Sentencing Law and Policy

Fraternal Order of Police now supporting FIRST STEP Act with some sentencing reform provisions

Roughly nine months ago, the President of the Fraternal Order of Police (FOP) wrote this three-page letter to the President of the United States expressing opposition to the Sentencing Reform and Corrections Act.  But yesterday, in what seems to me to be a important and encouraging development, the FOP released this one-page statement headed "FOP Partners with President Trump on Criminal Justice Reform."

The new FOP release should be read in full, as it indicates support for adding modest sentencing reforms to the FIRST STEP Act bill that was passed by the House earlier this year.  In addition, the sub-heading of the press release says "Revised and amended First Step Act to be introduced next week." This strongly suggests that "Beltway insiders" are prepared and planning to try to get big federal statutory sentencing reform done in a matter of weeks.

"Farewell to the Felonry"

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

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

"The Death Penalty as Incapacitation"

The title of this post is the title of this new paper available via SSRN authored by Marah Stith McLeod.  Here is its abstract:

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence.  The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary.  The view on the ground could not be more different.  Hundreds of executions have been premised on the need to protect society from dangerous offenders.  Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators pay so little heed to this driving force behind executions? The answer lies in two assumptions: first, that solitary confinement and life without parole also incapacitate, and second, that prediction error makes executions based on future risk inherently arbitrary.  Yet solitary confinement and life without parole entail new harms — either torturous isolation or inadequate restraint. Meanwhile, the problem of prediction error, while significant, can be greatly reduced by reevaluating future dangerousness over time.

This Article illuminates the remarkable history, influence, and normative import of the incapacitation rationale, and shows how serious engagement with the incapacitation rationale can lead to practical reforms that would make the death penalty more fair.  It concludes by highlighting several of the most promising reforms.

Interesting talk of prison reform amidst talk of Chris Christie as possible Attorney General replacement

This new CNN article includes lots of interest for federal criminal justice reform fans under the headline "Trump considering Christie, Bondi for attorney general." Here are excerpts:

President Donald Trump is considering former New Jersey Gov. Chris Christie and Florida Attorney General Pam Bondi to replace fired Attorney General Jeff Sessions, sources familiar with the matter said.

Trump fired Sessions on Wednesday without immediately naming a replacement, instead installing Sessions' chief of staff Matthew Whitaker as acting attorney general. Both Christie and Bondi are longtime political allies of the President's and were initially considered contenders for the Justice Department perch during the transition.

Given Trump's longstanding frustrations with Sessions, other potential contenders have cropped up in Trump-friendly circles in recent months, including Whitaker, Solicitor General Noel Francisco, Rep. John Ratcliffe, R-Texas, former Judge John Michael Luttig, Judge Edith Jones, former Judge Janice Rogers Brown, retiring Rep. Trey Gowdy, R-South Carolina and Sen. Lindsey Graham, R-South Carolina.

If nominated, Christie, a former US attorney, could face similar calls to the ones Sessions faced to recuse himself from special counsel Robert Mueller's investigation given his role as a prominent 2016 campaign surrogate for Trump. But unlike Sessions, there is no indication he had contacts with Russian officials during the 2016 campaign or transition.

Christie attended a previously scheduled law enforcement roundtable on prison reform efforts at the White House on Thursday morning, an administration official and source familiar with the meeting said.

Christie then met privately with the President's son-in-law and senior adviser Jared Kushner to further discuss prison reform issues, an administration official who works on the prison reform effort said.

Kushner and Christie have long been reported to have bad blood stemming from Christie's role as US attorney in prosecuting Kushner's father on 18 counts of tax evasion, witness tampering and illegal campaign donations.

But the administration official said Kushner and Christie have a good relationship. "They've been working really closely on this for months," the administration official said. "Despite the fact that people have suggested otherwise, the two have a really close and good working relationship, particularly as it relates to prison reform."...

Prison reform has been a key agenda item for Kushner and Christie would likely be an important ally in that effort were he to be tapped for attorney general.

While Christie has been a friend of Trump's since before the 2016 campaign, the former New Jersey governor has been critical of Trump's handling of the Mueller investigation and instead praised Mueller amid the President's public criticism of the special counsel. "I've told him (Trump) many times that there's no way to make an investigation like this shorter, but there's lots of ways to make it longer, and he's executed on a number of those ways to make it longer," Christie said in May at the University of Chicago, while calling Mueller "an honest ... hard-working guy."

Christie has also rejected arguments by Trump's personal legal team that the President cannot obstruct justice, calling it "an outrageous claim" on ABC this summer.

Brennan Center wasting no time advocating for sentencing reforms after election and ouster of AG Jeff Sessions

The folks over at the Brennan Center already have two short pieces up making the case for Congress to move forward with federal sentencing reforms and for the Senate Judiciary Committee to seek to ensure the next Attorney General cares about criminal justice reform.  Here are links to the pieces with some excerpts:

"Sentencing Reform Should Be a Top Post-Election Priority for Congress" 

As Congress prepares to enter a lame-duck session following yesterday’s midterm elections, it has a rare opportunity to pass bipartisan legislation that will help reform our criminal justice system and end mass incarceration. And sentencing reform must be included in any meaningful effort to reduce the number of people entering the federal prison system....

Criminal justice reform is a rare point of bipartisan consensus in today’s polarized climate. In fact, 71 percent of Americans surveyed – including a majority of Trump voters – agree that it’s important to reduce the country’s prison population. And there’s substantial support from key members of Congress – both Republican and Democrat – for comprehensive reform. In fact, Senate Majority Leader Mitch McConnell has signaled he would call a vote after the midterm election if more than 60 senators support the bill.

With that momentum, one of Congress’s first agenda items for this year’s “lame-duck” session should be to pass legislation that will help reduce mass incarceration. And any successful effort will start with sentencing reform.

"With Sessions Gone, the GOP Can Show It Cares About Criminal Justice Reform"

Sen. Chuck Grassley (R-Iowa) is a reliable and trusted ally for criminal justice reform advocates, both right and left.  So when President Trump nominated Jeff Sessions to lead the Justice Department, it came as something of a surprise that Grassley, as chair of the Senate Judiciary Committee, cleared the deck for him, ensuring a quick and easy Senate confirmation.

If Grassley later came to regret that — and there’s reason to believe he did — today offers a chance to correct it.  Against the backdrop of our looming, slow-burning constitutional crisis, Grassley can and should make support for criminal justice reform a litmus test for the next attorney general.  He has that power.  Now is the time to use it....

[I]f Trump is serious about criminal justice reform, he should simply refuse to nominate someone who doesn’t support sentencing reform.  And whether or not he follows through, Grassley should refuse to confirm anyone who will oppose or sabotage similar reform efforts.

Realistically, though, the best chance for guaranteeing a supportive attorney general rests with Grassley and other supporters of criminal justice reform on the Judiciary Committee, like Mike Lee (R-Utah), Dick Durbin (D-Ill.), and even, sometimes, Lindsey Graham (R-S.C.).  By demanding an attorney general who will back their words with action — and faithfully implement rather than sabotage any reform package they pass — Grassley and his committee could effect a major reset, giving the country a chance to move on from at least one aspect of the last two years.

SCOTUS relisting packet of cases dealing with application of Hurst v. Florida to past cases

It has been (too?) many months since I have had occasion to talk about what I have long called the "post-Hurst hydra."  As regular readers may be pained to recall, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation that developed in various ways in various courts as state and federal judges tried to make sense of just what the Supreme Court's January 2016 decision in Hurst v. Florida, which declared Florida's death penalty procedures violative of the Sixth Amendment, must mean for past, present and future capital cases.  But the "post-Hurst hydra" is on my mind this morning because of the latest "Rewatch List" from John Elwood at SCOTUSblog, which includes these two paragraphs (with links from the original):

Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent.  Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty.  The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme — under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death — violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty.  But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida, 17-9284, Philmore v. Florida, 17-9556, Tanzi v. Florida, 18-5160, Reynolds v. Florida, 18-5181, Franklin v. Florida, 18-5228, Grim v. Florida, 18-5518, and Johnston v. Florida, 18-5793.  The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant — or whether Sotomayor will be filing yet another dissent from denial on this issue.  And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

Jeff Sessions is no longer Attorney General of the United States

In a development that bodes well for federal criminal justice reform and marijuana reform, Attorney General Jeff Sessions has submitted his resignation in letter to President Donald Trump. Prez Trump has two tweets in response:

We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well....

....We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date.

UPDATE: This Fox News piece includes the former Attorney General's resignation letter and details about how this came to pass:

Sources told Fox News that Trump did not call Sessions, but rather White House Chief of Staff John Kelly informed him of the president’s request for him to resign.  Sessions is expected to leave the Justice Department by the end of the day and Whitaker is expected to be sworn in Wednesday.

In his resignation letter, Sessions said was “honored to serve” as attorney general and said his Justice Department “restored and upheld the rule of law -- a glorious tradition that each of us has a responsibility to safeguard.”

Method matters: initial thoughts about Issue 1's big loss in Ohio

Regular readers know I had been following closely the debate over the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio known as Issue 1.  A variety of factors had led me to expect that Issue 1 would lose, but surprisingly strong polling and all the "blue wave" talk had me thinking it might have a shot.   I certainly did not expect that it would get crushed, going down to defeat 63.5% to 36.5%. 

Issue 1's huge 27%-point loss is startling given that Ohio's Democratic Senator Sherrod Brown won re-election by 6% points and its Democratic Governor candidate Richard Cordray, who endorsed Issue 1, lost by only 4% points.  This means that a huge number of progressively minded voters decided to vote for liberal candidates and against Issue 1.  (A county-level analysis highlights this reality in various ways: e.g., in Lucas County (where Toledo is located), Senator Brown prevailed by 33% points, but Issue 1 still lost that county by 4% points.)

Issue 1's huge 27%-point loss is even more startling given that a somewhat similar ballot initiative in 2016 passed in Oklahoma with flying colors, winning by 16% points with a margin of 58% to 42%.  Given that Oklahoma is a seemingly much "redder" state than Ohio and that 2016 was seemingly a somewhat "redder" election than 2018, the 43% difference in outcomes in these initiatives leads me to the (obvious?) conclusion that just how a criminal justice reform is pursued through a ballot initiative can make a VERY big difference.

Of particular significance, it seems, is both the form of the initiative and who is part of the reform team.  In Oklahoma, the 2016 initiative sought a fairly modest statutory change; in Ohio, the 2018 initiative pursued a fairly aggressive set of reforms that would be locked into the state constitution.  Perhaps even more importantly, legislative "insiders" and other state GOP leaders were integrally involved in drafting and getting the Oklahoma initiative on the ballot in 2016.  The same type of insiders seemingly had no role in the Ohio campaign, and thus nearly all of them -- most notably, all the GOP candidates and many prominent judges, prosecutors and police -- actively campaigned against Issue 1.

I am hopeful state-level reformers in Ohio and elsewhere will continue to see the potential that direct democracy provides.  But reformer can and should learn from losses as well as victories, and there seems to be a lot to learn after a big loss in Ohio.

Based on oral argument in lethal injection case, is there reason to think Justice Kavanaugh could end up a swing voter in some capital cases?

The question in the title of this post is a product of my inclination to make too much of this New York Times report and this SCOTUSblog review of Justice Brett Kavanaugh's oral argument performance in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  The Times piece is headlined "Kavanaugh May Hold Key Vote in His First Death Penalty Case," and here are excerpts:

The Supreme Court heard arguments on Tuesday in an appeal from a death row inmate in Missouri with a rare medical condition that he says will cause excruciating pain if he is put to death by lethal injection. Lawyers for the inmate, Russell Bucklew, said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.

It was Justice Brett M. Kavanaugh’s first death penalty case, and there is good reason to think that he holds the crucial vote. In March, five justices voted to stay Mr. Bucklew’s execution. Justice Anthony M. Kennedy, whom Justice Kavanaugh replaced, joined the court’s four more liberal members to form a majority; the court’s four more conservative justices were in dissent.

Much of Tuesday’s argument concerned earlier Supreme Court decisions that required inmates challenging lethal injection protocols to identify available and preferable methods of execution. Mr. Bucklew said lethal gas was preferable to the state’s current method of an injection of a lethal dose of pentobarbital. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that Mr. Bucklew had not shown that his alternative would be less painful.

Justice Kavanaugh seemed to express doubts about the requirement of identifying an alternative, at least where the usual method of execution coupled with an inmate’s unusual medical condition could produce excruciating pain. “Are you saying,” he asked a lawyer for the state, “even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?”

The lawyer, D. John Sauer, did not immediately give a direct response, and Justice Kavanaugh pressed him. “Is that a yes?” Justice Kavanaugh asked. “Yes, it is, Your Honor,” Mr. Sauer said....

“What the Eighth Amendment prohibits is the unnecessary infliction of pain,” Chief Justice Roberts said. “If the death penalty is constitutional, as it now is, there must be a way to administer it. But if you can show that there’s another way that is less painful, then the theory is, again, that it’s an Eighth Amendment claim because it’s unnecessary pain.”

The chief justice questioned Mr. Bucklew’s proposed alternative of nitrogen gas. “How can it be a reasonable alternative if it’s never been used before?” he asked. Robert Hochman, a lawyer for Mr. Bucklew, said that “there are details to be worked out.”

The SCOTUSblg argument review includes these observations:

The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew....

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state.  He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.”  When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

I am still inclined to predict that the defendant is going to lose here, but these reports still lead me to wonder whether Justice Kavanaugh could prove to be more open generally to claims of capital defendants than other conservative justices.

Prior related post:

• Reviewing some previews of Bucklew v. Precythe

Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

As noted in prior posts here and here, a whole lot of criminal justice matters were before voters this year. And though results are not yet official, it seems there are a few notable winners and one big loser:

Florida's Amendment 4, which would restore people’s voting rights after they finish their sentences (with a few exceptions), and Amendment 11, which enables the repeal or reform of criminal laws to be applied retroactively, both appear on pace to pass.

And Louisiana's Amendment 2, eliminating non-unanimous jury verdicts in felony trials, also looks to pass.

But Ohio's Issue 1, which sought to reduce all drug possession offenses to misdemeanors and enhance sentence reductions for prisoners participating in rehabilitative programs, has been soundly defeated.

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

Is it too soon to start making predictions about 2020 swing-state criminal justice ballot initiatives?

I have been following closely the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, in part because I think it could be a sign of things to come in state criminal justice reform efforts.  Notably, California in 2014 and Oklahoma(!) in 2016 charted a path for this kind of initiative effort, but Ohio is a special kind of swing state that rightly garners a special kind of electoral attention.  And this new Washington Post piece, headlined "Ohio ballot initiative on drug penalties is motivating voters in Cleveland," spotlights why I am already thinking ahead to 2020 before seeing any official results from 2018:

Many African American voters here cited two motivations for getting to the polls: to vote against a Republican Party they see as increasingly hostile to their community and to support Issue 1, which would reduce drug penalties.

Kim Thomas, minority engagement consultant for the Cuyahoga County Democratic Party, said the ballot initiative is helping turn out voters in Cleveland. “Lots of black people went to jail for crack in the 1980s, and a lot of them are still there. Right now, the minority community is saying, ‘No more, no more,'” she said. “We want the same opportunity for treatment instead of jail time, and if Issue 1 is gonna speak to that, then we’re gonna support it.”...

Darrell Johnson, 50, an out-of-work phlebotomist, cites voting rights as a primary reason for approving Issue 1. “You might get a felony charge for marijuana and you will never vote again in your life,” he said. He sees penalties being applied unevenly, based on race. “I know white people who get caught, they get sent to programs. They can still vote. But we can’t.”

Cuyahoga County Board of Elections officials are calling voter turnout for this midterm election “historic.” Mike West, a manager with the elections board, said the county hit at least 18,000 early voters as of 2 p.m., compared with about 6,000 in the 2014 midterms and 5,000 in the 2010 midterms. 

Because lots of factors are influencing turn-out this election cycle in Ohio and elsewhere, it will be hard to say with any certainty that a criminal justice reform initiative played a special role in getting certain voters to the polls. But there are plenty of reasons to believe ballot initiatives on topics like marijuana legalization and criminal justice reform can get younger voters and minority voters somewhat more interested in exercising the franchise. And with so many big swing states having an initiative process — states like Arizona, Colorado, Florida, Michigan, Nevada along with Ohio — I suspect we may see an even larger number of big criminal justice ballot efforts in 2020 than we have seen this year (which already has a whole lot).

Reviewing some previews of Bucklew v. Precythe

The Supreme Court on Tuesday, Nov 6 will hear oral argument in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  Amy Howe at SCOTUSBlog has this argument preview titled "Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history."  It starts and ends this way:

[T]he Supreme Court will hear oral argument in the case of Russell Bucklew, a Missouri death-row inmate who argues that the state’s plan to execute him by lethal injection violates the Constitution’s ban on cruel and unusual punishment because he suffers from a rare medical condition that could lead to his gagging on his own blood....

Normally, a death-row inmate whose execution has been put on hold can be cautiously optimistic about his chances for success, because a stay of execution requires at least five votes — enough for the inmate to win on the merits.  But Bucklew also knows that four justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed his execution to go forward.  This means that one of the five votes to put Bucklew’s execution on hold presumably came from Justice Anthony Kennedy, who retired from the court on July 31.  Although not much is known about the views of Justice Brett Kavanaugh, who replaced Kennedy earlier this month, on capital punishment, Kavanaugh is generally regarded as significantly more conservative than Kennedy, which could bode poorly for Bucklew.

Paul Cassell at The Volokh Conspiracy has this discussion of Bucklew under the heading "Dilatory Tactics in a Death Penalty Case?".  It starts this way:

In 1996, Russell Bucklew murdered Michael Sanders as his two young sons — only four and six years old — watched their father bleed to death in front of them.  Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture.  Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection).  Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri.  We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims.  Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

Any election eve predictions to go with a round-up of election day criminal justice round-ups?

I flagged in this post last week German Lopez's great extended Vox review of all the notable and different initiatives and candidates on the ballot that could have an impact on local, state and national criminal justice systems.  Since then, I have seen a number of other round-ups, and here a few piece that seem worth checking out:

From the Marshall Project, "Criminal Justice on the Tuesday Ballot: Our roundup: drugs, policing, juries, even slavery."

From Marijuana Business Daily, "Just before Election Day, here’s where public support for state marijuana issues stands."

From Law360, "5 Criminal Justice Reforms To Watch On Election Day"

From the Los Angeles Times, "From ex-felon voting rights to police shootings, criminal justice is on the ballot"

From the New York Times, "Ballot Initiatives Are Powerful. The Powerful Have Noticed."

As regular readers know, in part because I am based in Ohio and in part because it could have the biggest echoes, I have been following the ballot issue known here as Issue 1 most closely.  And yet, despite following it closely, I have no idea how it will come out and I am afraid to make any predictions (other than that the results will be "over-read").  That said, I am going to predict that a significant number of criminal justice reform initiatives will pass.  I am also going to predict that 2020 brings ever more criminal justice reform initiatives than has 2018. 

I welcome predictions (or advocacy) in the comments as we get ever closer to polls closing.

UPDATE:  Here are a few more round-ups:

From HuffPost, "Millions Of Voters Could Be About To Significantly Reform The Criminal Justice System"

From the Washington Post, "Where marijuana is on the ballot Tuesday — and where it’s most likely to win"

"Fictional Pleas"

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

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?

The question in the title of this post is prompted by this new Washington Examiner article headlined "Prison reform bill to include sentencing, setting up post-election fight." Here are excerpts:

Criminal justice reform advocates say sentencing reform provisions will be included in legislation unveiled shortly after midterm elections Tuesday, triggering an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill.

The First Step Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms, at the behest of Republican opponents.  Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package.

Two people close to the process tell the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill.

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, allowing a firearm sentencing enhancement to run concurrently with the underlying penalty, and allowing retroactive sentencing for crack cocaine cases judged under tougher historical laws.

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen,” Holden said. Holden said it’s his understanding that the sentencing language will also expand a “safety valve” option for judges to use discretion.

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. The second person said the provision is being finalized, but there will be “a clarification saying this does not change existing statutes relating to undocumented individuals in the federal system.”

A spokeswoman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, an influential advocate of the reforms, did not respond to requests for comment.

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill.  Last month, Trump said in a Fox News interview that Attorney General Jeff Sessions’ longstanding opposition to reforms did not represent him. "If he doesn't [support reform], then he gets overruled by me.  Because I make the decision, he doesn't," Trump said Oct. 11....

It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell, R-Ky., has promised a whip count after the election, and advocates believe it will make it clear with overwhelming support....

Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington.  Povah hopes that Congress passes the legislation, and that Trump will supplement the reform with generous use of his constitutional pardon powers. Last month, Trump said "a lot of people" are jailed for year for "no reason" and that he was actively looking to release some.

Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. “I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally," Povah said.  "He sent a lot of hope in that humans may be in line, maybe for the first time included in the Thanksgiving pardon."...

Trump has spoken repeatedly about his desire to release inmates from prison after commuting the life sentence of drug crime convict Alice Johnson in June at the request of celebrity Kim Kardashian West.  At a second Trump-Kardashian meeting, the TV star urged freedom for Chris Young, who was arrested at 22 and sentenced to life in prison for drug dealing. She brought with her former federal judge Kevin Sharp, who had imposed the sentence due to rigid federal laws he argued made little sense.  On his own, Trump mentioned another inmate, Matthew Charles, who returned to prison this year after a court found his drug sentence was reduced in error.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"

UPDATE: I just saw that Law360 also has a new article on this front under the headline "Hard Decisions Loom In Lame-Duck Push For Sentencing Reform."  This lengthy piece starts with this sentence: "Over the next two months, Republican lawmakers have a chance to pass the most comprehensive criminal justice reforms in a generation, a combination of prison and sentencing reforms that stand to improve the lives of more than 180,000 federal inmates."

Some recent posts of note from Marijuana Law, Policy & Reform just before another big election

Though it has been only a few weeks since I did a round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, the coming election leads me to think another review of some recent favorites may be in order.  So here goes:

• Former House Speaker John Boehner says "Washington Needs to Legalize Cannabis"

• Effective "2018 midterm report" with visuals on modern politics and policy of marijuana reform

• Former White House Communications Director Anthony Scaramucci says he thinks Prez Trump is "going to legalize marijuana ... after the midterms"

• Marijuana midterms: Why legal weed advocates think 'all the pieces are coming together' this year"

• Latest Gallup polling reports yet another record-high level of support for marijuana legalization in US

• New Hampshire commission produces massive study report on marijuana legalization

• "Mexico Supreme Court says ban on recreational marijuana unconstitutional"

• Various takes on politics of marijuana reform a week before the latest big election

• SAM sets forth (awfully criminal) vision of a "pro-public health approach to state marijuana law reform"

• Colorado Division of Criminal Justice publishes huge new report on "Impacts of Marijuana Legalization in Colorado"