Sentencing Law and Policy

Ruling 5-4 against state prisoner, SCOTUS rules federal court misapplied All Writs Act in habeas proceeding

In a technical (and seemingly little) ruling, the Supreme Court reversed a procedural order in Shoop v. Twyford, No. 21-511 (S. Ct. June 21, 2022) (available here). The opinion for the Court was authored by Chief Justice Roberts, and it starts and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing.  The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief.  The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse....

A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U.S.C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored the main dissent, which Justices Sotomayor and Kagan joined. It starts this way:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition.  Ante, at 1. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding.  See ante, at 9–10.  I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch authored a solo dissent, which runs only two paragraphs and merits reprinting in full:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question.  The District Court’s transportation ruling was an interlocutory order, not a final judgment.  To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases.  See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545–547 (1949). In a terse footnote today, the Court does just that.  Ante, at 5, n. 1.

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 (2009).  If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ibid.

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

"The Trump Clemencies: Celebrity, Chaos, and Lost Opportunity"

The title of this post is the title of this notable new article authored by Mark Osler now available via SSRN. Here is its abstract:

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term.  Buried beneath this rolling disaster was a brief moment of hope and  a lost opportunity: the chance for a restructure of the clemency process in the Fall of 2018, enabled by a rare alignment of factors including Trump’s alienation from the Department of Justice and the interest of his son-in-law, Jared Kushner. This article explores the fullness of Trump’s clemency legacy and explores what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

Mississippi Supreme Court upholds, against Eighth Amendment challenge, mandatory LWOP habitual-offender sentence for marijuana possession

Last year in this post, I reported on a Mississippi state intermediate appeal court ruling that upheld a mandatory life without parole sentence for possession of over 30 grams of marijuana because the defendant was a violent habitual offender under Mississippi law.  Last week, the Supreme Court of Mississippi, by a 6-3 vote, affirmed this sentence in Russell v. Mississippi, No. 2019-CT-01670-SCT (Miss. June 16, 2022) (available here).  Here is the start and some concluding parts of the  majority opinion:

This certiorari case considers whether Allen Russell’s life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State, No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021).  We affirm Russell’s sentence....

In the limited scenario in which the mandatory sentence facing a defendant under Section 99-19-83 is life without parole and the crime for which the defendant is being sentenced, unenhanced, is a nonviolent crime that carries a minimal-maximum sentence (i.e. less than ten years), trial judges should specifically consider “all matters relevant to” the sentence as contemplated in Presley to determine the issue of gross disproportionality and the constitutionality of the sentence as to that particular defendant. Presley, 474 So. 2d at 620....  None of this benefits Russell. We reiterate, once again, that the burden is upon the defendant to show that the sentence mandated by the legislature is unconstitutional as to that particular defendant.  Because Russell presented no evidence, the only substantive evidence before the court were the prior convictions....

The record is replete with additional evidence, as documented in the separate opinion of the chief justice.  We would refer the reader to the chief justice’s separate opinion for a thorough recounting of the details surrounding Russell’s arrest.  However, it is pertinent to note that the arrest came while law enforcement was attempting to serve another drug related warrant on Russell as well as execute a search warrant on his premises. The search warrant came about as a result of Russell’s being developed as a suspect in a murder in a hotel room where a medical document naming Russell was found....

In Russell’s case, the trial judge followed our procedure and the law, Russell presented no evidence related to the Solem factors and the trial judge sentenced Russell to the only sentence available.  Therefore, we affirm.

The lengthy separate concurring opinion is an interesting read that seeks to highlight "Solem’s weaknesses." Here is how it concludes:

Based on both this Court’s precedent and the rulings of the United States Supreme Court in Rummel, 445 U.S. 263, Harmelin, 501 U.S. 263, Andrade, 538 U.S. 63, and Ewing, 538 U.S. 11, Russell’s sentence as an habitual offender was not grossly disproportionate.  His sentence meets the prescribed statutory punishment.  There is no legal basis to vacate Russell’s sentence.  It is neither cruel nor unusual.  As Russell has failed to prove that the threshold requirement of gross disproportionality was offered and met, because his sentence fell within the statutory requirement, and because his sentence is a constitutionally permissible sentence, we should affirm Russell’s conviction and sentence.

The short dissenting opinion includes this point in making the case Solem ought to help Russell:

Recent developments in Mississippi and elsewhere concerning the treatment of marijuana possession arguably provide a material difference between Solem and Russell that favors Russell as to the objective factors.  In the past year, the state of Mississippi joined many of its sister states in adopting a medical marijuana program.  Pursuant to the bill creating the program, the difference going forward between going to jail for possessing 2.5 ounces of marijuana and owning it legally would be a prescription.  See S.B. 2095, 2022 Miss. Laws.  For better or for worse, the adoption of a medical marijuana in Mississippi is in keeping with a nationwide change on the treatment of marijuana in the law.  An April 2021 law journal article points out that thirty-six states now have medical marijuana programs, and fourteen states and the District of Columbia now allow its recreational use.  Paul J. Larkin, Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215, 216-217 (2021).  Less than thirty years ago, however, all states and the federal government outlawed its distribution. Id. Whether it be wisdom or folly, the above-described move toward decriminalizing the use of marijuana considered in light of the first objective Solem factor, i.e., the gravity of the offense and the harshness of the penalty, surely weighs in favor of Russell.  There appears to be no similar widespread movement to legalize “uttering a ‘no account’ check[.]” Solem, 463 U.S. at 281.

More highlights from lots of great new Inquest essays

I flagged a number of great pieces from Inquest in a number of prior posts (recent examples here and here).  Inquest, "a decarceral brainstorm," keeps churning out great new must-read essays, and I am not sure how anyone can keep up with all the great content.  Here are just a few of the recent pieces worth checking out with an emphasis on sentencing and corrections topics:

By Alan Dettlaff, "End Carceral Social Work: To stay true to their professed values, social workers must wholly disavow and remove themselves from systems of harm."

By Lynne Haney, "Making Men Pay: For incarcerated fathers, child-support and related debt create their own feedback loops of disadvantage and punishment."

By Brad Haywood, "Busting the Myth: Many progressive prosecutors promised bold change. In Virginia and elsewhere, reformers are realizing that they’re still actors in the same machinery of injustice."

By Aziz Huq, "After the Backlash: Understanding the democratic appeal of retrenchment and reaction to movements for racial justice has never been more urgent." 

"Free-World Law Behind Bars"

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

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, 'free-world' regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

Bipartisan group of House members introduce bill to allow judges to reduce sentences to "protect the constitutional right to trial"

This press release from the office of Representative Victoria Spartz reports on a notable new bill seeking to address concerns with so-called "trial penalties."  Here is the text of the release:

U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues Reps. Hakeem Jeffries (NY-08), Kelly Armstrong (ND-AL), Karen Bass (CA-37), Morgan Griffith (VA-09), Cathy McMorris Rodgers (WA-05), Guy Reschenthaler (PA-14), and David Trone (MD-06). This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

“Our Founding Fathers provided for trial by jury in our Constitution as a safeguard of our liberties,” said Rep. Spartz.“This constitutional right is essential to protect against the tyranny of government and the police state.”

Approximately 97% of defendants subject to federal charges plead guilty, up from nearly 85% in the early 1990s. Despite their constitutional right to trial, defendants face steep mandatory minimum sentences if they choose to exercise this right—driving defendants into one-sided plea negotiations.

“Throughout my time as a district judge, I saw the extreme disparities between sentences offered in plea deals and sentences given to those who went to trial. Americans shouldn’t face drastically different judicial outcomes when exercising their constitutional rights,” said Rep. Reschenthaler. “The Right to Trial Act will address the trial penalty sentencing disparity and ensure our judicial system reflects the spirit of the Sixth Amendment.”

The ‘Right to Trial Act’ seeks to temper these incentives by granting federal courts the authority to impose sentences, in some circumstances, below established statutory minimums.

The full text of the bill, which runs only three pages, is available here. The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial."

"Letting Offenders Choose Their Punishment?"

The title of this post is the title of this new paper now available via SSRN and authored by Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi. Here is its abstract:

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options.  We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes.  We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. 

Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare.  We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions.  After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

New issue of Brooklyn Law Review examines "The Role of the 'Victim' in the Criminal Legal System"

I just recently came across online the latest issue of the Brooklyn Law Review, and it is now high on my summer reading list. The abstract of the Foreword to the issue, penned by Kate Mogulescu, provides this context:

On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system.  Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process?  Where does the issue of victimization emerge, how is it received and what should the system’s response be?  Who gets a voice?  And when?  Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy?  The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion and interrogate the way the legal system recognizes, or fails to recognize, those who have experienced harm.

And here is a list of all the articles in this issue:

Giving Meaning to the Apostrophe in Victim[’]s Rights by Margaret Garvin

Should Victims’ Views Influence Prosecutors’ Decisions? by Bruce A. Green and Brandon P. Ruben

Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence by Tamara Rice Lave

Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination by Katharine L. Manning

Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses by Anna Roberts

What Are Victim Impact Statements For? by Susan A. Bandes

Parole, Victim Impact Evidence, and Race by Alexis Karteron

Rotten Social Background and Mass Incarceration: Who Is a Victim? by Steven Zeidman

The Victim/Offender Overlap and Criminal System Reform by Cynthia Godsoe

Notable new ACLU report on prison labor in the United States

This ACLU press release provides a summary of this notable new report from the ACLU and the University of Chicago Law School Global Human Rights Clinic concerning prison labor in the US.  Here is a excerpt:

The first-of-its-kind report, Captive Labor: Exploitation of Incarcerated Workers, examines the use of prison labor throughout state and federal prisons in the U.S. and highlights how incarcerated workers’ labor helps maintain prisons and provides vital public services.  Captive Labor also calls for far-reaching reforms to ensure prison labor is truly voluntary and that incarcerated workers are paid fairly, properly trained, and able to gain transferable skills. 

“The United States has a long, problematic history of using incarcerated workers as a source of cheap labor and to subsidize the costs of our bloated prison system,” said Jennifer Turner, principal human rights researcher with the ACLU’s Human Rights Program and primary author of the report. “Incarcerated workers are stripped of even the most minimal protections against labor exploitation and abuse. They are paid pennies for their work in often unsafe working conditions even as they produce billions of dollars for states and the federal government. It’s past time we treat incarcerated workers with dignity. If states and the federal government can afford to incarcerate 1.2 million people in prisons, they can afford to pay them fairly for their work.”

Key findings include:

• Nearly two thirds (65 percent) of incarcerated people report working behind bars — amounting to roughly 800,000 workers incarcerated in prisons.
• More than three quarters of incarcerated workers surveyed (76 percent) report facing punishment — such as solitary confinement, denial of sentence reductions, or loss of family visitation — if they decline or are unable to work. 
• Prison laborers are at the mercy of their employers.  They have no control over their work assignments, are excluded from minimum wage and overtime protections, are unable to unionize, do not receive adequate training and equipment, and are denied workplace safety guarantees despite often dangerous working conditions.
• As a result, 64 percent of incarcerated workers surveyed report worrying about their safety while working; 70 percent say they received no formal job training; and 70 percent report not being able to afford basic necessities like soap and phone calls with prison labor wages. 
• Incarcerated workers produce at least $2 billion in goods and $9 billion worth of prison maintenance services annually, but this number is not closely tracked and is likely much higher. 
• Yet, most states pay incarcerated workers pennies per hour for their work. Seven state prison systems (Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas) pay nothing for the vast majority of prison work.  Other states pay on average between 15 and 52 cents per hour for non-industry jobs.  Prison laborers often see up to 80 percent of their paycheck withheld for taxes, “room and board” expenses, and court costs.
• More than 80 percent of prison laborers do general prison maintenance, which subsidizes the cost of our bloated prison system. Other tasks represent less than 10 percent of work assignments, including: public works projects (like road repair, natural disaster assistance, forestry work, and maintenance of parks, schools, and government offices); state prison industries, agricultural work, and coveted private company work assignments. 

"Evaluating the cumulative impact of indigent defense attorneys on criminal justice outcomes"

The title of this post is the title of this new article recently published in the Journal of Criminal Justice.  The piece is authored are Madhuri Sharma, Lisa Stolzenberg and Stewart J. D'Alessio, and here is its abstract:

This study utilizes meta-analysis to synthesize estimates of the impact of public defenders and assigned counsel on the severity of imposed legal sanction at several decision points encountered by criminal defendants as they progress through the criminal justice system.  While public defenders and assigned counsel have some notable effects on specific court outcomes such as pretrial detention and sentencing, the meta-analysis results show that they are just as successful overall as private attorneys in representing their clients' interests.  The defendant's indigent status most likely explains why the clients of public defenders and assigned counsel may sometimes confront more severe sanctioning because the effects of pretrial confinement reverberate throughout the entire criminal justice system.  The frequently observed deleterious consequences associated with pretrial confinement have engendered repeated calls to eliminate cash bail in determining pretrial release.

Nothing for sentencing fans as SCOTUS resolves six more cases (and increases end of Term drama)

With its usual end-of-Term rush, the Supreme Court issued five more opinions and a dismissal (DIG) this morning.  But no blockbusters or sentencing rulings were among the cases resolved today, and I do not believe there will be any more opinion days until next Tuesday (June 21). 

As I have suggested in prior posts, few should be surprised that the Second Amendment case and the abortion case (Bruen and Dobbs) have not yet been released.  I am expecting both the very last week of the Term.  But I am struck that a number of criminal/sentencing cases argued months ago have not yet been resolved.  I am now almost starting to expect something really notable could be coming in cases like US v. Taylor, and Concepcion v. US and Ruan v. US.  

Stay tuned.

A few prior related posts:

• Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term 
• Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases?

"Recidivism And Federal Bureau Of Prisons Programs Vocational Program Participants Released In 2010"

The title of this post is the title of this new report form the US Sentencing Commission.  This USSC webpage provides this basic overview and "Key Findings":

This report is the sixth in a series continuing the Commission’s study of the recidivism of federal offenders released in 2010. In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) vocational programs while incarcerated.  The study examines whether completion of vocational programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010.  The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Vocational Program Participants were offenders who participated in one of the following programs:

Occupational Education Program (OEP)

• The first group comprises 7,310 offenders who participated in at least one OEP vocational or technical training course.
• OEP offers a variety of programs where participants can take courses in vocational and occupationally oriented areas for the purpose of obtaining marketable skills.

Federal Prison Industries (FPI)

• The second group comprises 5,082 offenders who participated in FPI.
• FPI provides offenders with work simulation programs and training opportunities through the factories it operates at BOP facilities.

Occupational Education Programs (OEP)

• Although the recidivism rate for offenders who completed an OEP course was lower than that of offenders who did not participate in an OEP course (48.3% compared to 54.1%), the difference in their recidivism rates was not statistically significant after controlling for key offender and offense characteristics such as criminal history category, age at release, gender, and crime type.

Federal Prison Industries (FPI)

• Although the recidivism rate for offenders who participated in FPI was higher than that of offenders who did not participate in FPI (55.0% compared to 52.0%), the difference in recidivism rates was not statistically significant after controlling for key offender and offense characteristics, such as criminal history category, age at release, gender, and crime type.

NOTE: This study focuses solely on recidivism reduction and is not meant to analyze whether other program goals were achieved.

Latest issue of FSR examines "Federal Community Supervision"

The June 2022 issues of the Federal Sentencing Reporter, which is now available online here, seeks to shine a bright light on the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  As an editor FSR, I can say all the editors were deeply grateful for LawProf Jacob Schuman’s extraordinary efforts and expertise in envisioning and shepherding this issue from start to finish.  This terrific issue includes a dozen original articles, and Prof Schuman's introductory essay, titled "One Nation under Supervision," sets the tone at the outset this way: 

This Special Issue of Federal Sentencing Reporter asks whether the federal criminal justice system can reconcile the dueling purposes of community supervision: public safety and rehabilitation.  While the federal government is neither as vast nor as powerful as the Almighty, it does supervise over 100,000 people serving terms of probation, parole, and supervised release.  Combined with the approximately 25,000 federal criminal defendants on pretrial release and diversion, the total population under federal supervision equals the number of people in federal jails and prisons.  While U.S. Probation and Pretrial Services offers an array of transitional services, and nearly a quarter of the defendants under federal supervision receive judiciary-funded drug treatment, judges also revoke supervision in approximately a third of all cases, imposing an average eleven-month prison sentence and accounting for 15% to 20% of all federal sentencings.  A term of supervision offers help and support, yet the threat of revocation imposes a significant liability, offering a mixed blessing for federal criminal defendants.

The last time FSR dedicated an Issue to federal community supervision was in 1994.  Almost thirty years later, the population under federal supervision has nearly tripled.  At the same time, innovative reentry courts and other approaches to supervision have sprung up in federal districts across the country.  In 2019, the Supreme Court struck down for the first time a provision of the supervised release statute as violating the jury right, splitting 4-1-4 on the reasoning and revealing deep divisions among the justices about the law of community supervision.  The time is ripe to reflect on these developments and chart the future of community supervision in the federal criminal justice system.

Here is a list of the terrific articles and authors in this great new FSR issue: 

One Nation Under Supervision by Jacob Schuman

“Breach of Trust” and U.S. v. Haymond by Fiona Doherty

The Reconstruction of Federal Reentry by Scott Anders, Jay Whetzel

The Burden of Criminal Justice Debt in Federal Community Supervision by Laura I Appleman

Rethinking Supervised Release Discovery with an Eye Toward Real “Fundamental Fairness” by Alison K. Guernsey

A Tale of Two Districts: Supervised Release in the District of Arizona and the Northern District of California by Elisse Larouche, Jon M. Sands, August Sommerfeld

Reenvisioning Success: How a Federal Reentry Court Promotes Desistance and Improves Quality of Life by Maya Sosnov, Leslie Kramer

The Judicial Role in Supervision and Reentry by Jacob Schuman

What’s Missing? The Absence of Probation in Federal Sentencing Reform by Cecelia Klingele

Reducing the Federal Prison Population: The Role of Pretrial Community Supervision by Christine S. Scott-Hayward, Connie Ireland

COVID-19 Vaccination as a Condition of Federal Community Supervision by Nila Bala

Building a Fair and Just Federal Community Supervision System: Lessons Learned from State and Local Reform Efforts by Miriam Krinsky, Monica Fuhrmann

Could the EQUAL Act get passed as part of some kind of "omnibus" federal marijuana reform bill?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate. “These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

Given that I am not especially bullish on the likelihood that significant marijuana reform making it through the current Congress, I am not especially keen on the idea of tethering crack sentencing reform to marijuana reform.  But, given that the EQUAL Act seems to be stalled in the Senate (despite more than 10 GOP co-sponsors), maybe this new marijuana talk is good news for the prospects of sentencing reform.  Notably, this recent Hill commentary by Marc Levin, headlined "Bipartisan drug sentencing reform isn’t a pipe dream," argues that the EQUAL Act could still "receive a rare bipartisan embrace."  Whether with a side of weed or on its own, I sure hope the EQUAL Act gets to the desk of the President as soon as possible.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?  
• Hoping it is not yet time to give up on passage of the EQUAL Act 

Fascinating new AP accounting of all sentences given to January 6 rioters so far

Fittingly, with the House's on-going January 6 committee hearings, the Associated Press has this new article reviewing in some detail the nearly 200 sentences so far given to January 6 riot defendants.  I recommend the piece, and its cool interactive graphics, in full.  Here are excerpts:

As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising from the attack....

[U.S. District Judge Tanya] Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.  Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.

Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.

Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far.  While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.

“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,” he added.

In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol.  Prosecutors did not seek jail time for either, noting their lack of a criminal record. Chutkan sentenced Bissey to 14 days in jail.  A different judge sentenced Bissey’s friend to probation....

But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years [when prosecutors sought more than four], noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.  Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.  “When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”...

Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Reviewing federal criminal prosecutions of January 6 rioters one year later
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 

Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases?

The Supreme Court this morning handed down an order list and five new opinions (partially blogged here and here).  Though the Court issued a number of opinions on criminal (or criminal-adjacent) procedural issues, we did not today get a ruling in any of the six notable cases that I flagged in this post last week.  As of this writing, SCOTUS has 24 more argued cases to resolve this Term, and there will be additional opinions released on Wednesday morning.  (If five opinions per day becomes the new normal for the Justices, the Court could wrap the current Term by the end of this month with just two "opinion days" during each of the last two weeks of June.)

Most Court watchers have long expected the "biggest" cases, such as the Second Amendment case and the abortion case (Bruen and Dobbs) to not be released until the very end of the Term.  But two "little" sentencing-related cases are also taking a very long time to come out.  US v. Taylor, No. 20-1459, which concerns the definition of a "crime of violence" for application of a 924(c) sentencing enhancement, was argued more than sixth months ago during the Court's December sitting.  And Concepcion v. US, No. 20-1650, which concerns proper resentencing considerations in a crack offense resentencing under Section 404(b) of the FIRST STEP Act, was argued nearly five months ago during the Court's January sitting.  Only very high-profile cases are still outstanding from the December sitting other than Taylor, and Conception is the only case from the January sitting now still unresolved.

The standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions.  And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the "standard" ideological lines.  Justice Gorsuch, of course, tends to vote in favor of (non-capital) criminal defendants more than most of his conservative colleagues and Chief Justice Roberts and Justice Kavanaugh also can be somewhat more pro-defendant in some settings.

Notably, the SCOTUSblog accounting of who has written which majority opinions so far indicates that neither Justice Gorsuch nor Justice Kavanaugh has authored a majority opinion from the January sitting; we might reasonably expect (though cannot be certain) that one of those two was tasked with authoring the Court's opinion in Conception.  Cases from the December sitting are harder to game out because a few more are still unresolved; but since Justice Alito apparently had Dobbs, Justices Breyer, Kagan, Gorsuch and Kavanaugh are those so far without majority opinions from the December sitting and one of them might reasonably be expected to be authoring the Court's opinion in Taylor.

Of course, this analysis is all just tea-leaf-reading and speculation.  We could get other opinion authors or unanimous opinions or who knows what from the Court (especially given that various statutory construction and sentencing jurisprudence doctrines could be brought to bear in these cases).  But, especially within a Term generating so much news from other cases, I am tempted to start speculating that Taylor and/or Conception could prove to be sleeper cases.   (I cannot help but note that 18 years ago around this time, I started speculating about whether Blakely v. Washington might be a brewing blockbuster.  I will be truly shocked if either Taylor or Conception gets anywhere close to the jurisprudential earthquake of Blakely, but I find myself growing ever more eager to see what's what in these sentencing cases.)

Anyone else have speculations or thoughts about these lingering sentencing cases (or any other aspect of the eventful SCOTUS Term now winding down)?

Distinctive 6-3 SCOTUS majority extends reach of "dual-sovereignty" exception to Double Jeopardy Clause in Denezpi v. US

The Supreme Court this morning handed down a criminal procedure decision in Denezpi v. US, No. 20–7622 (S. Ct. June 13, 2022) (available here), with this uncommon 6-3 combination of Justices:

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined as to Parts I and III.

Here is how Justice Barrett's opinion for the Court gets started:

The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements.  Thus, a person can be successively prosecuted for the two offenses without offending the Clause.  We have dubbed this the “dual-sovereignty” doctrine.

This case presents a twist on the usual dual-sovereignty scenario.  The mine run of these cases involves two sovereigns, each enforcing its own law.  This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after having separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe).  Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns.

We disagree.  By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign.  So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.

Here is how Justice Gorsuch's dissent gets started:

Federal prosecutors tried Merle Denezpi twice for the same crime. First, they charged him with violating a federal regulation.  Then, they charged him with violating an overlapping federal statute.  Same defendant, same crime, same prosecuting authority.  Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case.  How can that be?  To justify its conclusion, the Court invokes the dual-sovereignty doctrine.  For reasons I have offered previously, I believe that doctrine is at odds with the text and original meaning of the Constitution. See Gamble v. United States, 587 U.S. ___, ___ (2019) (dissenting opinion) (slip op., at 1).  But even taking it at face value, the doctrine cannot sustain the Court’s conclusion.

Justice Sotomayor pens lengthy dissent from denial of cert in Texas capital case that has previously led to SCOTUS per curiam reversal

Almost exactly two years ago, the Supreme Court issued a per curiam decision in Andrus v. Texas (discussed here) in which the Court felt compelled to find that "Andrus’ counsel provided constitutionally deficient performance under Strickland," but then remanded so Texas courts could "address the prejudice prong of Strickland in the first instance."  This case resulted in another notable opinion today, making this otherwise new SCOTUS short order list much longer.  Specifically, Justice Sotomayor authored a 25-page dissent from denial of certiorari, which was joined by Justices Breyer and Kagan.  Here is how it starts:

A state habeas court recommended vacating petitioner Terence Andrus’ death sentence after an 8-day hearing that uncovered a plethora of mitigating evidence that trial counsel had failed to investigate or present.  The court held that Andrus had received ineffective assistance of counsel at the punishment phase of his trial. See Strickland v. Washington, 466 U.S. 668 (1984).  The Court of Criminal Appeals of Texas reversed; this Court summarily vacated and remanded. See Andrus v. Texas, 590 U.S. ___ (2020) (per curiam).

This Court held that counsel had rendered constitutionally deficient performance.  That conclusion was based on an “apparent ‘tidal wave’” of “compelling” and “powerful mitigating evidence” in the habeas record, none of which counsel presented to the jury. Id., at ___, ___, ___ (slip op., at 9, 11, 18).  The Court also found counsel ineffective for several specific failures to investigate and rebut the State’s case in aggravation. Id., at ___–___ (slip op., at 13–16).  The Court remanded to allow the Texas court to evaluate in the first instance whether, in light of the Court’s holding as to deficient performance, Andrus had shown prejudice under Strickland.

On remand, the Court of Criminal Appeals, in a divided 5-to-4 decision, failed to follow this Court’s ruling.  Instead of properly weighing the habeas evidence as a whole, the Texas court concluded that Andrus failed to establish prejudice (and therefore denied habeas relief) based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance.  As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.

I agree with the dissenting judges below. Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.  The Court, however, denies certiorari. I would summarily reverse, and I respectfully dissent from the Court’s failure to do so.