Sentencing Law and Policy

"Taking Retributive Value Seriously"

The title of this post is the title of this essay authored by Douglas Husak recently posted to SSRN. Here is its abstract:

I present the following challenge to retributivists (including myself).  I stipulate that retributivism is the claim that inflictions of deserved punishment produce intrinsic value.  If this definition is accepted, it is curious that the academic writing of few if any retributivists express enthusiasm for punishing greater numbers of persons who commit serious crimes.  A great deal of intrinsic value could be added by increasing the clearance rates for serious offenses. 

In this paper I briefly explore five reasons that might explain and/or justify this reticence.  Perhaps any value that is created by these punishments is too small to give rise to much concern.  Or it is outweighed by competing disvalues.  Or maybe efforts to increase existing rates of punishment would be too uncertain or difficult to implement.  Or many of those we might seek to punish have viable excuses and are not blameworthy.  Or perhaps the personal and political costs of broadening the net of penal liability are too great to incur among those committed to racial justice.  Retributivists who are not eager to increase the number of deserving persons who are punished must choose from these five (or perhaps from other) options.

Supreme Court grants cert on 13 new matters, with a few of possible interest for sentencing fans

The US Supreme Court's new season, known as October Term 2024, officially gets started on Monday with oral arguments in two cases raising technical procedural issues.  But, for SCOTUS watchers, today feels like openning day because the Justices this morning released this big new order list detailing all the cases for which it granted cert following its "long conference" earlier this week. 

By my quick count, the Court appears to have granted cert on 15 cases to deal with 13 issues.  (In two instances, the Justices formally granted cert in two cases but consolidated the pair for oral argument.)  And from my too-quick review, it seems that there are four cases involving criminal law issues (or criminal-law adjacent), though is seems technical procedural issues may be at the heart of a couple of them. 

The only pure criminal case appears to be Thompson v. US dealing with what constitutes a "false statement" to sustain a federal bank fraud conviction.  But Fourth Amedment fans will certainly be excited because Barnes v. Felix takes on, in the context of a civil rights suit, the so-called "moment of the threat" doctrine in assessing excessive force claims under the Fourth Amendment. 

Technicalities come to the fore in Perttu v. Richards, another civil rights case, this one involving a state prisoner dealing with when the Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies prior to securing a jury trial.  And in Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a defendant to secure post-conviction DNA testing.

This AP piece previewing cases on the SCOTUS docket before today suggested the Term looks like it could be "relatively sleepy." None of these new grants, either in the criminal cases or any of the others, seems to be much of a wake-up call. But with a major election and a presidential tradition transpiriting in the next few months, I doubt there will be much dozing off among Justice or advocates in the Term to come  

Making a robut case for robust legal representation for the incarcerated

Inquest has this notable new essay on a topic that I think merits a lot more attention, namely on the needs of the incarcerated for legal assistance.  The piece, authored by Jennifer Soble, is headlined "Lawyerless No More: Once a person is imprisoned, indigent defense stops. But the gravity of mass incarceration demands legal representation to the very end." I recommend the full essay, and here are some excerpts:

Some of the most vulnerable incarcerated people are denied counsel even in proceedings explicitly designed to help them because of their vulnerability. For example, although most states have a process for releasing incarcerated people who are terminally ill or disabled, almost no state provides lawyers to people who are eligible for this relief. Under these schemes, people eligible for medical release — many of whom are actively dying, or who live with paralysis, or who are experiencing severe cognitive decline — are expected to not only draft compelling legal filings, but are also expected to find their own housing and outside medical care, all from behind prison walls.... Expecting sick and dying incarcerated people to represent themselves undermines the very existence of these laws.

People who have suffered some of the most extreme harms of the criminal legal system—such as unconstitutional conviction or a sentence that is punctuated by a serious medical diagnosis—need improved access to legal assistance. But so do people who have been harmed in quieter, more common ways. Few people outside the system know that departments of corrections have enormous power to both lengthen and reduce sentences. Prison systems can award sentencing credit for participation in programs, in work assignments, and sometimes for no reason at all. Conversely, and perniciously, prison systems can take that sentencing credit away. Prison officials use this power capriciously, sometimes for significant incidents of misconduct, sometimes for technical rule violations, and sometimes for seemingly no reason at all.... Legal advocates can significantly move up an incarcerated person’s release date simply by advocating to ensure that they get the sentencing credit that they deserve, while ensuring that credit is not taken away illegally or unjustly....

For [some], the only hope of freedom [is] clemency, an act of “grace” that is usually held exclusively by state governors or, for those in the federal system, the president. Unencumbered by the burdensome rules that govern other forms of post-conviction relief, clemency has historically been a nimble vehicle to correct excessive sentences, unjust prosecutions, or criminal legal events that feel unjust years or decades after the fact. Governors and presidents used to grant clemency routinely, but it has become extremely rare since the 1950s.

However, while the use of clemency has plummeted, the number of people for whom clemency is the only possible avenue for freedom has skyrocketed. Before the 1970s, only seven states authorized life-without-parole sentences, and even those states rarely imposed them. Today every state allows life or virtual life sentences, and more than 200,000 people are currently serving these draconian prison terms. For them, clemency is the most probable path out of prison, and it is generally the only way for an incarcerated person to ask for release from prison based on their rehabilitation and personal growth.

There are many reasons that clemency applicants should have representation. Clemency is a slow process, subject to rules that feel both pointless and burdensome. Successfully navigating it often depends on receiving help from someone with experience in clemency. Still, the right to counsel does not extend to clemency, leaving most incarcerated people to pursue their only hope for freedom on their own.

Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

As reported in this new NBC News piece, "Prosecutors in California are reviewing the convictions of the Menendez brothers, who were found guilty in the 1989 killing of their parents, to determine whether they should be resentenced and potentially released, officials said Thursday." Here is more:

Los Angeles County District Attorney George Gascón said his office is also reviewing possible evidence included in petitions the brothers filed last year alleging molestation by their father.  Gascón said that the allegations are under review and that none of the information has been confirmed. A hearing is scheduled for Nov. 26....

That evaluation in the brothers' case is ongoing, he said, adding: "Until we get there, we’re not sure yet which direction this will go."

Joseph “Lyle” Menendez, now 56, and Erik Menendez, now 53, were convicted in 1996 in the shotgun murders of their parents at their Beverly Hills homes seven years before.  After two trials, they were sentenced to life in prison without parole and remain incarcerated in a California prison.

In their initial trials, the brothers said their father sexually abused them for years.  Prosecutors accused them of killing their parents to inherit a fortune.  The proceedings ended in a mistrial.  The abuse allegations were limited at their second trial. The brothers were convicted and sentenced to life without the possibility of parole....

The district attorney's announcement came amid controversy over a new Netflix series about the case, “Monsters: The Lyle and Erik Menendez Story."  In a statement released by his wife, Erik Menendez said that the series included "blatant lies" and that it was "ruinous" for his brother....

The district attorney, Gascón, is up for re-election.  He said at Thursday's news conference that more than 300 people have been resentenced during his term and that only four have gone on to commit crimes again.

Intriguingly, today Kim Kardashian also authored this "personal essay" in which she states that her "hope is that Erik and Lyle Menendez’s life sentences are reconsidered." Here is a portion of her essay:

According to Erik and Lyle, they were physically, sexually and emotionally abused by their parents since childhood, and their father repeatedly raped them when they were just little boys.  Many people believe the crimes the brothers committed are unforgivable — but what about the decades of alleged abuse they suffered as children?

I have spent time with Lyle and Erik; they are not monsters.  They are kind, intelligent, and honest men.  In prison, they both have exemplary disciplinary records.  They have earned multiple college degrees, worked as caregivers for elderly incarcerated individuals in hospice, and been mentors in college programs — committed to giving back to others.  When I visited the prison three weeks ago, one of the wardens told me he would feel comfortable having them as neighbors.  Twenty-four family members, including their parents’ siblings, have released statements fully supporting Lyle and Erik and have respectfully requested that the justice system free them.

The killings are not excusable.  I want to make that clear.  Nor is their behavior before, during or after the crime.  But we should not deny who they are today in their 50s.  The trial and punishment these brothers received were more befitting a serial killer than two individuals who endured years of sexual abuse by the very people they loved and trusted.  I don’t believe that spending their entire natural lives incarcerated was the right punishment for this complex case.  Had this crime been committed and trialed today, I believe the outcome would have been dramatically different.  I also strongly believe that they were denied a fair second trial and that the exclusion of crucial abuse evidence denied Erik and Lyle the opportunity to fully present their case, further undermining the fairness of their conviction.

"Rural Mass Incarceration and the Politics of Punitiveness"

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

Criticisms of American mass incarceration have generally focused on urban areas, and especially large, racially segregated cities.  But after nearly two decades in which urban incarceration rates have fallen while rural rates have risen, rural Americans are now more likely to be incarcerated than urban Americans.  Because most rural areas in the United States are overwhelmingly white, the rise of rural incarceration rates creates a puzzle for race-focused explanations of American mass incarceration.  Why would overwhelmingly white areas "lock up their own" in such great numbers?

This article proposes an explanation for the ongoing rise of rural mass incarceration that draws on two strands of political science research.  First, Peter Enns's analysis of the origins of American mass incarceration suggests that changes in incarceration rates have been largely driven by two interrelated factors: crime rates and punitive public attitudes toward crime.  Because rural crime rates have remained lower than urban crime rates, Enns's model implies that rural incarceration rates are likely higher than urban incarceration rates today primarily because rural Americans have more punitive attitudes toward crime.

Survey evidence shows that, in fact, rural Americans do have more punitive criminal justice views than nonrural Americans.  A second strand of political science research suggests possible explanations.  Scholars of political psychology including Karen Stenner and Marc Hetherington have found that punitiveness, like intolerance, tends to vary based on differences in personality and changes in perceived threats.  Notably, rural Americans have a higher average score than nonrural Americans on a standard measure of "authoritarian" predisposition, which is associated with greater punitiveness under at least some conditions.

Understanding political support for mass incarceration as fundamentally the product of psychological processes tied to punitiveness and intolerance rather than ideological attitudes specifically about race does not mean ignoring the central role of race in the politics that created American mass incarceration.  To the contrary, the most politically powerful expression of intolerance throughout U.S. history has been racial intolerance, especially toward Black and Indigenous Americans.  But attending to the political psychology of punitiveness suggests that confronting racial injustices in the criminal legal system, while necessary, may not be sufficient to end mass incarceration.

Rounding up some recent coverage and commentary on Prop 36 in California

The most significant sentencing-related ballot initiative in the 2024 election cycle is California’s Proposition 36, titled "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative."  This initiaitive is summarized by Ballotpedia this way:

A "yes" vote supports making changes to Proposition 47 approved in 2014, including: classifying certain drug offenses as treatment-mandated felonies; increasing penalties for certain drug crimes by increasing sentence lengths and level of crime; requiring courts to warn individuals convicted of distributing illegal drugs of their potential future criminal liability if they distribute deadly drugs like fentanyl, heroin, cocaine, and methamphetamine; and increasing sentences for theft based on the value of the property stolen.

A "no" vote opposes this initiative that makes changes to Proposition 47 (2014), thereby maintaining certain drug and theft crimes as misdemeanors.

I have recently noticed more press outlets discussing and advocating around Prop 36, and here is an abridged review of just some of the coverage and commentary catching my eye:

From Cronkite News, "California’s Prop. 36, which would again toughen criminal penalties, sparks debate"

From LAist, "California Proposition 36: Increases criminal penalties for certain drug and theft crimes"

From Lookout Santa Cruz, "California voters consider tough love for repeat drug offenders with Prop 36"

From the Los Angeles Times, "Endorsement: No on Proposition 36. California shouldn’t revive the disastrous war on drugs"

From the Orange Country Register, "Prop. 36 is a common sense solution to the suffering on our streets"

From Reason, "Should California Vote To Roll Back Criminal Justice Reforms?"

From the San Diego Union Tribune, "Endorsement: Yes on Proposition 36: Time to free the detergent"

Another federal ruling that aspects of Michigan's sex offender registry is unconstitutional

As detailed in this local article, in the past week a "federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional."  (Disclosure: I have worked with a group of law professors on amicus briefing in these matters.)  Here is more about yet another ruling finding various constitutional and other problems with Michigan’s law:

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.  "This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement....

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.  It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

∎ Retroactively extending registration terms from 25 years to life violates the Constitution;

∎ People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

∎ Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

∎ The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

∎ Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.  Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.  Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

The full 115-page ruling from the District Court is available at this link.

"The Coming Assault on Class-Based Gun Prohibitions"

The title of this post is the title of this new essay available via SSRN and authored by Ian Ayres and Fredrick Vars.  Here is its abstract:

Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms.  While Justice Scalia in Heller described such laws as "presumptively lawful," Justice Thomas' more recent Bruen decision holds that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous precedents of gun regulations from the Founding-Era.  Some courts applying the Bruen test have had difficulty finding "how" analogs -- particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determination of dangerousness.  This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections.  In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders.  We also propose that Congress refund the existing § 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.

US Sentencing Commission releases still more updated "Quick Facts" publications

To close out September, the US Sentencing Commission released yet another new set of its terrific "Quick Facts" publications.  Regular readers are now used to my praise for the USSC's production of these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the newest sets of postings by the USSC on the "Quick Facts" page from the start of this week:

• NEW Mandatory Minimum Penalties (September 2024)
• NEW Federally Sentenced Native Americans (September 2024)
• NEW Securities and Investment Fraud (September 2024)
• NEW Sexual Abuse (September 2024)
• NEW Escape (September 2024)
• NEW Sentenced Organizations (September 2024)

Texas completes execution for murders committed 35 years ago

As reported in this AP article, a "Texas man convicted of fatally stabbing twin 16-year-old girls more than three decades ago was executed on Tuesday evening."  Here is more:

Garcia Glenn White was pronounced dead at 6:56 p.m. CDT following a chemical injection at the state penitentiary in Huntsville. He was condemned for the December 1989 killings of Annette and Bernette Edwards.  The bodies of the twin girls and their mother, Bonita Edwards, were found in their Houston apartment.

White, 61, was the sixth inmate put to death in the U.S. in the last 11 days.  His execution took place shortly after the U.S. Supreme Court, without comment, rejected three last-ditch appeals....

He said he took responsibility for the slayings, regretted his actions and was praying for prison officials, officers and “for my brothers and sisters behind these walls.”...

Testimony showed that White went to the girls’ Houston home to smoke crack with their mother, Bonita, who also was fatally stabbed.  When the girls came out of their room to see what happened, White attacked them. Evidence showed White broke down the locked door of the girls’ bedroom.  Authorities said he was later tied to the deaths of a grocery store owner and another woman.

Harris County District Attorney Kim Ogg, who witnessed White’s death, lamented that it took some 30 years to carry out the jury’s death verdict as multiple appeals in White’s case worked through the courts.  “The suffering of surviving (victims’) family members is just unspeakable,” she said. “At least it’s over.”

White’s lawyers had unsuccessfully appealed to the U.S. Supreme Court to stop the execution after lower courts previously rejected petitions for a stay.  The Texas Board of Pardons and Paroles on Friday denied White’s request to commute his death sentence to a lesser penalty or to grant him a 30-day reprieve....

The deaths of the twin girls and their mother went unsolved for about six years until White confessed to the killings after he was arrested in connection with the July 1995 death of grocery store owner Hai Van Pham, who was fatally beaten during a robbery at his business.  Police said White also confessed to fatally beating another woman, Greta Williams, in 1989.

Yet another wild (and wildlife) animal crime leads to notable federal sentencing

In recent weeks, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  This local story out of Montana, headlined "Vaughn man who cloned, bred and sold illegal sheep sentenced," prompts me to continue the genre.  Here are the basics along with links from the story to original court documents:

The Vaughn man who earlier this year pleaded guilty to violating the Lacey Act by cloning and trafficking a large species of an Asian sheep and selling hybrid offspring DNA was sentenced Monday to six months in prison.  The prison sentence for Arthur “Jack” Schubarth, 81, was about one-quarter of what he could have been sentenced to under federal sentencing guidelines, according to a sentencing memo from the U.S. Attorney’s Office.

The memo said Schubarth at his age was unlikely to attempt the same crimes again and that he had been helpful in cooperating with the government after his arrest, providing officials with genetic testing showing which of his animals could be dangerous to wild animals, helping them care for the animals, and declining compensation for the animals that had to be killed and given to Montanans for meat.  But in the sentencing memo, the U.S. Attorney’s Office also said a sentence that included prison could deter others from committing the same crimes....

Along with the sixth-month prison sentence, Judge Brian Morris ordered Schubarth to pay a $20,000 fine to the Lacey Act Reward Fund, $4,000 to the National Fish and Wildlife Foundation, and a $200 special assessment. He will also have three years of []supervised release following his prison sentence....

According to federal prosecutors, from 2013 through 2021, Schubarth worked with at least five others to try to create a large hybrid sheep that could be hunted at captive hunting operations, typically fenced-in land. He brought parts of the world’s largest sheep, the Marco Polo argali sheep, from Kyrgyzstan illegally.  He sent genetic material from the animal’s parts to a lab to clone the animal, then implanted embryos in other sheep at his Schubarth Ranch in Vaughn, leading to the birth of a cloned Marco Polo argali he named “Montana Mountain King.”

He used that animal’s semen to artificially inseminate several other species of sheep that are illegal in Montana to create hybrids, hoping to sell large sheep to captive hunting facilities across the U.S., but primarily in Texas, according to court documents.  The group forged inspection certificates, Schubarth sold his pure clone’s semen directly to other breeders, and at least two of the sheep he was involved in creating died from a contagious chronic wasting disease. According to the government, he also illegally purchased the testicles of large Rocky Mountain bighorn sheep killed in Montana from outfitters and sold them to others....

As part of the plea agreement, Schubarth wrote to the judge in February explaining his long background with exotic animals and Montana Fish, Wildlife and Parks. He also asked for house arrest because of health problems and a lack of a criminal record and apologized for his actions.  “My biggest fault is I become extremely passionate in any project I take on. This is what happened with my sheep project. I got my normal mind set clouded by my enthusiasm and looked for any grey area in the law to make the best sheep I could for this sheep industry,” he wrote. “I’m very sorry for my actions and deeply ashamed and I’m sorry I have caused my family pain and a loss of money. My family has never been broke, but we are now.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 

FBI reports extraordinary crime drop in the first half of 2024

This brief press release, titled "FBI Releases 2024 Quarterly Crime Report and Use-of-Force Data Update," reports on the FBI's latest data on crime.  Here is how it starts:

On Monday, September 30, 2024, the FBI’s Uniform Crime Reporting (UCR) Program released the Quarterly Uniform Crime Report (Q2), January-June 2024, and the National Use-of-Force Data Collection Update, June 2024, on the FBI’s Crime Data Explorer (CDE) at https://cde.ucr.cjis.gov.

The Quarterly Uniform Crime Report (Q2), January-June 2024, provides a preliminary look at crime trends for January through June 2024 compared to January through June 2023. A comparison of data from agencies that voluntarily submitted at least three or more common months of data for January through June 2023 and 2024 indicates reported violent crime decreased by 10.3%. Murder decreased by 22.7%, rape decreased by 17.7%, robbery decreased by 13.6%, and aggravated assault decreased by 8.1%. Reported property crime also decreased by 13.1%.

In this new Substack posting, Jeff Asher explains why these data may be "overstating the trend by a healthy amount." He goes on:

That said, the second quarter report clearly points to the US crime trends in 2024 even taking the overstating declines into account.  Murder is down at the fastest rate ever recorded, easily eclipsing 2023’s previous record decline. Violent crime is down a fair amount — 4 or 5 percent — and will likely be the lowest reported violent crime rate since 1969 considering that 2023’s violent crime rate was virtually tied with 2014 for that honor.  And property crime is down a ton thanks to the massive decline in motor vehicle theft following several years of huge increases.

"Drug Policy, Drug War, and Disparate Sentencing"

The title of this post is the title of this book chapter that I just noticed on SSRN and authored by Emily Greberman and Colleen Berryessa. Here is its abstract:

The United States (U.S.) and its criminal-legal system have had a historically turbulent relationship with drugs and substance use.  Public rhetoric, political ideology, and resulting policies, shaped by both rehabilitative and punitive ideals, have served as a foundation for the criminalization and mass incarceration of those who possess, distribute, and use illegal drugs–especially the targeting and blaming of communities of color.  Early on, though drugs such as opium had versatile medical benefits, the use of heroin, crack/cocaine, and cannabis by people of color was quickly shaped into discourse that amplified fear and racist stereotypes and catalyzed the War on Drugs.  Throughout several presidential administrations, the criminalization of drug crimes disproportionately affected Black individuals, despite White citizens using them at similar or higher rates.  ‘Tough on crime’ policies, policing, and sentencing that resulted from this period culminated in the mass imprisonment of people of color.

Now trying to repair the harm caused by the War on Drugs and rhetoric from the media in 2024, there is a strong push for the decriminalization and legalization of several drugs across the U.S.  For cannabis in particular, efforts have been made to advocate for its legalization federally.  In the criminal-legal system, many political leaders and legislators have actively attempted to advocate for and enforce policies that release individuals from prison who have been incarcerated for minor drug offenses or are affected by unjust sentencing practices.  Combined with nationwide efforts to promote research on the use of drugs for medicinal purposes as well as the problems of drug abuse and addiction, a more progressive and optimistic approach to drug use has begun and continues to grow across the U.S. The social and political forces that have historically shaped attitudes towards drug use and punishment are crucial to understanding the current direction of U.S. drug policies and why the pendulum continues to swing.

Pennsylvania Supreme Court finds legal error when sentencing court "relied upon prior arrests as a sentencing factor"

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant's constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors' arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the "sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests."

Is former Prez Trump going to release a new short list of possible Supreme Court nominees?

I have noted before that I thought then-candidate Donald Trump's decision in May 2016 to release a "short list" of people he would consider as potential Supreme Court appointments was a clever and consequential campaign strategy.  Such short lists also make for great blog fodder for court watchers, which is among the reasons I am now asking the question in the title of this post.

Notably, in an mid_August interview with a CBS reporter detailed here, former Prez Trump was asked about, and he pledged we would be getting, a new SCOTUS short list:

The former president said he would release a shortlist of possible nominees for the Supreme Court in the next month.  "I'll be releasing it I'd say over the next three or four weeks," he said. 

It has now been six weeks since Trump stated a SCOTUS short list would be released in "three or four weeks," and I am now thinking we may not get a list at all.

Noting, yet again, that very few recipients of clemency from Prez Trump have faced new charges

In this post a couple of years ago, I flagged the historical and statistical reality that it is likely that, among any significant cohort of clemency recipients, some number are to face some future legal difficulties.  I made the point in conjunction with a press effort to suggest that an unusually large number of persons granted clemency by President Trump were "back in legal jeopardy."  This point merits raising again because this weekend the New York Times decided to rabble-rouse in this arena via this article headlined "Trump Gave Them a Second Chance. They Could Not Stay Out of Trouble."  Here are some excerpts (with links from the original):

Executive clemency is among the most unilateral unchecked powers of the Oval Office. Presidents are allowed to decide how and to whom to issue commutations, which reduce or eliminate prison sentences, and pardons, which wipe away conviction records.

According to an analysis in a law journal focused on criminal justice, only 25 of the nearly 240 clemency grants issued by Mr. Trump were vetted and recommended by the pardon attorney’s office. The analysis concluded that most other modern presidents skirted the Justice Department clemency process less often, with a few notable exceptions that sometimes prompted outrage or investigations.

As Mr. Trump campaigns for another term as president, he is again dangling the prospect of executive clemency for supporters and cases that align with his politics. He has promised to commute the life sentence of Ross W. Ulbricht, founder of an online drug marketplace. Mr. Ulbricht’s cause has been championed by the cryptocurrency industry, which Mr. Trump has cultivated.

In addition, Mr. Trump has pledged to pardon people convicted in connection with the Jan. 6, 2021, riot at the Capitol by his supporters, egged on by his claims that the 2020 election was stolen.....

Ms. Camberos is among six people granted clemency by Mr. Trump and known to have been charged with new crimes after they received a second chance, according to a Times review of the former president’s clemency grants....

To be sure, some criminal justice experts and supporters of prisoners’ rights say the Justice Department’s process takes too long and gives too much deference to federal prosecutors, who tend to frown on having their convictions undermined.  But even some Trump aides were concerned that his White House’s ad hoc process lacked sufficient vetting and relied too much on insider ties, according to former officials who spoke on the condition of anonymity to discuss internal deliberations.

Even if all six of the persons mentioned in the NYTimes piece are guilty of the crimes for which they have been charged, that would still mean the group of Trump clemency recipients have a reconviction rate of just 2.5%. Given that the US Sentencing Commission has determined in a 2016 report that federal offenders as a group generally have roughly 32% reconviction rate, Prez Trump's distinctive process for picking clemency recipients does not seem to have produced a great threat to public safety.

Prior related post:

• Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

Rounding up some prison press pieces as the week winds down

The highest-profile corrections stories of this week were surely the four executions in four US states.  But, as is always the case in our big nation with lots of prisons and jails, there were also lots of lower-profile incarceration stories from this week worth noting.  Here is an abridged list of pieces catching my eye:  

From Fortune, "Binance founder ‘CZ’ leaves prison on Friday—along with his $60 billion fortune"

From The Guardian, "Activists ‘fight against censorship’ in the largest US book bans: prisons"

From The Marshall Project, "The Future of Prisons?: Inspired by Germany, South Carolina let prisoners design their own units, write house rules and settle their own disputes. Then came politics."

From the Minnesota Star Tribune, "Many people in jail have an opioid addiction, but less than half of jails offer medication, study shows"

From the Mississippi Free Press, "Mississippi Town Ran ‘Kinds of Debtors’ Prisons Charles Dickens Described,’ Justice Department Alleges"

From MIT News, "Study evaluates impacts of summer heat in U.S. prison environments"

From NPR, "DOJ watchdog: federal prison not doing enough to prevent inmate suicides"

From the Washington Post, "D.C. Jail inmates take up soccer in new program with D.C. United"

From Wisconsin Public Radio, "Wisconsin DOC: Nonprofit can no longer send used books to prisoners"

Another day, another two executions completed in two states

As noted in this post, on Tuesday of this week, Missouri and Texas completed executions of condemned murderers.  Today, it was Alabama and Oklahoma carrying out executions.  Here are press accounts:

From AL.com, "Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999 shootings":

An Alabama Death Row inmate, convicted of killing three men in a workplace shooting, was executed Thursday evening. He is the second inmate in the country to be executed using nitrogen gas.

Alan Eugene Miller, 59, was executed at 6 p.m. at William C. Holman Correctional Facility in Atmore. The prison, located just north of the Florida border, is the only facility in the state equipped with an execution chamber and where most of the state’s death row inmates are housed.

From USA Today, "Emmanuel Littlejohn executed in Oklahoma despite clemency recommendation from state board":

Emmanuel Littlejohn was executed by the state of Oklahoma Thursday morning in the shooting death of a beloved convenience store owner, despite a recommendation from a clemency board that his life should be spared.

Littlejohn was convicted of the 1992 murder of Kenneth Meers in a robbery that turned fatal. Littlejohn had admitted to his role in the robbery but insisted until his death that an accomplice was the one to pull the trigger.

Littlejohn's execution was the fourth in the U.S. in less than a week and comes just hours before Alabama is set to use nitrogen gas to execute Alan Eugene Miller on Thursday evening.

Notable resource provides "State Constitution Tool"

I just saw this week this (new?) website, called "State Constitution Tool."  In a brief foray, I have found this resource pretty easy to navigate as a means to find state constitutional provisions related to a particular topic, such as "punishments" or "Due Process & Court Access."  The About page describing the resource starts this way:

The State Constitution Tool was developed by lawyers and scholars with expertise in constitutional law. They share a desire to equip other lawyers and the general public with the ability to identify, analyze, and compare different constitutions by topic.

Other research tools and commentaries categorize constitutions according to the author’s interests and opinions. The State Constitution Tool is unique because it allows users to draw their own comparisons directly from the source – the text of constitutions.

"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.