Sentencing Law and Policy

US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments

Via email I learned of the official announcement of the official public meeting when we can expect the US Sentencing Commission to vote to promulgate its first set of new amendments in five years.  The announcement is here on the Commission's website, and reads as follows:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby).  The meeting will be streamed live and recorded.

The agenda follows:

• Vote to Adopt January 2023 Meeting Minutes
• Report from the Chair
• Report from the Staff Director
• Vote to Promulgate Proposed Amendments
• Adjourn

As highlighted in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year. I am going to be very interested in seeing how the Commissioners settle on final proposed amendments (which will provide some insight as to how the various Commissioners are settling into their roles). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 

"Branding Corporate Criminals"

The title of this post is the title of this new article authored by W. Robert (Will) Thomas and Mihailis Diamantis available via SSRN.  Here is its abstract:

Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers.  In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones.  In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values.

Unfortunately, corporate punishment falls far short of all these communicative ambitions.  For punishment to convey its intended message, society must be able to hear it. When courts convict individuals, everyone understands that the conviction places a mark of enduring stigma: “felon,” “thief,” “murderer,” and “fraudster.”  The state reinforces this impression by reserving its harshest and most degrading treatment for individual criminals, caging them and possibly killing them.  Corporate punishment, by contrast, is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment.  In today’s criminal justice system, it can be hard even to identify after the fact who the corporate criminals are.  Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal fines as mere costs of doing business.  Public perceptions have largely followed suit.

Corporate criminal law could disrupt this perverse dynamic by adopting a new sanction that would “brand” corporate criminals.  While the brand sanction could take many forms — different visual marks of varying size — this Article calls for, at a minimum, appending a criminal designation, ⓕ, to corporate felons’ legal name and mandating its appearance on products and communications.  This “corporate criminal brand” would stand as a 21st century corporate reimagining of its medieval corporal punishment namesake. Lawmakers rightly rejected physical brands on individual criminals long ago.  The criminal justice landscape is different for corporations, who feel no pain and have no dignity. Unlike monetary fines, corporate criminal branding would unambiguously signal a corporation’s criminal status to outside observers.  By forcibly integrating corporations’ criminal identity into their public image, criminal law might finally have a way to recognize victims and to strike at what corporations value most.

A couple of notable new capital cases on the latest SCOTUS "relist watch"

I noticed that this latest Relist Watch by John Elwood over at SCOTUSblog includes two new relisted capital cases.  Though I am not sure cert should be expected on either of these two cases, they both raise "evergreen" issues in the capital punishment arena.  Here are John's full descriptions (with links from the original):

The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot.  Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims.  The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.”  The U.S. Court of Appeals for the 11th Circuit held that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution.  The state has petitioned for certiorari, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.

Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel.  Before the Supreme Court, Burns argues that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial.  Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse.

"Carceral Deference: Courts and Their Pro-Prison Propensities"

The title of this post is the title of this new paper authored by Danielle Jefferis and available via SSRN. Here is its abstract:

Judicial deference to non-judicial state actors, as a general matter, is ubiquitous.  But “carceral deference” — judicial deference to prison officials on issues concerning the legality of prison conditions — has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy.  This Article adds to the literature by contextualizing carceral deference historically, politically, and culturally.  Drawing on primary and secondary historical sources, as well as trial and other court documents, this Article is an important step to bringing the origins of carceral deference out of the shadows, revealing a story of institutional wrestling for control and unbridled dominance that has not, until now, been fully told.

That full telling is more important now than ever, as society grapples with the scope, scale, and racist impacts of American punishment.  Carceral deference plays an enormous role in the constitutional ordering of state power, as well as civil law’s regulation of punishment, a force that is often neglected within the criminal law paradigm. Moreover, the Supreme Court has demonstrated a recent skepticism of judicial deference in other areas of the law, suggesting an era in which traditional notions of deference are up for reconsideration.  Understanding how the foremost judicial norm in the prison law space developed gives us a foundation from which to better examine and critique the distribution of power among prisons, courts, and incarcerated people and the propriety of deference to prison officials; further informs our understanding of the systemic and structural flaws of the criminal punishment system; and adds to a growing body of literature analyzing the role of expertise in constitutional analyses across dimensions, from qualified immunity to the administrative state. 

Arizona Supreme Court refuses to order its Gov to proceed with an execution ... for now

As detailed in some recent prior posts (linked below), a local prosecutor and crime victims had sued the new Gov of Arizona after her pledge not to move forward with a scheduled execution.   Late yesterday, the Arizona Supreme Court, for the time being, refused to order the execution to move forward.  This local article, which includes a link to last night's order from the Arizona court, provides this review:

Gov. Katie Hobbs is not compelled to carry out an execution warrant for death row prisoner Aaron Gunches, according to an order from the Arizona Supreme Court.  The court, in a ruling issued Wednesday, says its role is to “issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.”

But the law does not mandate the governor act on the warrant, the court said.... The court acknowledged that the Arizona Constitution provides that the governor “shall take care that the laws be faithfully executed," and that the governor is obligated to protect victims' rights to justice and due process, but it said those were "mixed questions of law and fact that are not properly before us."

The court denied the petition, made by Karen Price, sister of the victim, to force the governor to enforce the warrant.  Price, however, could advocate for execution on other grounds....

The Maricopa County Attorney's Office responded to the decision with a statement.  "With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law. We are assessing next steps to ensure the law is upheld and victims receive justice," the statement said.

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward
• Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

New OIG report provides "Capstone Review of the Federal Bureau of Prisons' Response to the Coronavirus Disease"

A helpful reader made such I did not miss a new big document released this week by US Department of Justice's Office of the Inspector General. Specifically, this 100+-page report is a review of how the federal Bureau of Prisons (BOP) did during the COVID pandemic, and here are excerpts from the report's executive summary: 

Since April 2020, the U.S. Department of Justice (Department, DOJ) Office of the Inspector General (OIG) has conducted substantial oversight of the BOP’s response to the COVID-19 pandemic. The resulting body of work, which the OIG previously publicly released, includes remote inspections of 16 facilities housing BOP inmates completed during the early months of the pandemic, multiple surveys of BOP staff conducted at different times, and a collection of interactive data dashboards containing up-to-date information about COVID-19 within BOP facilities.  The OIG is also completing analysis of its first survey of BOP inmates.

This capstone review summarizes our overall findings regarding the BOP’s response to the COVID-19 pandemic, the issues we identified through our pandemic oversight work, the topics that have emerged following that work, the challenges that the BOP will likely continue to face during and after the pandemic, and actions that the BOP should undertake to prepare for future potential healthcare emergencies.

We make 10 recommendations to assist the BOP in managing challenges during and after the COVID-19 pandemic and in mitigating the effects of future public health emergencies...

The BOP Should Improve and Retain Effective Practices for Protecting Staff and Inmate Health and Safety During Public Health Emergencies...

The BOP Should Provide Clear Guidance on the Use of Healthcare Protective Equipment and Compliance with Healthcare Safety Guidance...

The BOP Should Respond to Ongoing Pandemic Challenges and Prepare for Future Public Health Emergencies

The BOP Should Improve Its Communication of Essential Information to Stakeholders...

The BOP Should Take Appropriate Steps to Address Staffing Shortages and Staff Morale...

Convicted of felony murder as teen for police killing during burglary, LaKeith Smith gets sentence reduced to "only" 30 years in Alabama

A felony murder case from Alabama received some national media attention as a resentencing proceeding approached this week.  That resentencing and its context are covered in this AP article headlined "Man sentenced to 30 years after police officer shot friend." Here are some of the details:

LaKeith Smith was 15 when a police officer shot and killed his friend when the teens were caught burglarizing homes in Alabama, but it is Smith who will spend decades in prison for his friend’s death.  A judge on Tuesday sentenced Smith, now 24, to 30 years in prison — a reduction from the more than 50 years he originally received, but a blow to his family and advocates who argued he should not spend decades in prison for a killing he did not commit.

The new sentencing hearing was held after a judge ruled Smith’s original lawyer failed to present possible mitigating evidence about his home life and mental health. Circuit Judge Sibley Reynolds handed down the new sentence after a lengthy court hearing.  Sibley gave Smith the same punishment he previously handed down — 30 years for the felony murder charge and 25 years for burglary and theft — but this time allowed the sentences to run concurrently, instead of stacked on top of one another.

“What he received today was not justice. It was clearly an over-sentence,” defense attorney Leroy Maxwell said after court. He said they will pursue an appeal. Maxwell said the case, which has garnered national attention because of Smith’s age and the sentence he received, is the “poster child” for the misuse of felony murder laws that allow someone to be charged for a killing during commission of a felony even if the death was unintentional.

The fatal shooting happened on Feb. 23, 2015, when Millbrook police officers responded to a call of a burglary in progress. A Millbrook police officer shot and killed 16-year-old A’Donte Washington when officers surprised the teens, local news outlets reported. A grand jury cleared the officer in the shooting. The surviving four teens were charged with felony murder. Three took a plea deal, and Smith went to trial.

The Elmore County courtroom, which sits across the highway from a state prison, erupted in angry shouts after the judge handed down the sentence, attorneys and others said. “He’s not a murderer. He doesn’t deserve 55 or 30 years,” Smith’s mother, Brontina Smith, said after court.

Maxwell argued LaKeith Smith was the least culpable of the teens because he was the youngest and there was no evidence he fired a gun. The judge heard testimony about Smith’s difficult home life, as well as a request from Washington’s father to let Smith go free. “They were kids, just kids. I don’t condone them going to somebody’s house and whatever. Give them time for that. But the murder of my child? No,” Andre Washington said after court.

District Attorney CJ Robinson, who was the prosecutor in the case before being elected as district attorney, said the sentence is within the allowed guidelines. “There are no winners here. Never have been (in) this case,” Robinson said via text after court. He supported the new sentencing hearing for Smith, agreeing that Smith’s original trial lawyer did an inadequate job at sentencing....

The case has put a spotlight on the state’s felony murder law, a legal doctrine that holds someone liable for murder if they participate in a felony, such as a robbery, that results in someone’s death. Most states have felony murder laws, but rules vary on their use.  According to a 2022 report by the Sentencing Project, a group advocating against mass incarceration, 14 states allow people engaged in a felony to be convicted of felony murder for a killing committed by a third party if it can be characterized as a foreseeable result of their action.

Additional national media coverage of this case include the following:

From The Marshall Project, "New Scrutiny on Murder Charges Against People Who Don’t Actually Kill: The U.S. is the only country that still uses the 'felony murder' legal doctrine."

From Mother Jones, "Police Killed His Friend and Blamed Him. He Got 65 Years in Prison. He Was 15.: A cop took an Alabama teen’s life, but LaKeith Smith took the charge. His big mistake: wanting a trial."

GAO releases big report concluding "Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System"

The US Government Accountability Office (GAO) has released this big new Report to Congressional Committees fully titled "Federal Prisons: Bureau of Prisons Should Improve Efforts to Implement its Risk and Needs Assessment System."  The full report runs over 100 pages, but it starts with "Highlights" that include this text:

Why GAO Did This Study

Approximately 45 percent of people released from a federal prison are rearrested or return within 3 years of their release.  The First Step Act included certain requirements for DOJ and BOP aimed to reduce recidivism, including requiring the development of a system to assess the recidivism risk and needs of incarcerated people.  It also required BOP to provide incarcerated people with programs and activities to address their needs and if eligible, earn time credits.

The First Step Act required GAO to assess the DOJ and BOP’s implementation of certain requirements.  This report addresses the extent to which DOJ and BOP implemented certain First Step Act requirements related to the (1) risk and needs assessment system, (2) identification and evaluation of programs and activities, and (3) application of time credits.

GAO reviewed legislation and DOJ and BOP documents; analyzed 2022 BOP data; and interviewed DOJ and BOP headquarters officials and BOP’s employee union.  GAO also conducted non-generalizable interviews with officials from four BOP regional offices facilities, selected to ensure a mix of different facility characteristics.

What GAO Found

Since the enactment of the First Step Act of 2018, the Department of Justice (DOJ) developed a risk assessment tool to measure an incarcerated person’s risk of recidivism.  In addition, the Bureau of Prisons (BOP) modified its existing needs assessment system to identify incarcerated people’s needs, that if addressed may reduce their recidivism risk. However, BOP does not have readily-available, complete, and accurate data to determine if assessments were conducted within required First Step Act and internal timeframes. As of October 2022, BOP plans to implement monitoring efforts to assess First Step Act requirements, but has not determined if these efforts will measure whether assessments are completed on time.  Without such data and monitoring, BOP is not in a position to determine if staff complete assessments on time, which are necessary for earning First Step Act time credits.  These time credits may allow incarcerated people to reduce the amount of time they spend in a BOP facility.

BOP created a plan to evaluate its evidence-based programs, as required by the First Step Act.  However, the plan did not include quantifiable goals that align with certain First Step Act requirements, or have clear milestone dates.  By including such elements in its plan, BOP will be better positioned to ensure its evaluations are conducted in a timely manner, and align with the First Step Act.  BOP has some data on who participates in its programs and activities, but does not have a mechanism to monitor if it offers a sufficient amount. Without such a mechanism, BOP cannot ensure it is meeting the incarcerated population’s needs.  Further, while BOP offers unstructured productive activities for which incarcerated people may earn time credits, BOP has not documented a complete list or monitored them.  Without doing so, BOP cannot ensure it provides transparent information.

BOP’s procedure for applying time credits has evolved over time.  Initially, BOP did not have data necessary to track time credits and developed an interim approach in January 2022.  Subsequently, BOP implemented an automated-calculation application for time credits that took into account factors the interim procedure did not.  As a result, some incarcerated people may have had their time credits reduced.  In November 2022, BOP issued its First Step Act Time Credits program statement, with new procedures.

What GAO Recommends

GAO is making eight recommendations for BOP to improve its implementation of the First Step Act, including collecting data, ensuring its evaluation plan has goals and milestones, having monitoring mechanisms, and tracking unstructured productive activities. BOP concurred with six recommendations, but did not concur with two.  GAO continues to believe these are valid.

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

CCJ releases "How long is long enough?: Task force on long sentences final report"

I have repeatedly noted this post from last year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force for the better part of a year has been producing all sorts of important research and analysis concerning long sentences (see prior posts linked below).  And today I am excited to see that the Task Force's main report, titled "How long is long enough?," has been released today with 14 thoughtful recommendations.  Released along with this full report is this press release, which helps summarize the work of the Task Force and its report.  Here is how the press release starts:

As cities across the nation grapple with effective responses to increases in violent crime, a task force co-chaired by former U.S. Deputy Attorney General Sally Yates and former U.S. Rep. Trey Gowdy today released a report outlining a comprehensive approach for the use of lengthy prison sentences in the United States. 

The report, How Long is Long Enough?, presents 14 recommendations to enhance judicial discretion in sentencing, promote individual and system accountability, reduce racial and ethnic disparities, better serve victims of crime, and increase public safety.  Defining long sentences as prison terms of 10 years or longer, the panel’s proposals include:

• Shifting savings from reductions in the use of long prison sentences to programs that prevent violence and address the trauma it causes individuals, families, and communities (Recommendation 1).
• Allowing judges to consider all relevant facts and circumstances when imposing a long sentence, and requiring that sentencing enhancements based on criminal history are driven by individualized assessments of risk and other factors (Recommendations 6 and 8)
• Providing selective “second look” sentence review opportunities and expanding access to sentence-reduction credits (Recommendations 11 and 12)
• Focusing penalties in drug cases on a person’s role in a trafficking organization, rather than the amount of drug involved, (Recommendation 7)
• Reducing recidivism by providing behavioral health services and other rehabilitative living conditions and opportunities in prison (Recommendations 3 and 13)
• Strengthening services for all crime victims and survivors by enforcing victims’ rights, removing barriers to services, and creating restorative justice opportunities (Recommendations 2, 4, and 9)

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 
• CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" 
• CCJ report explores "The Relationship Between Sentence Length, Time Served, and State Prison Population Levels" 

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• After recent wave of notable rulings, a wave of new Second Amendment commentary 
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Rounding up some public defender commentary on Gideon's 60th anniversary

I saw a lot of interesting headlines in recent days in conjunction with the 60th anniversary of the Supreme Court's ruling in Gideon v. Wainwright.  Here is a sampling from various sources:

From Fox News, "Supreme Court's 'Gideon' ruling at 60 and the right to counsel: In their own words"

From the Los Angeles Times, "Criminal defendants’ right to counsel still shortchanged in much of California"

From NPR, "You have the right to a lawyer, but public defenders note a lack of resources, respect"

Oregon Public Broadcasting, "A constitutional crisis in Oregon’s criminal justice system continues, 60 years after landmark US Supreme Court decision"

The Sixth Amendment Center, "The State of the Nation on Gideon’s 60th Anniversary"

From Teen Vogue, "Gideon v. Wainwright Was a Landmark Decision, But Women Invented the Idea of the Public Defender"

From the US Courts, "60 Years Later, Gideon’s Legacy Lives On"

From the US Department of Justice, "Justice Department Commemorates the 60th Anniversary of Gideon v. Wainwright"

US Sentencing Commission posts over 1600 pages of public comment on proposed amendments

Perhaps unsurprisingly in light of a whole lot of notable proposed amendments to the US Sentencing Guidelines, the US Sentencing Commission received a whole lot of public comment in response to its "Notice and request for public comment" on these amendments.  Helpfully, for folks interested in seeing some of the highlights, the USSC has made big sample available here with lots of helpful links to each of the issues covered and with this explanation:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes.  A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

Especially because I am distracted by a few different and distinct obsessions this weekend, I am certain I will not get a chance to review much of the commentary anytime soon.  But I welcome folks using the comments to flag any especially interesting comments (or any predictions they may have about what the final amendment will look like). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

"The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many"

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

In The Dangerous Few: Taking Prison Abolition and Its Skeptics Seriously, published in the Harvard Law Review, Thomas Frampton proffers four reasons why those who want to abolish prisons should not budge from their position even for offenders who are considered dangerous.  This essay demonstrates why a criminal law minimalist approach to prisons and police is preferable to abolition, not just when dealing with the dangerous few but also as a means of protecting the nondangerous many.  A minimalist regime can radically reduce reliance on both prisons and police, without the loss in crime prevention capacity and legitimacy that is likely to come with abolition.

Prior related post:

• "The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics" 

"After the Criminal Justice System"

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

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions.  But, as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.”  Instead, they have opted for critical labels — the criminal legal system, the criminal punishment system, the prison industrial complex, etc.  What does this re-labeling accomplish?  Does this change in language matter to broader efforts at criminal justice reform or abolition?  Or, does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary criminal law?

In this Article, I examine that move to abandon the “criminal justice system” as a means of describing U.S. institutions of criminal law and its enforcement.  I identify three alternative labels that are gaining traction in academic and activist circles: the criminal legal system, the criminal punishment system, and the prison industrial complex.  I argue that each reflects not only a different vision of U.S. criminal law but also a different vision of what is wrong with it.  My goal in this Article is not to advocate for a correct new label.  Rather, it is to explain how the different names provide a window into different ways of understanding how the United States punishes and controls individuals and communities.  Identifying an alternate label (or opting to retain the criminal justice system) should force much-needed reflection about what makes criminal institutions distinct from other institutions of governance.  And, such clarity should be essential to any project of reform or abolition.

This Article contributes to three literatures.  First, it is a part of a larger project of unpacking how we as a society (and particularly as legal elites) talk about and understand criminal law. Second, this Article contributes to a literature that examines the boundaries of criminal law and the ways in which criminal legal institutions interact with ostensibly non-criminal ones.  Third, and relatedly, this Article contributes to a critical literature on siloing in scholarship and activism.  By emphasizing the fuzzy boundaries of the “criminal justice system,”  I hope to stress that studying and mobilizing against the injustices of the U.S. criminal legal apparatus requires grappling with a host of diverse legal doctrines and sociopolitical forces.

Notable Seventh Circuit discussion of how a combination of factors can amount to "extraordinary and compelling reasons"

A helpful colleague made sure I did not miss a short ruling authored by Judge Frank Easterbrook for the Seventh Circuit concerning factors in support of motions for compassionate release. The ruling in US v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (available here), is worth reading in full, and this is part of the discussion that seems especially notable:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold — to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

[T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.”  This was “mistaken in light of our precedents.”  The “totality of the circumstances” requires courts to consider “the whole picture.”  Our precedents recognize that the whole is often greater than the sum of its parts — especially when the parts are viewed in isolation. Instead of considering the facts as a whole, the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.... Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir. 2016).

If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10% — each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners.  We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review.  See United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020).  Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not.  This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.

Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"

In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems.  Here are some excerpts:

Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?

The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.

A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....

Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.

This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language.  Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....

The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community.  Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases.  No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....

The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials.  How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea?  Let’s find out.

I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas.  I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials." 

Prior related post:

• ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report" 

"The Unconstitutional Conditions Vacuum in Criminal Procedure"

The title of this post is the title of this notable new article now available via SSRN authored by Kay Levine, Jonathan Remy Nash and Robert A. Schapiro. Here is its abstract:

For more than a century the United States Supreme Court has applied the unconstitutional conditions doctrine across a variety of settings, scrutinizing government efforts to condition the tradeoff of rights for benefits in the speech, funding, and takings contexts, among others.  The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to — and typically do — surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit.  Despite the Court’s insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, its jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.

We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection.  Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their apex in the criminal procedure setting.  Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain.  We conclude that the Supreme Court’s aversion to using the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes.  In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area.