Sentencing Law and Policy

Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow

The title of this post is my effort to get started on a short list for Prez Obama who would be, I think, wise to move quickly to seek to fill the new vacancy on the Supreme Court.  Attorney General Lynch, notably, has recently been confirmed by this Senate, and thus the confirmation process should be able to go quickly (though surely not smoothly).

Anyone else want to provide the Prez (or Senate leaders of anyone else) advice on this front?

So shocking and so sad: "Antonin Scalia, Supreme Court justice, dies at 79"

My otherwise calm afternoon of watching college basketball and trying to work on a death penalty article took a shocking turn when I heard this news: "U.S. Supreme Court Justice Antonin Scalia, a leading conservative voice on the high court, has died at the age of 79."  Here is more via CNN about how Justice Scalia died and some context for this sad and shocking news:

Scalia died in his sleep during a visit to Texas. A government official said Scalia went to bed Friday night and told friends he wasn't feeling well. Saturday morning, he didn't get up for breakfast. And the group he was with for a hunting trip left without him. Someone at the ranch went in to check on him and found him unresponsive....

In a statement, Chief Justice John Roberts said he and other justices were "saddened" to hear of Scalia's passing. "He was an extraordinary individual and jurist, admired and treasured by his colleagues," Roberts said. "His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family."

Deputy White House Press Secretary Eric Schultz said President Barack Obama was informed of Scalia's passing on Saturday afternoon. "The President and First Lady extend their deepest condolences to Justice Scalia's family. We'll have additional reaction from the President later today," Schultz said.

Scalia's death in an election year sets up a titanic confirmation tussle over his successor on the bench. The already challenging task of getting a Democratic president's nominee through a Republican-controlled Senate will made even more difficult as the fight over Scalia's replacement will emerge as a dominant theme of an already wild presidential election.

"His departure leaves a huge political fight in the offing because this is a court with five Republican appointees (and) four Democratic appointees," CNN Senior Legal Analyst Jeffrey Toobin said....

He will be best known, perhaps, for his landmark decision District of Columbia v. Heller, holding that the Second Amendment protects the right to posses a firearm at home. He was a critic of Roe v. Wade and dissented in last term's same-sex marriage cases....

The jaunty jurist was able to light up, or ignite, a room with his often brash demeanor and wicked sense of humor, grounded always in a profound respect for American law and its constitutional traditions. "What can I say," was a favorite phrase of the man colleagues knew as "Nino." As it turned out, quite a lot. "Justice Scalia had an irrepressibly pugnacious personality," said Edward Lazarus, a former Supreme Clerk law clerk who wrote about the experience in "Closed Chambers."

A sharp mind combined with a sharp pen allowed Scalia to make his point, both to the pleasure and disappointment of his colleagues and the public. "He could be belligerent, he was obviously very candid about he felt about things," said Joan Biskupic, a USA Today reporter who wrote a biography of Scalia. "He loved to call it as he saw it, completely not politically correct. In fact, he prided himself on not being PC on the bench in court."

There are so many timely and important jurisprudential and political issues that are now kicking around my head, but they can all wait for posts later this weekend. For now, though, I will just express my own sadness at the loss of an intellectual and judicial giant.  I did not agree with all his views and opinion (though his work on sentencing issues always impressed me), but I always respected and appreciated his efforts and energies.

Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?

The question in the title of this post is prompted by this press report headlined "With death penalty decision uncertain, judge delays Dylann Roof’s federal trial."  Here are the details:

A federal judge on Thursday delayed Dylann Roof’s trial in the deadly attack on Emanuel AME Church because prosecutors still have not decided whether to seek execution. Roof could face the death penalty on nine of his 33 charges in federal court, but Assistant U.S. Attorney Jay Richardson said the decision by Washington-based Justice Department officials could take another two months.

Such delays in high-profile federal cases are typical.  After the Boston Marathon bombings in April 2013, it took then-Attorney General Eric Holder more than nine months to announce he would seek the death penalty against Dzhokhar Tsarnaev.  Nearly eight months have passed since Roof’s arrest.  Attorneys for the 21-year-old Eastover resident already have said he would plead guilty if the government opts against capital punishment.

U.S. District Judge Richard Gergel urged prosecutors during a hearing Thursday in downtown Charleston to inform him promptly of any development so a trial date can be set.  “There are obviously important and alternate paths to go here based on that decision,” the judge said.

Roof’s federal charges in the June 17 shooting of nine black parishioners at the Calhoun Street church include civil rights violations. Officials have called the shooting a hate crime.  Because of the delays in the federal case, Roof is likely to be tried first in state court in July.  State prosecutors already have said they would pursue the death penalty. Thursday’s hearing in federal court served as a chance for Roof’s defense team and prosecutors to update Gergel on the status of the case. Roof, who remains at Charleston County’s jail, was not there....

Evidence in the cases continues to flow at a steady clip.  Roof’s defense team, led by attorney David Bruck, last month got a hard drive full of data, and the FBI has since authored more reports, Richardson said.

While Richardson said the government would be ready for a trial soon, Bruck said his ability to defend his client depends on the death penalty decision.  A trial could be avoided, he said, if Roof pleads guilty and gets life in prison.

Roof already had waived his right to a speedy trial because his lawyers need time to review “vast amounts” of evidence to defend him in a death penalty trial, Bruck said. “He has offered to plead guilty,” said Bruck, who also represented Tsarnaev in the Boston trial. “Everybody knows that. That has been the position since the first day of this case. The only issue is the government’s decision to accept that plea.”

Federal prosecutors have said that they planned to send their case to U.S. Attorney General Loretta Lynch’s office in December. The Justice Department’s Review Committee on Capital Cases typically makes a recommendation to Lynch within 90 days.  Though two representatives of the department’s Civil Rights Division, which typically leads such prosecutions, attended Thursday’s hearing, Richardson answered the judge’s questions. The prosecutor said that many people must give input and express opinions before a decision is made. “We feel like we are much closer,” he said.

I am generally disinclined to urge a prosecutorial charging decision should be rushed.  But I am mystified why and ultimately troubled by the feds needing a year to decide whether to seek a capital charge in a case where there seems to be little doubt about essential offense facts.  Especially with guilt not in question, with a large number of sympathetic victims, and with the offender's ugly motive making the indisputably a hate crime conparable to a form of domestic terrorism, I do not really understand why more than eight weeks, let alone eight months, are needed to decide whether to pursue a capital charge here.  

Of particular significance, if a capital charge was justified against against Dzhokhar Tsarnaev, whose crime slaughtered many fewer individuals and whose was arguably less culpabale than co-conspirator older brother, I have a had time figuring out why a capital charge against Dylann Roof would not be justified.  Indeed, at a time when so many are understandably concerned with whether modern criminal justice systems understand that "black lives matter ," I fear that any decision not to seek a capital charge in this case would create the impression that the nine black lives extinguished in Charleston do not matter as much as just three non-black lives extinguished in Boston.

"A Republican Crime Proposal That Democrats Should Back"

The title of this post is the headline of this New York Times op-ed authored by Gideon Yaffe discussing federal mens rea reform.  Here are excerpts:

These days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind.  That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.

As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be.  Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it.  Ordinary citizens may assume that this common-sense requirement is already the law of the land.  And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it.  But over the years, exceptions to the principle have become common because mens rea requirements have not been consistently detailed in laws....

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling.  The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes.  Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm.  Their opposition is a major stumbling block to passage of the larger bill.  But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people....

The Justice Department opposes the proposed mens rea measure on the ground that it would have prevented convictions of corporate executives whose products caused harm.  But it is entirely possible that the government could have proven mens rea had it been required to try.  Furthermore, criminal conviction is not the only way to make corporations pay for their harms: Tort liabilities and civil penalties are not constrained by mens rea requirements.  Senator Patrick Leahy, Democrat of Vermont, opposes strengthening mens rea requirements across the board, arguing that each problematic statute should be revised individually.  But it would take years to revamp thousands of laws....

The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted.  Ohio and Michigan have already passed mens rea reform laws.  And in the wake of federal legislation, other states, including New York, would likely follow their lead.

Democrats should push for even more sweeping changes to unjust “felony murder” laws, which permit murder convictions for anyone participating in a felony in which someone dies, even if no one involved could have been expected to foresee that happening.  We know that adolescents are far less aware than adults of the risks their conduct involves, but since felony murder does not require proof of mens rea, adolescent defendants can’t offer evidence of their distorted perceptions of risk.

For liberals, the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime — or even stopped by the police — without evidence of a criminal state of mind.

Some recent and older related posts:

• Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
• Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
• "The Pressing Need for Mens Rea Reform"
• "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"

Another federal child porn downloader gets another non-prison sentence in the EDNY

A helpful readers alerted me to this notable Newsday report concerning a notable federal sentencing this morning in the Eastern District of New York headlined "Ex-police investigator gets home detention for child porn." Here are the details:

A former investigator with the New York State Police stationed on Long Island was sentenced to 9 months of home detention Friday in a child porn case.  Sean Michael Pagano of Mount Sinai could have been sentenced to between 46 months to 57 months in prison under federal sentencing guidelines after he pleaded guilty to one count of accessing child pornography.

Pagano, at the time stationed at Troop L in East Farmingdale, was arrested in April by FBI agents after he was accused of accessing a website in Alaska and downloading child pornography.  The arrests came after agents raided a house in Anchorage that served as a base for the distribution of child pornography and took over the site, collecting information on who was involved in the site.

“I take full responsibility for my actions,” Pagano said Friday, tearing up as he spoke in Central Islip federal court.  “I am sorry. . . . Helping people was my main goal in life.”

Before sentencing Pagano, U.S. District Judge Arthur Spatt said he was balancing the “seriousness” of the crime with his otherwise “outstanding” career. There is “certainly no danger to society or anyone and he is probably truly remorseful,” Spatt said.

Eastern District Assistant U.S. Attorney Allen Bode had asked for a significant sentence, noting that Pagano, as a state trooper, had gone along on raids involving child pornography with FBI agents on Long Island who normally deal with such cases.  Bode said as a result of Pagano’s relationship with agents on Long Island FBI agents from the city had to work on the case.

Before sentencing, Pagano’s attorney Joseph Conway of Mineola described his client as having a distinguished career in the Marine Corps and with the State Police. Pagano has since resigned from the State Police. His position was the equivalent of being a detective....

At the time of his arrest, Pagano claimed he was investigating child pornography. But State Police officials said that that was not correct and he had been assigned to investigating narcotics.

Though I am disinclined to assert that there is a full judicial revolt with respect to the federal sentencing of child pornography offenders in the Eastern District of New York, I do think it quite notable and significant that this is the third significant report of a federal judge in EDNY refusing to accede to the arguments by federal prosecutors that a downloader of child pornography has to be imprisoned (prior coverage here and here and linked below).

Notably, in the course of this discussion at Crime & Consequences in the wake of Judge Jack Weinstein's recent similar sentencing ruling in US v. RV (discussed here), Bill Otis stated his view that there are "very, very few CP cases that actually reach indictment in which a zero [prison] sentence would be acceptable."  Though I am not sure I completely agree with that sentiment, I do find the imposition of only home confinement in this case especially notable (and perhaps distinctly questionable) because the defendant here was, according to this press article, a "state trooper [who] had gone along on raids involving child pornography with FBI agents on Long Island,"  and when arrested "Pagano claimed he was investigating child pornography."  In other words, it appears that the CP downloader here had a unique position of trust AND aggravated his crime by obstructing justice when he was first caught.  Those aggravating factors lead me to wonder think federal prosecutors might be uniquely eager to appeal this case to the Second Circuit, though I would need to know a lot more about the extent and nature of the child porn downloaded by Pagano before making any predictions about whether such an appeal might prevail.

Recent related posts about child porn sentencing in EDNY:

• Judge Jack Weinstein disregards severe federal child porn guidelines again
• Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

At debate, Bernie Sanders promises that "at the end of my first term as president we will not have more people in jail than any other country"

I have lost interest not only in blogging before for every Presidential debate, but also in watching most of them.  But, perhaps not surprisingingly as the Prez campaign marches forward to more diverse states than Iowa and New Hampshire, last night's Democratic debate saw Hillary Clinton and Bernie Sanders talking about modern policing, racial disparities in our criminal justice system and mass incarceration.  Of particular note was Sanders making the promise highlighted in the title of this post.  Here is a little bit more of what Senator Sanders had to say on these fronts:

This mandatory sentencing, a very bad idea. It takes away discretion from judges.  We have got to demilitarize local police departments so they do not look like occupying armies.  We have got to make sure that local police departments look like the communities they serve in their diversity.

And, where we are failing abysmally is in the very high rate of recidivism we see. People are being released from jail without the education, without the job training, without the resources that they need to get their lives together, then they end up -- we're shocked that they end up back in jail again.  So, we have a lot of work to do.

But, here is a pledge I've made throughout this campaign, and it's really not a very radical pledge.  When we have more people in jail, disproportionately African American and Latino, than China does, a communist authoritarian society four times our size.  Here's my promise, at the end of my first term as president we will not have more people in jail than any other country. We will invest in education, and jobs for our kids, not incarceration and more jails.

Helpfully, Leon Neyfakh not only noticed this significant promise, but also quickly authored this Slate commentary about it. The headline of the post provides a flavor of its themes: "Sanders Is Delusional if He Thinks He Can Keep His Promise on Mass Incarceration."  Here is the heart of is effective commentary:

What Sanders means by this is that under just four years of his magical leadership, the U.S. will bring down its jail and prison population by about 600,000 people.  Where does that figure come from?  Consider that the No. 2 spot on the list of countries with the most prisoners in the world right now is China, and it has about 1.66 million people behind bars.  The U.S., by comparison, has about 2.3 million.

Sanders did not mention during his remarks how he plans to make the leap from 2.3 million to fewer than 1.66 million. But regardless of what he has in mind, it’s pure fantasy for several reasons. Chief among them is that the president of the United States has no direct control over most of the nation’s correctional facilities.  This is because jails, which currently hold fewer than 745,000 people, are under local control, and state prisons, which hold about 1.35 million, are under state control. That leaves the federal prison system — the only one that the federal government is actually in charge of — with 210,000 people, or about 10 percent of the pie.

It’s true that the president has a “bully pulpit” from which he can say inspiring things that set the tone for officials working at all levels of government.  It’s also true that in theory, the federal government could try to bribe state governments to rely less on incarceration.  But the bottom line is that the feds can only set policy for their own prison system and that means there’s a very low ceiling on the amount of progress that a president, no matter how ambitious he or she is, can do to reduce the prison population....

This would be a good time to remember, also, that Congress’ current efforts to bring down the prison population by enacting very modest sentencing reforms appear to be falling apart in slow motion because there are enough lawmakers in Washington who think it’s too dangerous to set anyone free, ever.  And this is at a time when there’s supposed to be a historic bipartisan consensus over the need for reform.

If Sanders wants to release more than 500,000 people by 2020, he’s going to have to break them out personally.  If he has a more efficient approach in mind, he needs to share it before he makes this ridiculous promise again.

Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity

This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:

Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."

He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."

It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.

It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.

To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.

Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors.  He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15.  "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources."  Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.

Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

In this appeal, we address for the first time whether 18 U.S.C. § 16’s statutory definition of “crime of violence” is unconstitutionally vague.  We consider this question in the light of the Supreme Court’s recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Johnson v. United States, 135 S.Ct. 2551 (2015).  In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining “violent felony” as any crime that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  Section 16 contains a similar definition: a “crime of violence” is “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA’s language to suffer the same unconstitutional fate.  United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We agree, and accordingly hold § 16 unconstitutional.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

“It is the uncertainty that charms one. A mist makes things wonderful.” Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but not in the criminal law, where too much uncertainty denies defendants fair notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)....

In summary, we should not strike Congressional law, 18 U.S.C. § 16(b), because, first, the concerns raised by the Court in Johnson with respect to ACCA’s residual clause are less implicated by Section 16(b); second, because Leocal is precedent only the Supreme Court should adjust; and, third, because Section 16(b) does not involve the interplay of interpretative method and statutory text causing the double indeterminacy that was the due process muddle rejected in Johnson.  Gonzalez-Longoria was on sufficient notice that his prior crime of Assault Causing Bodily Injury with Prior Conviction of Family Violence is one society condemns as violent because it involves a substantial risk that, in the course of its commission, force will be used against another.  I dissent.

Some marijuana reform developments (with seasonal politics) via Marijuana Law, Policy and Reform

It has been a few weeks since I highlighted here developments in the marijuana reform space, and recent posts from Marijuana Law, Policy & Reform highlight just some of the reasons why the on-going 2016 election (and the football season just completed) provide a number of marijuana reform angles and stories worth keeping an eye on:

• Did the voters of New Hampshire just significantly help improve the chances of federal marijuana reform?

• Florida voters to get another chance to legalize medical marijuana via 2016 ballot initiative

• Prez Obama clarifies that marijuana reform is NOT among his final priorities

• "Elizabeth Warren Urges CDC To Consider Cannabis To Solve Opioid Epidemic"

• GAO says DOJ "should document its approach to monitoring" the impact of state marijuana legalization

• Oregon Health Authority report calls for "the creation of an independent, free‐standing Oregon Institute for Cannabis"

• "Medical Marijuana Could Help the NFL Cure the Illness Menacing Players' Brains, Activists Say"

• Big new public health analysis of marijuana legalization proposals in California

• "These nuns will get you high — as heaven"

• What's in a Name? That Which We Call Marijuana by Any Other Name Would Still Engender Opposition (... but maybe we should still doff thy name?)

Notable data on racial and gender dynamics of recent changes in incarceration rates

This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:

After decades of growth, the U.S. imprisonment rate has been declining for the past six years.  Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.

The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent.  These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.

A similar pattern emerges for men, who compose a much larger share of the prison population.  The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000.  As a result, the racial disparity has shrunk by nearly one quarter.

In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.”  Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."

Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.”  Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.

Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.”  Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....

Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.

Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition

As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.

In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....

Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.

Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.

Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

Related prior posts providing some Angelos case history:

• Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
• Tenth Circuit affirms 55-year mandatory minimum sentence in Angelos
• Cert denied in Angelos mandatory minimum case
• NYU Center files amicus in Angelos case
• An argument that the Second Amendment and Heller should help Weldon Angelos
• Weldon Angelos files 2255 motion
• A request for a commutation for Weldon Angelos
• "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
• A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos

"The State of Sentencing 2015: Developments in Policy and Practice"

The title of this post is the title of this great new publication from The Sentencing Project.  Here is a summary of its contents drawn from an email I received earlier today:

[This] new report from The Sentencing Project, The State of Sentencing 2015: Developments in Policy and Practice, [was] authored by Nicole D. Porter, Director of Advocacy.  The report highlights reforms in 30 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  It provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

• Sentencing:  At least 12 states authorized new sentencing laws or modified policy practices including: abolishing the death penalty; reducing criminal penalties; and sentence reduction policies for mandatory sentences.

• Probation/Parole:  Lawmakers in at least six states modified policies relating to community supervision including statutory guidance designed to reduce returns to prison for technical probation and parole violators.

• Collateral Consequences:  Officials in at least 14 states authorized changes in policy and practice to the collateral impacts of a conviction including: expanding voting rights; eliminating public benefits bans for felony drug convictions; and addressing employment barriers.

• Juvenile Justice:  Lawmakers in ten states adopted juvenile justice reforms including: banning mandatory life-without-parole sentences for justice involved youth and limiting prosecutorial discretion in automatic transfer policies for juvenile defendants.

Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015

As reported previously in this post and now again via this new piece from The Hill, a number of Senators are in the midst of a robust conversation about the merits of and concerns about the Sentencing Reform and Corrections Act (which I have called SRCA 2015 since its introduction last fall).  Of particular note and importance (and as noted in this prior post), Arkansas Senator Tom Cotton seems to be taking a leading role raising concerns about the current version of the SRCA, and I am now pleased and impressed that Senator Cotton has provide a thorough articulation of his concerns through this new Medium commentary titled "The Current Sentencing Reform and Corrections Act is Dangerous for America," and also through this extended speech delivered yesterday on the Senate Floor.

The Medium commentary, which is relatively short, does not do much more than emphasizethe anti-federal-sentencing-reform points already forcefully and repeatedly expressed by the National Association of Assistant U.S. Attorneys and Bill Otis and others who have been consistent opponents of any changes to the current federal sentencing status quo.  But the Senate floor speech is much, much longer and, in my view, in spots much, much more thoughtful in discussing the SRCA and his own perspectives about federal sentencing reform.  I highly recommend all persons following federal sentencing reform to read Senator Cotton's lengthy floor speech in full, and here are some of the (many) passages that has led me to describe it as forceful (and somewhat thoughtful):

Today, I want to discuss the Sentencing Reform & Corrections Act that has been voted out of the Judiciary Committee. There is much debate about the wisdom of this bill.  That is, like most bills we discuss in this chamber, a judgment call. But there cannot be debate over the facts of this bill. We have to be very clear on what this bill, by its own text, is designed to do....

By its text, the bill will not just apply to so-called "non-violent offenders," but to thousands of violent felons and armed career criminals who have used firearms in the course of their drug felonies or crimes of violence.

By its text, the bill will reduce sentences not for those convicted of simple possession, but for major drug traffickers, ones who deal in hundreds of thousands of dollars' worth of heroin or thousands of pounds of marijuana.  And let's be clear: drug trafficking is not "non-violent," as the bill's proponents often claim.  It's an industry that's built on an entire edifice of violence, stretching from the narcoterrorists of South America to the drug-deal enforcers on our city streets. If you think dealing drugs on a street corner while armed with a gun is a "non-violent" offense, you probably live in a rich suburb or a gated community....

It's been reported that the bill's sponsors are preparing to release a revised bill, one that would address some of these many shortcomings.  Regarding this news, I first want to thank the sponsors for acknowledging that the bill as passed by committee does in fact apply to serious drug traffickers and other violent felons.  I look forward to evaluating the new legislative text, and I hope it addresses these problems....

The [US Sentencing] Commission first reduced sentencing guidelines in 2007.  It did so again in 2010. And again in 2014. That is three major systemic sentencing reductions in the span of seven years. The result?  46,000 federal convicts will walk from jail early.  Wendell Callahan was one among that 46,000.  There will be many more like him. And while we pray — against all odds — that none of them go on to commit a triple-murder like Wendell Callahan did, or any other heinous crime, I'm afraid our prayers will go unanswered, at least in part.

The Sentencing Commission is an independent judicial agency that provides uniform sentencing guidance to judges. Congress didn't have a hand in those sentencing reductions.  But with the Sentencing Reform & Corrections Act, the Senate would impose a fourth major sentencing reduction within eight years — one that is deeper and broader than the reductions imposed by the Sentencing Commission.

This is badly misguided.  The Senate would be launching a massive social experiment in criminal leniency without knowing the full consequences of the first three reductions imposed by the Sentencing Commissions.  This experiment threatens to undo the historic drops in crime we have seen over the past 25 years....

The Senate, and the American people, need to consider any change to our sentencing laws with full information.  We need to know if this sentencing-leniency bill will return us closer to the days of the `70s and `80s when our cities were besieged by the drug trade, and whole communities were being rotted out as a result.  We need to debate sentencing changes with all the data available to us.  We need to do this with eyes wide open.

That is why today — together with Senators Hatch, Sessions, and Perdue — I am introducing the Criminal Consequences of Early Release Act.  This is a simple, but very needed bill.  It will require the federal government to report on the recidivism rates of the 46,000 federal inmates to be released early under the Sentencing Commission's reductions.  And it will require the same reporting for any prisoners released early under any future reductions passed by Congress.

The report required by this bill will make clear how many crimes are being committed by released felons.  It will make clear what types of crimes — from drug trafficking to assault to robbery to murder — are being committed by these felons. And it will make clear in which states these crimes are occurring.

Currently, this type of data is extremely hard to compile.  It is not reported by the Bureau of Justice Statistics, and any information we do have comes through anecdotes and sporadic media reports.  Full information on the criminal consequences of early release must be published in detail.  Before voting on any bill to reduce sentences, the members of this chamber need to understand fully the criminal consequences of prior sentence reductions....

I want to be clear.  To those who support the Sentencing Reform & Corrections Act, we are not in full disagreement. Like you, I oppose jail for first-time drug users with no prior record.  It's vanishingly rare for such offenders to be prosecuted and jailed in the federal system.  But it remains true that the better option for them — particularly if they are addicts — would be drug treatment.  Like you, I believe that our prisons should not be an anarchic jungle that is a danger to both prisoners and corrections officers.  Like you, I believe that those prisoners who will someday complete their sentences and re-enter society should be given the chance to rehabilitate and redeem themselves while in prison so that they do not recommit crimes once they are released.  Like you, I do believe that there exists the possibility of an unjust sentence, one that is so out of proportion that it shocks the conscience.

So I suggest, let's work on that bill.  Let's work on a bill that identifies and addresses all first-time drug possession inmates in the federal system, but keeps drug traffickers and other violent offenders in prison to finish their sentences.  Let's improve prison conditions and give prisoners a shot at redemption and a better life.  And, if you wish, let's work on a bill to speed the consideration of commutation applications.

If we want to undo unjust sentences, we can help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences.  But what we should not do is use the blunt instrument of releasing thousands of violent felons and major drug traffickers.  The president has the constitutional power to remedy unjust sentences.  But you know what power he doesn't have?  The power to bring back to life the victims murdered by prisoners who are released early or sentenced inadequately.

There are a number of statements in the parts of this speech quoted above with which I could take serious issue. In particular, Congress always has authority to block any and every formal decision by the US Sentencing Commission, and the crack-guideline reductions of 2010 were essentially mandated by Congress in the Fair Sentencing Act of 2010. Consequenlty, it is not accurate for Senator Cotton to assert that "Congress didn't have a hand in those sentencing reductions" to drug sentences promulgated by the USSC in recent years. More generally, to assert in blanket terms that "drug trafficking is not 'non-violent'," is no better than asserting in blanket terms that "drug trafficking is non-violent." Some federal drug-traffickers in some settings are extremely violent in doing business. But I have not heard of much violence taking place in all the stores now selling a whole lot of marijuana in Colorado and other states, and I surmise that the ability to purchase this drug in a safe environment is one reason marijuana sales seem to keep going up and up in a number of states.

But, critically, even though Senator Cotton sometimes favors rhetoric over reality in this speech, the basic themes and many particulars he stresses are an important and valuable contribution to the broader debate over federal sentencing reforms. In particular, Senator Cotton is 100% right that our national data on the recidivism rates and realities of federal offenders — not only with respect to those who get sentence reductions, but also for the entire released offender population — leave a lot to be desired and raise more questions than answers. (Indeed, as some readers likely know well, the very term "recidivism" is subject to various definitions in various settings.) I could not agree more with Senator Cotton's statement that the "Senate, and the American people, need to consider any change to our sentencing laws with full information." Indeed, I have long thought that many of our worst federal sentencing laws enacted in prior decades — e.g., the 100-1 crack/powder disparity, some of our most severe gun possession mandatory minimums — were passed largely based on misinformation about their reach and likely impact.

In addition, I think Senator Cotton merits praise for urging his colleagues to "improve prison conditions and give prisoners a shot at redemption and a better life," and especially for suggesting "work on a bill to speed the consideration of commutation applications" in order to "help the president use his constitutional power of pardon and commutation as a precise scalpel to identify and remedy those rare cases of manifestly unjust sentences." As long-time readers know, many sentencing reform advocates (myself included) have been advocating for Presidents of both parties to make much broader and more constitent use of the "constitutional power of pardon and commutation." I think it is both quite heartening and significant that now the Senate's most vocal opponent of proposed sentencing reforms is sincerely calling for President Obama (and future presidents) to use the clemency power to remedy any and all federal sentences that appear to the President to be "manifestly unjust."

"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"

The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case.  If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice.  However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.

In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker.  Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging.  Next, we consider how the use of such evidence continues to expand in the criminal trial process.  Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence.  Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.

Post-Hurst hydra heads emerging in Alabama

As regularly readers may recall, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.  Now, as reported in this local article, headlined "Capital murder suspects across Alabama seek to bar death penalty," some post-Hurst hydra heads are emerging in the Yellowhammer State.  Here are the basic details:  

Attorneys for 25-year-old Antonio McCary Jones, a Birmingham man charged with killing a fellow drug dealer by shooting him 14 times, last week told a judge that if Jones is found guilty the death penalty should not be an option. Alabama's sentencing scheme in death penalty cases is the same as Florida's, which was ruled unconstitutional last month by the U.S. Supreme Court, Jones' lawyers argued Friday.

In both Alabama and Florida, judges are allowed to override jury recommendations for either life without parole or death.  "The dilemma we're trying to resolve is do we want 12 people deciding death or life, or one person," Joe Basgier, one of Jones' lawyers, said after the hearing.  Basgier and Jones' other attorney, Hube Dodd, are not alone in making the argument.

The ink was hardly dry on the U.S. Supreme Court's Jan. 12 ruling in Hurst v. Florida before lawyers around Alabama began filing motions seeking to bar the death penalty for their clients facing capital murder charges because of the similarities between the two states' capital punishment sentencing laws.

That has had local district attorneys scrambling to defend Alabama's capital sentencing law and putting circuit judges in the position of having to hold hearings and rule on the issue.  Several judges have already denied the motions, at least one has taken it under advisement, and a few are awaiting further guidance.

District attorneys and Alabama Attorney General Luther Strange say Alabama's law is not the same as Florida's and has already been declared constitutional.  "The U.S. Supreme Court ruling regarding the Florida death penalty does not affect Alabama's law. The U.S. Supreme Court specifically upheld Alabama's current system as constitutional in the case of Harris v. Alabama in 1995," according to a statement from the Attorney General's Office.

"In the Florida case (Hurst), the holding is that a jury must find the aggravating factor in order to make someone eligible for the death penalty.  Alabama's system already requires the jury to do just that," according to the Attorney General's statement. "The jury must unanimously find an aggravating factor at either the guilt or sentencing phase — such as when the murder was committed during a robbery, a rape, or a kidnapping."...

Defense attorneys argue that that ultimate decision to sentence a defendant to death is made by a judge and not a Jury, just as in Florida.  "The jury does make its own sentencing recommendation after a comparable weighing process, but that recommendation 'is not binding upon the court,'" according to Basgier and Dodd's motion.

Rarely, if at all, has a judge in Alabama overridden a jury recommendation for death and sentenced a suspect to life without parole.  But there are a number of cases in which a judge has overridden a life without parole recommendation and imposed a death sentence.

According to several motions filed by defense attorneys around Alabama, the U.S. Supreme Court in its ruling in the Hurst case also overruled two previous case — Hildwin v. Florida in 1989 and Spaziano v. Florida in 1984.  Both those cases had been used by the court in upholding Alabama's death sentencing scheme in 1995, according to the motions. "As a result, the cases that upheld Alabama's death penalty scheme are no longer valid," according to Basgier and Dodd's motion, which mirrors other defense lawyer's "Hurst" motions.  The Alabama Attorney General's Office had filed a brief in the Hurst case asking that the U.S. Supreme Court not overrule Spaziano because that case "had provided the legal foundation for Alabama's death penalty scheme," according to Basgier and Dodd's motion.

A few notable sentencing stories from the campaign trail

As we all today await official results from the first-in-the-nation Presidential primary, I thought it might be useful to assemble here a few of the news and commentary pieces concerning some of the candidates I have seen recently:

• The Clintons’ War on Drugs: When Black Lives Didn’t Matter

• Bernie Sanders just set an impossibly ambitious goal to reverse mass incarceration

• Trump: ‘Every Single’ Person Obama Released Will Sell Drugs Again

• Which Presidential Candidates Would Tolerate Legal Pot?:  Marijuana federalists lead the GOP race, while the most pugilistic prohibitionist is stuck in single digits.

Prez Obama signs into law the "International Megan's Law," and group immediately files suit against passport scarlet letter requirement

As reported in this AP piece, headlined "Sex offenders challenge new federal passports law," over the last 24 hours President Obama signed a somewhat controversial federal sex offender law and a group has filed suit to block part of its mandates. Here are the basics:

A civil rights group has filed a lawsuit challenging a law that will require sex offenders to be identified on their passports.

President Obama signed the International Megan's Law bill into law on Monday following Congress passing the bill last week. The California Reform Sex Offender Laws filed the lawsuit in U.S. District Court in San Francisco, challenging the laws, which requires the Secretary of State to add "unique identifiers" to the passports of all registered sex offenders.

Passports today are used as a primary form of identification as well for entry into a foreign country. A passport symbol that identifies an individual as a registered sex offender could place at significant risk that person as well as others traveling with them, including family members and business colleagues, the lawsuit says.

This page on the site of the California Reform Sex Offender Laws organization provides these additional details about the suit:

The lawsuit will be filed in U.S. District Court, San Francisco, on behalf of four registered citizens. The lawsuit alleges that International Megan’s Law violates several provisions in the U.S. Constitution including the First, Fifth and Fourteenth Amendment, as well as the equal protection and ex facto clauses. Subsequent to filing of the lawsuit, an application for a Preliminary Injunction will be filed which, if granted, would stop the law from being implemented. 

A helpful reader emailed me a copy of the 27-page complaint in this case, and I have provided it for downloading here:  Download Complaint filed against IML Feb 2016

Is California conducting an "unprecedented experiment in mass forgiveness"?

The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory.  Here are excerpts:

[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history.  In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.

The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor.  More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.

For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.

Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term.  And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.

Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.

But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...

So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders.  As many as 16,000 more remain eligible.  Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.

Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment.  “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department.  “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit?  Stealing.  Our burglaries are up, car theft is up, break-ins are up — they are all up.”

Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”

Prop 47 supporters acknowledge the problem and say efforts are underway to address it.  More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said.  But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime.  Early reports indicate that recidivism among inmates released under the full range of reforms has been low....

In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes.  Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.

Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.

Mark you calendar for ASKS, a big alternative sentencing summit next month in DC

I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:

Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.

More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.

What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:

• Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
• Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
• NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.

Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics

This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall).  Here are all the important details:

Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics.  In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison.  Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.

One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.”  Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday.  The aide added that this section was the subject of the most complaints from conservatives.

The second major change is to Section 104 of the bill.  That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery.  Those changes could be applied retroactively for current inmates.  Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence.  Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said.  “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.

The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year.  The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).

But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.

I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions.  But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill.  If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.

Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition.  But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote.   Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality.  Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.

Recent prior related posts on SRCA 2015:

• Basic elements of Sentencing Reform and Corrections Act of 2015
• Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
• Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
• Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
• SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
• US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
• Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform

Notable battles in Texas over local sex offender residency restrictions in small towns

A helpful reader alerted me to this interesting new AP article headlined "More Than 20 Texas Town Repeal Sex Offender Residency Law," which reports that a "broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court." Here is more:

While other states, including neighboring Oklahoma, continue to push offenders away from some neighborhoods, about 45 Texas towns received letters in November from the group Texas Voices for Reason and Justice demanding they repeal residency restrictions. The nonprofit, which is critical of sex offender laws it considers ineffective, also has sued 14 towns and has a powerful ally — the state attorney general's office. "We advocate an individual assessment on a case-by-case basis to determine if someone is a threat to the community," said Richard Gladden, an attorney for the group. "The myth that people who commit sex offenses just generally are unable to control their sexual conduct is just that, a myth."

At issue is how Texas' small towns are differentiated from larger ones. Communities with fewer than 5,000 people are "general law" towns, which can't adopt an ordinance that the Legislature hasn't permitted. Dozens of these smaller communities have restricted where sex offenders can live — usually with the purpose of keeping them away from schools and other places children gather — but only later learned they've run afoul of state rules. "Unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live," according to a 2007 opinion signed by then-AG Greg Abbott, who's now Texas governor. Larger cities fall under "home rule," which means they have "a constitutional right of self-government," Abbott wrote.

But the Texas Municipal League, which provides support services and lobbies on behalf of cities, is pushing for legislative action that reverses Abbott's decision. "It's new where a general-law city has had its authority taken away by an attorney general's opinion," executive director Bennett Sandlin said.

The state allows leaders in general law towns to fashion municipal rules for "the good government, peace or order of the municipality," Sandlin said, such as zoning and noise control laws. But state officials can step in when local laws overreach....

Krum Mayor Ronald Harris Jr. said litigation prevents him from talking about whether his town will repeal its law, but he criticized the Legislature for not acting on behalf of small-town Texas. "They're saying that we as a small town don't have a right to have an ordinance to protect our children and our residents, but larger towns do," Harris said.

The city manager of Alvarado, which is south of Fort Worth, has told WFAA-TV in Dallas that although residents expressed concern about repealing the law, they know valuable town money could evaporate under the weight of a lawsuit. "They're disappointed that we're not able to regulate our own town," said Clint Davis, who did not respond to a message left by The Associated Press for comment....

Gladden argues myriad laws aren't necessarily benefiting public safety. In many cases, he said, an innocent "Romeo and Juliet relationship" can result in a young man being prosecuted for having sex with a minor and labeled a sex offender for the rest of his life.  Meanwhile, federal statistics show the overwhelming number of sex abuse cases involving children are perpetrated by a family member or friend of the family, and not an anonymous stranger, he said.  "Obviously, people are concerned about their kids and sometimes people are so overwhelmed by their natural instinct to protect their children that they don't necessarily use their heads and see what works and doesn't work," Gladden said.

But Sandlin argues the residency restrictions are common-sense measures to protect children and don't amount to an unwarranted hardship, as some would claim, because Census data shows more than 90 percent of land in Texas is outside incorporated cities. "Cities are dense urban areas where it makes sense to regulate where sex offenders live," Sandlin said.

I have long considered political and legal disputes over local sex offender residency restrictions to be among the most interesting and dynamic criminal justice arenas for debating what might be called "local federalism."  But I am not aware of any other state in which certain localities were allowed to enact sex offender residency restrictions and others were not, and I suppose this story is just still further proof that Texas often has its own unique approach to justice.

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want.  The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:

A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.

“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them.  I don’t see his children at risk.”

Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4.  The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.

Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines.  Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.

Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors.  He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger.  “There are troubling issues and we are talking about children,” Gopstein argued.

But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said.  Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.

The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases.  It was unclear whether he was serious.

Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.

The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.

Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases.  For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.

"Restitution and the Excessive Fines Clause"

The title of this post is the title of this notable new paper authored by Kevin Bennardo now available via SSRN.  Here is the abstract:

Restitution is a component of many criminal sentences.  There is little agreement, however, upon whether and how the Eighth Amendment of the Constitution limits restitution orders in criminal cases.  Courts have long been divided over whether the Excessive Fines Clause applies to restitution orders at all, whether to apply the “grossly disproportional” test to restitution orders or some other causation-based test, and how to measure gross disproportionality in the restitution context.

First, the Excessive Fines Clause of the Eighth Amendment should be read as a limit on restitution orders in criminal cases.  The Eighth Amendment applies because these monetary payments are partially punitive.  And, although restitution payments are not made to the sovereign, the concept of “fines” for purposes of the Excessive Fines Clause is properly understood to encompass payments to third parties that result from government-initiated action.

Second, the same “grossly disproportional” test that has been applied to criminal fines and forfeitures should apply to restitution orders as well.  Indeed, all monetary sanctions should be pooled together for purposes of a single Excessive Fines Clause proportionality analysis.  The constitutionally-relevant question should be whether an offender’s total monetary sanction is grossly disproportional to the gravity of the offense.  Although causation between the offense conduct and the victim’s loss is generally a statutory requirement of restitution orders, it is not a constitutional one. The causation requirement furthers restitution’s remedial purpose; it is not relevant to the Eighth Amendment’s excessiveness inquiry, which functions to limit the punitive severity of monetary sanctions.

Lastly, the question of gross disproportionality is largely an exercise of judgment that should be left to the judiciary. Some courts have inappropriately wholly relied on analyzing whether the monetary sanction was authorized by the legislature in assessing the constitutionality of the penalty.  This approach inappropriately collapses the constitutional inquiry into the statutory one. Although the statutory restitution or fine range may be a useful input in the constitutional analysis, it cannot be the sole component.  In the end, the judiciary's independent judgment must be trusted to weigh proportionality and detect unconstitutionally excessive monetary sanctions.

FSR accounting of state of federal sentencing reform efforts at end of 2015

As I try to provide here a "real-time" account of certain ups-and-downs with various federal statutory sentencing reform bills, I too rarely find the time to provide a more reflective accounting of what is afoot in this important criminal justice reform space.  Helpfully, my Federal Sentencing Reporter co-editor, Frank Bowman, has spent time recently assembling in FSR's pages some primary documents and cutting-edge commentary on this front.  Here is part of an email Franl authored providing a description of what he has put together for FSR:

For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries. 

In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015.  The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015.  In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House.  The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last.  The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform.  It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)