Sentencing Law and Policy

Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted death row inmate Richard Glossip a 60-day stay of execution on Tuesday while a state appeals court considers his claim of innocence."  Here is more:

Stitt signed an executive order delaying Glossip’s execution for the 1997 killing of Glossip’s boss, motel owner Barry Van Treese, that was scheduled for Sept. 22. “This stay is granted to allow time for the Oklahoma Court of Criminal Appeals to address a pending legal proceeding,” the order states.

A Stitt spokeswoman declined to comment on the governor’s decision, which also means that a clemency hearing before the Oklahoma Pardon and Parole Board that was scheduled for next week will be delayed.

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Glossip’s co-defendant, Justin Sneed, to implicate Glossip in the slaying. Sneed admitted killing Van Treese but said he did so at Glossip’s direction. Sneed was sentenced to life in prison and was a key witness against Glossip....

Glossip, now 59, has long maintained his innocence. He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

"Youth Incarceration & Abolition"

The title of this post is the title of this new article authored by Subini Annamma and Jamelia Morgan.  Here is its abstract:

The COVID-19 pandemic has laid bare the dangers of the juvenile legal system; this should make it harder to look away from the societal inequities that are exacerbated by youth incarceration.  Indeed, the current moment, including the unprecedented nationwide protests in response to the murders of George Floyd and Breonna Taylor in summer 2020, has illuminated the power of social movements working to abolish the prison industrial complex, and, as legal scholars have argued, lawyers and law professors should engage with these movements and their calls for abolition and transformative change.  Yet conversations on abolition are mainly centered on adult prisons.  While appreciating and supporting the call for abolishing adult prisons, the absence of youth incarceration from abolitionist movements and discourse is concerning given the violence and disparities that are reflected in youth incarceration.  Furthermore, despite earlier calls to consider abolishing the juvenile legal system, a sustained engagement with abolitionist theory and the juvenile punishment system has not featured in the legal scholarship.  This Article discusses the urgent need to abolish youth incarceration in the context of a global pandemic, surveys arguments for abolition generally, and sets forth an abolitionist critique of youth incarceration using Disability Critical Race Theory (DisCrit) as a lens for analysis.  Applying a DisCrit lens, we discuss how COVID-19 demonstrates the urgency of addressing the harms facing incarcerated youth, particularly Youth of Color and disabled Youth of Color.

Notable new polling on prison oversight and criminal justice reform attitudes

Via email I learned this morning that the organization FAMM released the results of a new national poll on various criminal justice questions.  The polling explored most fully prison oversight issues and the FAMM email about the poll stressed that "among other findings, an overwhelming 82% of respondents said they believe 'that states and the federal government should have a system of independent oversight for their prisons'."  Here are a couple of other key broader criminal justice findings from the poll:

-- 79% of respondents said that they think the criminal justice system "needs significant improvements"

-- 74% of respondents generally support "reforming the nation's criminal justice system"

The detailed poll findings about prison oversight are not easily summarized here, but they are discussed a bit more in this FAMM press release. (Notably and valuably, this survey was completed before last week's search of Mar-a-Lago.)

Disconcerting reports about what transpired during recent Alabama execution

A press report on the July 28 execution of Joe Nathan James in Alabama, reprinted in this post, noted that the "execution began a few minutes after 9 p.m. CDT following a nearly three-hourts have started to fill in some ugly details of what transpired during this delay.  For example:

From The Atlantic, "Dead to Rights: What did the state of Alabama do to Joe Nathan James in the three hours before his execution?":

James, it appeared, had suffered a long death. The state seems to have attempted to insert IV catheters into each of his hands just above the knuckles, resulting in broad smears of violet bruising.  Then it looked as though the execution team had tried again, forcing needles into each of his wrists, with the same bleeding beneath the skin and the same indigo mottling around the puncture wounds.  On the inside of James’s left arm, another puncture site, another pool of deep bruising, and then, a scant distance above, a strange, jagged incision, at James’s inner elbow.  The laceration met another cut at an obtuse angle.  That longer, narrower slice was part of a parallel pair, which matched a fainter, shallower set of parallel cuts.  Underneath the mutilated portion of James’s arm was what appeared to be yet another puncture — a noticeable crimson pinprick in the center of a radiating blue-green bruise. Other, less clear marks littered his arm as well.

From AL.com, "Joe Nathan James ‘suffered a long death’ in botched Alabama execution, magazine alleges":

Alabama prison officials spent hours searching for a vein that could be used to deliver lethal drugs in the execution of Joe Nathan James on July 28, according to a recent article in the Atlantic.  Staff punctured his hands, wrists and elbows several times before finally cutting open his arm to expose a vein, according to reporting by Elizabeth Bruenig.

Bruenig attended an independent autopsy performed several days after James’ death and funded by the human rights group Reprieve U.S. “James, it appeared, had suffered a long death,” she wrote.

From The Guardian, "Alabama subjected prisoner to ‘three hours of pain’ during execution – report":

Alabama’s execution of Joe Nathan James Jr last month may have taken longer than any other lethal injection in recorded American history, and no death penalty ever administered in the US may have taken quite as long, according to an analysis by a human rights organization.

An examination by Reprieve US of James’s execution estimates that it took Alabama officials between three and three and a half hours to carry out the lethal injection, a duration that the organization argues violates constitutional protections against inhumane punishments.

Notable effort to link fighting climate change to fighting crime

I often preach to my students (and others) that any and every issue of public policy concern can and does become be a crime-and-punishment issue in some way.  As but one example, in recent years I have done a few posts highlighting connections between climate change concerns and crime concerns (see links below).  This new New Republic piece by Liza Featherstone connects these dots with new research under this full headline: "If Republicans Really Wanted to Fight Crime, They’d Support Climate Policy: Summer murders are a perennial problem that conservatives, despite their rhetoric, are uniquely ill-equipped to solve."  Here are excerpts (with links from the original):

We’ve known for years that violent crime increases during the summer months.  In the past, researchers weren’t always sure that it was because of heat, speculating that the summer vacation, with more young men up to no good, was the problem, or that spending time outside, as we do in warm weather, occasions more interaction, for better and for worse.  But newer research has made the links to heat waves much clearer, suggesting that without intervention global warming will lead to more murders.

Research shows that on average, violent crime increases by over 5 percent on days hotter than 85 degrees Fahrenheit compared to days below that threshold.  Studies mapping violent crime and weather in Los Angeles and Chicago show violence reliably rising with the temperature.  This effect has been found by different scholars and in countries all over the world.  A 2021 study using data from 159 countries from 1970 to 2015 even found that higher temperatures were associated with more deaths from terrorist attacks.  An Australian study found that daily assault counts rose as the temperature rose, as did another study in Seoul, South Korea. Finnish researchers found that spikes in temperature explained about 10 percent of the variation in that nation’s violent crime rate.

Like many other problems associated with extreme weather, this one hits the poor hardest.  A study by University of Southern California researchers found that extreme heat was especially likely to exacerbate violence in low-income neighborhoods.

Prior related posts:

• Why global warming (like everything else) is really a criminal justice issue
• "Crime, Weather, and Climate Change"
• Interesting analysis of how summer impacts crime rates
• "Climate Change and the Criminal Justice System" 
• Should Senator Cotton and any others fretting about crime after passage of the FIRST STEP Act focus a lot more attention on crime risks presented by climate change? 

Call for Papers: "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms"

I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Drugs and Public Safety Exploring the Impact of Policy, Policing, and Prosecutorial Reforms." Here is the full call, which is available in full at this link:

The Drug Enforcement and Policy Center at the Moritz College of Law at The Ohio State University and the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University are organizing a symposium titled “Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms” to examine the public safety impact of marijuana and other modern drug policy reforms.  The conference is committed to exploring, from a variety of perspectives and with the help of a variety of voices, how to better understand and assess the relationship between drug reforms (broadly defined, including clemency policy and criminal justice reform) and public safety (broadly defined, with an emphasis on violent and serious crime).  [The conference will take place at Arizona State University, Phoenix, AZ from March 14-16, 2022.]

Background

In 1996, California kicked off a new state-driven law reform era through a ballot initiative legalizing medical marijuana.  In subsequent decades, as dozens of states legalized marijuana use, various advocates, public officials, and researchers warned about the possibility of dire public safety consequences.  More drug crimes, more general criminality, more drugged driving, and all sorts of other public safety harms were often mentioned as the possible short- or long-term consequence of significant state-level marijuana reforms.

As of summer 2022, there are 37 states with robust medical marijuana regimes and 19 with full adult-use marijuana programs.  The continued support for state-level marijuana reforms seems to reflect, at least in part, the fact that so far, researchers have not documented direct connections between marijuana reforms and adverse public safety outcomes.  Though crime is a growing public concern given the rise in violent crimes in recent years, few advocates or researchers have documented clear connections or correlations between jurisdictions that have reformed their marijuana laws and increases in crimes.

As marijuana reforms have spread, so too has discussion of broader drug reforms such as decriminalization or legalization at both state and local level, as well as relief from drug-war excesses through clemency and expungement.  But given the increasing concern about violent crime, many advocates and lawmakers are wondering whether past and possible future drug policy reforms may be advancing or undermining the broad interest in creating safe and stable communities. As the country moves away from marijuana prohibition, a fully informed discussion of drugs, violence, and public safety is needed now more than ever.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication in Spring of 2024.

Though proposed papers can and should look to explore the relationship between drug reforms and public safety in any number of diverse ways, the conference organizers are particularly interested in explorations of the impact of: (a) legalization of medical and/or adult-use marijuana, (b) drug decriminalization efforts, and (c) back-end relief efforts (e.g., clemency) — on crime and violence, the enforcement of criminal laws, and the operation of criminal justice systems.

Deadlines and Length of Paper

A proposed abstract of no more than 300 words are due on October 17, 2022.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1@osu.edu.

Accepted researchers will be notified by November 18, 2022.

Participants should plan to have a full draft to discuss and circulate by March 1, 2023. Papers may range in length from 10,000 words to 25,000 words.

Final papers for publication will be due on August 1, 2023.

"How Little Supervision Can We Have?"

The title of this post is the title of this new article authored by Evangeline Lopoo, Vincent Schiraldi, and Timothy Ittner which is forthcoming in the Annual Review of Criminology. Here is its abstract:

Use of probation and parole has declined since its peak in 2007 but still intrudes into the lives of 3.9 million Americans at a scale deemed mass supervision.  Originally intended as an alternative to incarceration and a means of rehabilitation for those who have committed crimes, supervision often functions as a trip wire for further criminal legal system contact. This review questions the utility of supervision, as research shows that, in toto, it currently provides neither diversion from incarceration nor rehabilitation.  Analysis of national supervision, crime, and carceral data since 1980 reveals that supervision has little effect on future crime and is not a replacement for incarceration.  Case studies from California and New York City indicate that concerted efforts to reduce the scope of mass supervision can effectively be achieved through sentencing reform, case diversion, and supervisory/legal system department policy change, among other factors, without increasing crime.  Therefore, we suggest extensive downsizing of supervision or experimentation with its abolition and offer actionable steps to enact each possibility.

Notable Oregon Court of Appeals ruling upholds broad clemency grants against legal challenges

Fans of clemency law and history will want to be sure to check out a big recent ruling by the Oregon Court of Appeals in Marteeny v. Brown, 321 Or App 250 (Aug. 10, 2022) (available here). The start of the 40+-page opinion provides an effective overview of its coverage:

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals “vulnerable to the effects of COVID-19,” (2) individuals who had fought “the historic wildfires that ravaged the state around Labor Day 2020,” and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill (SB) 1008 (2019), sec-25 of which was codified as ORS 144.397.  SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive.  The effect of the Governor’s commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators — Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators) — petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS “to honor and follow all procedural and substantive provisions of Oregon law.”  In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below.  But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law.  The arguments and emotions present in this case echo through the centuries.  The power to pardon, sitting within a singular executive — be they monarch, president, or governor — has always been controversial, seemingly at odds with legislative determination and judicial decision-making.  Whenever it has been used, it has lauded by some, and condemned by others.  We are not called here to judge the wisdom of the Governor’s clemency of these 953 individuals; that is a political question.  We are tasked solely with determining her authority to do so under Oregon law.  And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

Rounding up some sentencing news and notes for the week that was

Because I was on the road for much of this week, I was unable to blog about all the crime and sentencing stories and commentaries that caught my eye.  (Then again, much of the world was understandably much more concerned with a particular high-profile search than about any sentencing news this week.)  Making up for lost time, here are a few recent items worth finding the time to check out:

From the ABA Journal, "ABA provides 10 principles for ending mass incarceration and lengthy prison sentences"

From Bolts, "Michigan Supreme Court Restricts 'Cruel' Treatment of Youth in Run of Major Decisions"

From the Death Penalty Information Center, "American Psychological Association Overwhelmingly Votes to Adopt Resolution Opposing Death Penalty for Adolescents Aged 18 – 20"

From FiveThirtyEight, "How Democrats And Republicans Think Differently About Crime And Gun Violence"

From Fox News, "I spent time in prison for robbing a bank. Here’s how we prevent ex-cons from going back to jail"

From Fox News, "Former Trump adviser Ja'Ron Smith launches public safety coalition to reduce violent crime"

From The Hill, "Securing public safety without mass incarceration or deepening racial injustice"

From Inquest, "Federal Time: Congress' rush to respond to recent mass shootings repeats historic mistakes that fueled mass incarceration"

From the Phoenix New Times, "Clemency Denied for South Phoenix Man Serving 16-Year Pot Sentence"

From The Sentencing Project, "Repurposing Correctional Facilities to Strengthen Communities"

"The Arbery case is heinous, but his killers’ sentences are extreme"

The title of this post is the headline of this notable new Washington Post commentary (which, as of noon Friday already prompted well over 3000 comments). The piece is authored by David Singleton, and I recommend it in full. Here are excerpts:

As a human being, I felt nauseated watching the video of Ahmaud Arbery being shot to death by three White men who had hunted him down as he jogged through a Brunswick, Ga., neighborhood.  As a Black man, I feared that Arbery’s killers would escape justice before an almost all-White jury in a state court.  And as a political progressive committed to dismantling white supremacy, I was relieved when the jury found Arbery’s killers guilty of murder.

Yet the punishments the three men received — in the state case, life in prison for William “Roddie” Bryan, who joined the pursuit of Arbery and recorded the incident with his cellphone, and life in prison without parole for Gregory McMichael and his son Travis, who fired the fatal shots; and just this week in the federal case, two more life sentences plus additional years for the McMichaels and 35 years for Bryan — left me questioning whether such lengthy sentences are what justice requires.  As a former public defender who now works to end mass incarceration and the extreme sentences that contribute to it, I believe the answer is clear: no....

Contrary to what many believe, mass incarceration is not the result of locking lots of people up for low-level, nonviolent crimes.  According to such sentencing experts as Marc Mauer and Ashley Nellis, life and other extreme sentences are the real drivers of the 500 percent increase in the prison population over the past 40 years.  In their book “The Meaning of Life: The Case for Abolishing Life Sentences,” Mauer and Nellis note that one out of seven people in prison in the United States has been sentenced to life.  They say that lengthy sentences make no sense from a public safety perspective, given that most people age out of committing violent crimes by their mid-20s. Additionally, continuing to imprison people long past the time when they can be safely released is expensive, especially when they are elderly.

But the economic costs of mass incarceration are not the only costs.  To paraphrase Bryan Stevenson and Sister Helen Prejean, people should not be defined forever by the worst things they’ve done.  But a life sentence, especially life without parole, does just that.  When we keep people incarcerated who have transformed themselves behind bars, are no longer dangerous, and have the potential to be productive citizens, we all lose....

If we are to end mass incarceration, state and federal authorities must eliminate such draconian punishment and enact laws that allow judges to revisit sentences based on the incarcerated person’s demonstrated rehabilitation and fitness to live in society.  Meanwhile, although I am relieved that Arbery’s murderers are being held accountable, I hope they will someday be released — after they have served an appropriate period of their sentences and demonstrated their fitness to return to society.

Prior related posts:

• Sentencing basics for defendants convicted of murdering Ahmaud Arbery 
• Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole 
• Federal judge rejects binding sentencing federal plea deal for men who killed Ahmaud Arbery
• Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?
• Two federal LWOP sentences and a 35-year term for Ahmaud Arbery's killers 

Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison

Last week, as discussed in this post, Guy Reffitt, the first Jan. 6 defendant to be convicted at a jury trial (rather than through plea), was sentenced to 87 months in federal prison.  This AP piece reports on today's sentencing of another Jan 6 defendant conviction at trial and the similar outcome (coming from a different sentencing judge):

An off-duty Virginia police officer who stormed the U.S. Capitol on Jan, 6, 2021, with a fellow officer was sentenced Thursday to more than seven years in prison, matching the longest prison sentence so far among hundreds of Capitol riot cases.

Former Rocky Mount Police Sgt. Thomas Robertson declined to address the court before U.S. District Judge Christopher Cooper sentenced him to seven years and three months in prison.  Cooper also sentenced Robertson to three years of supervised release after his prison term.

Federal prosecutors had recommended an eight-year prison sentence for Robertson.  His sentence equals that of Guy Reffitt, a Texas man who attacked the Capitol while armed with a holstered handgun.  Robertson gets credit for the 13 months he has already spent in custody.  Robertson has been jailed since Cooper ruled last year that he violated the terms of his pretrial release by possessing firearms.

The judge said he was troubled by Robertson's conduct since his arrest — not only his stockpiling of guns but also his words advocating for violence.  After Jan. 6, Robertson told a friend that he was prepared to fight and die in a civil war and he clung to baseless conspiracy theories that the 2020 election was stolen from then-President Donald Trump, the judge noted.

Sentencing guidelines calculated by Cooper recommended a prison term ranging from seven years and three months to nine years.  “It's a long time because it reflects the seriousness of the offenses that you were convicted of,” the judge said.

In April, a jury convicted Robertson of attacking the Capitol to obstruct Congress from certifying Joe Biden’s 2020 presidential victory.  Jurors found Robertson guilty of all six counts in his indictment, including charges that he interfered with police officers at the Capitol and that he entered a restricted area with a dangerous weapon, a large wooden stick....

Robertson traveled to Washington on that morning with another off-duty Rocky Mount police officer, Jacob Fracker, and a third man, a neighbor who wasn't charged in the case.  Fracker was scheduled to be tried alongside Robertson before he pleaded guilty to a conspiracy charge in March and agreed to cooperate with federal authorities. Cooper is scheduled to sentence Fracker next Tuesday.

Prosecutors have asked Cooper to spare Fracker from a prison term and sentence him to six months of probation along with a period of home detention or “community confinement.”  They said Fracker's “fulsome” cooperation and trial testimony was crucial in securing convictions against Robertson.

Robertson's lawyer, Mark Rollins, sought a prison sentence below two years and three months. He questioned the fairness of the wide gap in sentences that prosecutors recommended for Robertson and Fracker given their similar conduct. Robertson served his country and community with distinction, his lawyer told the judge. “His life already is in shambles,” Rollins said....

In a letter addressed to the judge, Robertson said he took full responsibility for his actions on Jan. 6 and “any poor decisions I made.” He blamed the vitriolic content of his social media posts on a mix of stress, alcohol abuse and “submersion in deep ‘rabbit holes’ of election conspiracy theory.” “I sat around at night drinking too much and reacting to articles and sites given to me by Facebook” algorithms, he wrote.

A few of many prior related posts:

• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing 
• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?
• Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions
• District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

Man beats his dog ... and gets 25 years in a Texas prison!?!

I just saw a discussion of what sound like a remarkable local sentencing case out of Texas.  This local story, headlined "San Antonio man handed one of Texas' longest ever animal abuse prison sentences," provides these basics:

A San Antonio man is headed to prison on one of the longest sentences for animal abuse in Texas History.

Animal Care Services said that Frank Javier Fonseca was sentenced to 25 years in prison on animal abuse charges for a violent beating of his puppy, which was captured on video. He was sentenced in June and has previous felony convictions that include drug possession and crimes of retaliation, according to an ACS news release.

The video was captured in February 2019, showing Fonseca repeatedly hitting his young Rottweiler puppy named Buddy with his fists and a piece of wood, as well as kicking and choking the dog. ACS said the video was recorded by "an anonymous Good Samaritan." Court records show Fonesca was arrested in September 2021.

The 56-year-old San Antonio man told ACS that he was disciplining the dog for leaving his yard on Fenfield Avenue. Buddy survived the abusive attack and is now living with a new adoptive family, officials said.

This new Reason commentary, authored by Billy Binion, rightly questions this outcome under this full headline: "A 25-Year Prison Sentence for Beating Up a Dog Is Not Justice: Frank Javier Fonseca's punishment, which may amount to a life sentence, is a microcosm for many of the issues with the U.S. criminal legal system."  

A quick google search has not turned up much more information to justify or even fully explains what seems like a severe outcome, though I suppose I should never be too surprised by the lengthy sentences that can be and often are imposed under various habitual offender statutes.

"When a Prison Sentence Becomes Unconstitutional"

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

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

Visiting "The Visiting Room Project"

This week brought the launch of "The Visiting Room Project," a great new oral history project and website.  This new Guardian article provides an overview under the headline "An extraordinary story of forgiveness: from life without parole to finding grace; A new project gives a voice to people serving life sentences in Louisiana – and brought together two men whose lives collided in tragedy." Here is how the site itself describes the project at this link:

The Visiting Room Project is a digital experience that invites the public to sit face-to-face with people serving life without the possibility of parole to hear them tell their stories, in their own words.  More than five years in the making, the site is the only collection of its kind, containing over 100 filmed interviews with people currently serving life without parole.  The interviews were filmed at Angola, the Louisiana State Penitentiary, which is, in many ways, the epicenter of life without parole sentences worldwide.  As of 2022, more than 55,000 Americans are living in prisons serving life without parole, their lives largely hidden from public view.

Marcus Kondkar and Calvin Duncan created The Visiting Room Project.  Marcus is chair of the sociology department at Loyola University New Orleans, where he researches incarceration and sentencing patterns.  Calvin is an expert in post-conviction law. After being wrongfully convicted and sentenced to life without parole, he served 28½ years in Louisiana prisons before winning his freedom in 2011.  Originally, Marcus and Calvin gathered information on life sentences for an academic audience, but, due to their shared belief that the public needs to hear directly from people who had served decades in prison, their collaboration became The Visiting Room Project, documenting stories of growth behind prison walls.  Arthur Carter, who has served more than 30 years of a life sentence, captured the meaning of The Visiting Room Project during his interview, stating, “If I have to die here, I appreciate this opportunity to be able to let my voice be heard.”

This is a living project that didn’t conclude when the last interview was filmed. Instead, the project team and the men who were interviewed together created The Visiting Room Collaborative to share and document the continuing impact of these life stories.  The Visiting Room Collaborative has two missions.  First, to ensure that the participants’ loved ones and communities have access to their interviews.  Secondly, to create opportunities for public audiences to engage with the project material through exhibits, screenings, and collaborations with artists.  As The Visiting Room Project continues to evolve, this site will be updated with new information.

"Is the Principle of Desert Unprincipled in Practice?"

The title of this post is the title of this notable new article authored by Marah Stith McLeod now available via SSRN.  Here is its abstract:

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

Dozens of Oklahoma lawmakers call for new hearing before next month's scheduled execution of Richard Glossip

As reported in this Guardian piece, a "letter signed by 61 Oklahoma lawmakers — most of them pro-death penalty Republicans — has been sent to the state’s attorney general calling for a new hearing in the case of Richard Glossip, a death row inmate scheduled to be executed next month."  Here is more:

Forty-four Republican and 17 Democratic legislators, amounting to more than a third of the state assembly, have written to John O’Connor pleading for the new hearing.  The outpouring of concern is an indication of the intense unease surrounding the Glossip case, and the mounting fear that Oklahoma is preparing to kill an innocent man.

Glossip, 59, is due to be killed on 22 September as part of a sudden speeding up of capital punishment activity in Oklahoma.  He was sentenced to death for the 1997 murder of Barry Van Treese, the owner of a Best Budget motel in Oklahoma City, where Glossip was manager.

Justin Sneed, the motel’s maintenance worker, admitted that he had beaten Van Treese to death with a baseball bat. But Sneed later turned state’s witness on Glossip, accusing the manager of having ordered the murder.  As a result, Sneed, the killer, avoided the death penalty and was given a life sentence.  Glossip was put on death row almost entirely on the basis of Sneed’s testimony against him, with no other forensic or corroborating evidence.

In their letter, the 61 legislators ask the attorney general to call for a hearing to consider new evidence that has been uncovered in the case.  Last year a global law firm, Reed Smith, was asked by state lawmakers to carry out an independent investigation.  Their 343-page report found that the state had intentionally destroyed key evidence before the trial.  The review concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder”.

Glossip’s scheduled execution forms part of an extraordinary glut of death warrants that have been issued by Oklahoma in recent weeks. In July, the state received court permission to go ahead with 25 executions at a rate of almost one a month between now and December 2024....

The first scheduled execution of the 25 is that of James Coddington, 50, on 25 August.  Coddington’s fate is now in the hands of Kevin Stitt, Oklahoma’s Republican governor, after the state’s parole board recommended that he commute the prisoner’s sentence to life without parole.  The clemency petition pointed out that Coddington had been impaired by alcohol and drug abuse starting when he was a baby.  It said he had shown full remorse for having murdered Albert Hale, a friend who had refused to lend him $50 to buy cocaine.

"Rethinking the Civil-Criminal Distinction"

The title of this post is the title of this book chapter authored by Lauren Sudeall and now available via SSRN. Here is its abstract:

In the legal world, we operate on the premise that our civil and criminal justice systems are distinct.  As a result of this siloed approach, courts, court rules, procedural protections, legal services, and legal communications typically turn or focus exclusively on one side of this divide or the other.  Yet individuals’ lived experiences do not always fall cleanly along those lines — they may experience sanctions differently than the law has categorized them or encounter one situation that gives rise to civil and criminal legal issues.  Today, civil sanctions are increasingly punitive, while fines and incarceration are no longer distinctly criminal consequences.  These realities undermine historical rationales for the civil-criminal divide and make the justifications for that divide increasingly incoherent.

The civil-criminal divide presents more than a conceptual or theoretical problem.  The rigid line between civil and criminal legal issues prevents us from addressing all facets of an individual’s situation in a single court system. Instead, we require that people have multiple interactions with civil and criminal court systems, which can drain both their time and their resources.  It becomes harder for them to address or protect against civil consequences arising from a criminal charge or conviction.  By failing to inform people engaged with one sphere of the system about legal problems in the other sphere, we lose critical opportunities for intervention and education — particularly among populations in need of assistance.  Because people do not silo their problems into criminal and civil categories, they face additional barriers to obtaining assistance: people go to the wrong legal systems and find courts and legal providers who may be ill-equipped to redirect them.  The resulting frustration and the inability to find the help they need may give some people a cramped view of the law’s potential to address their problems.

In this chapter, I explain how the civil-criminal distinction influences our understanding of the legal system and explore the problems it creates for litigants and those assisting them.  In doing so, I employ a broad definition of “evidence-based” reform.  In my view, evidence relevant to criminal justice reform consists not only of quantitative data, such as the likelihood of recidivism and incarceration rates, but also of qualitative and even perceptual data, which shed light on how the system works (or doesn’t) and how and why quantitative data are generated.  In the context of this chapter, I focus specifically on how the civil-criminal distinction fails to align with — and may even exacerbate — the lived experience of many system-impacted individuals, demonstrable primarily through qualitative data.  I encourage readers to question the civil-criminal distinction and to ask: What would happen if we didn’t view the two as distinct?  To what degree are the differences between civil and criminal justice a function of the separation we have chosen to create rather than any inherent distinction? And is the civil-criminal divide born more from a need to organize the courts and service providers than it is to resolve problems most effectively for litigants?  I conclude that a merged vision of civil and criminal justice may better align with the understanding and experiences of system-impacted individuals and may better equip the legal system to respond to their problems.

In this chapter I call on systemic actors and service providers to minimize the different treatment of civil and criminal issues and to collaborate to the greatest extent possible, wherever the civil-criminal distinction creates barriers to justice for individuals or inefficiencies for courts.  Even if doctrinal divisions persist, policy makers can engage in practical applications of this idea, rethinking how to structure the resolution of legal issues, provide legal services, and disseminate legal education to individuals and communities.  

Two federal LWOP sentences and a 35-year term for Ahmaud Arbery's killers

In this post six months ago, I asked "Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?". The answer turns out to be no, as detailed in this NBC News article about today's sentencing:

The father and son convicted of murdering Ahmaud Arbery were both given an additional sentence of life in prison Monday on federal hate crime charges, while their neighbor was sentenced to 35 years in prison. A judge also required that Travis McMichael, 36, Greg McMichael, 66, and William “Roddie” Bryan, 52, serve their sentences in state prison, not federal prison as had been requested by their attorneys.

"A young man is dead. Ahmaud Arbery will be forever 25. And what happened, a jury found, happened because he’s Black," U.S. District Judge Lisa Godbey Wood said during Greg McMichael's sentencing.

The McMichaels and Bryan, who are all white, were found guilty in February on federal hate crime charges in the killing of Arbery, a Black man who was running in their neighborhood when the defendants confronted him in February 2020. The three men were convicted of all of the federal charges against them, including hate crimes, attempted kidnapping and the use of a firearm to commit a crime.

Prosecutors sought life sentences for all three men. However, Godbey Wood said she thought it was necessary to distinguish Bryan from the McMichaels, in part because unlike his neighbors, he did not bring a gun with him when the men chased Arbery. "It is not lost on the court that two men brought guns to that situation that had their worst effect and you weren’t one of them," she said. She added, however, that Bryan was “still deserving of an awfully long sentence."...

The federal case followed a state trial in November in which the men were convicted of murder and given life sentences. They have appealed their convictions in that case.

Prior related posts:

• Sentencing basics for defendants convicted of murdering Ahmaud Arbery 
• Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole 
• Federal judge rejects binding sentencing federal plea deal for men who killed Ahmaud Arbery
• Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?

"'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage"

The title of this post is the title of this new paper authored by Michael Perlin, Talia Roitberg Harmon and Haleigh Kubiniec now available via SSRN. Here is its abstract:

Some fifteen years ago, in Panetti v. Quarterman, 551 U.S. 930, 956 (2007), the Supreme Court ruled that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”  In a recent paper, two of the authors (MLP & TRH) analyzed the way the Fifth Circuit had construed that case, and concluded that that court “has basically ignored Panetti’s holdings in all its decisions.” See “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. LOUISVILLE L. REV. 557, 578 (2022).  In this article, we expand that inquiry to consider how all federal circuits have interpreted Panetti, and we find that Panetti has never -- with the exception of one case, later vacated -- been a remedy upon which defendants with serious mental illness facing the death penalty could rely.

We analyze all the circuit-level Panetti decisions, and consider the case law through a therapeutic jurisprudence (TJ) filter, concluding that this body of cases violates all TJ precepts, and offer a series of recommendations -- as to issues related to adequacy of counsel, the need for databases of experts competent to testify in such matters, the need for other scholars to study the cases we discuss here, and to seek to breathe new life into arguments made some years ago barring the death penalty in all cases of defendants with serious mental illness -- to, we hope, ameliorate this situation in the future.

Interesting Eight Circuit panel ruling rejecting district judge's refusal to dismiss counts in plea process

Thanks to this round up of circuit rulings, I just saw an interesting little Eight Circuit panel ruling in US v. Bernard, No. 21-3412 (8th Cir. Aug. 2, 2022) (available here).   Here are the essential, though interesting folks should check out the full opinion:

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.