Sentencing Law and Policy

"A New Generation of Prosecutors Is Leading the Charge to Reimagine Public Safety"

The title of this post is the title of this notable recent report from Data for Progress authored by Prerna Jagadeesh, Isa Alomran, Lew Blank and Gustavo Sanchez. Here is part of its introductions:

Local prosecutors possess unparalleled power within criminal legal systems across the country.  Also commonly referred to as District Attorneys, State’s Attorneys, Commonwealth Attorneys and County Attorneys, local prosecutors are responsible for the vast majority of criminal cases brought in the United States.  They have nearly unlimited discretion in deciding who to charge, the type of crimes to charge, and the severity of punishment at sentencing.  They are also primarily responsible for determining who stays in jail and who can be released back to their communities while awaiting trial, and they wield unmatched influence in determining the kind of criminal laws and penalties enacted by state legislatures.

Over the past five decades, prosecutors have deployed their power to charge and sentence even more people, relying heavily on incarceration or correctional supervision to control and punish people convicted of crimes.  While public safety was the purported justification for this approach, a growing body of research is finding that incarceration is ineffective at deterring crime and fails to prevent violent crime in the long-term.  Meanwhile, it has generated devastating consequences for many communities — particularly communities of color — in both direct and indirect ways. Mass incarceration has destabilized communities, worsened outcomes for children with incarcerated parents, increased morbidity and mortality, perpetuated generational wealth gaps, exacerbated mental illness among those incarcerated, and increased homelessness, alongside many other collateral consequences. ...

Notably, the prosecute-and-convict approach has also neglected the interests of those who have experienced and survived crime.  According to a groundbreaking survey of crime survivors conducted by the Alliance for Safety and Justice, the vast majority of victims –– who are more likely to be low-income, young, people of color –– prefer solutions that focus on alternatives to incarceration, such as job creation, crime prevention, rehabilitation, drug use and mental health treatment, among others.  In particular, seven out of ten would rather see prosecutors invest in solving neighborhood problems through rehabilitation, not prosecution and incarceration.

As a result, a growing number of prosecutors have begun to reimagine public safety in ways that reduce the use of prosecution and incarceration, create more effective and less destructive accountability strategies, end racial disparities, and address the drivers of criminal behavior as well as the needs of those most impacted by crime....

In the summer of 2021, Data for Progress surveyed 19 of these reform-minded prosecutors to identify their approaches to community safety, key policy changes, goals for the future, and obstacles impeding their efforts to achieve transformational change.  Their responses are detailed more fully below.

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

Payne, who is being held in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

Sentencing basics for defendants convicted of murdering Ahmaud Arbery

This afternoon brought a jury verdict in the closely watched case involving three men accused of murdering Ahmaud Arbery.  This AP story provides the context and the sentencing possibilities and other particulars now to follow:

A nine-count indictment charged all three men with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony, in this case false imprisonment.

Travis McMichael was convicted of all nine charges. Greg McMichael was convicted of all charges except malice murder.  [William] Bryan was convicted of two counts of felony murder, one count of aggravated assault, one count of false imprisonment and one count of criminal attempt to commit a felony.

Malice and felony murder convictions both carry a minimum penalty of life in prison. The judge decides whether that comes with or without the possibility of parole.  Even if the possibility of parole is granted, a person convicted of murder must serve 30 years before becoming eligible. Multiple murder convictions are merged for the purposes of sentencing.

Murder can also be punishable by death in Georgia if the killing meets certain criteria and the prosecutor chooses to seek the death penalty.  Prosecutors in this case did not.

Each count of aggravated assault carries a prison term of at least one year but not more than 20 years. False imprisonment is punishable by a sentence of one to 10 years in prison....

The McMichaels and Bryan still face federal charges. Months before the three stood trial on state murder charges, a federal grand jury in April indicted them on hate crimes charges.  It’s an entirely separate case that’s not affected by the state trial’s outcome.

U.S. District Court Judge Lisa Godbey Wood has scheduled jury selection in the federal trial to start Feb. 7.  All three men are charged with one count of interference with civil rights and attempted kidnapping.  The McMichaels were also charged with using, carrying and brandishing a firearm during a crime of violence.  The federal indictment says the men targeted Arbery because he was Black.

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2021"

I was excited to receive new of this new Bureau of Justice Statistics' publication with lots of rich new data about the federal prisoner population.  This website provides this overview and a few key findings from "Federal Prisoner Statistics Collected under the First Step Act, 2021":

Description

This is the third report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons (BOP) for calendar year 2020. Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

• The federal prison population decreased 13%, from 174,391 at yearend 2019 to 151,283 at yearend 2020.
• In 2020, a total of 91 pregnant females were held in BOP-operated prison facilities, which was half the number held in 2019 (180).
• In 2020, a total of 14,791 persons held in federal prison participated in a nonresidential drug abuse program, 10,868 in a residential drug abuse program, and 1,268 in a treatment challenge program for a substance use disorder.
• In 2020, a total of 418 federal prisoners received medication-assisted treatment (approved by the U.S. Food and Drug Administration) to treat a substance use disorder.

The full document has a lot more interesting highlights, including these notable data points about the work of the federal risk assessment tool used by BOP known as PATTERN:

• Of those persons in federal prison assessed with PATTERN as of December 31 2020, 37% were considered to be at high risk for recidivism, 18% medium risk, 29% low risk, and 16% minimal risk.
• In 2020, PATTERN found that about half of federal prisoners age 24 or younger (51%) and those ages 25 to 34 (50%) were at high risk of future recidivism.
• Fifty-one percent of black prisoners (including those of both Hispanic and non-Hispanic ethnicity) in federal prison were deemed at high risk for future recidivism by the PATTERN tool, followed by more than 42% of American Indian or Alaska Native prisoners.

Lots of timely new content and commentary at The Crime Report

I am hopeful (though nor especially optimistic) that I will get a chance to catch up on some reading during the coming holiday weekend.  To that end, I just realized I am behind on flagging a lot of great new content at The Crime Report, and here is just a sample of what is worth catching up on at that site: 

"The Danger of a Return to Crime Alarmism" by James Austin, Todd Clear, Richard Rosenfeld, and Joel Wallman

"Can We Build an ‘Infrastructure’ for Violence Prevention?" by Greg Berman

"America Can Afford Decent Corrections Systems. Why Aren’t We Getting Them?" by Rory Fleming

"Rethinking the ‘Sex Offender’ Label" by Derek Logue

"North Carolina’s ‘Geriatric Death Row’" by TCR Staff

Bipartisan call from members of Congress for Prez Biden to make US Sentencing Commission nominations

Regular reader who recall my regular advocacy for Prez Biden to make nominations to the now-dormant US Sentencing Commission will know that this new Reuters story made me smile:

Two Democratic and Republican lawmakers in a letter on Monday urged President Joe Biden to prioritize filling vacancies that have left the U.S. Sentencing Commission without a quorum, saying the situation has stalled criminal justice reform.

U.S. Representatives Kelly Armstrong, Republican of North Dakota, and Jamie Raskin, Democrat of Maryland, said the vacancies have "forestalled the important work of updating and establishing new sentencing guidelines."

A White House spokesperson had no immediate comment.

The commission lost its quorum in January 2019, a month after former Republican President Donald Trump signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for non-violent offenders and at reducing recidivism.

Armstrong and Raskin said the lack of quorum also meant the commission cannot update the advisory sentencing guidelines needed to help implement the law, resulting potentially in its uneven application by judges across the country. "It is imperative that the vacancies are expeditiously filled so the Commission can continue its work to improve the federal criminal justice system," the lawmakers wrote.

The seven-person panel's lone remaining member, Senior U.S. District Judge Charles Breyer, told Reuters this month he would be "surprised and dismayed" if Biden did not pick nominees by early 2022 and urged him to help restore its quorum.  Breyer's own term expired on Oct. 31 but he can remain on the commission for up to a year more unless a replacement is confirmed.  Armstrong and Raskin cited his potential departure as another reason to act.

The full letter can be found here.  I am ever hopeful that we will finally get nominations from Prez Biden no later than early 2022, though that will still be a year later than would have been ideal.  And I sincerely hope the Biden Administration will work effectively with Senate leaders to ensure his eventual nominees get a swift confirmation.  But even if this process gets going, it now seems unlikely a full USSC will be functioning before the May 1, 2022 deadline for the 2022 guideline amendment cycle, and so November 2023 could end up the earliest date for any guideline changes to become effective.

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
• Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission? 
• Getting antsy for US Sentencing Commission appointments after another slate of impressive judicial nominees from Prez Biden
• Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional 
• 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? 
• Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission? 

California's Committee on Revision of the Penal Code recommends abolishing capital punishment in the state

During a busy week last week, I missed this notable capital news from California: "Panel recommends repealing death penalty in California: The recommendation to end capital punishment comes after California voters rejected two ballot measures to abolish executions over the last decade and voted to speed up executions in 2016."  Here are the basics from the start of the news story:

As nearly 700 condemned California prisoners wait in limbo under a death penalty process halted by the governor, a key criminal justice panel on Wednesday recommended making the state’s temporary freeze on executions permanent.  The Committee on Revision of the Penal Code, a seven-member board formed by the state Legislature last year to propose criminal justice reforms, released a 39-page report recommending that capital punishment be repealed in the Golden State.

“More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme,” the report states. “It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”  

Poring through data on death sentences imposed and carried out since capital punishment was reinstated in California in 1978, the panel concluded the post-conviction litigation process has become “almost unfathomably long and costly.”  The report cites staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California.  It further notes that about a third of condemned prisoners suffer from mental illness, according to figures cited in a federal class action over mental health care in California prisons.  

Additionally, the report highlights that innocent people are sometimes executed.  It describes how 185 prisoners sentenced to death across the U.S. were later exonerated, including five formerly condemned prisoners in California.

The full report, which is available at this link, includes these passages in its executive summary:

After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians.

More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme.  It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.  Hundreds of California death sentences adjudicated in state and federal courts have been reversed or otherwise thrown out as unconstitutional while only 33 people are currently eligible for execution. 

Furthermore, recent efforts to improve, simplify and expedite California’s system of capital punishment have failed to accomplish their stated goals and may have made things even worse.

For the reasons in this report, which includes new data presented here for the first time, the Committee unanimously recommends repealing California’s death penalty.  Because we appreciate that this is a difficult goal, in the interim, the Committee unanimously recommends reducing the size of California’s death row by the following means:

• Award clemency to commute death sentences.
• Settle pending legal challenges to death sentences.
• Recall death sentences under Penal Code § 1170(d)(1).
• Limit the felony-murder special circumstance.
• Restore judicial discretion to dismiss special circumstances.
• Amend the Racial Justice Act of 2020 to give it retroactive application.
• Remove from death row people who are permanently mentally incompetent.

"Prosecutorial Reform and Local Crime Rates"

The title of this post is the title of this relatively short empirical paper available via SSRN and authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is its abstract:

Many communities across the United States have elected reform-minded, progressive prosecutors who seek to reduce the reach and burden of the criminal justice system.  Such prosecutors have implemented reforms such as scaling back the prosecution of nonviolent misdemeanors, diverting defendants to treatment programs instead of punishment, and recommending against cash bail for defendants who might otherwise be detained pretrial.  Such policies are controversial, and many worry that they could increase crime by reducing deterrent and incapacitation effects.  In this paper we use variation in the timing of when these prosecutors took office, across 35 jurisdictions, to measure the effect of their policies on reported crime rates.  While our estimates are imprecisely estimated, we find no significant effects of these reforms on local crime rates.

Recent Prison Policy Initiative briefings spotlight how money matters, a lot, even in prison

I have been behind on highlighting some of the great briefings created or noted over the last month by Prison Policy Initiative.  A notable theme in all these recent reports is how economic realities and disparities do not get locked away even in with prison experience.  I recommend all this research in full:

"For the poorest people in prison, it’s a struggle to access even basic necessities: Our survey of all 50 states and the BOP reveals that prisons make it hard for people to qualify as indigent—and even those who do qualify receive limited resources."

"Show me the money: Tracking the companies that have a lock on sending funds to incarcerated people: We looked at all fifty state departments of corrections to figure out which companies hold the contracts to provide money-transfer services and what the fees are to use these services."

"The CFPB’s enforcement order against prison profiteer JPay, explained: The company was fined $6 million for exploiting people leaving prison."

"Blood from a stone: How New York prisons force people to pay for their own incarceration: A study by members of the New York University Prison Education Program Research Collective gives important first-hand accounts of the damage done when prisons shift financial costs to incarcerated people."

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

• Notable new CRS report on ways a President could legalize or decriminalize marijuana at the federal level

• Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

• "New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

• Highlighting the persistent Democratic divide over federal marijuana reform

• Another Veterans Day with veterans still not getting support when it comes to medical marijuana access

• Latest Gallup poll indicates that over two-thirds of Americans still support making marijuana legal

Are more conservatives really turning away from the death penalty?

The question in the title of this post is prompted by this new Wall Street Journal article headlined "More Conservatives Turn Away From Death Penalty."  In addition, Demetrius Minor his this new opinion piece from Newsweek, headlined "Republicans Across the Country Are Joining the Fight to End the Death Penalty," provides this accounting:

[I]n deep red Utah are considering ending the state's death penalty. Governor Spencer Cox, who has previously revealed his support for the death penalty, says he is now open to "reevaluating" his stance on the issue. He is joined by Utah County Attorney David Leavitt, another Republican who has said his office would no longer seek death penalty prosecutions....

And this isn't just occurring in Utah. There is a nationwide trend of Republican- controlled state legislatures re-thinking capital punishment driven by the fiscal, moral, and cultural conservative values that should lead us to oppose the death penalty. Virginia repealed the death penalty in March 2021 with bipartisan support. Pennsylvania, Kansas, Wyoming, Kentucky, Georgia, Montana, Washington, and Ohio all have had Republican-sponsored bills this year, with a total of 40 Republican sponsors.

In Ohio, a political bell-weather state that has become very red in recent election cycles, former Congresswoman and now State Representative Jean Schmidt and Sen. Stephen Huffman are Republican prime sponsors of bills to end the death penalty. They are clear that the death penalty is a contradiction to their conservative beliefs.

I do sense that a few more GOP leaders are a bit more comfortable expressing capital opposition, and yet I am unclear if this is a major trend or really anything all that new.  Notably, I have seen (and blogged) about stories claiming or advocating for softer support for capital punishment among those on the right, and yet polling numbers do not show any real shift.  Gallup released its latest polling on the death penalty this past week, and here is its discussion of the political dynamics:

Gallup began asking its historical death penalty trend question in its annual Crime survey beginning in 2000. During this time, there have been two notable shifts in death penalty attitudes. Between 2011 and 2016, the percentage expressing support showed a drop to 61% from 66% in the preceding decade. In the past four years, support has fallen further to an average 56%.

Both Democrats and independents show declines in their support for the death penalty, including similar drops (eight and seven percentage points, respectively) since 2016. Between the 2000-2010 and 2011-2016 time periods, Democratic support dropped more (eight points) than independent support did (three points). Now, 39% of Democrats and 54% of independents are in favor of the death penalty.

Meanwhile, Republicans' support for the death penalty has held steady, with 79% currently supporting it, unchanged since 2016 and barely lower than the 80% registered between 2000 and 2010.

Here is a sampling of some older posts on this front through the years:

• A new world of death penalty politics? (from 2006)
• "When Governments Kill: A conservative argues for abolishing the death penalty" (from 2009)
• New group opposing death penalty emerges at CPAC (from 2013)
• Is there a "growing movement against death penalty – on the right"? (from 2015)
• Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"? (from 2016)
• New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty" (from 2019)

Clemency criticisms as Prez Biden's record is now turkeys 2, humans 0

More than a decade ago, it took a couple years of Thanksgiving turkey pardon rituals before Prez Obama started receiving considerable grief for only granting clemencies to birds and not humans.  But I suppose we have made some progress in the last decade, as now one can find a few year-one commentaries assailing the Prez Biden's clemency record that is just fit the the farm and not for families:

From Marijuana Moment, "Biden Pardons Turkeys, But White House Has ‘Nothing New’ On Relief For Marijuana Prisoners"

From the New York Post, "Biden laughs off question about clemency for humans before pardoning turkeys"

From the Star Tribune, "When it comes to human pardons, thanks for nothing: President Joe Biden hasn't just not pardoned anyone — he's just letting the requests sit unanswered."

Disappointingly, there is still a lot more discussion of the names and fate of the turkeys who were "pardoned" than of the broken federal clemency process and the thousands of clemency requests so far ignored by the Biden Administration.  Sigh.

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

Can Oklahoma's current governor really preclude all future governors from further clemency grants for Julius Jones?

I just had a chance this morning to look at this actual executive order that Oklahoma Governor J. Kevin Stitt signed to commute the death sentence of Julius Jones to life imprisonment without the possibility of parole.  The document is interesting in part because it states that the Pardon and Parole Board's recommendation of a commutation to a "sentence of life with the possibility of parole" was not authorized by the Oklahoma Constitution or Oklahoma law and that the "Oklahoma Constitution and other laws of the State also do not provide the Governor authority to grant any such recommendation."  But speaking of a lack of authorization, I was especially struck by this additional part of the executive order:

The Governor has the power to grant commutations "upon such conditions and with such restrictions and limitations as the Governor may deem proper .... "  I hereby place the following conditions upon this commutation:

Julius Darius Jones shall not be eligible to apply for or be considered for a commutation, pardon, or parole for the remainder of his life.

In addition to laws prohibiting the Pardon and Parole Board from recommending and the Governor from granting to Julius Jones life with parole, now or in the future, the Pardon and Parole Board's Rules prevent Jones from re-applying for commutation.  Title 515, Chapter 15, Subchapter 15 of the Oklahoma Administrative Code states, "After receiving a favorable commutation of a sentence from the Governor, an Inmate is ineligible to apply for an additional commutation on the same sentence."

Though I strongly dislike and disfavor any policy of ever precluding a person from ever re-applying for clemency, I suppose I can see some viable legal basis for state laws or rules to preclude repeated clemency applications.  But, critically, this order seems to be trying to preclude all future Oklahoma executive officials from being able to even "consider" Jones "for a commutation, pardon, or parole for the remainder of his life."  And at the start of this order, Gov Stitt states his condition even more broadly: "I ... hereby commute the death sentence of Julius Darius Jones to life imprisonment without the possibility of parole, on the conditions that he shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole."  (Emphasis added.)

Jones is likely to live in prison for many decades, and further evidence of his innocence or other changed circumstances in the years ahead might want some future governor to consider and possibly grant some other form of clemency.  I do not think there is any legal basis for a current governor to tie the hands of all future governors in the way, but I suspect Jones and his allies will be disinclined to worry or litigate about this future issue while still celebrating his removal from Oklahoma's death row.

A few prior related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months?
• Oklahoma board recommends clemency for Julius Jones who claims innocence from death row
• Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole 

"How families respond to the collateral consequences of incarceration and prisoner reentry"

The title of this post is the title of this new article authored by Brittany Hood and Shytierra Gaston in the journal Family Relations. Here is its abstract:

Objective

The goal of this research was to investigate the ways in which families respond to the collateral consequences of incarceration and reentry.

Background

Although scholars have extensively documented the collateral consequences of mass incarceration for individuals, far less attention has been paid to families, particularly the adult relatives of incarcerated or formerly incarcerated persons who are the primary social support agents.

Method

The current study draws from 24 in-depth, semistructured interviews with the parents, siblings, romantic partners, and other relatives of formerly incarcerated persons in an urban, mid-sized Midwestern city.  We employed a multistage qualitative analysis.

Results

The analysis revealed 10 stress-induced responses among families.  These responses largely involved individuals' self-reliance on their personal efficacy, some reflecting maladaptive responses, while having limited external or formal supports on which to rely when facing strains from familial incarceration.

Implication

Findings suggest that the significant socioeconomic and psychological tax families pay when supporting a justice system–involved relative compromises their well-being.  This study has the potential to inform treatment, research, practices, and policies involving families that are affected by incarceration.

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

Oklahoma Gov commutes death sentence of Julius Jones, who claims innocence, to life without the possibility of parole

A high-profile Oklahoma capital case involving claims of innocence took a notable turn just hours before a scheduled execution, as reported in this local press piece:

Julius Jones was scheduled to be executed at 4 p.m. Thursday at the Oklahoma State Penitentiary in McAlester. Oklahoma Gov. Kevin Stitt, however, announced at noon Thursday he has commuted Jones' sentence to life without the possibility of parole.

Jones, now 41, has been on death row for more than half of his life for the murder of Paul Howell. Jones has maintained his innocence, saying he was not responsible for the fatal shooting in Edmond in 1999. Jones' family insists he was at home.

The Oklahoma Pardon and Parole Board voted 3-1 on Nov. 1 to recommend Oklahoma Gov. Kevin Stitt grant clemency to Jones and reduce his sentence to life in prison with the possibility of parole....

Amanda Bass, the attorney for Julius Jones released the following statement after Gov. Kevin Stitt commuted Jones' sentence to life without the possibility of parole: "Governor Stitt took an important step today towards restoring public faith in the criminal justice system by ensuring that Oklahoma does not execute an innocent man. While we had hoped the Governor would adopt the Board's recommendation in full by commuting Julius's sentence to life with the possibility of parole in light of the overwhelming evidence of Julius's innocence, we are grateful that the Governor has prevented an irreparable mistake."...

“The governor just announced he’s going to grant clemency,” Tiffany Crutcher announced to the crowd outside the Oklahoma State Penitentiary in McAlester. The crowd erupted in shouts of joy. Supporters broke into tears, including Paige Patton who began to praise, “Thank you, Lord.”

The celebration lessened as Crutcher announced that the Governor's decision was to commute Jones' sentence to life without parole. The fight to prove Jones' innocence is not over, and his supporters will not stop, she said. “Julius will get to see sunlight,” Crutcher said. “Julius will not be underground, he will get to hug his family.”

A few prior related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months?
• Oklahoma board recommends clemency for Julius Jones who claims innocence from death row 

"How to be a Better Plea Bargainer"

The title of this post is the title of this new paper authored by Cynthia Alkon and Andrea Kupfer Schneider now available via SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context.  The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.

The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season

Rachel Barkow and Mark Osler have this new Hill commentary, headlined "Biden can't let Trump's DOJ legacy stifle reform," that focuses on Prez Biden's current disappointing clemency record.  I recommend the full piece, and here is a snippet:

We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.

It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction.  Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.

And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ.  Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ.  Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades.  That backlog is now 17,844.

So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War?  The only apparent answer is that Biden does not want to look like he is interfering with DOJ.  But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

Prior recent related post:

• Some clemency news and notes as we enter the holiday season