I do not think our society was scrutinizing lethal injections executions nearly as much in the 1980s and 1990s as we have in more recent decades. Though it is quite possible that more executions are being "botched" in recent years, I think it is also quite possible that we are now just much more likely to take notice of lethal injection execution difficulties.

December 9, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Thursday, December 8, 2022

Ohio Supreme Court splits over ineffectiveness of counsel who "failed to explain neonaticide" at sentencing

The Ohio Supreme Court today issued an notable split decision that ultimately rules that a notable defendant had received ineffective assistance of counsel when sentenced to life without parole in a sad case of neonaticide.  The ruling in State v. Weaver, Slip Op. No. 2022-Ohio-4371 (Oh. Dec. 8, 2023) (available here) is very well summarized at the start of this official court summary:

The Supreme Court of Ohio has ordered a new sentencing hearing for a former college student sentenced to life in prison for the murder of her newborn baby in the bathroom of her sorority house.  In 4-3 decision, the Supreme Court ruled that Emile Weaver received ineffective assistance of counsel when her lawyer failed to explain neonaticide, which is the murder of an infant within 24 hours of birth, at her sentencing hearing and how neonaticide is “not considered a premeditated act” but rather an act “within the context of extreme panic.”

The decision reversed the Fifth District Court of Appeals, which found the Muskingum County Common Pleas Court did not abuse its discretion by denying Weaver’s claim that her counsel was ineffective.  Weaver filed a petition for postconviction relief, alleging that her lawyer failed to present a complete explanation of neonaticide during sentencing which could have led to a less severe punishment.  The same judge who sentenced Weaver to life in prison without the possibility of parole denied her petition.  The trial judge discredited an expert witness who tried to explain Weaver’s condition.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that the trial judge demonstrated an arbitrary and unreasonable attitude toward the evidence of neonaticide and pregnancy-negation syndrome. “Not only did the trial court misunderstand the evidence pertaining to neonaticide and pregnancy-negation syndrome, but it demonstrated a willful refusal to consider such evidence,” Chief Justice O’Connor wrote.

The Court remanded the case to the trial court with instructions that another trial judge conduct the sentencing.  Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine wrote that Weaver’s lawyer was not ineffective for failing to explain why she would commit neonaticide.  He noted that Weaver’s defense at trial was that she did not kill her baby, but rather that the baby died of natural causes.  Expecting the defense to explain how Weaver suffered from pregnancy negation would undermine the argument that she did not kill the baby, he concluded.  Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion.

Here are the basic details of the crimes as decribed by in the majority opinion:

In the fall of 2014, Weaver returned as a sophomore to Muskingum University in New Concord, Ohio, where she lived in a campus sorority house.  After Weaver visited a wellness center to obtain birth control, the center reached out to her to let her know that she was pregnant, but Weaver testified that she had never looked at or read the message from the center.  Weaver also testified that she did not “completely” believe that she was pregnant, because she did not show the normal signs of pregnancy — specifically, she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating.  Throughout her pregnancy, Weaver consistently denied that she was pregnant when either her sorority sisters or other people asked, and she never told her mother.  At trial, Weaver explained that she had lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about * * * getting in trouble.”  Weaver did, however, discuss her pregnancy with her boyfriend — whom she had a “rocky relationship” with — and he encouraged her not to tell anyone.  Weaver described him as “controlling and judgmental,” as well as “abusive.”

On April 22, 2015, believing that she was having a bowel movement, Weaver went to the sorority-house bathroom.  Shortly thereafter, she realized that she was in labor and silently, without assistance, delivered the baby into the toilet. Later that day, two sorority members discovered the baby in a trash bag lying next to the sorority house.

December 8, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

New Sentencing Project report covers "Why Youth Incarceration Fails: An Updated Review of the Evidence"

Via email, I learned of this lengthy new report from The Sentencing Project titled "Why Youth Incarceration Fails: An Updated Review of the Evidence."  Here is the start of the report's executive summary:

Though the number of youth confined nationwide has declined significantly over the past two decades, our country still incarcerates far too many young people.

It does so despite overwhelming evidence showing that incarceration is an ineffective strategy for steering youth away from delinquent behavior and that high rates of youth incarceration do not improve public safety.  Incarceration harms young people’s physical and mental health, impedes their educational and career success, and often exposes them to abuse.  And the use of confinement is plagued by severe racial and ethnic disparities.

This publication summarizes the evidence documenting the serious problems associated with the youth justice system’s continuing heavy reliance on incarceration and makes recommendations for reducing the use of confinement. It begins by describing recent incarceration trends in the youth justice system.  This assessment finds that the sizable drop in juvenile facility populations since 2000 is due largely to a substantial decline in youth arrests nationwide, not to any shift toward other approaches by juvenile courts or corrections agencies once youth enter the justice system. Most youth who are incarcerated in juvenile facilities are not charged with serious violent offenses, yet the United States continues to confine youth at many times the rates of other nations.  And it continues to inflict the harms of incarceration disproportionately on Black youth and other youth of color -- despite well-established alternatives that produce better outcomes for youth and community safety.

December 8, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, December 7, 2022

"Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis"

The title of this post is the title of a remarkable 280-page report produced by Alison Siegler and the Federal Criminal Justice Clinic at the University of Chicago Law School. Here is the start of its executive summary:

Over thirty years ago, the Supreme Court held that people charged with federal crimes should only rarely be locked in jail while awaiting trial: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  Given that everyone charged with a crime is presumed innocent under the law, federal judges should endeavor to uphold the Court’s commitment to pretrial liberty.

This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty.  This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process.  Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings.  Based on our empirical courtwatching data and interviews with nearly 50 stakeholders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law.  As one federal judge told us, “nobody’s . . . looking at what’s happening [in these pretrial hearings], where the Constitution is playing out day to day for people.”

Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis.  This Report also fills a gaping hole in the available public data about the federal pretrial detention process and identifies troubling racial disparities in both pretrial detention practices and outcomes.

Federal pretrial jailing rates have been skyrocketing for decades. Jailing is now the norm rather than the exception, despite data demonstrating that releasing more people pretrial does not endanger society or undermine the administration of justice. Federal bond practices should be unitary and consistent, since the federal bail statute — the Bail Reform Act of 1984 (the BRA) — is the law of the land and governs nationwide. Yet this study exposes a very different reality than that envisioned by the Supreme Court, one in which federal judges regularly deviate from and even violate the law, and on-the-ground practices vary widely from district to district.

December 7, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Federal judge imposes (within guideline) sentence of 155 months on former Theranos COO Ramesh "Sunny" Balwani

Last month, as blogged here, US District Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to a (within guideline) prison term of 135 months.  Today brought sentencing for former Theranos COO Ramesh “Sunny” Balwani, and this TechCrunch account provides these highlights of the process and outcome:

The former COO of disgraced blood testing startup Theranos, Ramesh “Sunny” Balwani was sentenced to 155 months, or about 13 years, in prison, and three years of probation. After a three-month trial, Balwani was found guilty on all 12 criminal charges, ranging from defrauding patients and investors to conspiring to commit fraud. Theranos CEO Elizabeth Holmes was convicted on four of these charges and was sentenced to 11.25 years in prison last month.

Despite the disparate outcomes from the two separate juries in two individual trials, Judge Ed Davila calculated Holmes’ and Balwani’s sentencing ranges to be exactly the same: 135 to 168 months, or 11.25 to 14 years. In both cases, prosecutor Jeff Schenk countered by asking for 15 years.

Balwani’s lawyers attempted to argue that he should get a more lenient sentence than Holmes, as he was not CEO. “He’s not Ms. Holmes. He did not pursue fame and fortune,” said Balwani’s attorney Jeffrey Coopersmith.

Judge Davila even noted that the court saw another side of Balwani when they were told about his charitable giving, some of which occurred after Theranos. Yet Balwani still received a severe sentence of 13 years....

Unlike the jury at Holmes’ trial, the jury at Balwani’s trial held him accountable for defrauding patients, not just investors.

Before the former COO’s sentencing hearing, Balwani’s lawyers filed 40 objections to the probation office’s pre-sentence investigation report, according to tweets from Law 360 reporter Dorothy Atkins, who was present at the hearing. Judge Davila, who also presided over Holmes’ trial, said that only four of those objections were substantive.

“Usually sentencing hearings are morbid regardless of the crime — like watching a car crash where you watch families and lives being destroyed in real time,” Atkins tweeted from the court room. “This one feels more like an accounting class.”

It would certainly not be unprecedented if Balwani decides to appeal this ruling. After Holmes’ own sentencing, the former Theranos CEO told a California federal judge that she would appeal her conviction. She then asked to stay out of custody while her appeal is under consideration, also citing that she is currently pregnant with her second child. As it stands, Holmes’ surrender date is April 27, while Balwani will report to prison on March 15.

December 7, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2)

"Dying Inside: To End Deaths of Despair, Address the Crisis in Local Jails"

The title of this post is the title of this notable new issue brief that was produced by folks with the Addiction & Public Policy Initiative of the O’Neill Institute for National and Global Health Law (and, full disclosure, that was supported by funding from the Drug Enforcement and Policy Center).  Here is the starting text of the interesting eight-page document:

U.S. life expectancy has declined in recent years, primarily due to a series of converging public health crises that resulted in deaths from overdoses, suicides, and alcohol-related liver disease, sometimes referred to as “deaths of despair.”  More recently, COVID-19 has accelerated this trend.  These bleak numbers shine a spotlight on the historic challenges of treating medical conditions, mental health conditions, and substance use disorder (SUD), particularly in settings like local jails, which are traditionally separate from the general health care system.

Individuals entering jails and other correctional settings are more likely to have a chronic health condition or infectious disease, resulting in an increased risk to their physical health and well-being while incarcerated.  A close look at statistics from local jails demonstrates that, far from being a safe haven from these converging crises, a failure to prioritize implementation of adequate policies and protocols addressing these issues in many local jails are fueling these crises for the individuals inside and everyone in our communities.

According to the latest data available from 2018-2019, deaths in jail custody have increased.  Each and every one of these lost lives is a tragedy.  In addition to the human cost, deaths in jail custody also account for hundreds of millions of dollars in financial costs and legal liability for governments and jail personnel.

Efforts at the local, state, and federal levels have begun a shift toward adopting more public healthoriented approaches in correctional settings, largely driven by an acknowledgement that addressing the health care and treatment needs of incarcerated people can positively impact both these individuals and the overall health of communities.  However, government leaders and advocates at every level must undertake significant policy and practice changes to reduce deaths in jail custody and accelerate reform.

This brief outlines the legal framework on the right to adequate care and treatment for medical, mental health, and substance-related conditions in jails.  The brief also highlights the findings of original research on litigation related to deaths in jail custody and provides recommendations for reform.

Two of the authors of this report, Regina LaBelle and Shelly Weizman, authored this related commentary in The Hill titled "We can’t ignore the ties binding US deaths of despair and incarceration."

December 7, 2022 in Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 6, 2022

En banc Eleventh Circuit now gives broad reading to FIRST-STEP-amended mandatory-minimum safety valve provision

Last year in posts here and here, I spotlighted a significant Ninth Circuit ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But, as I noted in this post, days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here), an Eleventh Circuit panel reach an opposite interpretation of this statutory language.  The Garcon ruling went en banc, and today resulted in this set of opinions running 85 pages with an array of opinions from a court split 7-5.  Writing for six judges, Chief Judge (and former USSC Acting Chair) Bill Pryor start the opinion for the Eleventh Circuit this way:

The question presented in this appeal of a grant of safety-valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1) (emphasis added). Julian Garcon, who pleaded guilty to attempting to possess 500 grams or more of cocaine with intent to distribute, has a prior 3-point offense but does not have more than 4 criminal history points or a prior 2-point violent offense. The district court concluded that Garcon remained eligible for relief under the Act because he did not have all three characteristics. We agree. Because the conjunctive “and” joins together the enumerated characteristics, a defendant must have all three before he is ineligible for relief.  We affirm.

December 6, 2022 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act

I have not blogged much lately about the EQUAL Act to reform federal crack cocaine sentencing because, as detailed in posts here and here from the first half of 2022, it seems some key Republican Senators oppose its passage and some key Democratic Senators seem unwilling to try to navigate the politics needed to get the bill to the desk of President Biden.  When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might soon be coming to an end.  But, 15 months later, as detailed in this new Politico piece, it sounds like the EQUAL Act has no chance of making it through the Senate and even a bill to just further reduce the crack/powder disparity seems uncertain and underwhelming:

With only a few weeks left in the session, add a final push for reducing the federal sentencing disparity between crack cocaine and powder cocaine offenses to a long end-of-the-year to-do list.  It’s not proving easy.  Sen. Cory Booker (D-N.J.), who is playing a leading role in the talks, declined to discuss the details Monday night, only saying “we’re in a tough negotiation moment right now.”  He added: “I just want to make sure that I focus on doing what I can to get something over the line, as opposed to talking about strategy.”

There was some discussion about attaching a potential agreement onto the National Defense Authorization Act, but a GOP aide told Huddle that’s no longer expected, leaving a broader end-of-the-year spending deal as the last option.

While criminal justice reform advocates want to see that federal sentencing disparity completely eliminated, citing legislation that passed the House last year by an overwhelming margin, the current talks surround reducing the ratio from the current 18:1 to 2.5:1.  But there are some key sticking points, especially over language from Sen. Chuck Grassley (R-Iowa) about the role of the Justice Department when it comes to applying the change retroactively. After Democrats rejected Grassley’s proposal, negotiators are now discussing removing retroactivity altogether, according to a Democratic aide.

Sigh. Notably, this January 2022 US Sentencing Commission impact assessment estimated that retroactive application of the EQUAL Act would save about 50,000 years of imprisonment for the more than 7500+ persons incarcerated for crack offenses, but "only" a little over 2,000 prison years for each year going forward.  Of course, any potential statutory reform that does not lower crack sentencing all the way down to be equal with powder cocaine sentencing will have a more modest impact, and eliminating retroactivity would diminish the impact even more.

Given that the House so overwhelming passed the EQUAL Act last year, I want to believe there is a chance for some kind of reforms in the next Congress even with the GOP in control of the House.  But that might be crazy talk, so maybe this lame duck period is the last best chance for crack sentencing reform.  But at this late date, I am certainly not optimistic.  

A few of many prior posts on the EQUAL Act:

December 6, 2022 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

New Justice Department memo calls for "Prioritizing Restitution for Victims"

As detailed in this Washington Post piece, headlined "Prosecutors urged to more aggressively seize funds owed to crime victims," there is a notable new memo from the US Deputy Attorney General Lisa Monaco.  Here are details and context from the press piece:

A new Justice Department memo issued Monday seeks to address criticism that the agency has shielded inmates’ money meant to go to the victims of their crimes, urging prosecutors to more aggressively pursue court cases to seize those funds....

The Washington Post has previously reported that a number of high-profile inmates, including former USA Gymnastics doctor Larry Nassar, singer R. Kelly and Boston Marathon bomber Dzhokhar Tsarnaev have kept and spent thousands of dollars with their prison accounts, while paying only small amounts of court-ordered restitution to their victims. In each of those cases, prosecutors went to court to force the Bureau of Prisons to turn over the money — a process that has been criticized as unfair to victims and counterproductive since it requires one arm of the Justice Department to go to court against another arm of the same department.

Deputy Attorney General Lisa Monaco wrote the memo Monday to “encourage prosecutors to file restitution pleadings or to include restitution calculations in sentencing” documents. “Prosecutors should request that sentencing courts order that restitution be due and payable immediately, but if courts order otherwise, prosecutors should propose that payment plans be set at ‘the shortest time in which full payment can reasonably be made,’” the memo says.

Jason Wojdylo, who spent years at the U.S. Marshals trying to get the Bureau of Prisons to change its policy on inmates’ accounts and has since retired from government, called Monaco’s new memo “maddening” because “it does nothing to address the problem.” For years, Wojdylo said, federal prosecutors “have been doing everything they can to collect court-imposed debt inmates owe to victims,” and without any help from the Bureau of Prisons. Wojdylo said that’s apparently because the inmates often use that money to buy things from the prison commissary system, and that system ultimately pays for tens of millions of dollars in prison worker salaries every year.

In response to Wojdylo’s criticism, a Justice Department official said: “Ensuring victims can recover restitution from inmate trust accounts has been a priority for the Deputy Attorney General and the entire Justice Department. This directive to prosecutors is just one piece of an ongoing effort across the Department to accomplish this goal. We look forward to continuing progress in the near term.”

Under the current system, there are no limits on how much money inmates can keep in their prison accounts, and last year The Post reported that roughly 20 inmates kept at least $100,000 apiece in their prison accounts. The agency only requires inmates to pay a minimum of about $9 a month toward whatever restitution they owe, though officials say they encourage inmates to pay more.

The two-page memo from the DAG is dated December 2, 2022 and has the subject line of "Prioritizing Restitution for Victims." Here are the first two paragraphs of the six-paragraph memo:

On October 1, 2022, the Attorney General published revised Guidelines for Victim and Witness Assistance.  Those Guidelines make clear that the Department is responsible not only for ensuring that those who commit crimes are prosecuted vigorously but also for achieving justice for victims.  Because crimes can have a devastating financial effect on victims, the Department is responsible for ensuring that "victims receive full and timely restitution." Guidelines art. V, § H.  That obligation extends throughout the life ofa case, including after judgment is entered.

Under the Crime Victims' Rights Act, a crime victim has the right to "full and timely restitution as provided by law." 18 U.S.C. § 377l(a)(6).  The Department's prosecutors should therefore be proactive in enforcing court-ordered restitution obligations, including where funds are held in accounts maintained by the Federal Bureau ofPrisons (BOP) in trust during an inmate's period of incarceration.  Last year, I instructed BOP to strengthen monitoring and reporting related to these accounts, consistent with applicable law.  Pursuant to that directive, BOP has since enhanced guidance on monitoring inmate accounts; improved coordination with law enforcement partners, including the U.S. Marshals Service (USMS), on investigating and taking appropriate action against suspicious activity; and identified funds that should be encumbered to meet financial obligations.  BOP is also strengthening the Inmate Financial Responsibility Program to apply additional funds towards restitution and has partnered with other Department ofJustice components and federal agencies to ensure that funds are used to help meet those obligations.

December 6, 2022 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2022"

Via email this morning, I learned of this 25-page report produced by DOJ's Bureau of Justice Statistics. This BJS webpage provides this discriptive overview and these "highlights":

This is the fourth report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons for calendar year 2021.  Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

  • The federal prison population increased more than 3%, from 151,283 at yearend 2020 to 156,542 at yearend 2021.
  • In 2021, a total of 74 pregnant females were held in BOP-operated prison facilities, a 19% decrease from 2020 (91).
  • During 2021, a total of 378 prisoners were receiving medication-assisted treatment (MAT) approved by the U.S. Food and Drug Administration to treat a substance use disorder prior to their admission to federal prison, and 1,127 prisoners received MAT while in custody.
  • In 2021, a total of 17,252 federal prisoners participated in a nonresidential substance use disorder treatment program, while 10,919 participated in a residential program.

December 6, 2022 in Data on sentencing, FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Monday, December 5, 2022

"The Constitutional Limits of Criminal Supervision"

The title of this post is the title of this new article authored by Eric Fish and now available via SSRN. Here is its abstract:

Nearly four million people are under criminal supervision in the United States.  Most are on probation or parole.  They can be sent to prison if a judge concludes that they violated the terms of their supervision.  When that happens, there is no right to a jury trial.  The violation only needs to be proven to a judge by a preponderance of the evidence.  This creates a constitutional puzzle.  In several important cases, the Supreme Court has recognized that the Sixth Amendment right to trial by jury is not limited to the formal elements of criminal statutes.  It applies in any situation where proving a fact to a court triggers additional punishment.  So then why is criminal supervision constitutionally permitted, when it involves judges sending people to prison based on facts not proven to a jury?  Under current doctrine, the answer is surprisingly unclear.  The Court’s 2019 decision in United States v. Haymond raised this issue directly, but failed to provide an answer.

This Article proposes a new solution to this constitutional puzzle: the conditional sentencing theory.  This theory explains how criminal supervision can be made compatible with the Sixth Amendment.  It holds that a criminal sentence can include provisions that change the defendant’s custody status if certain conditions are satisfied.  Such a sentence contains an amount of custody time, an amount of supervision time, an amount of suspended custody time for supervision violations, and a list of acts that trigger violations.  Under this theory, a judge sentencing a person for a supervision violation is not imposing a new punishment.  They are instead implementing the terms of the original sentence, switching someone from supervision to custody based on triggering rules announced at the initial sentencing hearing.

The conditional sentencing theory places two important constitutional limits on criminal supervision, which are not currently recognized.  First, a judge cannot retroactively change a supervision sentence by lengthening it, adding more conditions, or adding more prison time.  Second, a sentence for a supervision violation cannot exceed the statutory maximum for the underlying crime.  Numerous state and federal supervision laws transgress these limitations.  Many state probation laws, for example, let judges extend probation or change its terms at a violation hearing.  In some states, like Wisconsin and Pennsylvania, this process can repeat indefinitely.  The same is true in the federal system of supervised release.  That system lets judges extend supervision unlimited times, keeping supervisees trapped in an endless cycle of new punishments — a life sentence on an installment plan.  The Article closes by arguing more broadly that judges should direct greater constitutional scrutiny at institutions, like criminal supervision, that make incarceration more efficient by circumventing defendants’ rights.

December 5, 2022 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Some news and commentary amid the continuing Bruen brouhaha over the Second Amendment

Regular readers likely recall my series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here) in which I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  We are not quite at the six months mark since Bruen, but I have already chronicled in a number of subsequent posts a number of notable rulings applying Bruen to strike down a number of gun control measures.  Not surprisingly, many folks are also taking note of these developments, and just this past week has brought plenty of notable news and commentary on this front that seemed worth rounding up:

From The Conversation, "A judge in Texas is using a recent Supreme Court ruling to say domestic abusers can keep their guns"

From The Hill, "Is the Supreme Court turning the Constitution into a homicide pact?"

From Syracuse.com, "Can you bring a gun to the zoo?  On a bus?  Syracuse judge eagerly rewrites NY firearms law"

From the Wall Street Journal, "States Advancing Gun-Control Proposals Face Legal Uncertainty: Questions remain for lawmakers, courts on forbidding the carrying of firearms in ‘sensitive places’"

December 5, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended

Dictionary.com defines a moratorium as "a suspension of activity," and two weeks ago the Governor of Alabama, as noted here, seemed to call for a suspension of executions after the state exeperienced two botched execution efforts.  But, as reported in this new local article, the Attorney General of Alabama is eager to make the case that the suspension of executions in the state is not a moratorium:

Alabama Attorney General Steve Marshall said Monday afternoon that “there is no moratorium” on executions in Alabama, but he will still allow for an efficient review of the state’s execution process. “I stand before you today to be very clear: Insofar as I and my office are concerned, there is no moratorium, nor will there be, on capital punishment in Alabama,” Marshall said.

Gov. Kay Ivey in late November called for the suspension of executions in Alabama for a “top-to-bottom review” after prison staff failed to complete a second straight execution. Marshall indicated that he won’t request any new execution dates before Ivey’s office carries out its review, so long as it doesn’t cause an “unreasonable” delay.

“What I want to make sure is … that we’ve given [Ivey] an opportunity to do this review, … to make sure that I hear from her that there is confidence that we have the ability to execute,” Marshall said. “…I’m also sitting here telling you that we’re not going to stand very long in a delay.” Ivey's spokesperson, Gina Maiola, said “discussions have already begun” regarding the review of the Alabama Department of Corrections' execution process. Marshall added that he has not spoken with Ivey directly, but that he is “looking forward to [their] conversation.”

There are no pending execution dates before the Alabama Supreme Court and no scheduled executions in Alabama, Marshall said. Marshall’s office solely has power to request an execution date from the Alabama Supreme Court.

On Nov. 17, officials called off the execution of Kenneth Eugene Smith as staff was unable to set the necessary IV lines for the lethal injection. Alan Miller’s execution was similarly called off just two months before because of issues finding a vein. Marshall blamed the failure to carry out the executions on Smith and Miller for filing federal court challenges to their death sentences that were not resolved until as late as 10 p.m. of the day of their scheduled executions....

Alabama has since reached an agreement to not attempt a second lethal injection on Miller, but it may use nitrogen gas to execute him in the future. The state still does not have a protocol in place for the untried method that was approved in 2018, but Marshall said the state is in the “final stages” of developing it.

A few prior related posts:

December 5, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Sunday, December 4, 2022

"A Fiduciary Theory of Progressive Prosecution"

The title of this post is the title of this new article authored by Rebecca Roiphe and Bruce Green. Here is its abstract:

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions.  They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case.  This article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors.  Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role.  As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations.  This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public.  We conclude by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role.

December 4, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

M_fsr.2022.35.1.coverI have had the great pleasure this Fall to be working on two issues of the Federal Sentencing Reporter with all sorts of commentaries providing all sorts of advice for the all the new members of the US Sentencing Commission.  The first of these issues, titled "21st Century Advice to the New Commissioners," is now available online here.  This issue includes more than a half-dozen original articles authored by judges, federal prosecutors and defenders, and policy advocates.  Prof Steve Chanenson and I authored this introductory essay, titled "Another (Not Quite) Fresh Start," which has this abstract:

As the famed legal scholar Yogi Berra once observed, “It’s like deja vu all over again.”  Those wise words can describe the U.S. Sentencing Commission.  Once again, we find ourselves with a fresh, full-strength Commission brimming with all the promise and excitement that comes with a new opportunity to reexamine federal sentencing law and practice. That is the good news.  What brought us to this moment, however, is the not-so-good news, which merits a brief trip down an unpleasant memory lane.  This is not the first time that the Commission has lacked a quorum.  This latest and longest episode of Commission paralysis strikes us as particularly disturbing because it may reflect a widespread lack of faith in — or at least a notable dearth of enthusiasm for — the work of the Commission and the guidelines enterprise more generally. Like baseball fans on opening day, we remain hopeful about the future.  The new Commissioners are well-regarded professionals who come to their common task in good faith — bringing their own, varied views.  They face a mix of urgent new challenges and important enduring ones.  We add our voices to those over the decades who hope that the Commissioners will think broadly (including by reexamining long-established assumptions) and act boldly.

This October 2022 issue of FSR also includes a series of materials and articles providing "Perspectives on Recidivism and Long Sentences." And, as suggested above, the December 2022 issue of FSR will have additional commentaries providing additional advice for the new USSC.

December 4, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

Friday, December 2, 2022

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

December 2, 2022 in Clemency and Pardons, Data on sentencing, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"It is Time to Reform Federal Supervised Release"

The title of this post is the title of this notable new commentary at the ACS Expert Forum authored by Aliza Hochman and Jacob Schuman. I recommend the piece in full, and here are excerpts (with links from the original):

This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive.  As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole.  Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment.  If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years.  Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment.  The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive.  Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s....  In approximately one-third of cases, the government ultimately revokes the defendant’s supervised releasesending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.”  Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration.  We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment.  These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release.  First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant....  Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety....  Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests....

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services....

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release.  The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization.  The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress.  We commend this bipartisan political effort to make federal community supervision more effective and more just.

December 2, 2022 in Criminal Sentences Alternatives, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, December 1, 2022

BOP reports that all federal inmates have been moved out of private prisons

As this ABC News piece reports, all "federal inmates housed in private prisons have been moved to Bureau of Prisons facilities and the agency has ended all contracts with private facilities, officials said." Here is more:

Last year, in one of his first actions in office, President Joe Biden signed an executive order directing BOP to move all inmates to federal facilities, rather than have them housed in private facilities.  "We have never fully lived up to the founding principles of this nation, to state the obvious, that all people are created equal and have a right to be treated equally throughout their lives," Biden said just before signing the actions in January 2021.  "And it's time to act now, not only because it’s the right thing to do. Because if we do, we'll all be better off."...

Advocates, including the ACLU, have said that private prisons reap lucrative financial rewards while taking advantage of people who are behind bars.

On Nov. 30, the McRae Correctional Facility in McRae, Georgia, was closed, making it the final facility to shutter its doors. Biden signed an order directing the attorney general to not renew contracts the Department of Justice has with privately-operated criminal detention facilities.  As expected it took about a year to complete the transition.

"BOP and privately managed facilities remained positive, while maintaining transparency and accountability," a release from BOP said.  "BOP inmates housed in these private prisons have been transferred to BOP facilities.  In the mid-1980s, the BOP began designating low security inmates with specialized needs, such as sentenced criminal aliens, to privately managed facilities to better manage the increasing population.  Over time, the BOP maintained contracts for 15 facilities, housing approximately 29,164 inmates. The overall BOP population peaked in 2013, with over 219,000 inmates."

The head of the Bureau of Prisons union told ABC News that the prison population has declined to a point where private prisons aren't needed, and has said previously the agency supports the president's decision to shutter private prisons.  "The fact remains that our population has declined to the point where we can safely return offenders who were temporarily housed in private prisons to vacant BOP facilities," Shane Fausey, president of the Council of Prison told ABC News through a text message. "The reality is additional beds are no longer needed and the most cost effective measure is not to renew or further private prison contracts at this time."

December 1, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

"The Progressive Case for Ankle Bracelets"

The title of this post is the headline of this notable new Newsweek opinion piece authored by Barry Latzer.  I recommend the piece in full, and here are excerpts:

Many of the most progressive countries in the world are making use of technology to promote rehabilitation and reduce incarceration.  Yet blue states like Massachusetts and left-leaning advocacy organizations remain hostile to use of electronic monitoring (EM) methods.  They are overlooking the benefits of EM — even from a progressive standpoint.

Progressives' typically formulated criminal justice goal is laudatory: to minimize incarceration consistent with public safety, and to maximize the rehabilitation of offenders. But achieving these ends has been, to say the least, problematic.

Progressives commonly urge more addiction treatment and mental health services as steps toward rehabilitation. These treatments might be beneficial for many ex-offenders, but by themselves they are unlikely to sharply curtail recidivism.  Vocational training is also useful, but success measured by societal reintegration of ex-offenders is unproven.  Despite all that we've learned about rehabilitation over the last five decades, the inescapable fact is that over 80% of all prisoners are rearrested for new crimes at some point after they are released.

Virtually all prisoners return to free society — and more quickly than most people realize.  Only 20% of prisoners complete full sentences, and the median time actually served is a mere one year and four months.  Released offenders are then monitored by parole or probation officers, who are supposed to encourage constructive behavior.  But as we all know, these officers have enormous caseloads and cannot effectively supervise the volume of people they are assigned.  Under the current parole and probation system, there are, as a practical matter, few disincentives to crime, which is why so many released offenders are repeaters.

Each year, tens of thousands of probationers and parolees fail to comply with the terms of their release and are sent back to jail or prison.  In 2019, before COVID produced its own distinct brand of decarceration, 334,000 probation and parole failures were (re)incarcerated, which constituted 29% of all prison admissions that year.

Given these discouraging realities, the benefits of EM from a progressive standpoint surely are worth reconsidering.

1. EM helps ex-offenders avoid incarceration and reintegrate into free society....

2. EM can effectively replace incarceration....

3. EM protects crime victims, especially the most vulnerable....

Before we reject this useful tool to help ex-offenders turn their lives around and avoid wasted years behind bars, we should ask ourselves this question: Is there a better way to achieve reintegration into law-abiding society, while also taking public protection into account?  I submit there is not.

December 1, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections | Permalink | Comments (1)

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

December 1, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)