Sentencing Law and Policy

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

If you never tire of acquitted conduct talk, here is a podcast episode for you

In this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

• New podcast for all sentencing fans (and especially defense attorneys)
• Another plug for a podcast for all sentencing fans (and especially defense attorneys) 

"Suffering Before Execution"

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

When condemned people suffer before their executions, does that suffering represent punishment?  I argue that it does not — at least not the suffering on American-style death rows.  American institutions instead administer pre-execution confinement as something closer to non-punitive detention, and I make several normative claims about what should follow from that status.  Among other things, a non-punitive paradigm entails thicker constitutional constraints on solitary confinement and unsafe living conditions.  It also represents a novel solution to a challenging doctrinal puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself.  Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.  On average, those whom the state kills will have spent about twenty years in such conditions — up from two years in 1960.  The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness.  Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

That assumption is unjustified as a matter of penal theory, for two reasons.  First, confinement before execution does not meet consensus criteria for punishment.  It is instead suffering that is collateral to an incapacitation interest. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified.  More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would distribute that punishment across the death-sentenced prisoner cohort arbitrarily.

There is a reasonably well-developed body of constitutional law capable of absorbing a shift in the status of pre-execution confinement.  On that constitutional law, when the state detains people primarily to incapacitate them, that detention is preventative, not punitive.  Due process, rather than the Eighth Amendment, constrains such preventative detention. A nonpunitive approach would reduce suffering because the constitutional rules contain different, more stringent constraints on pre-execution confinement.  Such an approach would also give the Supreme Court satisfactory answers to difficult Eighth Amendment questions that have eluded it for quite some time.

Effective coverage of compassionate release challenges at the state level

Since the First Step Act made it much easier for federal prisoners to get their motions for sentence reductions before judges, discussion and debate (and litigation) over the federal approach to so-called compassionate release has been robust.   And, on-going consideration by the US Sentencing Commission of changes to its guidelines for these sentence reductions ensures that the federal debate will remain robust for the foreseeable future.

But, helpfully, the folks at Bolts have been doing the important work of making sure we do not lose sight of how these sorts of issues play out in state prisons systems.  Most recently, Bolts published an extended piece on these topics focused on Oregon, and it has published prior pieces focused on California and New York.  Here are the extended headlines of these pieces, along with links:

By Piper French, "In Oregon’s Prisons, Terminally Ill People Are Left with Little Recourse: Proposed legislation would ease the extraordinarily difficult road that incarcerated Oregonians face in securing compassionate release."

By Piper French, "California Passes Bill to Expand Prison Releases for Terminally Ill People: Few people leave prison under California’s compassionate release program, but a new measure could allow more incarcerated people to live out their final days at home."

By Victoria Law, "Prison Officials Routinely Deny Hearings to Terminally Ill New Yorkers: The frequent refusal to send medical parole cases to the state board has frustrated advocates and raises questions about the murky criteria preventing most sick people from making their case."

Rounding up some sentencing and punishment stories in an exhausting week that was

A horrible series of mass shootings and the release of awful videos defined the criminal justice week that was.  But there were also a bunch of sentencing and punishment stories of note and interest that I did not have time to cover here.  As is my custom, I will try to catch up with a headline/link round-up:

From the Arizona Republic, "Reformers applaud Hobbs' plans for an oversight commission for troubled Arizona prisons"

From CBS News, "Louisiana "routinely" keeps inmates in custody past release dates, Justice Department finds"

From The Crime Report, "Report: Native Americans Significantly Overrepresented In US Prisons"

From Fox News, "DeSantis proposes making child rapists eligible for execution, allowing death penalty without unanimous jury"

From The Intercept, "Oklahoma Slows Down Frenzied Execution Spree And Launches Probe Into Richard Glossip Case"

From the Marshall Project, "Giving Incarcerated People What They Want — Better News Access"

From NPR, "A man who killed 8 bicyclists in Manhattan is convicted and may face the death penalty"

From New York Daily News, "Brooklyn lawyer who helped firebomb NYPD car during Floyd protests sentenced to a year and day in prison"

From Politico, "Jan. 6 rioter who maced Brian Sicknick sentenced to 80 months"

From Reason, "Federal Inmates Suffering From Unconstitutional Medical Neglect Could Get Relief Under Rule Change"

From Rolling Stone, "Trump’s Killing Spree: The Inside Story of His Race to Execute Every Prisoner He Could"

Effective look at the many ugly realities of probation

The March 2023 issue of Reason magazine has this terrific article about probation systems authored by C.J. Ciaramella and Lauren Krisai. This lengthy piece is worth a full read, and its full title notes its basic themes: "U.S. Probation System Has Become a Quagmire: What was originally intended as an alternative to incarceration has become a system for mass state control." Here are excepts from the start and first part of the piece:

Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge.  Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.  And 40 years on probation.

Probation terms vary by state.  They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar.  For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms.  For the privilege of being subjected to all this, there are also fees owed to the state — all to live on the edge of a life-destroying prison sentence....

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives.  And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control.  Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight.  As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

And here is part of a section of the article about just some of the restrictions probationers face:

When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer.  According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."

In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car.  New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."  It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking....

Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers.... In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says....  Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.

And here is part of the discussion of probation's contribution to incarceration:

Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.

Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.

For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations.  According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider....  The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.  Kansas also has a high admission to prison rate for probation violations — 44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.

New year and new Congress brings a new effort to advance new EQUAL Act

Regular readers likely recall some of my posts over the last two years about the EQUAL Act, a bill to reform federal crack cocaine sentencing by finally treating crack and powder cocaine the same at sentencing.  In short form, passage of the bill looked somewhat likely when the US House of Representatives passed it overwhelmingly in September 2021; but, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden.  And, as detailed in this post, a lame-duck session compromise bill to the finish line.

Of course, the start of 2023 means a new Congress, so there needs to be a new version of the EQUAL Act introduced.  Interestingly, as this new FAMM press release highlights, there is already a "coalition of law enforcement, justice reform, and civil rights organizations urg[ing] Congress to pass the EQUAL Act" even before a new version has been formally introduced.  As the press release explains: "Today, FAMM along with 20 additional organizations sent a letter to Sens. Dick Durbin and Lindsey Graham (the Chair and Ranking Member of the Senate Judiciary Committee, respectively) urging them to schedule a markup for the EQUAL Act as soon as it is reintroduced this Congress."  Here are parts of the letter:

We write today to urge you to schedule a mark-up for the EQUAL Act as soon as it is reintroduced. We believe that moving the bill early this year will help prevent the same disappointing fate the bill suffered last Congress....

Last Congress, the EQUAL Act was one of only a few pieces of legislation to enjoy clear bipartisan support. The House of Representatives passed the bill in September 2021 with an overwhelmingly bipartisan vote of 361-66. The Senate version of the bill enjoyed the support of more than 60 senators, but never received a vote in committee or on the floor. To ensure this strong bipartisan bill reaches President Biden’s desk, we urge you and your committee to begin work on this urgent piece of legislation immediately.

Notably, but not surprisingly, this letter to Congress makes no mention of the fact that, as discussed here, US Attorney General Garland released last month new federal charging guidelines that including instructions to federal prosecutors to treat crack like powder cocaine at sentencing.  Though these new charging guidelines do not have the legal force of statutory reform, they might readily lead members of Congress to see less urgency in advancing reform or even to be more resistance to reform as we saw late last year.  Fingers crossed that EQUAL can gather momentum again and actually finally eliminate the pernicious and unjustified crack/powder disparity once and for all.

A few of many prior posts on the EQUAL Act:

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

VERA Institute provides first-person accounts of "The Human Toll of Jail"

Via email today I learned that the Vera Institute of Justice has launched another round of first-person essays about jail experienced under the titled "The Human Toll of Jail."  Here is how the project is introduced on the site's main webpage (with links from the original):

Every year, people cycle through the revolving doors of the more than 3,000 jails operating in the United States — too often invisible to the public.  But the truth of this hidden population is that the roughly 10.3 million annual U.S. jail admissions cause immense harm and disruption to people’s lives, families, and communities.

In 2016, the Vera Institute of Justice launched the Human Toll of Jail project to humanize the costs of incarceration and uplift true stories about people whose lives are affected by jail, in their own words.  The project featured essays by people who had spent time in jail, their families and communities, and people who work in the system.

In 2023, mass incarceration continues to be the default setting of the U.S. “justice” system, and the conversation about the misuse of jails isn’t over.  Vera has now partnered with PEN America’s Prison and Justice Writing program to embark on a second round of stories from people living the harsh realities of life behind bars.

Together, Vera and PEN invited submissions from currently incarcerated people, who give an up-close and honest view of life within U.S. jails today.  From a wide-ranging pool of submissions, a selection committee chose eight winners, whose work appears here with custom illustrations inspired by each essay.  With these personal and eye-opening essays, Vera and PEN America seek to amplify the voices of incarcerated writers, further conversations about the horrors and trauma of jail, and ultimately, ensure that people in the system are treated with dignity.

Latest CCJ accounting of crime trends shows mostly encouraging news from 2022 about violent crimes (but not property crimes)

In this post last week, I flagged some of the encouraging 2022 homicide data drawn from this AH Datalytics webpage's "YTD Murder Comparison" Dashboard.  And I am now very pleased to see that the Council on Criminal Justice (CCJ) is continuing to do important and timely work on broader modern crime trends by continuing its on-going series of crime data reports under the heading "Pandemic, Social Unrest, and Crime in U.S. Cities."  The latest version of this report, titled "Pandemic, Social Unrest, and Crime in U.S. Cities: Year-End 2022 Update," was just released and this CCJ press release provides the data basic in its full heading: "Homicide, Gun Assault, Domestic Violence Declined in Major U.S. Cities in 2022 but Remain Above Pre-Pandemic Levels: New CCJ Analysis Also Documents a 59% Spike in Motor Vehicle Theft Since 2019, With Thefts More Than Doubling in 8 Cities."

The full report, which is based on "monthly crime rates for ten violent, property, and drug offenses in 35 U.S. cities in calendar year 2022," is available at this link.  Here are some of the "Findings" set forth on the report webpage:

• The number of homicides in 2022 was 4% lower than counts recorded in 2021, representing 242 fewer murders in the 27 cities that publicly report monthly homicide data.  The national homicide rate remained 34% higher than in 2019, the year before the pandemic began, and about half the historical nationwide peaks in 1980 and 1991.

• There were 3.5% fewer aggravated assaults in 2022 than in 2021.  The number of gun assaults dropped by 7% in 2022, but this trend is based on data from just 11 cities and should be viewed with additional caution.  Domestic violence incidents decreased by 5% between 2021 and 2022.  This finding is based on just 11 cities studied and also should be viewed with extra caution.

• Robberies (+5.5%), nonresidential burglaries (+11%), larcenies (+8%), and motor vehicle thefts (+21%) all increased from 2021 to 2022. Residential burglaries fell by 2%.

"Where people in prison come from: The geography of mass incarceration"

The title of this post is the title of this new report from the Prison Policy Initiative authored by Emily Widra. Here is how the data-heavy report gets started:

One of the most important criminal legal system disparities in the United States has long been difficult to decipher: Which communities and neighborhoods throughout the state do incarcerated people come from?  Anyone who lives in or works within heavily policed and incarcerated communities intuitively knows that certain neighborhoods disproportionately experience incarceration.  But data have rarely been available to quantify how many people from each community are imprisoned with any real precision.

But now, thanks to redistricting reforms that ensure incarcerated people are counted correctly in the legislative districts they come from, we can understand the geography of incarceration in twelve states with up-to-date data. These twelve states — California, Colorado, Connecticut, Delaware, Maryland, Montana, Nevada, New Jersey, New York, Pennsylvania, Virginia, and Washington — are among the states that have ended prison gerrymandering, and now count incarcerated people where they legally reside — at their home address — rather than in remote prison cells.  This type of reform, as we often discuss, is crucial for ending the siphoning of political power from disproportionately Black and Latino communities to pad out the mostly rural, predominantly white regions where prisons are located.  And when reforms like these are implemented, they bring along a convenient side effect: In order to correctly represent each community’s population counts, states must collect detailed state-wide data on where imprisoned people call home, which is otherwise impossible to access.

These data also allow us to better understand how incarceration rates correlate with other community problems related to poverty, employment, education, and health.  While the data is not comparable between states, it does show us meaningful patterns in incarceration and researchers, scholars, advocates, and politicians can use the data in this report to advocate for programs and services housed outside the criminal legal system in the communities that need them most.

Jury trials on hold in New Orleans because of apparent long-running failure to comply with new law to allow certain persons with felony convictions to serve as jurors

This local article, headlined "Jury trials in New Orleans criminal court halted through February," reports on interesting development in the Big Easy.  Here are the highlights:

Criminal court judges in New Orleans decided on Monday afternoon to put all jury trials on hold until at least March amid allegations that the court has been illegally excluding people with felony convictions from serving on juries for the last year and half.  In addition to delaying many criminal trials that were set to be held over the next five weeks, the decision is likely to bolster concerns over the legitimacy of dozens of jury trials in New Orleans dating back to August of 2021.

In a letter on Monday, Chief Judge Robin Pittman informed a lawyer for Voice of the Experienced (VOTE), Emily Posner, that jury venires — the legal term for the panel from which jurors are drawn — would be “deferred for the remainder of January 2023 and February of 2023.” VOTE, whose membership consists primarily of formerly incarcerated individuals, first raised concerns about the summons process in a letter to criminal court judges earlier this month....

The decision comes after the Louisiana Fourth Circuit Court of Appeal halted the attempted murder trial of Samuel Preston in New Orleans midway through jury selection last week, and ordered the trial judge in the case, Rhonda Goode-Douglass, to hold a hearing on whether or not the court has been using an outdated summons process in violation of state law.

In 2021, the Louisiana legislature changed the law to allow people with felony convictions to serve on juries as long as they have been off of probation or parole for five years, and are not under indictment. Prior to that, no one with any past felony conviction was able to serve on a jury.  The new law was signed by Gov. John Bel Edwards, and went into effect on August 1, 2021.  But despite the new law, defense attorneys have argued that the criminal court in New Orleans has been continuing to exclude anyone with a past felony conviction by sending out summons with outdated information and failing to update their online questionnaire for jurors....

In their letter, VOTE pointed to summonses sent to potential jurors as recently as this year that still indicated anyone with a felony conviction was barred from jury service.  In addition, a questionnaire that potential jurors are required to fill out online asks about felony convictions, but does not inquire when an individual completed parole or probation. The organization urged the court to resummon a new jury pool before resuming jury trials “in a manner that respects the rights of jurors” as guaranteed by state law.

But the judges at that time declined to do so, and moved forward with trials last week, including that of Preston. Lawyers for Preston with the Orleans Public Defenders Office, echoing the allegations made by VOTE, attempted to get his jury pool thrown out, arguing that excluding all people with felony convictions from potentially serving on his jury violated Preston’s Sixth Amendment right to a fair trial. Goode-Douglass denied that challenge, but in response to a supervisory writ the Fourth Circuit sided with Preston and ordered an evidentiary hearing.

In another case out of Orleans Parish criminal court, Michael Shorts, who was found guilty of second degree murder in July of last year, has challenged his conviction based in part on the same allegations that his jury was not summoned in accordance with the recent change to state law. Lawyers for Shorts filed a motion in his case last week arguing that the “crucial legal error” in the summons process entitles him to a new trial. It is set for a hearing in front of Judge Laurie White on Feb. 1.

In addition to any individuals with felony convictions who received a jury summons since the law changed and did not respond due to misinformation on the form, or were excluded once they attempted to fill out the questionnaire, there are also open questions regarding how many people with felony convictions may have been permanently purged from the list of people who receive summons in the first place. If that’s the case, lawyers for Preston have argued, “then the systemic exclusion of those prospective jurors cannot be remedied by merely changing the language of the summons and the questionnaire.”

"From Causal Mechanisms to Policy Mechanisms: Why Did Crime Decline and What Lessons Can Be Learned from It?"

The newest issue of the American Journal of Criminal Justice has a bunch of new interesting articles on criminal justice reform.  The title of this post is the title of this article from the issue authored by John K. Roman.  Here is its abstract:

Criminology has not systematically identified the cause or causes of perhaps the most seminal event in crime and justice of the last half century: the crime decline of the 1990s. This paper uses a causes-of-effects analysis to infer the mechanisms of the crime decline.  This is not a purely academic exercise — there has been a large increase in violence, particularly gun violence at the beginning of the 2020s.  Identifying the mechanisms of the last crime decline can inform the development of contemporary strategies.  Here, two classes of crime decline causes are proposed: mechanisms that are endogenous to the criminal law system and mechanisms that are exogenous to it.  The latter class includes impacts of changes in macroeconomics, consumer behavior, and public interest policy where positive externalities that arose from those factors contributed to the crime decline.  A descriptive effect of causes analysis suggests that these exogenous mechanisms contributed disproportionately to the crime decline as compared to endogenous mechanisms. Further, consumer behavior and public interest externalities are well aligned with potential policy levers and particularly salient to current and future efforts to reduce crime and violence prospectively.  The analysis suggests that efforts to improve public safety require policies that fall outside of traditional criminal justice approaches.

"Glass Box Artificial Intelligence in Criminal Justice"

The title of this post is the title of this notable new paper available via SSRN authored by Brandon Garrett and Cynthia Rudin. Here is its abstract:

As we embrace data-driven technologies across a wide range of human activities, policymakers and researchers increasingly sound alarms regarding the dangers posed by “black box” uses of artificial intelligence (AI) to society, democracy, and individual rights.  Such models are either too complex for people to understand or they are designed so that their functioning is inaccessible.  This lack of transparency can have harmful consequences for the people affected.  One central area of concern has been the criminal justice system, in which life, liberty, and public safety can be at stake.  Judges have struggled with government claims that AI, such as that used in DNA mixture interpretation, risk assessments, facial recognition, and predictive policing, should remain a black box that is not disclosed to the defense and in court.  Both the champions and critics of AI have argued we face a central trade-off: black box AI sacrifices interpretability for predictive accuracy.

We write to counter this black box myth.  We describe a body of computer science research showing “glass box” AI that is interpretable can be more accurate.  Indeed, criminal justice data is notoriously error prone, and unless AI is interpretable, those errors can have grave hidden consequences.  Our intervention has implications for constitutional criminal procedure rights.  Judges have been reluctant to impair perceived effectiveness of black box AI by insisting on the disclosures defendants should be constitutionally entitled to receive.  Given the criminal procedure rights and public safety interests at stake, it is especially important that people can understand AI.  More fundamentally, we argue that there is no necessary tradeoff between the benefits of AI and the vindication of constitutional rights. Indeed, glass box AI can better accomplish both fairness and public safety goals.

Different approaches to death penalty administration from different governors

When it comes to the administration of the death penalty, governors tend to have a huge (and outsized?) role at the state level.  Historically, that role has been exercised through grants of executive clemency, though it can also shape in various ways how death sentencing operates or how executions are conducted.  With the start of a new year, I have seen a number of notable new stories about a number of governors seeking to impact how their states approach capital punishment.

From the AP, "Arizona executions on hold amid review ordered by governor":

Arizona’s attorney general has put a hold on executions in the state until the completion of a review of death penalty protocols ordered by the new governor due to the state’s history of mismanaging executions.

The review ordered Friday by Gov. Katie Hobbs, Arizona’s first Democratic governor since 2009, came as the state’s new Democratic attorney general, Kris Mayes, withdrew her Republican predecessor’s request for a warrant to execute a convicted killer who initially asked to be executed but later backed out of that request.  While Hobbs’ order didn’t declare a moratorium on the death penalty, Mayes will not seek court orders to execute prisoners while the review is underway, said Mayes spokesperson Richie Taylor.

From the Nashville Scene, "Bill Lee Tries to Keep Lethal Injection Alive: Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions":

In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process....

On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions.

From Florida Politics, "Gov. DeSantis calls for juror ‘supermajority’ to suffice in death penalty cases":

Gov. Ron DeSantis started out his week with the Florida Sheriff’s Association (FSA), where he discussed his desire to allow juries to administer the death penalty via a supermajority vote, rather than requiring unanimity.  “Fine, have a supermajority. But you can’t just say one person (can decide against the death penalty). So maybe eight out of 12 have to agree? Or something. But we can’t be in a situation where one person can just derail this,” DeSantis said at the group’s winter conference in St. Johns County, discussing death penalty verdicts left unachieved because of a rogue juror.

DeSantis told the FSA Monday that he wants a “supermajority” to constitute a sufficient vote count for execution. The pitch comes in the wake of the Parkland killer not getting the death penalty because of what DeSantis called one person’s “idiosyncratic” approach to the proceedings, though there ultimately were three votes not to execute the murderer.

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

• status points;
• offenders with zero criminal history points; and,
• simple possession of marijuana offenses.

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

Warranted or unwarranted disparity?: noting different punishments for disrupting different government branches

This lengthy new NBC News piece shines a spotlight on the notable, but arguably justified, disparity between how disruptive protesters at Congress and at the Supreme Court are punished.  The full headline for the piece highlights its essentials: "Protesting against Congress may get you a $50 fine. Disrupting the Supreme Court is a different story. Protesters disrupting oral arguments can face at least a night in jail and a criminal conviction."  Here are some excerpts:

When Emily Paterson was arrested for protesting abortion law changes during a Supreme Court hearing in November, she spent the night in jail and now has a criminal conviction on her record. Across the street, Jack Murphy met a different fate when she did something similar in the Senate chamber three years earlier: She paid a $50 fine and was released a few hours later.

Such is the differing nature of punishment for nonviolent protesters during official proceedings in Washington, with the Supreme Court, which has its own police department, viewed as being tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.

It’s a sore point for Mark Goldstone, a lawyer who regularly represents Washington protesters. Supreme Court protesters are treated “more harshly” in a couple of different ways, he said, referring only to those participating in nonviolent protests and not violent attacks like the Jan. 6 assault on the Capitol. On Capitol grounds, the police “process you and release you,” Goldstone said, while at the Supreme Court, “you are going to spend the night in jail" and likely face prosecution....

Those familiar with Washington protests point to some possible reasons protesters are treated differently.  One is that the Capitol Police has a lot more protesters to deal with, sometimes needing to process hundreds of people quickly.  In contrast, although protests outside the Supreme Court building are common, it is relatively unusual for people to disrupt court proceedings inside the courtroom.

There are also inherent differences between the two institutions.  Congress is where democratically elected representatives meet and a place where members of the public have a right to express their views.  The high court, meanwhile, is not directly accountable to the people and likes to see itself as nonpolitical.  As such, there may be a desire to crack down on protesters to help maintain that image.  The respective police departments have different legal powers too, which could affect how they resolve cases.

As I see it, protesters who disrupt SCOTUS oral arguments are generally likely to be a lot more disruptive to the functioning of SCOTUS, and be more harmful and disrepectful to the lawyers who have prepared for months for 30 minutes of time to represent their clients before the Justice, than protesters in Congress.  Of course, as the events of January 6, 2021 should remind us, some protesters can be very disruptive of the work on Congress.  But the practicalities of the functioning of different branches, not some notion of political "image," seems to me to make the disparity here more warranted than unwarranted.  But perhaps others have distinct views.

Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

If producers are thinking about developing Season 2 of The Dropout, a legal filing today by federal prosecutors provide some dramatic materials.  This CNN article, headlined "Elizabeth Holmes made an ‘attempt to flee the country’ after her conviction, prosecutors say," provides these details:

Elizabeth Holmes made an “attempt to flee the country” by booking a one-way ticket to Mexico departing in January 2022, shortly after the Theranos founder was convicted of fraud, prosecutors alleged in a new court filing Friday.

Holmes was convicted last January of defrauding investors while running the failed blood testing startup Theranos. In November, she was sentenced to more than 11 years in prison. She has appealed her conviction and does not start her prison sentence until this spring, a waiting period that prosecutors described as “generous” and due to her being pregnant.

The claim that she tried to leave the country last year surfaced as part of a new filing from prosecutors arguing that Holmes should begin serving her prison sentence rather than living on an estate reported to have $13,000 in monthly expenses for upkeep.

In the filing, prosecutors argue Holmes has not shown convincing evidence that she is not a flight risk, as her lawyers have stated, and used the alleged 2022 incident to support their concerns that she could pose such a risk. “The government became aware on January 23, 2022, that Defendant Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the court filing states. “Only after the government raised this unauthorized flight with defense counsel was the trip canceled.”

The filing adds that prosecutors anticipate Holmes will “reply that she did not in fact leave the country as scheduled” but said “it is difficult to know with certainty” what she would have done “had the government not intervened.” Now, in the wake of her sentencing, prosecutors say “the incentive to flee has never been higher” and Holmes “has the means to act on that incentive.”...

The court filing includes an email from one of Holmes’ attorneys to the prosecution, claiming that the travel reservation was made before the verdict. In the email, Holmes’ attorney claims the former Theranos CEO hoped the verdict would be different and that she would be able to make this trip to attend the wedding of friends in Mexico.

In an earlier court filing, Holmes’ attorneys argued for her release from custody pending appeal, saying she was not a flight risk or a threat to the community. Holmes has been ordered to turn herself into custody on April 27, 2023, at which point her prison sentence will begin.

“There are not two systems of justice – one for the wealthy and one for the poor – there is one criminal justice system in this country,” prosecutors stated in the filing. They argue that “under that system, the time has come” for Holmes to answer for her crimes.

Some 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?
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 

Rounding up some recent notable reads

A busy week has left me behind on both my reading and blogging on various sentencing and punishment law and policy topics.  So I will try to do a bit of catch up through this round up:

From ABC News, "Alabama extends time for executions, ends automatic review"

From the AP, "Explainer: Biden inaction, mixed signals on death penalty"

From CNN, "Oklahoma’s attorney general says ‘the current pace of executions is unsustainable’ and wants to space them out"

From the FAMM Foundation, "Proposed BOP Rule Will Hurt Struggling Families"

From The Guardian, "Texas prisoners continue hunger strike in protest against solitary confinement"

From the Marshall Project, "How an Illicit Cell Phone Helped Me Take College Courses from Prison"

From Nonprofit Quarterly, "What the US’ Mass Incarceration Regime Costs Black Women"

From Reason, "Sentencing Commission Proposes Restricting Judges' Use of Acquitted Conduct"

From Rick Nevin, "Update: Continuing trend toward zero youth incarceration"

From Spectrum News NY1, "Path to Power: Hakeem Jeffries' push to reform the criminal justice system"

As always, I welcome reader comments on which of these stories or others may merit additional blog time.  It has been fun to see a more active comment space lately, and I hope that always will include readers highlighting new stories or worthwhile reading. 

"The Problem with Capital Pleas"

The title of this post is the title of this recent paper authored by William W. Berry III available via SSRN. Here is its abstract:

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.