Thursday, September 24, 2020

Federal government completes its seventh (and final?) execution in 2020

The federal government this evening completed is seventh execution in the span of just over two months.  This AP article, headlined "Feds put first Black inmate to death since execution restart," provides these details:

A man who killed a religious couple visiting Texas from Iowa was executed Thursday, the first Black inmate put to death as part of the Trump administration’s resumption of federal executions.

Christopher Vialva, 40, was pronounced dead shortly before 7 p.m. EDT after receiving a lethal injection at the federal prison in Terre Haute, Indiana.  In a last statement, Vialva asked God to comfort the families of the couple he had killed, saying, “Father … heal their hearts with grace and love.” His final words were: “I’m ready, Father.”...

A report this month by the Washington, D.C.-based Death Penalty Information Center said Black people remain overrepresented on death rows and that Black people who kill white people are far more likely to be sentenced to death than white people who kill Black people.  Of the 56 inmates currently on federal death row, 26 — or nearly 50% — are Black, according to center data updated Wednesday; 22, or nearly 40%, are white and seven, around 12% were Latino. There is one Asian on federal death row.  Black people make up only about 13% of the population....

Vialva was 19 years old in 1999 when he shot Todd and Stacie Bagley and burned them in the trunk of their car.  Vialva’s lawyer, Susan Otto, has said race played a role in landing her client on death row for killing the white couple.  Vialva was the seventh federal execution since July and the second this week.  Five of the first six were white, a move critics argue was a political calculation to avoid uproar.  The sixth was Navajo.

“I believe when someone deliberately takes the life of another, they suffer the consequences for their actions,” Todd Bagley’s mother, Georgia, wrote in a statement released after the execution.  “Christopher’s mother had the opportunity to visit him for the past 21 years,” she wrote.  “We have had to wait for 21 years for justice and closure. We cannot be with our children for visits or to see them on holidays. We were denied that privilege,” Bagley’s mother wrote.

In the video statement his lawyers released Thursday, Vialva expressed regret for what he’d done and said he was a changed man. “I committed a grave wrong when I was a lost kid and took two precious lives from this world,” he said. “Every day, I wish I could right this wrong.”

As detailed at this DPIC webpage, there remain 55 persons on federal death row, ten of which were convicted more than two decades ago. As of this writing, Attorney General Barr has not yet sought to set dates for any additional federal executions, but he has moved quickly in the past.

September 24, 2020 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

Understanding-Drug-Sentencing_for-web2I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  Here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

September 24, 2020 in Drug Offense Sentencing | Permalink | Comments (0)

Wednesday, September 23, 2020

Interesting accounting of Facebook spending and advertising by presidential campaigns

The Marshall Project has this fascinating lengthy new piece on criminal justice advertising by the presidential candidates during the 2020 election cycle so far.  The full headline of the piece, which highlights its themes, is "Trump’s Crime and Carnage Ad Blitz Is Going Unanswered on Facebook: The president has spent millions on misleading Facebook ads targeting undecided voters, while Joe Biden has been virtually silent."  I recommend the piece in full, and here are excerpts:

To understand how Republicans and Democrats are using criminal justice issues to reach voters, the Marshall Project analyzed hundreds of thousands of political campaign advertisements on Facebook from December 2019 to this month. Arguably the most powerful political messaging platform in history, Facebook allows candidates to microtarget tailored messages to demographic groups and even to individual voters by name.  Probing that data lets us see how candidates reach voters, with a level of detail that earlier generations of strategists and political pundits could only dream of.

Our analysis found that of the $82 million Trump’s reelection campaign has spent on Facebook ads this year, $6.6 million paid for ads about crime and policing — a top focus of his Facebook campaign. Almost all of it came since George Floyd was killed by police in Minneapolis in May.  More than one-third of those ad buys were aimed at key battleground states and many sought to persuade specific undecided voters, and married women in particular.  The Biden campaign?  It didn’t spend a cent on criminal justice ads on Facebook until late August, choosing instead to focus on the COVID-19 pandemic and economic recovery.  Yet Biden had, during the Democratic primaries, articulated a more progressive criminal justice platform than any of his party’s recent nominees....

Trump’s message on criminal justice began with a focus on reform.  Last December, his campaign ran ads featuring the First Step Act, the criminal justice reform bill he signed in 2018, boasting that the president was “helping prisoners gain a new lease on life and is making America safer.”

Then in May, for three days before Memorial Day — when George Floyd would die on a Minneapolis street — Trump spent more than $175,000 on ads criticizing Biden for his role in policies like the 1994 crime bill: “Mass incarceration has put hundreds of thousands behind bars for minor offenses.”

It’s not clear who those ads were meant to reach as they sought to capitalize on Biden’s “If you have a problem figuring out whether you’re for me or Trump, then you ain’t Black” quote in a May interview.  They disappeared quickly as protests against police brutality began in cities across the country.

By early July, as the protests continued, the Trump campaign had decisively shifted its tone.  In one ad, a 911 call is picked up by an answering machine that says, “You have reached the 911 police emergency line.  Due to defunding of the police department, we’re sorry but no one is here to take your call.  If you’re calling to report a rape, please press 1.”

Around that same time, Biden’s Facebook ads focused on praising essential workers dealing with the coronavirus pandemic and on vague messages of national unity.

You wouldn’t have seen any of these ads if you live in a state like California or Oklahoma that is considered a firm lock for one party.  Biden’s were shown in a narrow group of swing states, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin.  The Trump campaign paid Facebook about $1.5 million to show its “911” ads only to people in a slightly wider list of battleground states that included Ohio and Texas.  Since June, Trump’s campaign has spent about $2.6 million on criminal justice–related ads targeted to battleground states.

In the battleground states, these persuasive ads are not aimed at every voter.  The power of Facebook for campaigns is that it allows them to show ads directly to the specific voters they think are most likely to be on the fence.  The Trump campaign asked Facebook to show its “911” ad to at least two separate groups of people: first, to married women—the “suburban housewives” Trump has said he hopes to reach — and, second, to people specified by their name or phone number on a spreadsheet the campaign uploaded to Facebook. 

There are two main kinds of political ads on Facebook: ones intended to win votes and ones intended to encourage donations. That Trump’s “911” ad was presented to users in toss-up states suggests the goal was to persuade people to change their minds, according to digital political strategists.  When either campaign wants to raise money, they show ads to their own supporters in uncontested states like deep blue New York where they’d be unlikely to pick up additional electoral votes.

September 23, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (0)

"The Unified Theory of Punishment"

The title of this post is the title of this new revised book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

Most of the history of the philosophy of punishment is about our making choice of which theory to support and defend against all the rest.  Over time, there have been several attempts aiming to bring two or more theories together in new hybrid formulations.  This penal pluralism can be too quickly dismissed as conceptually contradictory.  At face value, there is a clear and undeniable clash between, say, supporting retributivism and consequentialist views like deterrence or rehabilitation.

For example, the punishments that retributivism might support as ‘deserved’ may lack or run counter to what might cause some desired effect.  Traditionally, the way this clash has been handled most frequently — as seen in Chapter 5 — is to say the justification for deciding who to punish is governed by one goal (e.g., typically retributivist desert) and the amount of punishment distributed to any deserving person is determined by a second, different goal (e.g., usually deterrence).  In giving each goal a different space, they avoid confrontation.  However, what this formula gains in practicability it loses in showing any theoretical coherence.  As we have seen, if desert is so important to justify punishment, why is it irrelevant to setting its amount?  And what necessary connection exists between them holding the two together as one integrated theory? For these reasons, critics have claimed that hybrid theories are unstable at best and incoherent at worst.  Given the way most are formulated, it is easy to agree — but yet it would be a serious mistake to write off the possibility and plausibility of hybrid theories if they might overcome those concerns.

This newly rewritten chapter for this second edition introduces and defends a new hybrid theory: the unified theory of punishment.  Instead of taking a side between retributivist and other positions, the unified theory is an attempt to show how multiple penal goals can be brought together coherently in a single framework, or what might be called a ‘grand unifying theory’ of punishment succeeding where others have failed.  I will argue that not only is the unified theory possible, but that it is most compelling and best able to address the complexity of criminal cases and deliver multiple benefits in a measure and evidenced way, providing a new way of expanding restorative practices as well.

The structure of this chapter is as follows.  First, it begins examining penal pluralism as found in sentencing guidelines, but lacking any framework for how different penal purposes can be coherently applied in any consistent way.  Second, I will provide an overview of philosophers starting primarily with Hegel who first attempted to create a new unified theory.  Thirdly, I will next formulate my own model for how a unified theory might work.  Key to this model is our ability to evidence whether its overarching aim — of protecting and maintaining rights — is fulfilled in a significant change in my thinking.  The chapter then considers several possible objections.

September 23, 2020 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Tuesday, September 22, 2020

Federal government completes its sixth execution in 2020

Prior to 2020, the federal government executed only three persons in over half a century.  But thanks largely to the efforts and persistence of US Attorney General William Barr, the feds as of tonight have been able to complete double that many executions in just the year 2020.  This AP story about the latest execution, headlined "US government executes killer obsessed with witchcraft," includes these details:

The U.S. government on Tuesday executed a former soldier who said an obsession with witchcraft led him to kill a Georgia nurse he believed had put a spell on him.

William Emmett LeCroy, 50, was pronounced dead at 9:06 p.m. EDT after receiving a lethal injection at the same U.S. prison in Terre Haute, Indiana where five others have been executed i n 2020 following a 17-year period without a federal execution....

Another execution, of Christopher Vialva, is scheduled Thursday. He would be the first African-American on federal death row to be put to death in the series of federal executions this year....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy’s lawyers sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn’t properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.

September 22, 2020 in Death Penalty Reforms | Permalink | Comments (0)

Another accounting of Justice Ginsburg's criminal justice legacy

I receive via email from Arizona State College of Law's Academy for Justice a terrific review (with links) of some of Justice Ruth Bader Ginsburg major work in criminal justice cases during her tenure on the Court, as well as some leading scholarship discussing this work. I got permission to reprint this collection here, so:

Some of Justice Ginsburg's Criminal Justice Opinions:

Some Scholarship Addressing Justice Ginsburg's Contributions

UPDATE: The Marshall Project has this extended new piece with lots of quote from criminal justice advocates and scholars under this full headline "RBG’s Mixed Record on Race and Criminal Justice: Ruth Bader Ginsburg was a revered feminist icon. Her legacy on issues such as prisoners’ rights, capital punishment, racial justice and tribal sovereignty has been less examined."

September 22, 2020 in Who Sentences | Permalink | Comments (1)

"Virtual Reality: Prospective Catalyst for Restorative Justice"

The title of this post is the title of this new article now on SSRN authored by Kate Bloch. Here is its abstract:

A 2018 U.S. Department of Justice report assessing data from 30 states found that 83% of individuals released from state prisons in 2005 were rearrested within nine years.  When a revolving door ushers five of six individuals back into custody and decimates communities, more effective approaches to criminal justice demand attention.  In countries around the world, restorative justice has been emerging as a promising candidate.  It generally involves an interactive process in which stakeholders identify and grapple with harms caused by the crime. 

But many environments lack the resources to invoke its benefits.  While restorative justice takes various forms, the crux of each variant involves perspective taking — seeing the harm and its consequences through the eyes of those who experienced it.  Cognitive science research suggests that the emerging technology of virtual reality provides an innovative and often especially compelling approach to perspective taking.  Embodying an avatar offers the opportunity to experience the world as another and could make virtual perspective-taking encounters a valuable introduction for subsequent in-person encounters or offer a perspective-taking opportunity when in-person encounters are not practical or prudent.  This analysis explores how virtual reality could become a catalyst for restorative justice.

September 22, 2020 in Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0)

Pending federal executions to be first SCOTUS matters to be resolved without the late Justice Ginsburg

As reported in this CBS News piece, a "former U.S. soldier who said an obsession with witchcraft led him to slay a Georgia nurse in a bid to lift a spell he believed she put on him is the first of two more inmates the federal government is preparing to put to death this week."  Here is more about this and another federal execution scheduled for the coming days:

William Emmett LeCroy, 50, on Tuesday would be the sixth federal inmate executed by lethal injection this year at the U.S. prison in Terre Haute, Indiana.

Another is scheduled for Thursday of Christopher Vialva, who would be the first African-American on federal death row to be executed this year. LeCroy is white, as were four of the five inmates executed earlier. The fifth was a Navajo.

Critics say President Donald Trump's resumption of federal executions this year after a 17-year hiatus is a cynical bid to help him claim the mantel of law-and-order candidate leading up to Election Day. Supporters say Mr. Trump is bringing long-overdue justice to victims and their families....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy's lawyers have sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn't properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.  None of those appeals have succeeded, though lawyers could continue to ask for court intervention up to the hour of his scheduled execution. Last-minute legal appeals by the previous five death-row inmates all failed.

This lengthy Intercept article, headlined "Trump Prepares To Execute Christopher Vialva For A Crime He Committed As A Teenager," reports on the particulars of the person and crime leading to the federal execution scheduled for Thursday.

As these press reports and the headline of the post indicate, various "last-minute legal appeals" are being brought on behalf of these defendants and these appeals all are likely to come before the Supreme Court in the coming days and hours.  As is common in capital cases, many of these appeals may ultimately come before the US Supreme Court.  But, for the first time in nearly three decades, Justice Ruth Bader Ginsburg will not be one of the Justices considering these appeals.

September 22, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 21, 2020

Notable research from Pennsylvania on positive pardon consequences

I just came across this interesting webpage at the site of the group Philadelphia Lawyers for Social Equity. The page highlights a pair of reports about the consequences of pardons in the state over a decade. Here is the summary from site:

In April 2020, the Economy League issued a pathbreaking report, finding that pardons issued over a ten-year period (2008-2018) had contributed $16.5 million to Pennsylvania’s economy, and urged the Board of Pardons to increase the number of pardon applicants, the percentage of applications granted, and the speed in which pardons are granted or denied.  Public officials and civic leaders praised the report, but cautioned that there needed to be “continued oversight for public safety concerns.”

Examining the same decade of data and over 3,000 files in its August 2020 report, PLSE conclusively demonstrated that there is no reason for concern when granting pardons to people who have already completed their sentences and need pardons so they can get, for themselves and their families, the better jobs, housing, credit, and other opportunities of life for which they are qualified.  PA Attorney General Josh Shapiro called the report “valuable and important.” 

Click here to read the press release.
Click here to read the report written by PLSE’s co-founder Ryan Allen Hancock and Executive Director Tobey Oxholm.
Click here to read the Economy League’s report.

September 21, 2020 in Clemency and Pardons | Permalink | Comments (0)

Big new NPR investigation showing pulmonary edema in executed inmates suggests a painful process

NPR has this interesting and extended new piece about the medical realities of modern executions under the headline "Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection."  The who piece should be reviewed in full for anyone who follows closely the debates over execution methods, and I am pleased to see that the piece discusses the ground-breaking litigation that has been pioneered by Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions who happens to be a former student of mine.  I cannot easily summarize the piece, but here is an excerpt:

[Emory University Hospital doctors] Zivot and Edgar found pulmonary edema occurring in about three-quarters of more than three dozen autopsy reports they gathered.  "The autopsy findings were quite striking and unambiguous," says Zivot.  He had imagined that lethal injection induced a quick death and would leave an inmate's body pristine, or at least close to it. But the autopsies told another story.  "I began to see a picture that was more consistent with a slower death," he says. "A death of organ failure, of a dramatic nature that I recognized would be associated with suffering."...

Zivot and Edgar brought their findings of pulmonary edema to federal courts in Georgia, Arkansas, Missouri, Tennessee and Ohio.  That evidence is now at the forefront of constitutional challenges to the death penalty in the United States.  It has even made its way to the Supreme Court, where lawyers for inmates on federal death row have used autopsies to argue that lethal injection protocols constitute cruel and unusual punishment under the Eighth Amendment.

Now, an NPR investigation has expanded the scope of this evidence of pulmonary edema significantly.  A review of more than 200 autopsies — obtained through public records requests — showed signs of pulmonary edema in 84% of the cases.  The findings were similar across the states and, notably, across the different drug protocols used....

Doctors who spoke with NPR about the findings also raised serious concerns that many inmates are not being properly anesthetized and are therefore feeling the suffocating and drowning sensation brought on by pulmonary edema.  The findings come at a time when death penalty states are already facing scrutiny over drug shortages, untrained execution personnel and a series of high-profile botched executions.

"These autopsy reports show definitively without question that these inmates are developing pulmonary edema," says Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions.  "That evidence continues to build and continues to get better every time another execution happens, unfortunately."

September 21, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Wage Theft Criminalization"

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

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace.  The phrase invokes a certain moral clarity: theft is wrong.  The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished.  Harshly.  Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes to reach wage theft.

In this Article, I examine the drive to criminalize wage theft.  In the literature on workers’ rights, “wage theft” has been accepted uncritically as a distinct problem.  But the literature fails to grapple with what makes wage theft clearly distinguishable from other abusive practices endemic to capitalism.  For scholars concerned about worker power and economic inequality, does classifying one class of conduct “wage theft” actually serve to legitimate the other injustices of the labor market?

Further, the literature on wage theft has failed to reckon with the stakes of using criminal law and incarceration as the tools to remedy workplace violations.  Absent from the discourse on wage theft is any engagement with one of the most vital contemporary movements to confront structural inequality: the fight to end mass incarceration.  Despite insistence from proponents of wage theft criminalization that their focus is on society’s most marginalized, particularly poor people of color, these advocates have turned to a criminal system that is widely viewed as inimical to the interests of those same marginalized populations.  Moreover, in calling for criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and constructed a hyper-policed population.  By resituating wage theft within the literature on mass incarceration, I examine the limitations of using criminalization to redress economic injustices.  I frame pro-criminalization arguments within the growing literature and activist discourse on decarceration and abolition, examining why criminalization of wage theft is and might be particularly problematic.

September 21, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, September 20, 2020

Spotlighting notable series of substantive reasonableness reversals by the Sixth Circuit

A helpful reader sent me this thoughtful review of some notable recent reasonableness rulings by the Sixth Circuit:

The review of sentences for substantive reasonableness is often thought of as toothless, or as a “one-way ratchet” toward more severe sentences.  Of the countless appeals challenging sentences as overly harsh, only a couple of dozen have prevailed.  (Government appeals challenging sentences as too lenient seem to have found more success).  Appellate courts have been far more willing, on a defendant’s appeal, to say the sentencing court failed to follow proper procedures than to say the sentence was just too long.  In a trio of recent 2-1 decisions, however, the Sixth Circuit has done just that, reversing above-Guidelines sentences where there was an insufficient justification for the upward variance and putting some substance into substantive reasonableness review.

This line of cases started with United States v. Perez-Rodriguez, where the Sixth Circuit reversed an above-Guidelines sentence of 24 months in an illegal re-entry case where the Guidelines range was 8 to 14 months. 960 F.3d 748 (6th Cir. 2020).  Over a dissent, the Court held that the upward variance was substantively unreasonable because this was a “mine-run” case where the upward variance was unjustified and “created unwarranted sentencing disparities.” (Interestingly, in doing so, Judge Stranch drew on her opinion in United States v. Boucher, 937 F.3d 702 (6th Cir. 2019), where the court had held that a sentence of just 30 days for Rand Paul’s attacker, when the Guidelines range was 21 to 27 months, was substantively unreasonable because it was a “mine-run case.” Thus, at least in this instance, the ratchet went both ways.)

In the less than four months since Perez-Rodriguez, the Sixth Circuit has twice struck down above-Guidelines sentences as substantively unreasonable, each time over a vigorous dissent.  In United States v. Lee, the court held that a sentence of 60 months for possession of a stolen firearm, when the Guidelines range was 30 to 37 months’ imprisonment, was “far too long for his offense of conviction” and that the sentencing court “placed too much weight on Lee's criminal history, and not enough weight on the need to treat like defendants alike.”  __ F.3d __, 2020 WL 5269820 (6th Cir. Sept. 4, 2020). Then, in United States v. Brown, relying on Perez-Rodriguez and the unpublished 2-1 decision in United States v. Warren, 771 F. App’x 637 (6th Cir. 2019), the Sixth Circuit again held that an above-Guidelines sentence of 60 months for distributing heroin was substantively unreasonable because this was a “mine-run case” and the upward variance from the Guidelines range of 24 to 30 months would create “unwarranted sentencing disparities.” __ F. App’x __, 2020 WL 5569677 (6th Cir. Sept. 17, 2020).         

It’s hard to say whether this recent spate of substantive reasonableness reversals reflects an increasing recognition by (some) federal appellate judges of the realities of mass incarceration and overly harsh sentences, or simply a lucky streak by defendants.  Cutting in favor of the latter interpretation is that both Brown and Perez-Rodriguez are sentencing appeals from the same district judge — as was Warren — and that in each instance the sentencing judge upwardly varied even though the Government sought a Guidelines sentence.  These reversals may, then, simply reflect an attempt by appellate judges to rein in a particularly punitive district judge.  But I tend to think that this string of cases reflects an attempt to give some substance to substantive reasonableness review, and to use it as a tool to curb at least the most egregiously punitive sentences.  

Though the Sixth Circuit’s newfound willingness to find upward variances unreasonable in cases that fall within the heartland of the Guidelines is encouraging, it nonetheless is worth considering the limitations of this approach.  To begin with, it implicitly accepts that the Guidelines are the starting point for reasonableness review.  This is perhaps a natural outgrowth of the appellate presumption of reasonableness that the Sixth Circuit (and some but not all other circuits) afford to within-Guidelines sentences.  But it risks blunting the impact of Booker and Gall, which held that district courts must start by calculating the Guidelines range but then must proceed to give the sentence required by the factors enumerated in 18 U.S.C. § 3553(a), regardless of what the Guidelines may advise.  Accordingly, in certain districts such as the Southern and Eastern Districts of New York, only a quarter of sentences have been within-Guidelines in recent years.  In the view of many district judges, it seems, the proper sentence for a “mine-run case” is a below-Guidelines one. 

Indeed, anyone with a working knowledge of the Sentencing Guidelines — or any regular reader of this blog — is likely familiar with just how harsh the Guidelines can be.  Yet the approach of Perez-Rodriguez requires only that above-Guidelines sentences provide sufficient justification; it offers no path to challenging harsh but below- or within-Guidelines sentences.  A more robust appellate review of the reasonableness of above-Guidelines sentences is certainly welcome, but it is not by itself a panacea for the ills of mass incarceration. 

I am always grateful for (and eager to post) any and all caselaw reviews, so I thank this author and encourage others to help me track and report on lower court sentencing developments like this one.

September 20, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Due Process in a Fee-Driven State"

The title of this post is the title of this notable new article now available via SSRN authored by Penny White and Glenn Harlan Reynolds.  Here is its abstract:

Inspired by the Justice Department's report on criminal law enforcement and the use of courts as a revenue-generation machine in Ferguson, Missouri, we address the widespread problem of policing for profit in light of two classic Supreme Court cases on due process, and two very recent Court of Appeals cases that focus specifically on the due process implications of a justice system dependent for funding on those people it "serves."  We argue that when everyone participating in the justice system is aware that the system itself depends on sufficient revenue from fines, fees, and forfeitures, that very dependency is a conflict of interest sufficient to violate due process rights. 

In this short article, we will look briefly at the history and law of judicial independence, after which we will describe the extent to which the modern judicial system — and, indeed, the entire law enforcement apparatus — depends upon extracting money from a steady stream of individuals who appear before it creating an untenable vested interest in charging and collecting and resulting in a fundamentally unfair system.  We then offer a number of solutions, and find Supreme Court support for our approach in a surprising place.

September 20, 2020 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, September 19, 2020

Noting encouraging new federal compassionate release realities

I am pleased to see this CBS News new article headlined "Compassionate release, once seldom used, offers some federal inmates hope."  Here are excerpts:

[C]ompassionate release [was] a once seldom used remedy that allows inmates to receive a reduction in their sentence. The process, which is only used in extraordinary circumstances, has seen an uptick during the coronavirus pandemic....

Petitions for compassionate release were rarely approved prior to the passing of the First Step Act in December 2018, which created a procedural change, making it easier for offenders and their families to bring their request to the court.

There were 145 offenders released in 2019 — about five times more than the year before, when 24 people were granted release, according to a report by the U.S. Sentencing Commission.  On average, the sentences were reduced by 84 months last year, compared to 68 months the year before.  Two-thirds of those who successfully obtained release did so by filing requests through the court, rather than going through the Bureau of Prisons, the report found.

The bureau, in a statement, said it has no direct authority to reduce an inmate's sentence, but rather, a director determines if an inmate is eligible and submits a request to the prosecuting U.S. Attorney's Office to file a motion on behalf of the director.  "Inmates who are found to be ineligible under agency criteria, or who are determined to be inappropriate for agency approval of a reduction in (a) sentence may file a motion themselves directly to the sentencing court per the First Step Act," the statement said.

So far, nearly 1,600 cases have been approved, the bureau said, meaning that in the year of the pandemic, the numbers of those being released have increased tenfold since the year before.

The virus has killed 120 federal inmates, the bureau said.  Saferia Johnson, a 36-year-old with pre-existing health conditions, died from the virus in August after her petitions for release were reportedly denied by a prison warden in Sumterville, Florida.  Johnson was serving a 46-month sentence at the Coleman Federal Correctional Complex for conspiracy to steal public money and for aggravated identity theft.  The bureau declined to comment on her case.

Compassionate release differs from home confinement, a program that Attorney General William Barr directed the Bureau of Prisons to enforce in March, just as the pandemic began to root itself inside the federal prison system.  Home confinement allows current inmates to serve out the remainder of their sentence from the comfort of their home while still remaining under correctional supervision.  The Justice Department prioritized the elderly, those at high-risk, and non-violent offenders for home confinement.  As time went on, the qualifying factors set by the bureau included those who had already served at least half of their sentence.

Since Barr issued the directive, over 7,600 inmates have been placed into home confinement.  Notable recipients include President Trump's former campaign manager, Paul Manafort, and his former personal lawyer, Michael Cohen.  However, in light of the pandemic, judges have been approving more petitions for compassionate release, and organizations like FAMM are helping spearhead the effort.

FAMM, in conjunction with other civil rights groups, created the "Compassionate Release Clearinghouse" in 2019, and has advocated for inmates who qualify for the sentence reduction under the First Step Act.  "We didn't think it was smart to keep sick and elderly people in prison before COVID-19 hit — and it seemed downright immoral to trap them there once it did," said Kevin Ring, the organization's president.

"We don't usually do direct services, but this was a humanitarian emergency.  We are grateful to the hundreds of federal defenders and volunteer attorneys — both in and outside of the Clearinghouse — who helped families get their loved ones out of harm's way."

A few prior recent posts:

September 19, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice Ginsburg

Justice Ruth Bader Ginsburg was nominated to be a Justice when I was still in law school, so it has been a very long time since I have thought about a Supreme Court without her voice and views being integral to the Court's work.  And, as I noted in this post last night, she was literally the critical swing vote in US v. Booker to give us the advisory guideline system that has defined the federal sentencing for over fifteen years.

Though Justice Ginsburg did not write an opinion in Booker, she wrote plenty of notable and consequential sentencing opinions for the full Court during her lengthy tenure.  Via this post, I figured I would take a few moments to note and link some sentencing highlights in the remarkable corpus of opinions authored by Justice Ginsburg during her many years on the Court:

Ring v. Arizona, 536 U.S. 584 (2002)

Cunningham v. California, 549 U.S. 270 (2007)

Kimbrough v. United States, 552 U.S. 85 (2007)

Oregon v. Ice, 555 U.S. 160 (2009)

Timbs v. Indiana, 586 U.S. ___ (2019)

By keeping this list focused opinions for the Court, I have left off many of Justice Ginsburg's notable separate opinions and on lots of other criminal law matters.  I suspect readers may recall fondly (or perhaps not so fondly) of other opinions of Justice Ginsburg not listed above, and I welcome thoughts in the comments about Justice Ginsburg's role in shaping modern criminal justice jurisprudence.

September 19, 2020 in Who Sentences | Permalink | Comments (0)

Friday, September 18, 2020

Saddened by the passing of Justice Ruth Bader Ginsburg, who gave us advisory federal sentencing guidelines

459px-Ruth_Bader_Ginsburg _SCOTUS_photo_portraitI was sad to see this news this evening:

Supreme Court Justice Ruth Bader Ginsburg, a diminutive yet towering women’s rights champion who became the court’s second female justice, died Friday at her home in Washington.  She was 87.  Ginsburg died of complications from metastatic pancreatic cancer, the court said....

Chief Justice John Roberts mourned Ginsburg’s passing.  “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague.  Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice,” Roberts said in a statement....

Her appointment by President Bill Clinton in 1993 was the first by a Democrat in 26 years.  She initially found a comfortable ideological home somewhere left of center on a conservative court dominated by Republican appointees. Her liberal voice grew stronger the longer she served....

On the court, where she was known as a facile writer, her most significant majority opinions were the 1996 ruling that ordered the Virginia Military Institute to accept women or give up its state funding, and the 2015 decision that upheld independent commissions some states use to draw congressional districts.

Besides civil rights, Ginsburg took an interest in capital punishment, voting repeatedly to limit its use.  During her tenure, the court declared it unconstitutional for states to execute the intellectually disabled and killers younger than 18. In addition, she questioned the quality of lawyers for poor accused murderers....

Ginsburg authored powerful dissents of her own in cases involving abortion, voting rights and pay discrimination against women.  She said some were aimed at swaying the opinions of her fellow judges while others were “an appeal to the intelligence of another day” in the hopes that they would provide guidance to future courts.  “Hope springs eternal,” she said in 2007, “and when I am writing a dissent, I’m always hoping for that fifth or sixth vote — even though I’m disappointed more often than not.”

She wrote memorably in 2013 that the court’s decision to cut out a key part of the federal law that had ensured the voting rights of Black people, Hispanics and other minorities was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

When I think about Justice Ginsburg's sentencing legacy, I do not think about any single opinion but rather about two notable votes. Specifically, Justice Ginsburg was the sole justice to vote with both remarkable majority opinions in US v. Booker: she was the key fifth vote for the merits opinion finding the mandatory federal guidelines unconstitutional and she was the key fifth vote for the remedial opinion making the guidelines advisory. Notably, Justice Ginsburg did not write any opinion in Booker to explain either vote, but her two votes gave us the advisory guideline system that has now defined the federal sentencing system for well over fifteen years.

September 18, 2020 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Who Sentences | Permalink | Comments (5)

"In the Shadows: A Review of the Research on Plea Bargaining"

The title of this post is the title of this great new document from the Vera Institute of Justice.  Here is part of the report's introduction:

In whatever form it takes, plea bargaining remains a low-visibility, off-the-record, and informal process that usually occurs in conference rooms and courtroom hallways — or through private telephone calls or e-mails — far away from the prying eyes and ears of open court.  Bargains are usually struck with no witnesses present and made without investigation, testimony, impartial fact-finding, or adherence to the required burden of proof.  Moreover, little to no documentation exists of the bargaining process that takes place between initial charge and a person’s formal admission of guilt in open court, and final plea deals that close out cases are themselves rarely written down or otherwise recorded.  As such, plea deals, and the process that produces them, are largely unreviewable and subject to little public scrutiny.  Thus, despite the high frequency with which plea deals are used, most people — aside from the usual courtroom actors — understand neither the mechanics of plea bargaining nor the reasons so many people decide to plead guilty.

Plea bargaining has, however, become the central focus of a growing, but still small, body of empirical research.  In recent years, mounting concerns about plea bargaining’s role in encouraging the widespread forfeiture of constitutionally guaranteed trial rights and associated procedural protections — and its critical role in fueling mass incarceration — has stimulated further urgency in understanding how the process works.  Indeed, an array of questions regarding its fairness have emerged.  Over the last few decades, prosecutorial leverage in plea negotiations has increased exponentially as changes in substantive law have bolstered criminal penalties and given prosecutors a wider range of choices to use when filing charges (such as mandatory penalties, sentencing enhancements, and more serious yet duplicative crimes already well covered by existing law).  But increased exposure to harsher penalties has not been matched with increased procedural protections for defendants.  Prosecutors’ wide powers in plea bargaining still go largely unchecked, and there are no meaningful oversight mechanisms or procedural safeguards to protect against unfair or coercive practices, raising fears about arbitrariness and inequality.  Given this lack of regulation, concern has also grown over the extent to which innocent people are regularly being induced to plead guilty, as well as plea bargaining’s role in perpetuating racial and ethnic disparities in criminal case outcomes — for example, plea bargaining practices that send more Black people to prison or jail than similarly situated white people.

Plea bargaining’s full impact on the legal system and justice-involved people remains unknown, but empirical research on this little understood yet immensely influential practice has begun to emerge.  In order to provide an accessible summary of existing research to policymakers and the public, the Vera Institute of Justice (Vera) examined a body of empirical studies that has developed around plea bargaining. Although this review is not exhaustive, it provides a picture not only of the current state of scholarship on plea bargaining, but also of the gaps in knowledge that must be filled.

September 18, 2020 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (3)

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

September 17, 2020 in Collateral consequences, Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

At re-re-re-sentencing, Amy Locane gets eight years in New Jersey state prison for drunk driving vehicular manslaughter

Because it is such an interesting case (and perhaps because I watched Melrose Place way back when), I have blogged repeatedly about the sentencings saga of Amy Locane after her conviction in a tragic and deadly drunk driving case.  Today, Locane was sentenced for the fourth time in this matter, and this Fox News piece provides the details:

Amy Locane has been resentenced to eight years in state prison for a fatal 2010 drunk driving crash that occurred in New Jersey. The former “Melrose Place” actress, 48, has already served a prison sentence but a judge agreed with prosecutors Thursday that her initial sentence was too lenient.

State Superior Court Judge Angela Borkowski said Locane still refuses to fully acknowledge her culpability in the crash that killed 60-year-old Helene Seeman and severely injured Seeman's husband.  State law requires her to serve more than six years before being eligible for parole.  Locane apologized to the Seeman family in a brief statement.  She was placed in handcuffs and taken into custody by court deputies after the proceeding in state court in Somerville.

It was a startling development in a case that has bounced around the New Jersey court system for nearly a decade and has now featured four sentencings in front of three judges, plus numerous appeals.

Locane — who acted in 13 episodes of the popular 1990s Fox series and has also appeared in several movies — was convicted on several counts including vehicular manslaughter, and faced a sentencing range of five to 10 years on the most serious count. The state initially sought a seven-year sentence, but a trial judge sentenced her to three years in 2013.  An appeals court ruled he misapplied the law, but at a resentencing, the same judge declined to give her additional time.

Last year, a different judge sentenced her to five years, but an appeals court ruled he didn't follow guidelines it had set and ordered yet another sentencing.  Locane's attorney, James Wronko, had argued unsuccessfully that sentencing her again would violate double jeopardy protections since she had already completed her initial sentence and parole term.

According to witnesses, Locane had consumed several drinks before she headed home on the night of the accident and slammed into the Seemans' car as it turned into their driveway in Montgomery Township, near Princeton.  The actress contended a third motorist, whose car Locane had bumped into at a traffic light minutes earlier, distracted her by honking at and chasing her.  Locane wasn't indicted for drunken driving, but a state expert testified her blood alcohol level was likely about three times the legal limit and that she was driving roughly 53 mph (85 kmh) in a 35-mph (56-kmh) zone at the time of the crash.

Fred Seeman, who nearly died from his injuries suffered in the crash, attended Thursday's proceeding and said Locane's shifting of blame "shows contempt for this court and the jury that rendered the verdict.”  The judge took a similar view, and said Locane's past alcohol abuse makes her a risk for reoffending.

“You made a conscious decision to drink that day and continued to drink, recognizing at the onset that you needed a ride but didn’t obtain one," Borkowski said.  "If you hadn’t gotten behind the wheel of your vehicle on this night, the incident never would have happened.” Wronko called the sentence “outrageous.  She has always taken full responsibility," and criticized the judge for not taking into account Locane's current sobriety and her work counseling others against alcohol abuse.

Locane has 45 days to appeal her sentence. Wronko said he is waiting to see if the state Supreme Court decides to hear his appeal on the double jeopardy question.

Prior related posts:

September 17, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Finding a silver lining in new report on Prez Trump's disappointing nominees to US Sentencing Commission

The Marshall Project has this new mostly depressing article about the troubling slate of US Sentencing Commission nominees announced by Prez Trump last month (basics here).  Even the headline of the piece, "Before Election, Trump Tries To Stack Prison-Sentencing Agency With Right Wing Allies," is telling and depressing since the US Sentencing Commission should be a whole lot more than a "Prison-Sentencing Agency" even though this is a disconcertingly fitting descriptor. 

In any event, ever eager to find a silver lining, I found a few passages in the article somewhat indirectly encouraging.  I have bolded below what seems "not so bad" amdist an otherwise disconcerting piece: 

The commission is required by law to be bipartisan and to represent a diversity of backgrounds.  But Trump has broken from that precedent by proposing to fill the agency’s five empty seats with appointees who are nearly all white male former law enforcement officials.  And Senate Majority Leader Mitch McConnell may, in the final months before the end of the president’s term, try to confirm these nominees, according to five Senate Judiciary Committee staffers as well as several advocacy groups.

“We’re worried they’re trying to cram these appointments through in case Trump loses,” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums....  The president’s nominees include Judge Henry E. Hudson, a federal judge in Virginia known as “Hang ‘Em High Henry,” who once said, “I live to put people in jail.”  Hudson, a former prosecutor and former director of the U.S. Marshals Service, led a Reagan administration anti-pornography commission that claimed that viewing sexual images causes sex crimes....

Also among the president’s picks for the commission is Judge K. Michael Moore of Florida, another former prosecutor and another former director of the U.S. Marshals.  In 2015, Moore sent a nonviolent first-time drug offender to prison for 20 years, a sentence so extreme that Trump commuted it four years later.

Other nominees include Judge Claria Horn Boom of Kentucky, a former prosecutor championed by McConnell, and John G. Malcolm, a former prosecutor who is now the director of a judicial studies program at the conservative Heritage Foundation.  The lone non-prosecutor in the group is Judge Luis Felipe Restrepo of Pennsylvania, a former public defender nominated to the federal bench by former President Obama....

Trump has said little publicly about his nominees, perhaps to avoid drawing media attention that could complicate their confirmation by the Senate Judiciary Committee.  Senator Kamala Harris, the Democratic vice presidential nominee, is a member of that committee, as are some Republicans — including Chuck Grassley of Iowa and Mike Lee of Utah — who have supported some efforts to moderate harsh sentencing.

Judiciary Committee staffers said that one or two of Trump’s picks may get confirmed, but probably not all.  Reform advocates say there is not enough time to properly evaluate the candidates, and that any vote on them should wait until next year.  “During normal times, the wonkiness of nominees to the Sentencing Commission might have allowed the package to move forward,” said David Safavian, general counsel of the American Conservative Union and an advocate of sentencing reform.  “But it’s too easy for Democrats to demagogue Henry Hudson.” 

Spokespeople for McConnell and for Sen. Lindsey Graham, the chairman of the Judiciary Committee, did not respond to requests for comment as to whether there will be a confirmation hearing in the coming months....

Legal experts see William Barr’s hand in this slate of nominees consisting of nearly all former Justice Department prosecutors. “Prosecutors always say, ‘We don’t make the law, we just enforce it,’” said Safavian of the American Conservative Union.  But choosing this group of appointees to set federal sentencing rules, he said, “is one of many examples of how that is not at all true.”

The fact that this piece indirectly quotes Senate staffers indicating that "one or two of Trump’s picks may get confirmed, but probably not all" seems to me a sign that this slate of nominees in this form is very unlikely to be "rubber stamped" by the current GOP-led Senate anytime soon.  In addition, the fact Prez Trump and Senators Graham and McConnell do not seem to be at all eager to talk up these nominees is another reason to think they are unlikely to sail through the confirmation process.  And if ultimately just a couple of nominees, especially John Malcolm and Judge Restrepo, were to get through the process, we might even hope to see this dormant judicial agency moving in the right direction sooner rather than later.

But this optimistic tea-leaf reading from someone way outside the Beltway may be just a kind of naive wishful thinking about what is really afoot with USSC nominations inside the Beltway.  Regardless of the election results, I could still imagine a world in which the current GOP-led Senate uses the lame duck months to confirm many if not all of this Trumpian slate.  And I presume if Trump is reelected and the Senate remains in GOP control, this folks in this slate of nominees are functional front-runners for the USSC's open slots even if those slots do not get filled into 2021 or beyond.

Prior related posts:

September 17, 2020 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (5)