Sentencing Law and Policy

After historic week, SCOTUS still has a final few notable criminal justice cases to resolve

Earlier this month, I flagged in this post the six notable cases that I was most eagerly awaiting as a remarkable Supreme Court Term was coming to a close.  Four of those cases were resolved last week, with Taylor and Nance providing small wins for criminal defendants, and then Bruen and Dobbs producing big jurisprudential changes for gun rights and abortion practices.  In some other years, Bruen would be the Term's memorable case.  But the enduringly contentious issue of abortion, and the legal and political uncertainty following the full reversal of Roe and Casey, ensures that Dobbs will be the most consequential and debated case for many years to come.

But the Supreme Court still has final seven cases to resolve, three of which involve criminal justice matters.  The lingering criminal cases, some or all of which could be handed down as early as tomorrow morning, are not the highest profile of the remaining matters.  Cases involving the authority of the EPA to regulate greenhouse gases, detention policies at the southern border and a praying high school football coach are sure to get more attention than any of the criminal cases.  And yet, the three remaining criminal cases could still prove to be a big deal, and I will borrow here from Amy Howe's helpful accounting of them:

1. Concepcion v. United States (argued Jan. 19): Whether, when a court is deciding whether to resentence a defendant under the First Step Act, which gives federal district courts power to resentence offenders in light of changes in the Fair Sentencing Act of 2010, a district court must or may consider intervening developments, or whether such developments only come into play (if at all) after courts conclude that a sentence reduction is appropriate.
2. Ruan v. United States (argued Mar. 1): Whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms.
3. Oklahoma v. Castro-Huerta (argued April 27): Whether a state has authority to prosecute defendants who are not Native Americans, but who commit crimes against Native Americans on land that Congress historically reserved for Native people. 

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

• "How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?" 

A focus on local prosecutors as abortions now are subject to broad criminalization after Roe's reversal

The modern progressive prosecutor movement had already in recent years brought heightened attention to prosecutorial policies and practices.  The Supreme Court's ruling in Dobbs overruling Roe and allowing for the broad criminalization of abortion has, unsurprisingly, brought even more attention to whether, when and how prosecutors might seek to charge persons for abortion-related activities.  Here are a few recent news article discussing some of these issues:

From the Fort Worth Star-Telegram, "Tarrant County DA says she will prosecute any legitimate Texas abortion law violations"

From The Hill, "Elected prosecutors vow not to go after women seeking abortions"

From NBC News, "Prosecutors in states where abortion is now illegal could begin building criminal cases against providers"

From STAT News, "HIPAA won’t protect you if prosecutors want your reproductive health records"

A few prior related posts:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 
• SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues

UPDATE: An email from the National Association of Criminal Defense Lawyers, pointing to this NACDL webpage, reminded me that the defense bar is also going to have an important role in mapping out future policy and practice when it comes to criminal enforcement of abortion prohibitions. Here is a snippet from the NACDL webpage noting its plans in this legal space:

As a leader in the fight against overcriminalization and mass incarceration, NACDL is committed to providing the defense bar with the tools they need to take on the complex and varied cases arising from the Supreme Court’s decision to overturn Roe v. Wade.  Resources will include legal news, information on in-person and virtual trainings, and court filings focused on the specific issues defenders will encounter in these cases.  These tools support lawyers in their defense of cases ranging from child endangerment to homicide brought against a wide array of individuals, including women charged for their pregnancy outcomes or actions while pregnant, abortion seekers, providers, and those caught up in the wide net of related conspiracy and accomplice statutes.

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

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? 

SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues

The Supreme Court this morning released its much anticipated opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. June 23, 2022) (available here).   The opinions are 200+ pages long, but these lines from the start of the Court's opinion authored by Justice Alito provides the basics: "We hold that Roe and Casey must be overruled ... [and so] return the issue of abortion to the people’s elected representatives."

Both before and after the Dobbs majority opinion was leaked last month, I spotlighted in a few posts a few issues that would seem to arise from existing state laws poised to criminalize and punish abortions in various ways:

• What might be crime and punishment echoes if Supreme Court overturns Roe v. Wade?
• Without Roe, what does sentencing law and policy look like surrounding criminalized abortions? 
• Continuing to scratch the sentencing surface if Roe is overturned and abortions are criminalized 

There are, of course, lots of other jurisprudential and policy and political questions outside the criminal justice area that flow from Dobbs and its aftermath.  But I think it is quite important and will be quite legally consequential that most laws seeking to restrict or prohibit abortions will be criminal laws raising all sorts of (obvious and not-so-obvious) enforcement and sentencing issues.

"Nothing but Time: Elderly Americans Serving Life Without Parole"

The title of this post is the title of this new report from The Sentencing Project. Here is most of the executive summary and recommendations from the start of the report:

Prisons are a particularly hazardous place to grow old.  The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison.  Nearly half of prisons lack an established plan for the care of the elderly incarcerated....

Warnings by corrections budget analysts of the crushing costs of incarcerating people who are older have gone almost entirely unheeded. Indeed, sociologist and legal scholar Christopher Seeds accurately described a transformation of life without parole “from a rare sanction and marginal practice of last resort into a routine punishment in the United States” over the last four decades.  And in the contemporary moment of rising concerns around crime, there are reasons to be concerned that ineffective, racially disproportionate, and costly tough-on-crime measures such as increasing sentence lengths will proliferate, leading to even higher numbers of incarcerated people who will grow old in prison.  In this, as in many other aspects of its carceral system, the United States is an outlier; in many Western democracies those in their final decades of life are viewed as a protected class from the harsh prison climate.

Older incarcerated people describe sentences of life without the possibility of parole (LWOP) — with the expectation that they will die in prison — as particularly cruel, involving a devastating loss of human dignity.  Considering the consistent observation across dozens of studies that people “age out” of criminal conduct, the dedication of resources toward a group that is of extremely low risk is a foolish investment.  Yet people serving LWOP are a growing share of the overall life-sentenced population and the number of people in prison serving LWOP is at an all-time high.  While LWOP sentences have been a sentencing component of the American punishment spectrum for much of its existence, recent mandatory and preferential imposition of life sentences with no chance for parole are a more prominent feature than ever.  In 2020, The Sentencing Project produced a 50-state survey of departments of corrections that revealed that more than 55,000 Americans are incarcerated in state and federal prisons with no chance of parole, reflecting a 66% rise in people serving LWOP since 2003.

Because compassionate release, whether based on chronological age (geriatric parole) or diagnosis of a terminal illness (medical parole), typically excludes people serving life sentences by statute, the only option for an early release for people serving LWOP is executive clemency.  While clemency was common for older people serving life sentences sixty years ago, it was nearly terminated by the 1970s, and is still rarely used today.

This report explores the features of the LWOP population in more detail, focusing on the aging demographic in particular.  The data presented in this report reflect the patterns of 40,000 people serving LWOP sentences across 20 states.  These 20 states reflect three quarters of the LWOP population nationwide. The main findings in this report are the following:

• Almost half (47%) of the people serving LWOP are 50 years old or more and one in four is at least 60 years old.

• In ten years, even if no additional LWOP sentences were added in these states, 30,000 people currently serving LWOP will be 50 or older.

• 60% of the elderly imprisoned serving LWOP have already served at least 20 years....

• Half of aging people serving LWOP are Black and nearly 60% are people of color....

• The majority of people serving LWOP have been convicted of murder, but a growing share of the overall LWOP population has been convicted of less serious crimes, reflecting an over-expansion of LWOP.

We make a series of recommendations for reform based on the research presented in this report:

• Reinstate parole or resentencing opportunities for those currently ineligible.

• Give added weight to advanced age at review hearings. Advanced age considerations should begin at age 50 in light of the accelerating aging process that accompanies imprisonment.

• Allow immediate sentence review with presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.

• Revise medical parole release statutes to include all incarcerated people regardless of crime of conviction and age.

• Upon release, transition elderly persons, including those who have been convicted of a violent crime and those who are serving LWOP and other life sentences, to well-supported systems of community care if they are too frail to live independently.

• Require states to disclose the cost of incarcerating elderly people, including the cost of all medical care, as well as projections for future costs. Failing in such fiscal transparency keeps taxpayers in the dark about the true cost of mass incarceration.

• Expand clemency release opportunities to reflect their higher usage in earlier eras.

Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?

I am still working my way through the Supreme Court's various opinions in today's big Second Amendment case, Bruen (basics here). And, because I am not a Second Amendment expert, my first-cut reactions to Bruen may not be worth much.  But, since the majority opinion in Bruen seems to reject lots of recent lower court rulings regarding the application of the Second Amendment, I cannot help but start wondering now if all broad felon-in-possession criminal statutes are constitutionally suspect.

Lower courts have largely upheld felon-in-possession criminal prohibitions even since Heller decided the Second Amendment provided for an individual right. But I read Part II of the Court's opinion in Bruen as rejecting much lower-court jurisprudence since Heller and creating a new textual and historical approach for the consideration of Second Amendment claims:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”...

Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms....

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  

American citizens with felony records are surely part of "the people" covered by the plain text of the Second Amendment, and so their conduct in possessing a firearms would seem presumptively protected.  Turning then to "the Nation’s historical tradition," I surmise from various academic articles (see here and here; see also here) that only dangerous and violent people, not all felons, were historically disallowed to have firearms.  As one of these articles puts it: "there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms." 

 But one need not take an academic's word for this notion that there is not historical tradition for dispossessing all felons. Then-Judge, now Justice Amy Coney Barrett made this point quite effectively when dissenting in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019). Here is the start of her lengthy dissent in a case upholding application of the federal felon-in-possession ban to a nonviolent felon:

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.  But that power extends only to people who are dangerous.  Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons.  Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun.  In 1791 — and for well more than a century afterward — legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

Notably, the Bruen opinion for the Court makes repeated reference to the petitioners as "law-abiding" individuals. But I am not sure that dicta alone could or should undermine what Second Amendment's plain text and historical tradition now seem to suggest, namely that governments are on very shaky constitutional ground if and whenever they seek to criminalize gun possession by nonviolent (or "non-dangerous") persons with criminal records.

By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements

The Supreme Court this morning handed down its much-anticipated Second Amendment ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843 (S. Ct. June 23, 2022) (available here). Lots of Justices had lots to say in the first significant Second Amendment ruling in more than a decade:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Here is how Justice Thomas's opinion for the Court gets started:

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.  In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.  We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.  In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.  Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

Because Bruen is lengthy, I am going to need some time to see if there could be considerable criminal justice echoes from what the Court has to say here.  But, as highlighted in this prior post, a group of defense attorneys filed an amicus brief in Bruen highlighting that their clients were greatly impacted by NY gun laws and that, in 2020, "Black people made up 18% of New York’s population,[but] accounted for 78% of the state’s felony gun possession cases."   I wonder how many gun defendants, not only in New York but elsewhere, might now have new arguments to make about their prosecution and sentencing.

By 6-3 vote, SCOTUS rules Miranda violations cannot provide a basis for § 1983 suit

The Supreme Court this morning handed down a notable procedural ruling in the criminal justice space likely to be of interest to many. In Vega v. Tekoh, No. 21-499 (S. Ct. June 23, 2022) (available here), the Court on standard ideological lines limited federal legal remedies for violations of Miranda rights. The opinion is authored by Justice Alito and starts this way:

This case presents the question whether a plaintiff may sue a police officer under Rev. Stat. § 1979, 42 U.S.C. § 1983, based on the allegedly improper admission of an “un-Mirandized” statement in a criminal prosecution.  The case arose out of the interrogation of respondent, Terence Tekoh, by petitioner, Los Angeles County Sheriff ’s Deputy Carlos Vega. Deputy Vega questioned Tekoh at his place of employment and did not give him a Miranda warning.  Tekoh was prosecuted, and his confession was admitted into evidence, but the jury returned a verdict of not guilty.  Tekoh then sued Vega under § 1983, and the United States Court of Appeals for the Ninth Circuit held that the use of Tekoh’s un-Mirandized statement provided a valid basis for a §1983 claim against Vega.  We now reject this extension of our Miranda case law.

Justice Kagan authored the dissent, which was joined by Justices Breyer and Sotomayor.  It starts this way:

The Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), affords well-known protections to suspects who are interrogated by police while in custody. Those protections derive from the Constitution: Dickerson v. United States tells us in no uncertain terms that Miranda is a “constitutional rule.” 530 U.S. 428, 444 (2000). And that rule grants a corresponding right: If police fail to provide the Miranda warnings to a suspect before interrogating him, then he is generally entitled to have any resulting confession excluded from his trial.  See 384 U.S., at 478–479.  From those facts, only one conclusion can follow — that Miranda’s protections are a “right[]” “secured by the Constitution” under the federal civil rights statute. Rev. Stat. § 1979, 42 U.S.C. § 1983.  Yet the Court today says otherwise. It holds that Miranda is not a constitutional right enforceable through a § 1983 suit.  And so it prevents individuals from obtaining any redress when police violate their rights under Miranda.  I respectfully dissent.

By 5-4 vote, SCOTUS reaffirms all method of execution challenges can proceed as § 1983 actions

In an important ruling for capital case litigation, the Supreme Court this morning held in Nance v. Ward, No. 21-439 (S. Ct. June 23, 2022) (available here), that all method of execution claims can be brought via § 1983.  Justice Kagan wrote the opinion for the Court, which starts this way:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.  To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.  In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim.  We have held that such a claim can go forward under 42 U.S.C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.  See Nelson v. Campbell, 541 U.S. 637, 644–647 (2004).  Here, the prisoner has identified an alternative method that is not so authorized.  The question presented is whether § 1983 is still a proper vehicle.  We hold that it is.

Justice Barrett authored the dissent in this case, and she is joined by Justices Thomas, Alito and Gorsuch. Here is how her opinion starts:

An inmate must bring a method-of-execution challenge in a federal habeas application, rather than under 42 U.S.C. § 1983, if “a grant of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547 U. S. 573, 583 (2006).  Under this criterion, Michael Nance must proceed in habeas because a judgment in his favor would “necessarily bar” the State from executing him. Ibid.  Nance asked the District Court to “enjoin the Defendants from proceeding with [his] execution . . . by a lethal injection,” claiming that the use of such method would violate the Eighth Amendment as applied to him. App. to Pet. for Cert. 103a– 104a.  But lethal injection is the only method of execution authorized under Georgia law.  See Ga. Code Ann. §17–1038(a) (2020). Thus, if Nance is successful, the defendants in this case — the commissioner of the Georgia Department of Corrections and the warden — will be powerless to carry out his sentence.  That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.

Split North Carolina Supreme Court rulings declares sentences excluding parole for over 40 years unconstitutional for juveniles

Last week, as reported in this local article, the Supreme Court of North Carolina issues two notable opinions placing a notable limit on sentences for juvenile offenders.  Here are the basics:

Juveniles convicted of the most violent crimes in North Carolina cannot spend more than 40 years behind bars before becoming eligible for parole.  The N.C. Supreme Court made that determination Friday in a pair of 4-3 decisions.  The court’s four Democratic justices ruled in favor of the defendants in both cases.  The three Republican justices dissented.

In State v. Conner, Democratic justices determined that a 15-year-old convicted of rape and murder faced an excessive prison sentence.

According to Justice Michael Morgan’s majority opinion, Riley Dawson Conner pleaded guilty to raping his aunt outside her home in 2016, then killing her “with blows from a shovel.” He then left her dead body in a wooded area near her home.

Under the original consecutive sentences on rape and murder charges, Conner would have reached the age of 60 before having the chance to seek parole. Such a lengthy sentence would violate federal court precedents involving juvenile offenders, Morgan argued. Instead he and his fellow Democratic justices set a new 40-year maximum prison sentence before a juvenile offender would become eligible for parole....

Republican Justice Phil Berger Jr. rejected the argument. He accused Democratic justices of writing the 40-year maximum sentence into law.  “[T]he majority darts into the legislative lane, usurping legislative authority by enacting its new law simply because they find this result ‘desirable’ for violent juveniles,” Berger wrote in dissent....

Democratic and Republican justices also split in State v. Kelliher.  As with the Conner case, the court’s majority ruled that defendant James Ryan Kelliher should serve no more than 40 years in prison for murders committed when he was 17.

All of the opinions in the Connor and Kelliher cases make for interesting reads. From a quick review, I was struck by the fact that the Connor ruling suggests that both the US and North Carolina constitutions supported the 40-year cap announced by the court. But the Kelliher ruling more expressly relies on the NC constitution as revealed in this paragraph from near the start of the opinion:

After careful review, we hold that it violates both the Eighth Amendment to the United States Constitution and article I, section 27 of the North Carolina Constitution to sentence a juvenile homicide offender who has been determined to be “neither incorrigible nor irredeemable” to life without parole.  Furthermore, we conclude that any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole within the meaning of article I, section 27 of the North Carolina Constitution because it deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison.  Thus, Kelliher’s sentence, which requires him to serve fifty years in prison before becoming eligible for parole, is a de facto sentence of life without parole under article I, section 27.  Because the trial court affirmatively found that Kelliher was “neither incorrigible nor irredeemable,” he could not constitutionally receive this sentence.

"Chronic Punishment: The unmet health needs of people in state prisons"

The title of this post is the title of this new report from the Prison Policy Initiative authored by Leah Wang.  Here is how the report gets started (with some original links retained):

Over 1 million people sit in U.S. state prisons on any given day.  These individuals are overwhelmingly poor, disproportionately Black, Native, Hispanic, and/or LGBTQ, and often targeted by law enforcement from a young age, as we detailed recently in our report Beyond the Count.  And all too often, they are also suffering from physical and mental illnesses, or navigating prison life with disabilities or even pregnancy.  In this, the second installment of our analysis of a unique, large-scale survey of people in state prisons, we add to the existing research showing that state prisons fall far short of their constitutional duty to meet the essential health needs of people in their custody.  As a result, people in state prison are kept in a constant state of illness and despair.

Instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, data from the most recent national  Survey of Prison Inmates show that state prisons are full of ill and neglected people.  Paired with the fact that almost all of these individuals are eventually released, bad prison policy is an issue for all of us — not just those who are behind bars.

This report covers a lot of ground, so we’ve divided it into sections that can be accessed directly here:

Physical health problems: Chronic conditions and infectious disease

Access to healthcare: People in state prison disproportionately lacked health insurance

Mental health problems: Exceptionally high rates among incarcerated people

Disabilities: Disproportionate rates of physical, cognitive, and learning disabilities

Pregnancy and reproductive health: Expectant mothers are underserved in prison

Conclusions and recommendations: How do we begin to address unmet needs in prisons?

Methodology: Details about the data and our analysis

Appendix tables: Explore the data yourself

Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

I am pleased to be able to spotlight here a call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

US Sentencing Commission releases another report on "Length of Incarceration and Recidivism"

A few years ago, as noted in this blog post, the US Sentencing Commission released a report titled "Length of Incarceration and Recidivism."  Today, the USSC has issued another report under the same title, and this webpage provides an overview and key findings:

Overview

This study, the seventh in the recidivism series, examines the relationship between length of incarceration and recidivism. In 2020, the Commission published its initial comprehensive study on length of incarceration and recidivism.  In that study, which examined offenders released in 2005, the Commission found that federal offenders receiving sentences of more than 60 months were less likely to recidivate compared to a similar group of offenders receiving shorter sentences.  This study replicates the prior analysis, however, it examines a more current cohort of federal offenders released in 2010.  This study examines the relationship between length of incarceration and recidivism, specifically exploring three potential relationships that may exist: incarceration as having a deterrent effect, a criminogenic effect, or no effect on recidivism.

This study examines 32,135 federal offenders who satisfied the following criteria:

• United States citizens;
• Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation;
• Not reported dead, escaped, or detained;
• Have valid FBI numbers which could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

• The results of this study, examining federal offenders released in 2010, are almost identical to the findings established in prior Commission research examining federal offenders released in 2005.  In both studies, the odds of recidivism were lower for federal offenders sentenced to more than 60 months incarceration compared to a matched group of offenders receiving shorter sentences.
• The odds of recidivism were approximately 29 percent lower for federal offenders sentenced to more than 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.
• The odds of recidivism were approximately 18 percent lower for offenders sentenced to more than 60 months up to 120 months incarceration compared to a matched group of federal offenders receiving shorter sentences.
• For federal offenders sentenced to 60 months or less incarceration, the Commission did not find any statistically significant differences in recidivism.

Ruling 5-4 against state prisoner, SCOTUS rules federal court misapplied All Writs Act in habeas proceeding

In a technical (and seemingly little) ruling, the Supreme Court reversed a procedural order in Shoop v. Twyford, No. 21-511 (S. Ct. June 21, 2022) (available here). The opinion for the Court was authored by Chief Justice Roberts, and it starts and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing.  The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief.  The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse....

A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U.S.C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored the main dissent, which Justices Sotomayor and Kagan joined. It starts this way:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition.  Ante, at 1. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding.  See ante, at 9–10.  I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch authored a solo dissent, which runs only two paragraphs and merits reprinting in full:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question.  The District Court’s transportation ruling was an interlocutory order, not a final judgment.  To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases.  See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545–547 (1949). In a terse footnote today, the Court does just that.  Ante, at 5, n. 1.

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 (2009).  If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ibid.

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

"The Trump Clemencies: Celebrity, Chaos, and Lost Opportunity"

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

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term.  Buried beneath this rolling disaster was a brief moment of hope and  a lost opportunity: the chance for a restructure of the clemency process in the Fall of 2018, enabled by a rare alignment of factors including Trump’s alienation from the Department of Justice and the interest of his son-in-law, Jared Kushner. This article explores the fullness of Trump’s clemency legacy and explores what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

Mississippi Supreme Court upholds, against Eighth Amendment challenge, mandatory LWOP habitual-offender sentence for marijuana possession

Last year in this post, I reported on a Mississippi state intermediate appeal court ruling that upheld a mandatory life without parole sentence for possession of over 30 grams of marijuana because the defendant was a violent habitual offender under Mississippi law.  Last week, the Supreme Court of Mississippi, by a 6-3 vote, affirmed this sentence in Russell v. Mississippi, No. 2019-CT-01670-SCT (Miss. June 16, 2022) (available here).  Here is the start and some concluding parts of the  majority opinion:

This certiorari case considers whether Allen Russell’s life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State, No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021).  We affirm Russell’s sentence....

In the limited scenario in which the mandatory sentence facing a defendant under Section 99-19-83 is life without parole and the crime for which the defendant is being sentenced, unenhanced, is a nonviolent crime that carries a minimal-maximum sentence (i.e. less than ten years), trial judges should specifically consider “all matters relevant to” the sentence as contemplated in Presley to determine the issue of gross disproportionality and the constitutionality of the sentence as to that particular defendant. Presley, 474 So. 2d at 620....  None of this benefits Russell. We reiterate, once again, that the burden is upon the defendant to show that the sentence mandated by the legislature is unconstitutional as to that particular defendant.  Because Russell presented no evidence, the only substantive evidence before the court were the prior convictions....

The record is replete with additional evidence, as documented in the separate opinion of the chief justice.  We would refer the reader to the chief justice’s separate opinion for a thorough recounting of the details surrounding Russell’s arrest.  However, it is pertinent to note that the arrest came while law enforcement was attempting to serve another drug related warrant on Russell as well as execute a search warrant on his premises. The search warrant came about as a result of Russell’s being developed as a suspect in a murder in a hotel room where a medical document naming Russell was found....

In Russell’s case, the trial judge followed our procedure and the law, Russell presented no evidence related to the Solem factors and the trial judge sentenced Russell to the only sentence available.  Therefore, we affirm.

The lengthy separate concurring opinion is an interesting read that seeks to highlight "Solem’s weaknesses." Here is how it concludes:

Based on both this Court’s precedent and the rulings of the United States Supreme Court in Rummel, 445 U.S. 263, Harmelin, 501 U.S. 263, Andrade, 538 U.S. 63, and Ewing, 538 U.S. 11, Russell’s sentence as an habitual offender was not grossly disproportionate.  His sentence meets the prescribed statutory punishment.  There is no legal basis to vacate Russell’s sentence.  It is neither cruel nor unusual.  As Russell has failed to prove that the threshold requirement of gross disproportionality was offered and met, because his sentence fell within the statutory requirement, and because his sentence is a constitutionally permissible sentence, we should affirm Russell’s conviction and sentence.

The short dissenting opinion includes this point in making the case Solem ought to help Russell:

Recent developments in Mississippi and elsewhere concerning the treatment of marijuana possession arguably provide a material difference between Solem and Russell that favors Russell as to the objective factors.  In the past year, the state of Mississippi joined many of its sister states in adopting a medical marijuana program.  Pursuant to the bill creating the program, the difference going forward between going to jail for possessing 2.5 ounces of marijuana and owning it legally would be a prescription.  See S.B. 2095, 2022 Miss. Laws.  For better or for worse, the adoption of a medical marijuana in Mississippi is in keeping with a nationwide change on the treatment of marijuana in the law.  An April 2021 law journal article points out that thirty-six states now have medical marijuana programs, and fourteen states and the District of Columbia now allow its recreational use.  Paul J. Larkin, Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215, 216-217 (2021).  Less than thirty years ago, however, all states and the federal government outlawed its distribution. Id. Whether it be wisdom or folly, the above-described move toward decriminalizing the use of marijuana considered in light of the first objective Solem factor, i.e., the gravity of the offense and the harshness of the penalty, surely weighs in favor of Russell.  There appears to be no similar widespread movement to legalize “uttering a ‘no account’ check[.]” Solem, 463 U.S. at 281.

More highlights from lots of great new Inquest essays

I flagged a number of great pieces from Inquest in a number of prior posts (recent examples here and here).  Inquest, "a decarceral brainstorm," keeps churning out great new must-read essays, and I am not sure how anyone can keep up with all the great content.  Here are just a few of the recent pieces worth checking out with an emphasis on sentencing and corrections topics:

By Alan Dettlaff, "End Carceral Social Work: To stay true to their professed values, social workers must wholly disavow and remove themselves from systems of harm."

By Lynne Haney, "Making Men Pay: For incarcerated fathers, child-support and related debt create their own feedback loops of disadvantage and punishment."

By Brad Haywood, "Busting the Myth: Many progressive prosecutors promised bold change. In Virginia and elsewhere, reformers are realizing that they’re still actors in the same machinery of injustice."

By Aziz Huq, "After the Backlash: Understanding the democratic appeal of retrenchment and reaction to movements for racial justice has never been more urgent."