Sentencing Law and Policy

Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.

"Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency"

The title of this post is the title of this new article authored by Edward Rubin and Malcolm Feeley and available via SSRN. Here is its abstract:

Our so-called criminal justice system is in fact a disorganized mélange of poorly supervised police departments, over-aggressive prosecutors, under-funded public defenders, chaotic criminal courts and overcrowded, under-controlled prisons and jails.  Many valid criticisms have been levelled against its particular components and the racist, classist and vindictive attitudes that motivate it.  This article identifies a more basic cause of the system’s failure and recommends a more comprehensive solution.  The various institutions that we use to deal with the problem of criminal activity are atavisms, holdovers from the pre-modern era when crime control was the defining feature of government (together with foreign affairs) rather than one element of a wide-ranging system of public administration. As a result, these institutions are frozen into outdated, balkanized and reactive formats that fail to achieve the system’s basic goal of crime prevention.

For considerably more than a century, our society has addressed other social issues such as education, public health, employment conditions, consumer safety and environmental degradation by creating administrative agencies with comprehensive responsibility and at least an expectation that they will develop a coherent strategy.  The same should be the case in criminal justice.  An integrated, hierarchically organized agency in each state would be able to plan general approaches, manage resources and coordinate functions, all essential tasks that are currently ignored or underdeveloped.  In addition, it would have the capacity to train staff, supervise their performance, punish misconduct, and develop new patterns of behavior that would detach criminal justice institutions from their pre-modern, militaristic origins.  An orderly administrative system of this sort is almost certainly the only way to alter the deeply ingrained patterns of behavior that continue to produce so much abuse and oppression in all our criminal justice institutions.  While constitutional law protections should not be diminished, the criminal trial, now utilized by only a few percent of all defendants, should not serve as the organizing principle of the system, but rather as a means for dealing with the most recalcitrant individuals, as it does in other areas of administration such as securities law and environmental protection.

Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms

In this post last month following up Prez Biden's major (but still minor) marijuana pardons, I lamented that Prez Biden missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope a presidental pardon can help undo the considerable collateral consequences of even the most minor of federal convictions. 

That prior post came to mind as I saw these two recent New York Times piece highlighting these different federal and state record realities realities.  Here are brief excerpts from the pieces:

"Marijuana Pardons Affect Just a Sliver of Those Swept Up in the War on Drugs":

But people like Ms. [Valerie] Schultz, whose lone conviction has hounded her for more than a decade, represent just a sliver of those swept up in the decades-long war on drugs. A majority of marijuana convictions have been state crimes, which Mr. Biden does not have the authority to pardon; he can only hope that governors will follow suit.

And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.

"California Will Soon Have the Nation’s Most Expansive Record-Clearing Law":

California lawmakers approved one of the most far-reaching criminal justice reform measures in the nation this year, a bill that drew relatively little fanfare among a parade of high-profile legislation.

The new law makes California the first state that will automatically seal most criminal records for those who complete their sentences. Advocates pushed for the change because they said such records can prevent once-incarcerated people from getting jobs, housing, schooling and more. Jeff Selbin, the director of the Policy Advocacy Clinic at the U.C. Berkeley School of Law, called the legislation “the most expansive and comprehensive record-clearing law of its kind in the country.”

The measure, which builds on an earlier state law, takes effect in July and will automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences. Records of arrests that didn’t lead to convictions will also be sealed.

There are some exceptions: People convicted of serious and violent felonies, as well as those requiring sex offender registration, won’t have their records cleared under the law. And criminal histories would still be disclosed in background checks when people apply to work in education, law enforcement or public office.

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

Previewing SCOTUS arguments on reach of federal public-corruption laws

The Supreme Court starts a new round of oral arguments this Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States.  SCOTUSblog has these previews of the coming arguments:

"A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting."

"Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law"

In addition, here are a few media previews:

From The Buffalo News, "Supreme Court to hear Ciminelli, Percoco appeals – and decide shape of federal corruption laws"

From Reuters, "U.S. Supreme Court to weigh Cuomo-era New York corruption cases"

From the Wall Street Journal, "The Supreme Court Gets a Fraud Test: The Justices hear two major cases on prosecutorial overreach."

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

Rounding up some criminal justice news and notes over holiday week

One easy way to catch up on a number of criminal justice stories and commentaries is to do a round-up of headlines and links. So here goes:

From the AP, "Judge denies 19-year-old's ask to attend father's execution"

From the Arizona Republic, "States under scrutiny for recent lethal injection failures"

From the Atlantic, "The Crime Spike Is No Mystery: By zooming out and looking at the big picture, the question of what causes violence becomes quite answerable."

From Ball and Strikes, "The Supreme Court Is On Another Execution Spree"

From Law Dork, "Failures of capital punishment: Alabama, Missouri, and Oklahoma"

From Rolling Stone, "‘Digitized Love’: How Prison Mail Bans Harm Incarcerated People"

From The Conversation, "The criminal justice system is retraumatizing victims of violent crime"

From the New Republic, "The Supreme Court’s New Second Amendment Test Is Off to a Wild Start"

From the New York Times, "The Search for Beauty in a Prison Cell"

From the Wall Street Journal, "The U.S. Knows How to Reduce Crime: Evidence-based strategies like ‘focused deterrence’ don’t conform to partisan slogans, but they have been shown to work"

Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence

As reported in this new press piece, "District Judge Edward Davila has proposed sentencing Theranos founder Elizabeth Holmes to a federal prison camp in Texas, according to court filings." Here is more:

“The Court finds that family visitation enhances rehabilitation,” Davila wrote in the filing, according to Bloomberg, which summarized the terms of Holmes’ sentencing.

The prison camp is located in Bryan, Texas, and was proposed as an alternative to Holmes serving her 11-year 3-month sentence at a California prison.  There’s a few prison camps like this one across the country that typically have a low security-to-inmate ratio, dormitory housing, and a work program. “...compared to other places in the prison system, this place is heaven.  If you have to go it’s a good place to go.” Alan Ellis, a criminal defense lawyer, told Bloomberg.

Keri Axel, a criminal defense attorney told Yahoo! Finance that it is common for non-violent offenders like Holmes to serve out their time at minimum security facilities.  “Sometimes they’re called ‘Camp Fed’ because they have a little bit more amenities, and they’re a little nicer places,” she said, adding the caveat, “they’re not great places. No one wants to be there.”

Although the judge has recommended the prison camp for Holmes’ incarceration, the U.S. Bureau of Prisons will make the final decision.  Holmes was sentenced to 11 years and three months in prison on November 18 after she was found guilty of defrauding Theranos investors out of millions of dollars as part of her failed blood-testing startup.  She was also sentenced to three years of supervision after her release.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state

As reported in this local article, "Alabama Gov. Kay Ivey has ordered a halt to executions in the state after two failed attempts at lethal injections, calling for a 'top-to-bottom' review of the process."  Here is more:

The announcement came in the form of a press release sent Monday morning. According to the press release, the governor asked Alabama Attorney General Steve Marshall to withdraw the state’s two pending motions in the Alabama Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.

“Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” the press release stated.

Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete. No timeline was provided. A spokesperson for the Alabama AG’s office said Marshall will ”have more to say on this at a later date.”

Miller was set to be executed on Sept. 22, but survived after prison workers couldn’t find a vein to start the intravenous line needed for the three-drug lethal injection cocktail before the death warrant expired at midnight. Kenneth Eugene Smith, who was set to die Nov. 17, experienced a similar situation and also survived after officials couldn’t start an IV.

A federal judge has ordered the ADOC must preserve evidence from both failed execution attempts.

“For the sake of the victims and their families, we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here,” Ivey said in the statement. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment. I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

Hamm also made a statement, which was sent alongside the governor’s. “I agree with Governor Ivey that we have to get this right for the victims’ sake. Everything is on the table – from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”...

The Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty sent a joint statement applauding the decision. After the July execution of Joe Nathan James Jr., the groups launched a campaign called “Pull Back the Curtains” to call for transparency in the execution process.

“The ‘Pull Back The Curtains’ campaign references the fact that corrections workers are starting the execution process without public scrutiny. Every government program, especially executions, should be transparent from the start,” the groups said in a statement. “We are relieved that there will be a review, and dismayed that our state won’t simply throw out this archaic and unnecessary punishment. Among other things, at a minimum this review should assess the toll taken on corrections workers & establish PTSD support for tortured prisoners and corrections officers alike.”

Does Prez Biden's clemency record in 2022 deserve some praise on the day of turkey pardons?

Prez Biden today engaged in the annual turkey pardon silliness at the White House, and I found this array of headlines about the event amusing:

From AP, "Biden opens holidays, pardons turkeys Chocolate and Chip"

From CNN, "Biden pardons Thanksgiving turkeys: 'No ballot stuffing, no fowl play'"

From Fox News, "80-year-old Biden falsely claims Delaware has most chickens in the nation"

Media biases aside, I usually have my own bias toward criticizing each and every president on this day for pardoning turkeys so regularly while granting clemencies to people so rarely.  Here are a few prior posts of this vintage:

• Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0 
• Hasn't Prez Trump has already pardoned a turkey before this week's traditional ceremony?
• Pardon people, not turkeys: Under President Obama, the odds of clemency or commutation are shamefully slim
• Justified complaints that Obama's first pardon will be of a turkey
• Shouldn't the turkeys have been named Scooter and Libby?

But, as the title of this post asks, I am wondering whether I have to use this day in 2022 to praise rather than criticize President Joe Biden's clemency record.  Back in April, as detailed here, Prez Biden used his clemency pen to grant three pardons and 75 commutations.   And last month, as detailed here, Prez Biden pardoned many thousands of persons federally convicted of simple possession of marijuana.  This record puts Prez Biden way ahead of any other modern President in terms of clemency grants in his first few years in office, and I do think that merits some praise.

That said, as perhaps the title of this post hints, I also think there is far more that a president can and should do with the clemency pen, and so I am eager to push Prez Biden to do more, a lot more.  There are still many thousands of persons serving excessive federal prison terms and hundreds of thousands pf persons burdened with the collateral consequences of low-level federal convictions.  Though I am prepared to praise Prez Biden for what he has done so far, I also want to make sure he knows there is a lot more clemency work to do.

"Punishment Externalities and the Prison Tax"

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

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation.  Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.  But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state.  These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment.  This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities.  The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions.  This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

Lots and lots more terrific new Inquest essays

Amid a very busy semester, I have not been able to keep up with the steady stream of great pieces regularly posted at Inquest.  Inquest, "a decarceral brainstorm," keeps churning out lots and lots of must-read essays, and I am hoping the coming holiday season provides me more time to read (or re-read) all the great content.  Here are just some of the recent pieces sentencing fans may want to check out:

By Cecilia Bruni & Destiny Fullwood-Singh, "Serial Injustices: Millions rallied behind Adnan Syed, whom the system gave a second look. Many others serving extreme sentences deserve a second look, too."

By Abraham Santiago & Norman Gaines, "A Passport to the Future: Restoring Pell grants for incarcerated students is long overdue. But without meaningful infrastructure, true freedom will remain elusive."

By Cristian Farias, "Revoking Probation: After years of working in the system, a reformer and believer in government gives up on probation and parole."

By J.D. King & Andrea Roth, "Anything But Petty: Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system."

By Ashley Kilmer & Sami Abdel-Salam, "Pretty and Punitive: For all its aesthetically pleasing attributes, Norway’s Halden Prison is still a prison for the men who must endure it."

By Tomas Keen & Atif Rafay, "Decarcerating from Within: A path for imprisoned writers to offer reasoned analysis on policies affecting the carceral state."

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentevce: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

Oklahoma completes execution for man who killed three-year-old child nearly 30 years ago

As reported in this AP article, "Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993."  Here is more:

Richard Stephen Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Broomhall's family. “Today's a day for Adam, justice for Adam," Fairchild said....

Michael Hurst, the slain child's uncle, said the boy would have been 34. “Our long journey for justice has finally arrived," Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn't said that in 30 years.”

Prosecutors from the Oklahoma attorney general's office had described the boy's killing as torture when they wrote to the state's Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Fairchild's execution was the seventh since Oklahoma resumed carrying out the death penalty in October 2021 and one of four scheduled nationwide over a two-day stretch. It was the 16th execution in the U.S. this year, including one in Texas and one in Arizona on Wednesday, up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama. Oklahoma's attorney general this summer asked the state's top criminal appeals court to set more than two dozen execution dates.