Sentencing Law and Policy

"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.

Lots of news and notes about federal prisons as leadership transitions

This official posting by the federal Bureau of Prisons, headlined "Attorney General Swears in Colette S. Peters," reports on the official transition of leadership for our national prisons agency.  Here is how it starts:

On Tuesday morning, August 2, 2022, Attorney General Garland officiated the Investiture of Colette S. Peters as the 12th Director of the Federal Bureau of Prisons. In his opening remarks, the Attorney General said the mission of the Department of Justice is to "uphold the rule of law, keep our country safe and protect civil rights. And that mission depends on an effective, safe and humane correctional system."

As highlighted by the news and commentary about various federal prisons matters from various outlets, there are plenty of old problems for a new BOP leader to deal with both short- and long-term:

From the AP, "US keeping ex-prison chief as top adviser after rocky tenure"

Also from the AP, "Senate to hold hearing on crisis-plagued federal prisons"

From The Marshall Project, "She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System?"

From Reason.com, "Biden's New Bureau of Prisons Director Won't be Able To Run Away From the Agency's Corruption"

Also from Reason.com, "Federal Government Under Fire Over Conditions at Atlanta Federal Prison"

From the Washington Post, "U.S. prison officials resist making inmates pay court-ordered victim fees"

ABA House of Delegates considering a number of notable sentencing resolutions

As detailed in this ABA news release from last week, the "American Bar Association’s policymaking body, the House of Delegates, convenes next month to conclude the ABA 2022 Annual Meeting with more than 30 items on the agenda, including several resolutions that address the country’s incarceration challenges and other criminal justice issues." Here is more from the release with links to some key sentencing-related resolutions being considered:

The in-person-only ABA 2022 Annual Meeting begins on Wednesday, Aug. 3. The House, known as the HOD, encompasses 583 delegates from ABA entities and state, local and specialty bar associations and meets Aug. 8-9....

With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national developments during the past few weeks....

Resolution 501 offers the ABA Criminal Justice Standards on Diversion, which provide guidance on various aspects of diversion programs.  The standards are consistent with efforts to reduce collateral consequences; address over-criminalization; reduce incarceration; curtail the burden on and investment in the criminal legal system; and eradicate racial disparities throughout the system.

Resolution 502 urges governmental entities to enact legislation permitting courts to hear petitions that allow hearings to take a “second look” at criminal sentences where individuals have been incarcerated for 10 years.  The report to support the resolution noted that the U.S. is home to less than 5% of the world’s population but houses nearly 25% of the world’s prisoners, adding incarceration disproportionately impacts people of color.

A related Resolution 604 asks governmental entities to adopt the ABA Nine Principles on Reducing Mass Incarceration, suggesting governmental jurisdictions could immediately begin reducing the number of people they incarcerate by following the principles....

For details on all policy resolutions and other matters for consideration during the two-day session, click here. HOD proposals do not become ABA policy until approved by the House, which meets twice annually.

At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission

In this post in February, 2021, I asked "Any guesses for when we might again have a fully functioning US Sentencing Commission?".  If anyone guessed August 4, 2022, well done: the US Senate tonight voted to confirm all seven of Prez Biden's nominees to the USSC.  This Bloomberg Law piece, headlined "US Sentencing Commission Restocked After Senate Confirmations," starts its report on this exciting news this way:

The Senate confirmed President Biden’s seven nominees to the US Sentencing Commission, fully restocking the panel and giving it the quorum needed to create guidance for the first time since 2019.

The bipartisan group of nominees were confirmed by voice vote, or without a formal tally, Thursday night. The new panel will be led by US District Judge Carlton Reeves, who is the first Black chair in the commission’s history.

As a reminder, this post lists all the folks who tonight are officially US Sentencing Commissioners, and congrats to them all.

As I have noted in prior posts, not only has the USSC gone nearly four years without a quorum needed to complete official actions, it has not had a complete set of seven commissioners in place for the better part of a decade.  But now, thrillingly, the Commission is fully loaded (and I hope ready to roll like Herbie).

Historically, as can be seen at this USSC webpage, back when the US Sentencing Commission was functional, the Commission would usually announce its yearly proposed priorities in June and then finalize those priorities in August.  It will be interesting to see if the new fully loaded Commission will seek to move forward with announced priorities and possible amendments in the coming months or will need considerable time to get up and running effectively.  There are lots of matters, big and small, that need the attention of a functioning Commission, but doing it right is more critical than doing it fast.   

A few prior 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? 
• 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"
• Prez Biden finally announces a full slate of nominees to the US Sentencing Commission 

UPDATE: I am pleased to see this official USSC news release about the confirmations titled "Acting Chair Judge Charles Breyer, Incoming Chair Judge Carlton W. Reeves Applaud Senate Confirmation of New Commissioners." Here are excerpts:

The US Senate has confirmed a group of seven bipartisan members to serve on the US Sentencing Commission, providing the independent judicial branch agency with a voting quorum for the first time in more than three years. The Commission is charged with promoting transparency and proportionality in federal sentencing and reducing sentencing disparities.

The newly confirmed members of the Commission are District Judge Carlton W. Reeves, who will serve as Chair of the Commission; Circuit Judge Luis Felipe Restrepo, Laura Mate and Claire McCusker Murray, who are expected to be designated as Vice Chairs; District Judge Claria Horn Boom; former District Judge John Gleeson; and Candice Wong.

Upon appointment of the new Commissioners, current Acting Chair Senior District Judge Charles Breyer will step down from his position at the agency.

Judge Breyer said of the new Commissioners, “It is great news that the Senate has confirmed a full slate of seven bipartisan Commissioners. The lack of a quorum at the Sentencing Commission has created a void in the criminal justice system. As Senior US District Judge for the Northern District of California and Acting Chair of the Sentencing Commission, I know all too well the difficulty judges have faced in implementing the criminal justice reforms enacted by the First Step Act in 2018.”

“In addition, the Commission has been unable to provide guidance on a number of recent sentencing policy challenges, leaving the courts without uniform sentencing standards. The Sentencing Commission is vital to ensuring fairness and effectiveness of federal sentencing guidelines and policy.”

“These new Commissioners have an important task ahead of them. I am grateful to all of them for their willingness to serve in this important capacity, and I am honored and look forward to working with them.”

Incoming Chair Carlton W. Reeves, US District Judge for the Southern District of Mississippi said, “The criminal justice system has some troubling divisions that have emerged among courts on sentencing issues during the years the Commission lacked a quorum.”

“My new Commission colleagues are all highly experienced professionals with vast knowledge of and broad expertise in the criminal justice system.”

“Our diverse backgrounds and expertise will bode well as the Commission works to address these complex issues in a bipartisan matter.”

WNBA star Brittney Griner sentenced to 9 years(!) in prison by Russian judge for "drug smuggling"

I know next to nothing about Russia's criminal justice system, but I do know I was still shocked to hear about basketball star Brittney Griner's sentencing before a Russian judge today.  This Fox News report provides these details:

Brittney Griner, an American basketball superstar and Olympic gold medalist, learned her hate in a Russian court after she pleaded guilty to a drug charge last month.

A Russian judge convicted Griner of drug possession and drug smuggling and sentenced her to 9 years in prison. She was also fined 1 million rubles, the equivalent of about $16,400.

Griner, 31, appeared in a courtroom in Khimki, just outside Moscow. She issued an apology ahead of her verdict and sentencing as prosecutors pushed for a 9.5-year sentence....

Griner contended she made "an honest mistake" when she brought vape cartridges containing oils derived from cannabis into a Moscow airport back in February, adding "I hope in your ruling it does not end my life." Griner was returning to her Russian basketball team UMMC Ekaterinburg after their was a pause in the season for international play. She called Yekaterinburg her "second home."...

Russian prosecutors argued Griner purposely packed the cannabis oil. Griner’s lawyers argued that Griner was using marijuana to treat pain. But Russian officials said the U.S. laws regarding the legality of the drug had no bearing on the Russian judicial system.

The U.S. State Department had classified Griner as "wrongfully detained." United States Secretary of State Antony Blinken revealed last week that the Biden administration offered a "substantial proposal" for the return of the basketball player and fellow American Paul Whelan. Blinken said during a press conference that the Biden administration made the proposal weeks ago and is hoping to speak to Russian Foreign Minister Sergey Lavrov for the first time since Feb. 15.

Russian media has speculated the trade could be for Viktor Bout, a Russian arms dealer known as the "Merchant of Death," who is serving a 25-year sentence in the U.S. after being convicted of conspiracy to kill U.S. citizens and providing aid to a terrorist organization.

White House press secretary Karine Jean-Pierre told reporters Monday that Russia made a "bad faith" response to the U.S. government’s offer. She did not elaborate. Russian officials have made clear that no prisoner swap could happen until a conviction and sentence is handed down.

President Biden reacted to Russia’s sentencing. "Today, American citizen Brittney Griner received a prison sentence that is one more reminder of what the world already knew: Russia is wrongfully detaining Brittney. It’s unacceptable, and I call on Russia to release her immediately so she can be with her wife, loved ones, friends, and teammates. My administration will continue to work tirelessly and pursue every possible avenue to bring Brittney and Paul Whelan home safely as soon as possible," he said.

It seems likely that all sorts of politics, both international and domestic, played a role in this sentencing outcome. And I am inclined to predict that Griner will be back on American soil well before 2031. But despite all the international intrigue in play and whatever happens next, the sad reality is that the US in the past (and still today) has sentenced plenty of individuals to many years on various types of drug charges.  And that drug war reality necessarily impacts our nation's ability to assert the moral high ground when it comes to reacting to harsh law enforcement in other nations.

Will SCOTUS ruling in Bruen function to "defund the police" in order to fund government gun-law lawyers?

The question in the title of this post was my reaction to a particular quote by a gun control advocate in this notable new AP article about all the litigation following the Supreme Court's big Second Amendment ruling in Bruen earlier this summer.  The AP piece is headlined "After Supreme Court ruling, it’s open season on US gun laws," and here are excerpts (with the quote highlighted):

The Supreme Court ruling expanding gun rights threatens to upend firearms restrictions across the country as activists wage court battles over everything from bans on AR-15-style guns to age limits.....  “The gun rights movement has been given a weapon of mass destruction, and it will annihilate approximately 75% of the gun laws eventually,” said Evan Nappen, a New Jersey gun rights attorney.

The court battles come as the Biden administration and police departments across the U.S. struggle to combat a surge in violent crime and mass shootings, including several high-profile killings carried out by suspects who purchased their guns legally. And given the sheer number of cases now working through the courts, a lot more time will be spent in courtrooms no matter who wins.   “We will see a lot of tax dollars and government resources that should be used to stop gun crime being used to defend gun laws that are lifesaving and wildly popular,” said Jonathan Lowry, chief counsel and vice president at Brady, the gun control group....

In its New York ruling, the high court’s conservative majority also changed a test lower courts had used for evaluating challenges to gun laws.  Judges should no longer consider whether the law serves public interests like enhancing public safety, the opinion authored by Justice Clarence Thomas said. Instead, they should only weigh whether the law is “consistent with the Second Amendment’s text and historical understanding.”

“Basically, the Supreme Court has given an invitation for the gun lobby to file lawsuits against virtually every gun law in America,” Lowry said....

The ruling also has come up in challenges to restrictions on gun possession for 18- to 20-year-olds in Texas and Pennsylvania. And it has been cited in a case challenging a federal ban on gun possession for people convicted of nonviolent crimes punishable by more than a year behind bars, as well as a prohibition on concealed guns on the subway in Washington, D.C.  In addition, a gun rights group is suing Colorado over the state’s 2013 ban on magazines that hold more than 15 rounds, saying the high court ruling reinforces the group’s argument that it infringes on Second Amendment rights. And the ruling has public defenders in New York City asking judges to drop gun possession cases.

Not all those lawsuits will necessarily be successful. The Texas attorney general, for example, argues the Supreme Court ruling doesn’t affect the state’s age limit law, and more state and local governments can certainly defend their gun laws as being in line with U.S. history.  Adam Skaggs, chief counsel and policy director at the Giffords Law Center to Prevent Gun Violence, predicted that when the dust settles, only laws “along the margins” will eventually be struck down. “Most judges are going to see these for what they are, which is overreaching and lacking in any merit,” he said.

Just as we saw after prior big Second Amendment rulings in Heller and McDonald, it seems most likely that most existing gun control laws will eventually be upheld by lower courts (even though I think the Bruen majority opinion ought to be read as a strong signal that many more broad  gun laws ought to be deemed constitutionally suspect).  But this AP article highlights the reality that Bruen is sure to lead to a whole lot more time and money being spent on a whole lot more court challenges to a whole lot more existing gun laws and regulations.  I seriously doubt that the resources to be spent on all this Second Amendment litigation will come directly from the budgets for police, but I do think it sensible to expect that more time spent by government lawyers and others trying to defend the constitutionality of various laws likely means, as a practical matter, somewhat less time spent by by government lawyers and others vigorously enforcing these and other laws.

(On a somewhat related front, Damon Root at Reason.com has this notable post fully titled "The New York Times Is Surprised To Find Public Defenders Championing the Second Amendment: Yet the civil rights movement has long had a gun rights component.")

 Prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 

Oklahoma board recommends clemency for first of many scheduled to be executed in coming months

As noted in this post last month, Oklahoma has scheduled 25 executions over the next few years after the ending a moratorium on lethal injections.  The first of these executions is scheduled for later this month.  But, as this new local article reports, the Oklahoma Pardon and Parole Board voted Wednesday to spare the life of the condemned scheduled to be execution on August 25.  Here are the details:

James Coddington addressed the board himself and expressed remorse for killing his friend, 73-year-old Albert Hale, at Hale’s Choctaw residence in 1997 after Hale refused to give Coddington money for drugs.  “The person that he welcomed into his home was not me, it was a shell of me.  It was a drug addict that didn’t deserve his friendship,” said Coddington.

Hale’s family spoke about their loss to the board.  Son Mitch Hale said he’s forgiven Coddington but the murder devastated the family.  “Not only did he brutally kill a kind, gentle, elderly man, he also killed our family.  When he took my father’s life, he completely destroyed the gathering place and tradition of five generations,” said Hale.

Board member Edward Konieczny, appointed by Gov. Kevin Stitt in Jan., joined Richard Smothermon and Larry Morris in voting for clemency.  Cathy Stocker and Scott Williams voted to deny clemency.

Konieczny cited exceptional childhood abuse, as well as Coddington’s age of 24 years at the time of the murder as concerns. “I certainly want to hear from my colleagues.  We’ve had a number of trainings and conversations around the maturation of a person’s brain and also the impact of abusive environments.  In this particular case, it’s not just somebody suggesting that.  We have documentation of what could be considered extraordinary drug and alcohol and physical and emotional abuse.  I would just appreciate hearing from some of my other colleagues,” said Konieczny....

Smothermon, who has thus far voted to deny clemency to every death row inmate, said how people endure abuse in similar situations matters to him. “Given that environment, what is the resulting actions of other people or children that were in that environment and how did they turn out?”...

Cathy Stocker, appointed by Stitt in Mar., said Coddington’s background was already considered in court and so she voted to deny clemency. Before voting no, Scott Williams acknowledged that Coddington, who earned his GED in prison in 2002, had changed for the better.  “Just from what we’ve seen, I’d say there’s definitely been some change there and he’s had an exemplary record for a number of years.  At the same time, that doesn’t take away from all of the facts and everything we have to consider today,” said Williams....

The board’s clemency suggestion will go to Stitt to decide.  Coddington is still scheduled for execution Aug. 25.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 
• Will Oklahoma carry out over two dozen executions over the next couple years?

"Juries, Democracy, and Petty Crime"

The title of this post is the title of this interesting new paper authored by J.D. King now available via SSRN. Here is its abstract:

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy.  The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury.  Despite the textual clarity of the guarantee, the Supreme Court has long recognized a “petty offense” exception to the right to trial by jury.

As systems of mass adjudication and hyper-incarceration have developed over the past several decades, a parallel process of collateral consequences has also arisen and is now well-documented.  Recognizing that a conviction for even a low-level offense can have devastating effects, some courts have begun to narrowly interpret the “petty offense” exception, especially where a conviction could have severe immigration-related consequences.  As a result, some jurisdictions now provide stronger procedural protections for non-citizen defendants than for citizen defendants charged with similar offenses.  Although these courts are certainly correct in characterizing these offenses as “serious” and thereby providing those defendants a right to a jury trial, their reasoning imports a defendant-specific subjectivity that is in tension with prior Supreme Court guidance, and the results pose questions of legitimacy as different defendants are treated differently because of citizenship status.

As advocates push to expand the right to trial by jury, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades.  In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions.  The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants.  Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

"Punishment as Communication"

The title of this post is title of this new book chapter authored by R.A. Duff and now available via SSRN.  Here is its abstract:

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity.  In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process.  That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him.  The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation.

Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion — inextricably interwoven with the moral message that is the core of the communication.  A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

Ninth Circuit panel finds no improper enhancement when safety-valve-proffer information is considered with other information in setting below-guideline sentence

Addressing an issue of first impression, a Ninth Circuit panel today issued an interesting opinion addressing the application of a small provision of the FIRST STEP Act in US v. Brown, No. 20-5313 (9th Cir. Aug. 2, 2022) (available here).  Here are excerpts from part of the opinion providing background and the heart of the ruling:

In this case, Appellant Marquis Brown was arrested for smuggling drugs across the border. He pleaded guilty to the charge and faced a statutory ten-year mandatory minimum sentence.  He subsequently took advantage of a safety valve proffer and became safety valve eligible for a sentence below the mandatory minimum sentence. The district court imposed a 78-month sentence. That sentence was below Brown’s guidelines range of 108–135 months, but above the 71 months requested by the government, and the 42 months recommended by his attorney and the Probation Department.

Brown now appeals, arguing that his sentence was procedurally defective because the district court improperly relied on information he disclosed in his safety valve proffer to “enhance” his sentence....

Brown contends that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018.  The First Step Act, which in part amended 18 U.S.C. § 3553(f), proscribes, inter alia, district courts judges from using information “disclosed by a defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” Pub. L. No. 115391, 132 Stat. 5194 (Dec 21, 2018). Despite the district court imposing a sentence that is below his guidelines range, Brown argues that the court ran afoul of this proscription when it relied on information from the safety valve proffer to deny him a further sentence reduction....

We have regularly held that the denial of a sentencing benefit or reduction is not an “increase in punishment.”  See, e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (reviewing whether amendments to a statute violated a constitutional prohibition on when States can increase the punishment for a defendant’s crime).  In Waters, the appellant argued that a statute the district court relied on to deny his request for sentence reduction violated the Ex Post Facto Clause. Id. at 680.  We held that the amendments merely limited the appellant’s ability to reduce his sentence and “[did] not increase the punishment for his crime[.]” Id. at 681....

We hold that the district court did not impose an improper sentence enhancement here.  Brown contends that because the district court used information from the proffer in determining his final sentence, it was an improper enhancement.  It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips.  This is not prohibited.  The district court noted the previous drug smuggling trips, but also mentioned various other aggravating factors, including the nine-year-old being in the car, the amount and type of drug involved, and the impact on the community.  The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance.  The district court imposed a sentence of 78 months — a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range.  This does not constitute an enhancement.

Brown takes issue with the fact that the sentence was not as low as he had requested.  But the failure to reduce a sentence is not an enhancement.  Moreover, we do not take the First Step Act’s proscription as Congress stripping away a district court’s discretion.  All that § 3553(f)(5) prohibits is using information from a safety valve proffer “to enhance the sentence[.]” § 3553(f)(5).  Here, Brown got the benefit of the safety valve reduction, resulting in a sentence below both the mandatory minimum and his guidelines range. This is not an improper “enhancement” of a sentence under § 3553(f)(5).

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

Notable review of research on public safety and criminal justice reform from Arnold Ventures

This new webpage at Arnold Ventures explores in thoughtful ways the important question that it is title of the webpage: "What Does the Research Say About Public Safety and Criminal Justice Reform?".  Here is an explanation of the effort (with emphasis in the original) along with the links to the research papers most focused on reform of the back-end of the criminal justice system:

As a philanthropy dedicated to improving lives by driving sustainable change to the justice system, the spike in homicides and the resulting political pushback by some against criminal justice reform led Arnold Ventures to reflect on the relationship between community safety and justice reform. Arnold Ventures’ programmatic work, from policing to pretrial justice to corrections, is built on the idea that reform and safety are not opposite ends of a spectrum, but can operate in tandem. 

That is why we turned to the experts to help us understand what the evidence says about the relationship between community safety, the justice system, and reform. We collaborated with eight scholars who have deep substantive and methodological expertise in their respective issue areas, and asked that they write discussion papers looking at the state of research around specific aspects of the criminal justice system. These papers each respond to two broad prompts. 

First, how does a particular aspect of the justice system advance or undermine community safety? 

Second, what is your summary or assessment of the evidence, and are there remaining research questions that need to be answered? 

The following six papers are the scholars’ independent and thoughtful reviews of the available evidence in response to those prompts:...

[Other papers looked at community-based, policing and pre-trial reforms...]

• Dr. Jennifer Doleac (Texas A&M University) and Dr. Michael LaForest (Penn State University) discuss the limited empirical evidence of the effect of community supervision (probation and parole) policy and practice on community safety despite the scale of its use as a sanction for criminal behavior and alternative to incarceration. 
  Read the paper: Community Supervision & Public Safety
  
• Dr. Daniel Nagin (Carnegie Mellon University) discusses how the current incarceration practices in the United States, particularly multi-decade sentences, are an inefficient use of public resources and are not shown by evidence to have a deterrent effect on crime. 
  Read the paper: Incarceration & Public Safety
  
• Dr. Megan Denver and Ms. Abigail Ballou (Northeastern University) discuss how widespread post-conviction sanctions, restrictions, and disqualifications for individuals with criminal records and histories of justice system involvement can interact and accumulate in ways that are counterproductive to safety. 
  Read the paper: Collateral Consequences & Public Safety

These papers make a significant contribution to the public conversation as individual products, but they can also be read together as concluding: The evidence suggests there are real public safety benefits associated with the functions of the justice system.  At the same time, some of the current practices remain inefficient, produce serious harms, and operate in ways that are counterproductive to community safety.

"Sex Exceptionalism in Criminal Law"

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

Sex crimes are the worst crimes.  People widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.  Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions.  This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate.  However, sex exceptionalism is not natural or neutral, and its political history should give us pause. This Article is the first to trace, catalogue, and analyze sex exceptionalism in criminal law.  Through a genealogical examination of sex-crime law from the late eighteenth century to today, it makes several novel contributions to the debate over how criminal law should regulate sex.

First, the Article casts doubt on the conventional account that rape law’s history is solely one of sexist tolerance — an account that undergirds contemporary calls for broader criminal regulations and higher sentences.  In fact, early law established rape as the most heinous crime and a fate worse than death, but it did so to preserve female chastity, marital morality, and racial supremacy.  Sex-crime laws were not underenforced but selectively enforced to entrench hierarchies and further oppressive regimes, from slavery to social purity.  Second, this history suggests that it is past time to critically examine whether sex crimes should be exceptional.  Indeed, in the 1960s and 70s, the enlightened liberal position was that rape law should be less exceptional and harmonized with the law governing “ordinary” assault.

Third, the Article spotlights the invisible but powerful influence sex exceptionalism exerts on scholarship and advocacy.  Despite the liberal critique, sex exceptionalism flourished, and today it is adopted without hesitation.  Sex dazzles theorists of all types.  For sex crimes, retributivists accept exorbitant sentences, and utilitarians tolerate ineffective ones.  Critics of mass incarceration selectively abandon their principled stance against expanding the penal state.  Denaturalizing sex exceptionalism and excavating its troubling origins forces analysts to confront a detrimental frame underlying society’s perpetual enthusiasm for punitive sex regulation.