Wednesday, February 28, 2024

Idaho officials botch execution of serial killer by failing in repeated attempts to establish an IV for lethal injection

As reported in this AP article, "Idaho on Wednesday delayed the execution of serial killer Thomas Eugene Creech, one of the longest-serving death row inmates in the U.S., after a failed attempt at lethal injection." Here is more:

Creech, 73, was imprisoned in 1974 and has been convicted of five murders in three states and suspected of several more.  He was already serving life in prison when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which Creech was to be executed more than four decades later.

Creech was wheeled into the room at the Idaho Maximum Security Institution on a gurney at 10 a.m.  The warden announced he was halting the execution at 10:58 a.m.  Six Idaho officials, including Attorney General Raul Labrador, and four news media representatives, including an Associated Press reporter, were on hand to witness the attempt.

Idaho’s prison director said the medical team could not establish an IV line to administer the fatal drug.  A team of three medical team members tried repeatedly to establish an IV, attempting sites in both of Creech’s arms and legs.  The IV sites appeared to be in the crook of his arms, his hands, near his ankles and in his feet.  At one point, the medical cart holding supplies was moved in front of the media witness viewing window, partially obscuring the view of the medical team’s efforts.  A team member also had to leave the execution chamber to gather more supplies....

After the execution was halted, the warden approached Creech and whispered to him for several minutes, giving his arm a squeeze.  Creech’s attorneys immediately filed a new motion for a stay in U.S. District Court, saying “Given the badly botched execution attempt this morning, which proves IDOC’s inability to carry out a humane and constitutional execution, undersigned counsel preemptively seek an emergency stay of execution to prevent any further attempts today.”

The Idaho Department of Corrections said its death warrant for Creech would expire, and that it was considering next steps.

Creech’s attorneys filed a flurry of late appeals hoping to forestall his execution.  They included claims that his clemency hearing was unfair, that it was unconstitutional to kill him because he was sentenced by a judge rather than a jury and that he received ineffective assistance of counsel. But the courts found no grounds for leniency. Creech’s last chance — a petition to the U.S. Supreme Court — was denied a few hours before the scheduled execution Wednesday....

Creech’s execution was to be Idaho’s first in 12 years. Last year, Idaho lawmakers passed a law authorizing execution by firing squad when lethal injection is not available.  Prison officials have not yet written a standard operating policy for the use of firing squad, nor have they constructed a facility where a firing squad execution could occur.  Both of those things would have to happen before the state could attempt to use the new law, which would likely trigger several legal challenges in court.

February 28, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

"Reviving Rehabilitation as a Decarceral Tool"

The title of this post is the title of this new essay authored by Aliza Hochman Bloom now available via SSRN. Here is its abstract:

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole.  Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old.  In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions.  Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes.  Back-end decarceral efforts — so called “second look” sentencing and clemency initiatives — are either underappreciated or derided as reforms that legitimate a fundamentally unjust system.  While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes.  Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults.  Significant research supports extending these findings to “emerging adults” — individuals under the age of twenty-five years old.  Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread.  In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

February 28, 2024 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"

For a number of reasons, I always find white-collar sentencings to be fasciniating, and the scheduled sentencing next month of Sam Bankman-Fried is already fitting that characterization.  The latest development in the run-up to the March 28 sentencing comes in the form of SBF's lawyers submitting late yesterday this 90-page sentencing memo.  This document assails many aspects of how the probation office calculated the applicable guideline range and makes an array of arguments based on all the 3553(a) sentencing factors.  This lengthy document concludes with this paragraph that is titled "Sam Bankman-Fried's Sentencing Request":

Sam Bankman-Fried respectfully submits that, for the reasons set forth above, an appropriate method of arriving at a just sentence would be to consider the Adjusted Offense Level (Subtotal) of 56, reduced by 30 levels based on zero loss, which yields an advisory Guidelines range of 63-78 months.  When the § 3553(a) factors are considered, including Sam’s charitable works and demonstrated commitment to others, a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing.

Here are a variety of press accounts of this sentencing filing and some related SBF activity:

From Business Insider, "Sam Bankman-Fried's lawyer says sentencing the FTX founder to a 100-year prison term would be 'grotesque' and 'barbaric'"

From CoinPedia, "SBF Fights for Crypto Fraud Leniency: 6 Years vs. 110?"

From the New York Times, "Sam Bankman-Fried Makes His Last Stand: Since the disgraced crypto mogul was convicted of fraud, his supporters have maneuvered to secure a lenient sentence, with his lawyers recommending he serve no longer than 6.5 years in prison"

From the Wall Street Journal, "Sam Bankman-Fried Calls for Shorter Prison Sentence, Citing Autism: Lawyers for the FTX founder say he wasn’t motivated by greed but by a desire to better the world through philanthropic giving"

Prior related posts:

February 28, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (5)

Tuesday, February 27, 2024

SCOTUS seems quite disinterested in blocking federal sentencing forfeitures due to court's procedural error

I have not been following closely McIntosh v. United States, the Supreme Court case argued today.  The question presented — "Whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2" — seemed quite minor and not especially consequential.  And today's argument seemed to confirm that McIntosh is likely to be forgotten as soon as it is decided.  Here are excerpts from this Bloomberg Law piece, headlined "Justices Doubt Strict Deadlines for Criminal Forfeiture Orders," which provides a feel for the argument:

The US Supreme Court didn’t seem to agree that there are strict time limits on a district court’s ability to order convicted criminals to forfeit property as part of a punishment.

The Federal Rule of Criminal Procedure say courts must enter a preliminary forfeiture order before sentencing. Because the government didn’t prepare a preliminary order and one wasn’t entered in Louis McIntosh’s case, he argues he can’t be forced to forfeit anything related to his crime....

Several of the justices from across the court’s ideological divide were skeptical of McIntosh’s claim that the rule is mandatory and appeared to question why he didn’t just object to the court’s final forfeiture order. “I guess I’m not understanding,” Justice Elena Kagan said.  “If the person objects at the time of sentencing and then the court says, ‘You know, you’re right, I should enter a preliminary order’ and then enters a preliminary order, then you have no complaint.”

Justice Clarence Thomas wanted to know how McIntosh was prejudiced by not getting a preliminary order first. “Didn’t the petitioner have actual notice that the government was going to seek forfeiture?” he asked....

After he was convicted in a series of violent robberies in New York and of weapons charges, McIntosh was ordered as part of his sentence to forfeit $75,000 and a BMW that was allegedly purchased with the proceeds of one of his robberies....

Federal appeals courts are split on the issue. Like the Second Circuit, the Fourth Circuit said the timing requirement for a forfeiture order is no different from the statutory deadline for restitution in the Mandatory Victims Restitution Act, which the Supreme Court said in Dolan v. United States is a “time-related directive.” The Sixth and Eighth Circuits, however, have denied forfeiture in cases where there was no preliminary order....

Signaling support for the government’s position, Justice Neil Gorsuch noted that the statute says there “shall be forfeiture.” “That’s Congress’s directive to us and often government agencies and courts miss deadlines,” he said. “But Dolan kind of recognized what I’ll call a better late than never rule in complying with congressional directives.”

February 27, 2024 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (3)

"Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

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

The legal landscape surrounding firearm possession is evolving rapidly.  In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen.  Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws.  This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal.  I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi.  I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

February 27, 2024 in Collateral consequences, Drug Offense Sentencing, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (10)

Two notable executions scheduled for tomorrow after a notably slow capital start to 2024

In the modern capital punishment era, the months of January and February often seem to be fairly active in execution chambers throughout the United States (perhaps in part becaise the holidays of November and December tend to reduce execution numbers).  Using the execution database at the Death Penalty Information Center, I checked out data going back every five years to discover that over the first two months of 2019, there were three executions; in 2014, there were 10 executions; in 2009, there were 15 executions; in 2004, there were 14 executions; and in 1999, there were 22 executions(!) over the first two months of that year.

But so far in 2024, there has only been a single execution in US (albeit a high-profile one due to Alabama's use of a new execution method).  If this month were to close without another execution, we would have the fewest US executions to start a year since 2008 when all executions were halted as the Supreme Court considered constitutional challenges to lethal injection protocols in Baze v. Kentucky.  However, there are actually executions scheduled in two states tomorrow.  Here are press stories providing background:

"Idaho to execute Thomas Creech, infamous serial killer linked to at least 11 deaths"

"A Texas man on death row says his execution this month would be 'for a crime I didn't commit'"

I sense that claims of innocence in the Texas case might create some chance that one of these two scheduled executions does not go forward tomorrow.  But I expect both will be carried out, which would bring the number of executions over the first two month of 2024 up to a total of three.  Notably, the latest DPIC list of upcoming executions does not currently list any executions scheduled this year for the months of March or May and only a couple executions scheduled for April and June.  This schedule certainyl suggest that the historically low number of executions may continue through 2024, although states always can (and often do) add new execution dates in mid-year.

February 27, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Monday, February 26, 2024

Federalist Society webinar to explore "The First Step Act: Is It Working and What’s Next?"

Tomorrow at noon EST, The Federalist Society is conducting this webinar titled "The First Step Act: Is It Working and What’s Next?". Here is the event's description and its speakers:

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences.  Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start.  Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future.


  • Stephanie Kennedy, Policy Director, Council on Criminal Justice
  • Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute
  • (Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

February 26, 2024 in FIRST STEP Act and its implementation | Permalink | Comments (0)

"Supervising Sentencing"

The title of this post is the title of this new article authored by Renagh O'Leary now available via SSRN.  Here is its abstract:

Community supervision agencies and officers do not just supervise people on probation and parole.  They also play a unique and privileged role at sentencing.  In nearly every state, community supervision officers investigate and write the presentence report, which is often the judge's primary source of information about the defendant and the crime of conviction.  With minimal guidance from legislatures or courts, community supervision agencies set the policies that govern the presentence investigation and report process.

This Article offers a descriptive and theoretical account of community supervision's sentencing role in state courts.  My account is based on an analysis of statutes, court rules, and a collection of almost 200 internal community supervision agency policy documents obtained through open records requests to community supervision agencies in every state.  I find that community supervision agencies and officers do not simply implement sentencing policy; in key respects, they make it.

In their sentencing role, community supervision agencies and officers take positions on highly contested first-order questions about the sentencing process itself: what goals, values, and assumptions should guide sentencing decisions? What types of facts should sentencing judges consider?  How should those facts be found, and what meaning do they support?  I argue that community supervision's answers to these questions both reflect and reinforce what I describe as a punitive perspective on the sentencing process: one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures.  Community supervision's sentencing role elevates the punitive perspective on the pretense of neutrality and, by doing so, helps to insulate it from challenge and critique.

February 26, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Senate Judiciary Committeee hearing scheduled for "Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons"

In this post a few weeks ago, I noted the DOJ Inspector General's new report on issues surrounding inmate deaths in the Federal Bureau of Prisons (BOP).  This report, which "identified several operational and managerial deficiencies that created unsafe conditions prior to and at the time of a number of these deaths," has now lead to a congressional hearing. 

As detailed here, the full US Senate Judiciary Committee will be conducting a hearing on the morning of February 28, 2024, focused on "Examining and Preventing Deaths of Incarcerated Individuals in Federal Prisons."  As of this writing, the only scheduled witnesses for this hearing are Michael Horowitz, DOJ's Inspector General, and Colette Peters, the Director of the Federal Bureau of Prisons.  

My sense is that Congress has conducted any number of hearings relating to any number of problems with BOP "operational and managerial deficiencies" that contribute to harmful and deadly prison conditions.  I hope this latest hearing might help advance legislative action to address BOP problems, though it is always seemingly easier for Congress to talk about problems than to act on them.

February 26, 2024 in Prisons and prisoners, Who Sentences | Permalink | Comments (8)

Sunday, February 25, 2024

"Criminal Law Minimalisms"

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

What is criminal law minimalism?  At first blush, it appears to be the sober and sensible cousin of abolition.  Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance.  While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale.  On the question of scope, what exactly should be minimized?  The number of criminal laws?  The severity of criminal punishment?  The extent of policing?  The presence of criminal and quasi-criminal institutions of social control? The prevalence of punitive cultural impulses?  Something else?  On the question of scale, what does minimalism mean? Arguing that society should use criminal law and punishment as little as possible raises the important question of how we know what the minimally acceptable amount of criminal law is.  Without a shared understanding of what criminal law is supposed to do, how do we know what properly functioning minimalism looks like?  Depending on one’s normative vision for criminal law, minimalism could involve a radical project of decarceration, decriminalization, and de-policing.  Or, it could involve a slight recalibration of the status quo.

In this Essay, I raise these questions as they pertain to the minimalist project.  If “criminal law minimalism” is to be taken seriously as a theoretical alternative to both abolition and conventional reform, it is necessary to understand what minimalism entails or what it offers us.  And, that means answering — or at least grappling with — these fundamental questions of scope and scale.  Instead of a coherent theory of criminal law minimalism, I see a range of different criminal law minimalisms, reflecting a range of focal points, ideological projects, and first-order commitments.  In this Essay, then, I begin to tease apart different possible minimalisms and what they might tell us about defensible or desirable criminal policy.

February 25, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (1)

US Sentencing Commission publishes public comment and plans for public hearing on proposed guideline amendments

I was pleased to discover on a lazy Sunday that the US Sentencing Commission is continuing to be quite busy.  Specifically, today the USSC officially posted here a "Compilation of Public Comment" concerning the proposed sentencing guideline amendments that the USSC set out back in December (details here).  The compilation comprises this 867-page pdf document, which  the USSC's describes as a "representative sample of public comment" that has been "carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

In addition, the Sentencing Commission today also noticed here its planned "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines" to take place in DC on March 6-7, 2024.  This hearing will be live-streamed, and the "purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines."  The topics and witnesses for the two hearing days are all fascinating, though I will admit to being especially interested in the topics of focus for day 1 ("acquitted conduct" and "simplification"). 

Prior related post:

February 25, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, February 24, 2024

Detailing some of the impacts and possible echoes of Mass ruling precluding LWOP for those under 21

Last month, as noted in this past post, a split Massachusetts Supreme Judicial Court in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), ruled that article 26 of the Massachusetts Declaration of Rights precluded an LWOP sentence for offenses committed by persons under age 21.  This lengthy new Law360 piece, headlined "Mass. Ruling Seen As 'Sea Change' In Young Adult Sentencing," discusses the local and possible national impact of hte rule.  Here are excerpts:

[A]dvocates pushing to end sentences of life without parole for so-called emerging adults — those ages 18 through 20 — say they see a possible pathway to nationwide change following a recent ruling by the Massachusetts Supreme Judicial Court finding such sentences unconstitutional.

"This ruling is exceedingly important," [lawyer Jay] Blitzman said. "Obviously, in Massachusetts, where you have about 200 incarcerated individuals who now have the opportunity to have a parole hearing at least at some point in their life. But it is also incredibly significant in terms of the national landscape."...

[W]hile state high courts in Washington and Michigan have also recently ended the concept of mandatory life without parole for offenders under 21, those rulings, along with the U.S. Supreme Court's ruling in Miller, have still left the door open for judges to make a determination at the time of sentencing that a parole opportunity should not be granted. "What Massachusetts did went beyond all that," Blitzman said. "It pushed the envelope."...

Advocates for abolishing life without parole for juveniles argue that recent scientific studies have shown that certain brain functions are not fully developed by the age of 18 and that the age of "peak offending" is around 19 to 20 years old. The brain tends to be fully matured and developed by around age 25, according to the National Institute of Mental Health. Committing crimes — even violent ones — at that age is not necessarily indicative of a person who will continue to break the law the rest of their life, advocates and researchers say....

Robert Kinscherff, the executive director of the Center for Law, Brain and Behavior at Massachusetts General Hospital, told Law360 that most 16-year-olds are in a good position cognitively to offer medically informed consent, make reproductive decisions or participate in their own defense at trial. However, the situation changes under "hot cognition," Kinscherff said. "They remain more impulsive, more reckless, less likely to consider options and more likely to respond to the immediacy of perceived rewards rather than to take a long-term view," he said. "And they remain vulnerable to peer influence, especially if they are in the physical presence of peers."...

In the weeks since the Mattis decision, Kinscherff says he has heard from attorneys and advocates around the country who are trying to figure out how to incorporate the landmark ruling and the underlying arguments into their own advocacy....

Martin Healey, chief legal counsel and chief operating officer for the Massachusetts Bar Association, called the Mattis ruling a "sea change."... "I definitely think it is going to have a wide, sweeping effect," Healey said. "It's going to happen incrementally, but surely it will occur, and I think you'll see various states react to it, some soon and others following suit as the years go on."

Prior related posts:

February 24, 2024 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (2)

Friday, February 23, 2024

"A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder"

The title of this post is the title of this recent paper authored by Carlisle Moody that I just found via SSRN. Here is the paper's abstract:

This study investigates the effects of most of the major firearm and crime control policies on murder. We use two-way fixed-effects models based on state-level panel data from 1970-2018.  We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each.  We do a specification search using four commonly used econometric methods to estimate three models of the crime equation. A Bonferroni correction is used to control for false rejections.  A robustness check using new difference-in-differences estimators confirms the results.  We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder.  However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run.  We also find that executions have no significant long-run effect on murder.  Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

February 23, 2024 in National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Notable new analysis of notable (old) data on prison admissions

The data on prison admissions (from 2021) reported in this new Crime and Justice News item caught my eye this afternoon.  Here are the details:

A new analysis from the Council of State Government Justice Center found that despite recent declines, parole-probation violators still make up a large proportion of new prison admissions. In 2021, 44% of state prison admission were people who violated the terms of their parole or probation sentences. And on any given day, 1 in 4 people in state prison were incarcerated because they violated the terms of their supervision. Those proportions have remained constant, even as overall numbers have decreased....

Incarceration for violations of supervision declined in 2020 and, in many states, continued to drop in 2021.  Ten states — Colorado, Minnesota, Hawaii, New Jersey, Kansas, New York, Rhode Island, Maryland, Pennsylvania and Vermont — reduced admissions by 50% or more.  The declines are part of a larger trend: from 2018 to 2021, across the country, the numbers of prison admissions from community supervision decreased by one-third. Part of that was due to decreased criminal activity during the height of the pandemic, with the exception of homicides and intimate-partner violence. It was also affected by changes in supervision practices and court backlogs.

Researchers examining those states where supervision incarcerations fell — and where they didn’t — have found no significant relationship between changes in the number of people incarcerated for supervision violations and changes in violent-crime rates at state levels.  But in 2021, states collectively spent more than $10 billion incarcerating probation-parole violators. More than $3 billion of that was for technical violations, not for new criminal activity....

Racial disparities begin prior to criminal-justice-system contact and persist at all stages of the system.  When looking at parole and disparities, 18 states — including much of the Deep South —  did not exhibit disparities in revocation rates, while 20 states increased the disparities.  Twelve states — including Montana, Wyoming, Nebraska, Colorado, New Mexico, Minnesota, Wisconsin, Iowa, Illinois, Indiana, New Jersey, and Pennsylvania — reincarcerated Black parolees at a 20% or higher rate.

February 23, 2024 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

Thursday, February 22, 2024

"Prosecutors in Robes"

The title of this post is the title of this new article authored by Jacob Schuman now available via SSRN. Here is it abstract:

Criminal law enforcement is traditionally considered a core executive power.  Yet federal district judges exercise that power tens of thousands of times a year by initiating proceedings to revoke probation and supervised release. “Prosecutors in robes” is an insult sometimes levied by criminal defense attorneys against judges who are allegedly biased in favor of the government.  In this Article, however, I do not use that phrase to suggest that district judges are acting in bad faith.  Instead, I mean it literally.  When judges initiate revocation proceedings, they wield a prosecutor’s power to enforce criminal law.

Combining constitutional, historical, and empirical analyses, I argue that judge-initiated revocation violates the form and function of the separation of powers.  Formally, initiating a revocation proceeding is a type of criminal law enforcement, which is authority that the Constitution vests solely in the President and was originally understood as an executive power.  Functionally, my empirical study of federal sentencing data shows that initiating revocations aggrandizes the judiciary’s role in the criminal justice system by weakening democratic accountability, undermining uniform policy, and compromising judicial impartiality.

While most legal scholars believe that a strong and independent judiciary is necessary to check prosecutorial overreach, I contend that federal district judges have become “prosecutors in robes” who themselves must be checked by the executive branch.  To restore the separation of powers to revocation proceedings, I propose that only prosecutors should be allowed to initiate them, while judges should be limited to adjudication and sentencing.  This change would ensure that no single branch of government enjoys total authority to impose criminal punishment.  Our Constitution separates powers to protect liberty and prevent tyranny. A prosecutor in a robe is a king.

February 22, 2024 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Criminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment.  Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable.  This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations.

Decriminalization can occur through a variety of mechanisms.  Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support.  State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct.

The Article identifies four common motivations for such decriminalizations.  First, the decriminalization may come from an anti-justice motivation, where the decriminalizer believes that crime ought to be dealt with as a medical, mental health, or social services issue, rather than through the justice system.  Second, the decriminalization may be motivated by a desire to reduce the sanctions that would otherwise be imposed upon a group seen as “oppressed.” Third, many decriminalizers see themselves as having superior moral judgment about what should and should not be seen as criminally condemnable.  Finally, some decriminalizers believe that their locale, rather than the larger jurisdiction, ought to have criminalization-decriminalization power even though the state or federal constitution allocates that authority otherwise.  Decriminalizers may be motivated by any one or combination of these motivations.

After reviewing the societal benefits that are claimed to follow from the various justifications for decriminalizing what the community sees as condemnable, the Article examines the societal costs, including the loss of deterrence from the announced policy, the loss of incapacitation of repeat offenders, the reduction in the criminal law’s moral credibility by refusing to treat as criminal conduct that the community sees as criminally condemnable, and the reduction in the criminal justice system’s legitimacy when ideological bias is seen as influencing prosecution decisions.  Perhaps the most unfortunate societal cost is that the resulting increases in crime are disproportionately borne by vulnerable minority communities, even though many decriminalizers claim to be motivated by a desire to help those same communities.

On the other hand, the societal costs of such decriminalizations also apply in reverse situations of over-criminalization.  To avoid those societal costs, the criminal law must enlarge its current justification and excuse defenses, as well as mitigations, to reflect the greater breadth that empirical research shows that ordinary community members would support, which in many instances provides defenses even broader than the common modern formulations taken from the Model Penal Code.  However, that expansion of defenses ought not extend to ideologically driven excuses like “rotten social background,” as some have advocated, usually for the same motivations that drive improper decriminalizations.

This same societal cost-benefit analysis also means that just as criminally condemnable conduct should not be decriminalized, conduct that is no longer criminally condemnable should be decriminalized if the criminal law is to maintain its moral credibility and legitimacy.  For example, adultery ought to be officially decriminalized where it remains an offense, and, of more immediate relevance, private marijuana use ought to be decriminalized as soon as community views have shifted to the point that it is no longer seen as criminally condemnable, a shift that has already occurred in much of the country.

Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

February 22, 2024 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, February 21, 2024

Does new unanimous McElrath ruling mean anything for acquitted conduct sentencing?

As noted in this prior post, the Supreme Court today handed down a short opinion in McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here), that ruled in favor of an acquitted defendant in a quirky double jeopardy case.  Especially because the US Sentencing Commission is currently taking commment on possible guideline amendments concerning the consideration of acquitted conduct at federal sentencing, I have been wondering if the McElrath might say something that could mean something for on-going acquitted conduct sentencing debates. 

After now reading the Court's opinion in McElrath opinion a few times, I am inclined to conclude that there is not much "there there" to directly inform debates over acquitted conduct sentencing.  Here are a few passages from the McElrath opinion that seem to discuss the import and impact of acquittals most broadly:

Once rendered, a jury’s verdict of acquittal is inviolate.  We have described this principle — “that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise’” — as “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen, 430 U.S., at 571.  This bright-line rule exists to preserve the jury’s “overriding responsibility . . . to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” Id., at 572....

Once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury’s verdict — even when there are specific jury findings that provide a factual basis for such speculation — “because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.” Smith, 599 U.S., at 252–253.  We simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.  “To conclude otherwise would impermissibly authorize judges to usurp the jury right.” Id., at 252.

Drawing on language in these passages, one could complain that acquitted conduct sentencing undermines the jury's constitutional role standing "between the accused and a potentially arbitrary or abusive Government" and serves to "impermissibly authorize judges to usurp the jury right."  However, elsewhere in the McElrath opinion, the Court stresses that the Double Jeopary Clause "focuses on prohibitions against multiple trials" and "is a bar to a subsequent prosecution for the same offence."  The consideration of acquitted conduct at sentencing on a distinct count of conviction does not itself involve multiple trials or a subsequent prosecution.

In other words, the short McElrath opinion has a little bit of notable dicta that does not really directly inform the acquitted conduct debate.  Critically, though, while the US Sentencing Commission necessarily must be attentive to constitutional doctrines in formulating any new guideline rules, it also has broad authority and a fundamental obligation to advance sentencing rules that comprise good policy as well as being constitutionally sound.  SCOTUS in McElrath and other constitutional cases sets forth a constitutional floor, with the USSC in developing guideline amendments can and should aim higher.

February 21, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (32)

"Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime"

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

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers.  Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity.  Yet, no one has obtained the state-court data needed to substantiate these comparisons.  This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature.  First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions.  In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court.  Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties — Alameda County, California — the Article tests several bedrock claims about federalization.  The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices.  Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal — a fixation that comes at the expense of state and local topics.

February 21, 2024 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

SCOTUS confirms that "an acquittal is an acquittal" in crazy Georgia case

The Supreme Court this morning handed down two unanimous opinions, one of which came in the criminal case of McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here).  Justice Jackson authored the ten-page opinion for the Court, which starts this way:

Under Georgia law, a jury’s verdict in a criminal case can be set aside if it is “repugnant” — meaning that it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” 308 Ga. 104, 111, 839 S. E. 2d 573, 579 (2020).  In this case, a jury found that petitioner Damian McElrath was “not guilty by reason of insanity” with respect to a malice-murder count, but was “guilty but mentally ill” regarding two other counts — felony murder and aggravated assault — all of which pertained to the same underlying homicide.  Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts, and authorized McElrath’s retrial.

McElrath now maintains that the Fifth Amendment’s Double Jeopardy Clause prevents the State from retrying him for the crime that had resulted in the “not guilty by reason of insanity” finding.  Under the circumstances presented here, we agree.  The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.  

Justice Alito added a two-paragraph concurrence, which starts this way:

I join the opinion of the Court but write to clarify my understanding of what we have held. In this case, there was indisputably an acquittal on the malice-murder charge. The jury returned a not-guilty verdict on that count, the trial judge entered a judgment of acquittal on that count, and petitioner appealed that part of the judgment. Because the Constitution does not permit appellate review of an acquittal, the State Supreme Court’s decision must be reversed. As I understand it, our holding extends no further

February 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Tuesday, February 20, 2024

New Prison Policy Initiative briefing makes arguments against jail construction arguments

This new briefing from Prison Policy Initiative authored by Emmett Sanders seeks to undercut arguments made in favor of jail construction. The full title of the posting highlights its themes: "Cautionary jails: Deconstructing the three “C”s of jail construction arguments. Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse."  Here is how the briefing begins (with links from the original):

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one.  The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.”  $30 million will come from COVID-19 pandemic relief funds; as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country.  Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability.  New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath.  Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.

Jail proponents usually rely on one or more of three central arguments to make their case:

  • The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
  • The “Contemporary” argument: new construction is needed to update an outdated jail;
  • The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages.  Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations.  This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.

February 20, 2024 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)