Sentencing Law and Policy

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer.   This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:

U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....

Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.

Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:

[W]hile he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment.  But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is.  It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).  As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.

This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.

Prior related post:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

US Sentencing Commission releases notable new report on recidivism rates for federal prisoners completing drug programs

The US Sentencing Commission today released this lengthy new report titled "Recidivism and Federal Bureau of Prisons Programs: Drug Program Participants Released in 2010." This report is the fifth in a series continuing the USSC's detailed examination of recidivism by federal offenders released in 2010.  This USSC webpage provides this brief account of the coverage and findings of the report:

In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) drug abuse treatment while incarcerated. The study examines whether completion of drug programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010. The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Drug Program Participants were offenders who participated in one of the following programs:

• Residential Drug Abuse Program (RDAP)
  • The first group comprises 8,474 offenders who the BOP marked as eligible to participate in RDAP while serving time in BOP custody.
  • RDAP is the BOP’s “most intensive” drug treatment program and requires that participants receive treatment in a specialized unit that houses only RDAP participants
     
• Non-Residential Drug Abuse Program (NRDAP)
  • The second group comprises 4,446 offenders who were marked as eligible to participate in NRDAP.
  • NRDAP consists of drug treatment, conducted primarily in a group setting, over the course of 12 to 24 weeks.

  Key Findings

  This study observed a significant reduction in the likelihood of recidivism for offenders who completed the Residential Drug Abuse Treatment Program or the Non-Residential Drug Abuse Treatment Program.

  • RDAP Completers had lower rates of recidivism, compared to eligible offenders who did not complete or participate in the program. Less than half of RDAP Completers (48.2%) recidivated in the eight-year follow-up period of this study, compared to 68.0 percent of RDAP Eligible Non-Participants.
    • RDAP Completers were 27 percent less likely to recidivate compared to RDAP-Eligible Non-Participants.
    • RDAP Completers had higher post-release rates of drug-related recidivism, compared to RDAP Participants and RDAP Eligible Non-Participants.
  • NRDAP Completers had lower recidivism rates compared to offenders who did not complete or participate in the program. Nearly half (49.9%) of offenders who completed NRDAP recidivated during the study period, compared to over half (54.0%) of NRDAP Eligible Non-Participants.
    • NRDAP Completers were 17 percent less likely to recidivate compared to eligible non-participants and offenders with a history of substance abuse who served at least five months in BOP custody.

"Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine"

The title of this post is the title of this new piece now available via SSRN authored by Mariah Haley. Here is its abstract:

COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019.  In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death.  Almost as soon as the pandemic began in the United States, people in prison — especially those with preexisting conditions — turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.

This Note examines how federal courts have considered compassionate release requests during the pandemic.  The Note further explores the disparate outcomes resulting from the vast judicial discretion within the compassionate release space.  While no two compassionate release cases are the same, with cases very fact-intensive, this Note argues that the current system results in inequitable geographical-based outcomes.  In concluding, this Note calls on the United States Sentencing Commission to offer guidance to federal courts on how to approach compassionate release requests in the context of the First Step Act and the ongoing COVID-19 pandemic.

Will feds consider a capital prosecution of the racist Buffalo mass murderer?

A little less than seven years ago, I asked in this post whether the state of South Carolina or the feds (or both) would capitally prosecute racist mass murderer Dylann Storm Roof after he slaughtered nine people at a historic black church in Charleston.  The feds decided to take the lead pursuing and securing a federal death sentence for Roof, which he is currently appealing to the Supreme Court.

Sadly, this past weekend saw another horrific racist mass murder in Buffalo.  But this time, because New York does not have the death penalty, only the feds are in a position to pursue a capital prosecution.  This local article, headlined "Many paths possible in prosecution of man accused of slaying 10 at Tops," provides this account of the legal lay of the land:

The Erie County District Attorney's Office and federal prosecutors each will have the chance to prosecute the man accused of slaying 10 people and wounding three others in Saturday's hate-inspired attack in a predominantly Black neighborhood in Buffalo.

But there is no definitive answer yet on precisely what that process will look like. Payton S. Gendron, 18, already faces a state charge of first-degree murder for the massacre at the Tops Markets on Jefferson Avenue. Federal authorities have said they are investigating the mass killing "both as a hate crime and racially motivated violent extremism."

While New York State has no death penalty, the federal government does. A decision by federal prosecutors on whether to seek the death penalty is likely months away, according to veteran area defense attorneys.

Gendron can simultaneously face charges in both state and federal court, or one case can proceed before the other. Being charged in both state and federal courts would not violate the constitutional prohibition on "double jeopardy" because both levels of authority have jurisdiction at the same time, said Thomas J. Eoannou, a defense attorney who is not involved in representing Gendron. "The legal process will be very involved," Eoannou said, even though the evidence "appears, at this point, to be overwhelming."

If convicted of first-degree murder in state court, the maximum sentence Gendron faces is life in prison with no possibility of parole.... Gendron currently faces a murder count that encompasses all 10 victims who were killed, and county prosecutors are still evaluating potential options for what he may be charged with, the district attorney said....

It will be "fairly easy" for federal prosecutors to charge Gendron with a hate crime, based on the contents of his racist diatribe and what was written on the gun he used, defense attorney Paul J. Cambria Jr. said....

Some attorneys, including Eoannou and Joseph J. Terranova, said they expect the federal prosecution to happen first. A recent case similar to what happened here, Eoannou said, is that of Dylann Roof, who killed nine people at an historically Black church in Charleston, S.C., in 2015. Roof was first prosecuted federally and received the death penalty. Then he pleaded guilty in state court.

The decision on whether to seek the death penalty would come from U.S. Department of Justice officials in Washington, D.C., and a federal jury's decision to impose the death penalty would have to be unanimous, Eoannou said.

SCOTUS finally grants cert to clarify paths of federal collateral review based on 2241 (and savings clause of 2255)

The Supreme Court this morning issued an order list with lots of cert denials, but one cert grant that ought to interest sentencing fans.  Specifically, the Justices took up Jones v. Hendrix, No. 21-847, which concern the availability of collateral review by federal prisoners in federal courts.  Here is how SCOTUSblog briefly describes the issue in this case:

Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

A review of the cert petition shows that Marcus DeAngelo Jones was sentenced to over 27 years in federal prison on gun charges back in 2000 and now wants to be able to press a claim based on Rehaif. Here is how this petition sets forth the question presented:

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by this Court. 28 U.S.C. § 2255(h).  28 U.S.C. § 2255(e), however, also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.”

The question presented is whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

The cert petition goes on to note that federal courts and commentators have been urging SCOTUS to take up this issue for many years because of the deep split in circuit jurisprudence.

"The Prosecutor Lobby"

The title of this post is the title of this new article on SSRN authored by Carissa Byrne Hessick, Ronald Wright and Jessica Pishko. Here is its abstract:

Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process.  The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform.  In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America.  Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby.  Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform.  By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature.  We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission"

In this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running every Tuesdays in May at 12noon ET, which means the third panel is scheduled taking place this coming Tuesday, May 17th.  This panel is titled "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission," and the discussion is especially timely given Prez Biden's nomination of seven people to the US Sentencing Commission just last week.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this latest panel:

Elizabeth Blackwood, Counsel & Director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyer

Marisa Taney, Associate at Debevoise & Plimpton LLP, Holloway Project

I had the honor of helping to moderate the final panel, which airs next week, and it is titled Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET).

Prior related posts:

• Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"
• Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court" 
• Register for "State Sentencing Commissions Work Towards Decarceration" 

"Plea Bargaining’s Uncertainty Problem"

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

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself.  Critics’ primary target is the “trial penalty.”  But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt.  And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity.  Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining.  It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved.  Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key.  And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process — this country’s dominant mechanism for resolving criminal cases.  Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

Split Second Circuit panel debates required procedures for imposing more than a year when revoking supervised release

A helpful reader made sure I did not miss the interesting and lengthy Second Circuit panel discussion in US v. Peguero, No. 20-3798 (2d Cir. May 13, 2022) (available here).  The issue generating lengthy discussion in the case concerns the required procedures for revoking his term of supervised release.  Here is portion of the majority opinion: 

Although the issue was neither raised nor briefed by either party, the dissent asserts that Section 3583(e)(3), which allows a judge to revoke supervised release based upon a finding of new criminal conduct, is unconstitutional.  In particular, the dissent contends that a revocation hearing based on new conduct punishable by more than one year in prison violates a defendant’s right to indictment, right to confront witnesses, right to a jury trial, and right to remain free unless proven guilty beyond a reasonable doubt.  In support of this proposition, the dissent relies upon the “essential differences” between terms of probation or parole — which the dissent contends do not require such constitutional protections — and supervised release.  We respectfully disagree.

As an initial matter, the dissent’s proposed holding is contrary to our well-settled precedent, from which this panel is not free to deviate.  In addition to the requirement that we adhere to binding precedent, we conclude that the dissent’s approach is unsupported by the Constitution itself in light of the clear and direct connection between a supervised release term (and its accompanying conditions) and the original conviction and sentence.  Moreover, we are unpersuaded by the dissent’s contention that there are distinctive characteristics of a supervised release revocation proceeding, as compared to parole and probation, that would justify the differing constitutional protections the dissent proposes. Finally, we believe that the dissent’s proposed rule would have a drastic and devastating impact on the effective functioning of the criminal justice system.

The dissent by Judge Underhill starts this way:

Carlos Peguero was sentenced to twenty-eight months in federal prison for criminal conduct proscribed by the State of New York.  Peguero was not federally indicted for the felony crime of assault, was denied the right to confront witnesses against him, was never advised of his right to a jury trial, and was found “guilty” by a preponderance of the evidence.  In short, Peguero was imprisoned without being afforded any of the fundamental Constitutional rights that protect citizens from arbitrary imprisonment by the government.

I acknowledge that the district court acted consistently with existing precedent of this Court, and that the majority feels constrained to follow that precedent and to affirm.  Importantly, however, no decision of the Supreme Court or this Court has ever analyzed whether a person on supervised release facing violation charges punishable by more than one year in prison has a right to indictment on those charges.  Nor has either Court ever held that proceedings that require indictment do not constitute a “prosecution” and therefore can be decided without affording the accused his Sixth Amendment rights.  Because this appeal raises Confrontation Clause issues, and because I conclude that Peguero had the right to be indicted for his claimed supervised release violations, I further conclude that he had the right to confront witnesses against him.  In my view, prior decisions allowing a judge to sentence a person to prison for more than a year based on a violation of supervised release without providing such essential Constitutional protections are misguided and based on unsupportable legal fictions.  Accordingly, I respectfully dissent.

Federal prison population up a lot more than another 1,500 persons in a little more than a month

Regular readers are now used to my regular monthly posts about the federal prison population based on Bureau of Prison data.  These posts of late have regularly noted significant and steady population growth in recent months  In this post on March 18, I noted that the federal prison population had grown by over 1,100 persons in just four weeks from mid February and mid March.  And this post on April 8 noted that it then took only three weeks for another 1000+ person surge of federal prisoners between mid March and early April. 

The federal Bureau of Prisons now has updated reporting of "Total Federal Inmates" as of May 12, 2022, and these basic growth trends are continuing.  As of April 7, 2022, the official BOP count was at 155,274, but now as of May 12, the total number of federal inmates is at 156,939.  So, in just the last five weeks, there has been another 1,655 more federal prisoners added to the population compared to the total in early April.  If this pace of federal prison growth continues in coming months, it is quite possible that 2022 could experience a level of federal incarceration growth we have not seen in decades. 

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."   To his credit, since my last posting on prison population, Prez Biden did grant 75 commutation to federal inmates (most of whom were already serving their time on home confinement).  But a one-time grant of 75 clemencies necessarily looks somewhat paltry in the face of week-over-week-over-week-over-week federal prison population growth averaging more than 300 persons.

Spotlighting ever longer stays on death row before executions

NPR has this lengthy new piece headlined "U.S. inmates condemned to die are spending more time on death row." I recommend the full piece, and here are excerpts from the beginning:

After spending decades on Arizona's death row, Clarence Dixon was executed on Wednesday for the 1978 murder of Deana Bowdoin.  At 66 years old, Dixon is just the most recent example of the growing population of aging inmates on America's death row.

"We're seeing death sentences near record lows. We're seeing executions at near record lows," Robert Dunham, the executive director of the Death Penalty Information Center, told NPR. "There are fewer and fewer people on death row overall and the ones who remain on death row have been there longer."...

The average time between sentencing and execution has increased by two-thirds in the past 20 years — from 11.4 years in 2000 to 18.9 years in 2020, according to the most recent available data from the Bureau of Justice Statistics.  Experts who spoke to NPR said this trend is due, in part, to changed opinions on capital punishment in the U.S., and a lengthier appeals process that delay executions.

For victims' families and these inmates, waiting decades to see their cases resolved takes its toll.  Some experts say 20 to 40 years on death row at the literal expense of the state raises questions of fair treatment of prisoners....

As of 2020, the average age of death row inmates nationally was 52 years old, according to the Bureau of Justice Statistics.  More than 56% were white, 41% were Black. Men made up the majority of those prisoners — about 98%.

New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls

The folks at The Sentencing Project have assembled some fascinating data on the number of incarcerated women at this site and in this fact sheet. Here is part of their description of the fact sheet:

Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020.  The total count in 2020 represents a 30% reduction from the prior year — a substantial but insufficient downsizing in response to the COVID-19 pandemic, which some states began to reverse in 2021.

Research on female incarceration is critical to understanding the full consequences of mass incarceration and to unraveling the policies and practices that lead to their criminalization. The number of incarcerated women was nearly five times higher in 2020 than in 1980.

Incarcerated Women and Girls examines female incarceration trends and finds areas of both concern and hope.  While the imprisonment rate for African American women was nearly twice that of white women in 2020, this disparity represents a sharp decline from 2000 when Black women were six times as likely to be imprisoned.  Since then Black women’s imprisonment rate has decreased by 68% while white women’s rate has increased by 12%.

Similar to adults, girls of color are more likely to be incarcerated than white girls.  Tribal girls are more than four times as likely, and African American girls are more than three times as likely as white girls to be incarcerated.

All the data in the fact sheet are fascinating, and these particular data points really caught my attention:

• The rate of imprisonment for Black and Latinx women has declined since 2000, while the rate of imprisonment for white women has increased.

• Between 2000 and 2020, the rate of imprisonment in state and federal prisons declined by 68% for Black women, while the rate of imprisonment for white women rose by 12%....

• Women in state prisons are more likely than men to be incarcerated for a drug or property offense. Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 23% of incarcerated women have been convicted of a property crime, compared to 15% among incarcerated men.

• The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2019.

"Race-Norming and Statistical Discrimination: Beyond the NFL"

The title of this post is the title of this notable new paper authored by Sonja Starr and now available via SSRN. Here is its abstract:

This Article uses the recent NFL “race-norming” scandal — in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—  as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination.  The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal — yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL.  Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny.  Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages.  This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.

Arizona completes execution for murder committed 44 years ago

As reported in this local article, "Arizona executed Clarence Dixon at the state prison in Florence on Wednesday for the 1978 murder of 21-year-old ASU student Deana Bowdoin."  Here is more:

Dixon was executed at 10:30 a.m., according to Deputy Corrections Director Frank Strada. "I do and always will proclaim my innocence — now let's do this shit," Dixon said in his last statement, according to Strada.

Troy Hayden, a media witness from Fox News, said the execution team had trouble getting IVs into Dixon, who grimaced and appeared to be in pain while this was happening. Dixon seemed defiant and proclaimed his innocence in a calm voice.

Dixon made several comments to the medical team, insulted them, told them "they worshipped death," mocked their Hippocratic oath, and addressed the woman he was convicted of killing, Deana Bowdoin, according to Hayden. Hayden said Dixon referenced Bowdoin several times directly, and said she knew he didn't kill her.

Hayden said execution team members took 25 minutes to insert IVs into Dixon's body, eventually resorting to making an incision and inserting an IV into Dixon's groin. Dixon was grimacing and appeared to be in pain while the execution team attempted to insert the IVs, Hayden said, but he appeared to lose consciousness a few minutes after the drugs were administered. "They did have to wipe up a fair amount of blood," said Paul Davenport, a media witness from The Associated Press, who saw the incision taking place....

"Today the process has been finalized," said Leslie Bowdoin James, the sister of Deana Bowdoin, adding that her husband just died 12 days ago. Addressing the media, Bowdoin read a list of numbers that she said were important to her. "Forty-three and 20: the number of hearings and the number of years I have attended since the indictment," she said. "Thirteen: The number of women that this inmate victimized. One and zero: The number of sisters I had up until, and after, January 7, 1978."...

Gov. Doug Ducey issued a statement after Dixon’s execution, calling it justice served. “Today the family of Deana Bowdoin was provided the justice they've long been waiting for,” the governor’s statement stated. “The void left by Deana's murder 44 years ago will never be filled, but the sentence carried out this morning is a solemn reminder that we are a nation of laws and it is the responsibility of the state to enforce them.”

Dixon's attorneys made several attempts to stop or postpone the execution, maintaining he was mentally incompetent to understand why he was being executed. But multiple courts found that while Dixon may have harbored delusions about a judicial conspiracy to kill him, he was aware of his circumstances and constitutionally eligible to be put to death....

The Arizona Board of Executive Clemency denied requests from Dixon's attorneys for a commutation or reprieve.  His attorneys asked for mercy, saying Dixon was blind, frail and in poor health and didn't represent a danger to society or anyone in the prison system.  But the board denied the requests, saying Dixon had failed to show any remorse for his crimes....

Arizona has not carried out an execution since the botched execution of [Joseph] Wood, which took nearly two hours to complete.  The state claims it has refined its execution protocols and is planning to use a single drug, pentobarbital, for executions, instead of the combination of drugs that were used on Wood.  Pentobarbital was used successfully by the federal government in a series of executions conducted in 2020.

Dixon’s execution marks a return to the death penalty for Arizona after a troubled history that includes the state attempting to acquire execution drugs illegally in 2015 and more recently failing to accurately determine the shelf life of the pentobarbital the state plans to use moving forward....

According to the Arizona Attorney General's Office, there are more than 20 people on death row who have exhausted their appeals. Frank Atwood, sentenced in Pima County in 1987 for the murder of an 8-year-old girl, Vicki Lynne Hoskinson, is scheduled to be executed June 8.

Prez Biden finally announces a full slate of nominees to the US Sentencing Commission

As I have noted in a number of prior posts (some linked below), due to a lack of Commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for well over three years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  The USSC staff has completed lots of useful research and reports in the interim; but, with the FIRST STEP Act's passage in December 2018, it has been particularly problematic for the USSC to be non-functional in terms of formal amendments or agendas in recent years.

But today, nearly 16 month into his Administration, President Joe Biden has finally announced a full slate of seven Commissioner nominations to the US Sentencing Commission.  Here is the official announcement, headlined "President Biden Nominates Bipartisan Slate for the United States Sentencing Commission," and the basics about the seven nominees (which by statute have to be bipartisan and include at least three judges):

President Biden is announcing seven experienced and qualified nominees for the U.S. Sentencing Commission, a bipartisan independent agency created during the Reagan Administration.  The Commission was created to reduce sentencing disparities and promote transparency and proportionality in criminal sentencing. 

The Commission has lacked a quorum since 2019, which has prevented it from doing critical business. Today, President Biden is pleased to announce the nominations of these individuals — a bipartisan slate including the first Black chair of the organization — whose confirmations would allow the Commission to conduct its important work. 

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly.  (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.)  There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a "Huzzah!"

A few of many prior recent related posts:

• Any guesses for when we might again have a fully functioning US Sentencing Commission? 
• New commentary calling for Prez Biden to revive the US Sentencing Commission
• When might we expect appointments to a new — a truly new — US Sentencing Commission? 
• When might we expect advocacy groups to push Prez Biden make needed appointments to the US Sentencing Commission? 
• Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations 
• Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future"

Lots of notable parole stories from coast to coast

Parole is often a subject that generates headlines, and today I saw a notable number of notable stories from five states on the topic that seemed worth flagging.  In alphabetical order:

From California, "Medical Parole Got Them Out Of State Prison. Now They're In A Decertified Nursing Home"

From New Jersey, "In major reversal, N.J. Supreme Court orders parole of man convicted of murdering state trooper in 1973"

From New York, "New York’s longest serving inmate who murdered 14-year-old granted parole"

From Virginia, "Chances for Parole Go from Bad to Worse Under Virginia’s New GOP Leadership"

From Wisconsin, "Parole of killer in Wisconsin puts pressure on Evers"

"When a Second Chance Gets a Second Chance: Reasonableness Review Reigns for Motions Under Section 404(b) of the First Step Act on Appeal"

The title of this post is the title of this new comment now available on SSRN authored by Patrick Riley. Here is its abstract: 

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine.  Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine.  In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1.  However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act.  Those already sentenced under the 100:1 ratio were left without any recourse until the First Step Act was passed in 2018.

Section 404(b) of the First Step Act applied the changes made by the Fair Sentencing Act retroactively to defendants imprisoned for crack cocaine offenses before the Fair Sentencing Act was passed in 2010.  Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

This Comment reaches the same result as the second group for two reasons: (1) This Comment applies the sentencing modification in 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), to section 404(b) of the First Step Act; and (2) this Comment interprets the text and purpose of section 404(b) as a sweeping remedy granting district courts broad discretion — like initial plenary sentencings — that must be reviewed for reasonableness.

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Via email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

• 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

• 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

"Low Income, Poor Outcome: Unequal Treatment of Indigent Defendants"

The title of this post is the title of this new paper on SSRN authored by Nino Monea. Here is its abstract:

It is no secret that the law treats poor people worse than rich ones.  This is true in criminal law and everywhere else.  But some laws do not simply result in disparate impact upon the poor — the way they are written explicitly targets or disadvantages the poor.  This Article examines the spectrum of expressly biased laws in four major categories.

First, laws that criminalize poverty: bans on poor housing or no housing, traffic laws that require nothing more than paying for things, and cash bail that imprisons people without access to credit.  Second, courts impose an enormous number of unwaivable fees at every step of the criminal justice system, and failure to pay results in incarceration — a modern day debtor prison.  Third, many criminal procedure rules place the needy on unequal footing.  Only indigent defendants are required to suffer reduced expectations of privacy, disclose certain information, face judicial scrutiny, endure low caps on what their attorneys can be paid, or go into hearing without an attorney.  And fourth, after conviction, these defendants face unique hurdles to recover for wrongful imprisonment or expensive expungement processes.