Sentencing Law and Policy

Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform

Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:

The core of conservatism is the dignity of every individual and the value of every life.  That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals.  And that’s why we care about prison reform.  The values conservatives hold dear are jeopardized when prisons fail to deliver results.  We owe it to victims, law enforcement and the citizens of our communities to act.

In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform.  Back then, we stood squarely at a crossroads.  Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons.  We had to take action.  The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget.  Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.

Fortunately, state leaders chose a new direction.  S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions.  They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.

The results were transformative.  Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent.  Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars.  Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.

As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.

Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....

Nearly 80 percent of the prison population is still incarcerated for non-violent offenses.  Those convicted are staying in prison too long, nearly a third longer than in 2010.  Our system drains $500 million from taxpayers and has a negative impact on families and communities.  There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.

With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt

As reported in this local article, "Alva Campbell, "an inmate on Ohio’s death row who had his scheduled execution halted in November after a medical team could not find an accessible vein for the lethal injection, has died." Here is more:

Franklin County Prosecutor Ron O’Brien said the office of Gov. John Kasich notified him that Campbell died early Saturday of natural causes . No other information was available, and the Ohio Department of Rehabilitation and Correction could not immediately be reached.

Campbell, 69, was a twice-convicted killer, one that O’Brien has often called the “poster child” for the death penalty. Campbell was on parole from another murder conviction when, on April 2, 1997, he killed 18-year-old Charles Dials.  At that time, Campbell was on his way to court to face a series of armed-robbery charges but had been faking paralysis. When he was taken to the courthouse, he sprang from his wheelchair, seized a deputy’s gun and carjacked Dials outside.  The two drove around Columbus for hours before Campbell forced Dials onto the floor of his truck and executed him. Campbell was sentenced to die for that.

Over the years, authorities objected to and grumbled about Campbell’s attempts to delay the justice that a judge and jury had ordered for him.  Upon hearing of Campbell’s death Saturday, O’Brien said, “Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim’s family.”

After the failed execution in November, Campbell’s attorneys had said it was unlikely he could live to see another execution attempt.  They said he suffered from a host of serious cardiopulmonary problems and ailments.  He was returned to Death Row.

Recent prior related posts:

• Could poor health help save the live of Ohio's "poster child for the death penalty”?
• Ohio unable to complete execution for elderly murderer once called death penalty “poster child”
• Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution 

"The State of Justice Reform 2017"

The title of this post is the name of this terrific new resource created by the Vera Institute of Justice. The resource is packed with lots and lots of notable content and links, and here is how it is explained on its "About" page: 

Like many justice reform organizations, Vera is often asked, “What are the latest and most interesting developments in the field?” This question has grown more common as more and more people confront the need to improve the nation’s broken justice system and want to help.

We endeavor in this report to provide the beginning of an answer, limiting our scope (mostly) to 2017, the first year of a new administration — one pushing a “law and order” platform — and covering most, but not all, areas of justice reform.

Vera’s task was to determine which of the thousands of changes to policy, practice, and legislation should be covered in this annual recap.  To discern what should be included, we first asked Vera’s own internal experts to weigh in and identify what they felt was most important to cover in their subject areas. “Importance” was defined by the following criteria:

• the potential impact of a reform;
• the degree of change from past practice or norms; and/or
• the degree to which the field or the media is looking to a reform as a promising or leading practice to improve systems.

Using this definition, “importance” can be positive or negative, supportive or hostile to reform. The report thus focuses on both the best and the worst of 2017.

After hearing from Vera’s own experts, we reached outward, crowdsourcing suggestions from Vera’s Facebook and Twitter followings.  Vera also invited 30 external experts to review drafts of specific sections, who are gratefully acknowledged under “Contributors.”  Finally, Vera is issuing this as a digital report to allow for ongoing feedback and contributions, with the hope that this dialogue will add even more to the collective knowledge base about the year that was.

All parts of this terrific resource are worth checking out, and these parts should be of particular interest to sentencing fans:

The State of Jails: Reformers Look to Jails as a Key to Ending Mass Incarceration

The State of Youth Justice: As Youth Incarceration Drops, Racial Disparities Persist

The State of Sentencing & Decriminalization: While Federal Sentencing Reform Efforts Look Bleak, States Push Ahead

The State of Prisons: States Take on Prison Reform

The State of Reentry: For Those Rejoining Society, a Multitude of Obstacles Persist

Lots of notable reaction to Prez Trump's nominations to the US Sentencing Commission

As reported in this prior post, Prez Trump yesterday announced these notable new nominations to the US Sentencing Commission.  Usually, only hard-core sentencing nerds like me play much attention to USSC nominations, but this slate of nominees, especially the nomination of Bill Otis, has led to some notable media attention.  Here are some of the commentary I have already seen: 

From The Daily Caller, "Trump's Sentencing Commission Nominees Show He May Not Be That Angry At Jeff Sessions"

From Mother Jones, "'I Live to Put People in Jail': Here Are Trump's Nominees for the US Sentencing Commission"

From Reason, "Trump Nominates Man Who Called for Abolishing US Sentencing Commission to US Sentencing Commission"

From Slate, "Trump picked a mass-incarceration advocate obsessed with 'black-on-black' crime for a job setting federal sentences"

From Splinter, "Trump Nominates the Last Person You'd Ever Want to Help Oversee the Criminal Justice System"

And perhaps best highlighting how this one nomination is not like the others, here is the text of this press release from Families Against Mandatory Minimums released just a few hours after Prez Trump announced his new USSC picks:

FAMM president Kevin Ring issued the following statement on William Otis, one of four nominees put forward today by the Trump administration for the U.S. Sentencing Commission, the administrative body that writes and updates the federal sentencing guidelines used to sentence more than 70,000 people each year in federal courts:

FAMM has never taken a position before on U.S. Sentencing Commission nominees, but we feel compelled to change that policy in light of today’s announcement.  Mr. Otis’s outdated views are well-known and well-documented.  This is not a person who will be guided by evidence and data.  The Senate should reject this nomination.

Prior related post:

• Prez Trump makes (tough) nominations to US Sentencing Commission 

"Wrong Turn on the Ex Post Facto Clause"

The title of this post is the title of this notable new paper authored by Paul Reingold and Kimberly Thomas now available via SSRN. Here is the abstract:

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime.  But deciding what constitutes an increase in punishment can be tricky.  At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause.  At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause.  Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences.  Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners.  If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only.  Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees.  Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause.  In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.

Prez Trump talks up "very strong" criminal penalties "with respect to the pushers and to the drug dealers"

In this post from a few days ago, I noted a report that Prez Trump has been known privately to give "a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty."  Now, as reported here by CBS News under the headline "Trump brings up death penalty for drug dealers, suing drug companies at opioids summit," Prez Trump has brought his thinking into the public discourse:

President Trump made an unexpected appearance at a White House summit on the opioid crisis Thursday afternoon, floating penalties for "opioid companies" and tougher punishments for drug dealers, noting that some countries have the "ultimate penalty."

"The administration's gonna' be rolling out policy over the next three weeks and it'll be very, very strong," the president said. "I've also spoken with Jeff (Sessions) about bringing a lawsuit against some of these opioid companies. I mean, what they're doing and the way, the distribution. You have people who go to the hospital with a broken arm and the come out addicted. They're addicted to painkillers, and they don't even know what happened."

"So we're going to very much, you know, as you know, I think we've been more involved than any administration by far. It's a problem that's growing.  And drugs are a similar but different problem in the sense that we have pushers, and we have drug dealers that don't — I mean, they kill hundreds and hundreds of people.  And most of them don't even go to jail. You know, if you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3000 people, and nothing happen to them. And we need strength with respect to the pushers and to the drug dealers. And if you don't do that, you're never going to solve the problem."

"Some countries have a very, very tough penalty, the ultimate penalty," the president said.  "And by the way, they have much less of a drug problem than we do.  So we're going to have to be very strong on penalties.  Hopefully we can do some litigation against the opioid companies."

A video of Prez Trumps comments are available at this link via CNN.  Yikes!

Prior related post:

•  Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"

Prez Trump makes (tough) nominations to US Sentencing Commission

Though there is much talk these days of Prez Trump and AG Jeff Sessions being at odds, the President today announced these new nominations to the US Sentencing Commission that I suspect are very much to the liking of Attorney General Sessions.  Here are the basics, with lots of commentary to follow (in this post and perhaps others):

Today, President Donald J. Trump announced his intent to nominate the following individuals to the United States Sentencing Commission:

If confirmed, Judge William H. Pryor Jr. of Alabama will serve as the Chairman of the United States Sentencing Commission. Judge Bill Pryor serves as a Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, and as Acting Chairman of the United States Sentencing Commission....

If confirmed, Judge Luis Felipe Restrepo of Pennsylvania will serve as a Commissioner of the United States Sentencing Commission. Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit. Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama. Prior to his elevation to the Third Circuit, Judge Restrepo served for two and a half years as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama. Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

If confirmed, Judge Henry E. Hudson of Virginia will serve as a Commissioner of the United States Sentencing Commission. Judge Henry Hudson serves as a United States District Judge for the Eastern District of Virginia. Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush. Before his appointment to the Federal bench, Judge Hudson served as a Virginia circuit judge for Fairfax County, Director of the United States Marshals Service, as the Senate-confirmed United States Attorney for the Eastern District of Virginia, and as the elected Commonwealth’s Attorney for Arlington County, Virginia.

If confirmed, William Graham Otis of Virginia will serve as a Commissioner of the United States Sentencing Commission. Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

Regular readers may recall this post from August 2017 linking to a Wall Street Journal article reporting that "Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson" to the USSC.  But regularly readers are likely even more familiar with the name Bill Otis, because he was once a regular commentor on this blog and has long been a prominent person who prominently shares his (tough-on-crime) sentencing perspectives in many media.  I have to guess that AG Sessions was also happy to see Bill's name on this list as well (and I have already noticed on twitter a few folks who are not happy to see Bill's name on this list).  I am personally very friendly with Bill Otis (and his famous wife), and we have spent considerable time disagreeing on many sentencing matters without being too disagreeable. 

I also suspect AG Sessions is also quite pleased to see his Alabama pal, Judge Bill Pryor, getting officially tapped to serve as Chair of the US Sentencing Commission (which he has been serving as in the acting capacity for over a year).  I have long been intrigued and impressed by Judge Pryor's views on a range of sentencing issues, and I have been particularly pleased with the many kinds of new data reports the USSC has been producing during his short time as Chair.

Last but not least, though I do not know too much about Judge Luis Felipe Restrepo, I am pleased to see a former defense attorney named to the USSC to balance out all the potent new prosecutorial perspectives.  I am not sure if this "slate" of nominations have already been in some way blessed or vetted by key members of the Senate Judiciary Committee, but I am sure that the nomination of Judge Restrepo may well be intended as, and may rightly be seen as, one way to get Senators on both sides of the aisle to be comfortable with all of these nominees. 

Will strong religious liberty advocates rally for Mennonite investigator jailed for refusing to testify in Colorado capital case?

The question in the title of this post is prompted by this remarkable story from the Denver Post headlined "Mennonite investigator sent to jail after refusing to testify in Robert Ray death penalty hearing: Lawyer for Greta Lindecrantz says she is being punished for long-standing religious beliefs." Here are the basics:

A 67-year-old Mennonite woman spent a second day in the Arapahoe County jail Tuesday after she refused to testify for the prosecution in a death penalty case. Greta Lindecrantz on Tuesday morning was found in contempt of court after she told District Judge Michelle Amico she would not answer questions in the witness stand because of her religious beliefs. Lindecrantz has been called to testify on behalf of the prosecution in an appeals hearing for Robert Ray, who was sentenced to death in 2009 for ordering the murder of Javad Marshall-Fields and Vivian Wolfe, who were witnesses in another murder case.

Lindecrantz worked as an investigator for Ray’s defense team, but those attorneys have not called her as a witness. However, the prosecution wants to question her about her work during the investigation and original trial, said her attorney, Mari Newman. All of her work already is a part of the official court record and there really is no reason for her to take the stand again, she said.

Lindecrantz sat in the courtroom wearing an orange jumpsuit with her hands shackled as Newman argued that she should be released because she is being punished by the courts for religious beliefs. Testifying would go against her moral and religious views, Newman said. “Imprisonment has not been effective,” Newman said. “It will not be effective tomorrow.”

But Amico said she had made her decision and was sticking to it. She told Newman she could appeal to a higher court. Until then, Lindecrantz would go back to jail. “It was a difficult decision for the court to make (Monday),” Amico said. Newman had asked for a lesser punishment, but Amico responded, “How would less punishment be effective? I’ve imposed jail and she’s still refusing to testify.”

After the hearing, Newman gathered on the courthouse lawn with Lindecrantz’s husband, Dave Sidwell, and supporters from the metro area’s two Mennonite congregations. “She has a fundamental religious belief against the killing of other human beings and specifically against state-sanctioned killing in the form of the death penalty,” Newman said. “She has refused to testify as a witness called by the prosecution — and the reason, the one and only reason she’s refused to testify, is because to do so would violate her firmly held religious beliefs against the death penalty.”

Because of her religious conviction, Lindecrantz has two choices — stay in jail or abandon her faith, Newman said. On Monday night, Lindecratz was in a cell with nine women, some of whom were sick all night because they were detoxing from drugs. Lindecrantz is old enough to be those women’s mothers, she said. “For the court to imprison her until she is broken, until her will is broken, and she abandons her faith and her view that she cannot participate in state-sanctioned killing is an abomination,” Newman said.

Sidwell, who also is a Mennonite, said he supported his wife’s stand, saying they both were adamantly opposed to the death penalty. “She’s not going to change her mind,” Sidwell said. “It’s, to me, a pointless pursuit.”

The Rev. Vern Rempel, pastor of Beloved Community Mennonite Church in Englewood, said he counseled Lindecrantz over the weekend about what she would do when called to the stand Monday morning. Those discussions included figuring out a way that Lindecrantz could comply with the courts without betraying her religious conviction. On Sunday, the congregation gathered around Lindecrantz to pray over the decision. “On Sunday, she said she had clarity and was ready to do this,” he said. “Really, we felt the strength of her commitment.”

Mennonite opposition to the death penalty dates to 1525, Rempel said. “This is not something that is not a mood of Greta’s,” he said. “Or a fancy. Or something she’s making up. It has been a lifetime commitment for her.”

While Lindecrantz is spending her second night in jail, the legal drama has been playing since Jan. 20, when Newman first filed a motion in an attempt to keep her client off the witness stand. But Amico repeatedly denied the motion, saying in an order written on Feb. 16 that allowing people to refuse to participate in death penalty cases on religious grounds would disrupt the justice system. Religious-based capital defense teams would be able to refuse to follow proceedings, rules and laws based on those grounds, Amico wrote. It would create an “absurd and unworkable result” for death penalty cases in Colorado.

Because of the politics involved, I am inclined to guess that the folks who eager to support, on religious liberty grounds, those resisting laws restricting displays of religious items on public lands or laws concerning certain medical procedures will not be quite as quick to get behind this particular form of legal resistance based on sincere religious beliefs. (And, by the same political token, I suspect those usually critical of legal resistance based on religious liberty claims may not be so critical of the claim in this setting.)

"The Politics of Prosecution: Examining the Policymaking Role of Prosecutors"

The title of this post is the title of this new paper available via SSRN authored by Abhinav Sekhri. Here is the abstract:

This short paper focuses on prosecutors in the federal setting and contributes to this growing field of scholarship.  Through the lens of Prosecutorial Agreements in the sphere of corporate criminal liability, I demonstrate that prosecutors engage in important policy making exercises.  I argue that this analysis helps better understand the constrains in which prosecutorial discretion is exercises, and here I suggest how such an analysis offers a more nuanced reading of the prosecutorial charging practices in corporate crime over the last two decades.  I conclude by suggesting that examining the policymaking potential of prosecutors merits great attention today, as the importance of these actors within the criminal justice system is being appreciated beyond legal spheres.

Senator Grassley talking up Senate vote on his SRCA bill along with any prison reform bill lacking sentencing reforms

As reported in this post, the White House yesterday signaled its disaffinity for key parts of the Sentencing Reform and Corrections Act when an official was quoted as saying the "sentencing reform part still does not have a pathway forward to getting done."   But Senate Judiciary Committee Chair Chuck Grassley is seemingly not prepared to give up on his bill, as detailed in this new press article headlined "Grassley: I'll fight for sentencing reforms."  Here are the key details:

U.S. Sen. Chuck Grassley, R-Iowa, pledged Wednesday to fight for a criminal justice proposal that includes reducing certain mandatory prison sentences, and he raised the prospect of blocking a package of related reforms the White House and congressional Republicans are said to be interested in if he can't get an agreement....

Late Tuesday, the White House expressed interest in proposals to reduce recidivism among offenders, but not changes to sentences. A White House official who wasn't identified said the sentencing reform piece "does not have a pathway forward to getting done," according to several news reports. Senate Majority Leader Mitch McConnell, R-Kentucky, also is said to be an obstacle to getting the legislation to the floor.

On a conference call with Iowa reporters Wednesday, Grassley disputed the idea his bill can't pass and said with Democrats and Republicans, there are at least 60 votes for his proposal. The bill passed the Senate Judiciary Committee two weeks ago on a 16-5 bi-partisan vote.

Grassley said people pushing for a narrower approach just want to get a bill passed. "Well, if they take up prison reform, they’re going to have to have 60 votes to get prison reform up.  And I’ll bet we’ve got, if all the Democrats go along with me, we can stop that from coming up until we get a deal to get a vote on my sentencing reform," Grassley said.

Grassley, who chairs the Senate Judiciary Committee and has been a key figure in getting the Trump administration's court picks through the confirmation process, said he planned to talk to Durbin first before deciding whether to take that route....

On the conference call Wednesday, Grassley said the chances for his proposal, at the moment, aren't very good.  But he said he isn't going to give up.  "This would be a bipartisan policy win for the administration. And it seems like a no-brainer to me."  He said he hasn't spoken to President Trump about the proposal yet.

A few prior related posts:

• Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?
• Sentencing Reform and Corrections Act of 2017 now has 20 sponsors in the Senate but... 
• Mapping the politics and making the case against the Sentencing Reform and Corrections Act of 2017 
• AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"
• Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote! 
• Trump White House expresses opposition to sentencing reform part of SRCA of 2017

"Pharma Bro" Martin Shkreli, facing decades under guidelines, seeks prison sentence of 12-18 months

As reported in this Reuters article, "Martin Shkreli, the former drug company executive convicted of defrauding investors in two hedge funds he ran, has asked a federal judge to sentence him to 12 months to 18 months in prison, much less than suggested federal guidelines."  Here is more:

Shkreli, 34, has been in jail since September, when U.S. District Judge Kiyo Matsumoto revoked his bail after he offered a $5,000 bounty for a strand of Hillary Clinton’s hair in a Facebook post.  Matsumoto is scheduled to sentence him on March 9.

Shkreli’s lawyers said in a court filing on Tuesday that a sentence of 27 years or more calculated using federal guidelines would be “draconian and offensive.” The filing included a letter from Shkreli, asking the judge for leniency.  “I accept the fact that I made serious mistakes, but I still believe that I am a good person with much potential,” he said.

In addition to the prison sentence, they proposed Shkreli complete 2,000 hours of community service and undergo court-mandated therapy....

Shkreli, nicknamed “Pharma Bro,” raised the price of anti-infection drug Daraprim by over 5,000 percent in 2015 while he was chief executive officer of Turing Pharmaceuticals.  A jury found him guilty last August of unrelated securities fraud charges.  They determined that he lied to investors about the performance of his hedge funds, MSMB Capital and MSMB Healthcare.  He also was found guilty of conspiring to manipulate the stock price of a drug company he founded, Retrophin Inc.

Shkreli’s investors eventually came out ahead after he paid them in shares of Retrophin, and in some cases through settlement agreements and consulting contracts with the company, according to testimony at trial.  However, Matsumoto ruled Monday that he would still be held responsible for defrauding investors out of millions of dollars, because he secured their investments through fraud.

Shkreli’s lawyers said in the filing that he made mistakes when communicating with his investors not because he wanted to steal from them, but because he “could not bring himself to admit failure.”  They also tried to counter the view that Shkreli was the “greedy Pharma Bro.” They pointed to his work at Retrophin to develop a drug for a rare childhood degenerative disease called PKAN that was used to treat some patients in Cyprus, as well as online relationships he has maintained with patients.  Even the controversial Daraprim price hike was meant to fund research into rare diseases, they said.

The filing included dozens of letters supporting Shkreli, including from family members and a former Turing employee who praised his “altruistic passion.”

Prior related post:

• You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

Entire First Circuit urges Supreme Court to revisit Harmelin's limits on Eighth Amendment challenges to extreme adult prison sentence

A helpful reader made sure I did not miss the remarkable opinion emerging yesterday from the First Circuit in the form of a very lengthy concurrence in the denial of rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here). Last year I noted the panel opinion in this case in this post titled "Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant."  Interestingly, this time around all the First Circuit judges seem to be on the same page, deciding they lack authority to find Wendell Rivera-Ruperto's extreme sentence unconstitutional, but urging the Supreme Court to revisit the precedent they see as standing improperly in their way.

Judge Barron's lengthy opinion is a must-read for Eighth Amendment fans, and it defies ready summary.  To begin, Judge Barron explains why the analytical framework set by Solem v. Helm, 463 U.S. 277 (1983) would lead him to "find that Rivera's mandatory, more-than-century-long sentence was grossly disproportionate and thus in violation of the Eighth Amendment."  But, continues Judge Barron, judges must further consider Harmelin v. Michigan, 501 U.S. 957 (1991), and "the Harmelin concurrence controls the outcome here, and ... does so by limiting our inquiry to a consideration of only Solem's first criterion."  And, according to Judge Barron, ultimately judges "have no choice but to approve mandatory 'forever' sentences under § 924(c) so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin." 

After intricate analysis of these and other Eighth Amendment and related precedents, this remarkable opinion (which, again, was joined by all the First Circuit judges), concludes this way:

Rivera faces the longest and most unforgiving possible prison sentence for conduct that, though serious, is not of the most serious kind.  He does so not because the legislature had authorized its imposition and a judge had then considered all of the aggravating and mitigating circumstances and determined that this sentence was appropriate.  He does so only because Congress has been deemed to have made a blanket judgment that even an offender like Rivera -- who has no prior criminal record and whose series of related crimes resulted in no harm to an identifiable victim -- should have no hope of ever living free.  And he does so even though virtually every comparable jurisdiction punishes comparable criminal conduct less harshly, and even though the federal government itself punishes nearly the same or seemingly worse conduct more leniently.

Almost three decades have now passed since the concurring Justices in Harmelin concluded, without reference to real-world comparative benchmarks, that the Eighth Amendment afforded the Michigan legislature the scope to try out what at the time was viewed as a permissible sentencing experiment to address a newly concerning crime problem.  In those intervening decades, virtually no jurisdiction has been willing to replicate that state's experiment.  In fact, even the state that the Harmelin concurrence permitted to try it has abandoned it.  And yet the Harmelin concurrence still controls.

In my view, a consequence as grave as the one that Harmelin requires in a case like this should have the imprimatur of more than only a nearly three-decade old, three-Justice concurrence. I thus urge the Supreme Court to consider whether the Eighth Amendment permits, at least in a case such as this, the mandatory stacking of sentences under § 924(c) that -- due to their cumulative length -- necessarily results in the imposition of a mandatory sentence of life without parole.

Trump White House expresses opposition to sentencing reform part of SRCA of 2017

Given that the Sentencing Reform and Corrections Act of 2015 could not even get very far in Congress despite the support of then of the President and Attorney General, I have never been all that optimistic about the prospects for the 2017 version of this bill.  Attorney General Sessions has been against it from the get-go, and this new report from the The Hill indicates that the White House has now put its opposition forward.  Here are the details:

The White House on Tuesday said it sees no path forward for legislation to reduce mandatory minimum prison sentences, instead throwing its support behind measures aimed at reducing recidivism rates. "The conclusion we reached was that, at this time, it's appropriate for us to go forward with prison reform," a senior administration official said.

The White House's position represents a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session.

The Senate Judiciary Committee advanced the Sentencing Reform and Corrections Act to the floor by a 16-5 vote earlier this month over the objections of Attorney General Jeff Sessions and a few GOP members on the committee....

A senior White House official said the administration respects Grassley’s efforts, but sees no path forward for sentencing reform. "The sentencing reform part still does not have a pathway forward to getting done," the official said. "And so what we see now is an environment where the prison reform does have enough support to get done. And we think that by maybe doing this in smaller bits and pushing the prison reform now, we think this has a better chance of getting done."

A second official said the White House is instead focused on prison reform legislation like Rep. Doug Collins's (R-Ga.) bipartisan Prison Reform and Redemption Act. That bill, co-sponsored by nine Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement if they complete evidence-based programs while in prison that have been shown to reduce recidivism rates.

Prison programming could include everything from job and vocational skills training to education and drug treatment. "I think that that is a good basis that we can look at and start with," the second senior White House official said of Collins's bill. “I do think that as the conversation continues over the coming weeks, there might be additions, changes, amendments, and we want to go through the regular order committee processes. But I do think that that's a big piece of legislation to look at as a starting point."

A source familiar with the talks with the White House told The Hill in January that Collins’s bill is expected to be marked up in the House Judiciary Committee before the first quarter ends in April. Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) have introduced similar legislation in the Senate.

Taylor Foy, a spokesman for Grassley, said the chairman is focused on passing sound policy, not the path of least resistance. "Bipartisan support continues to grow in the Senate for comprehensive criminal justice reform, which includes providing additional discretion for judges at sentencing for lower level, non-violent drug crimes," he said. "Chairman Grassley’s broadly bipartisan Sentencing Reform and Corrections Act is cosponsored by nearly a quarter of the Senate. Our office continues to have productive conversations with the White House on this issue.”

A senior White House official said President Trump is planning to sign an executive order Wednesday to revamp the Federal Reentry Council and move it from the Department of Justice to the White House. Under the Obama administration, the interagency council worked to reduce recidivism and improve employment, education, housing, health and child welfare outcomes, according to the Department of Justice website.

The White House said Tuesday it sent a list of legislative principles for reform efforts to Congress. In addition to effectively using government resources to reduce crime and incentivize re-entry programs, the White House wants Congress to expand access to prison work programs. It also wants lawmakers to evaluate and facilitate public and private partnerships that improve pre- and post-release employment opportunities for inmates.

I am disappointed but not especially surprised that the White House is indicating that it is only willing to support a more modest prison reform bill rather than all the significant sentencing reforms that appear in the SRCA.  Prez Trump has to date only voiced support for prison reform efforts, and he has formally and informally talked up a "tough and tougher" approach to sentencing drug dealers.  Those eager to see reductions in federal drug sentences should likely be grateful many leading GOP legislators favor such reforms because otherwise Prez Trump might well be actively advocating for enhancing the severity of federal drug sentences.  

I have long been saying that, for various reasons and for lots of offenders, significant prison reform could end up even more consequential than some proposed sentencing reform.  Thus, I sincerely hope that everyone interested in the kinds of reforms that the SRCA represent will be prepared to get behind the Prison Reform and Redemption Act (PRRA) and work to make it as effective and expansive and consequential as possible.  Some version of the PRRA looks now to be the only significant federal criminal justice reform proposal with a realistic chance of becoming law in 2018. 

It has already been nearly a decade since we have seen anything close to significant legislative reforms benefiting federal defendants or prisoners. (I am thinking of the 2010 Fair Sentencing Act as the last big legislative change, though the 2014 "Drugs-2" guideline amendment was also a very big deal.)  I want to believe that the passage of something like the PRRA could help create new momentum for a range of reforms bog and small in Congress and elsewhere, and so the fact that the White House is endorsing some reform efforts is still encouraging despite its discouraging view of the SRCA.

A few prior related posts:

• Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform?
• Sentencing Reform and Corrections Act of 2017 now has 20 sponsors in the Senate but... 
• Mapping the politics and making the case against the Sentencing Reform and Corrections Act of 2017 
• AG Sessions writes to Senator Grassley to say passages of SRCA "would be a grave error"
• Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote! 

New Buried Alive Project taking on LWOP sentences for federal drug offenses

An important new effort to take a hard look and extreme federal sentences recent launched under a (great) fitting name: The Buried Alive Project.  Here is how the project's website explains its basic mission:

The Buried Alive Project works to raise awareness and help eliminate life without parole sentences for federal drug offenses through transformative legislation and litigation.  We use statistics and stories to educate the public and amplify the voices of those directly impacted.  The human element is rarely addressed but necessary to drive change needed to reform the criminal justice system.  By engaging people across the country, this project will harness America’s collective interest, passion, and direct experience of this issue into concrete change.

The Dallas Morning News has this Q&A with Brittany Barnett, a lawyer who help found the Buried Alive Project.  Here is an excerpt:

Who are some of the individuals who remain buried alive by this sentencing?

Alice Johnson, a 62-year-old grandmother and great-grandmother from Memphis, is serving her 21st year of a life without parole sentence for her role in a non-violent drug conspiracy.  Like Sharanda [Jones], this is Ms. Alice's first ever conviction — felony or otherwise. Absolutely no aspect of her offense was violent.

Ms. Alice, who has served one-third of her life in prison, has an outstanding record of achievement in prison and works diligently to prove she is deserving of a second chance at life. A life without parole sentence demands a special kind of courage — the ability to act with grace and dignity in a totally degrading situation. Ms. Alice epitomizes this special kind of courage.

Keeping Alice in prison for the rest of her life serves no useful purpose to her or society. We cannot barter human lives for sake of appearing tough on crime. It is an utter waste of human life and taxpayer dollars.

"The State of the Death Penalty Decline"

The title of this post is the title of this notable new paper now available via SSRN authored by Brandon Garrett and Ankur Desai.  Here is the abstract:

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s.  In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty.  What explains this remarkable and quite unexpected trend?

In this Article, we present new analysis of state-level legislative changes that might have been expected to impact death sentences.  First, life without parole (LWOP) statutes, now enacted in nearly every state, might have been expected to reduce death sentences because they give jurors a non-capital option at trial.  Second, legislatures have moved, albeit at varying paces, to comply with the Supreme Court’s holding in Ring v. Arizona, which requires that the final decision in capital sentencing be made not by a judge, but by a jury.  Third, states at different times have created state-wide public defender offices to represent capital defendants at trial.  In addition, the decline in homicides and homicide rates could be expected to contribute to the decline in state-level death sentencing.

We find that contrary to the expectations of many observers, changes in the law such as adoption of LWOP and jury sentencing, did not consistently or significantly impact death sentencing. The decline in homicides and homicide rates is correlated with changes in death sentencing at the state level.  However, this Article finds that state provision of capital trial representation is far more strongly and robustly correlated with reduced death sentencing than these other factors.  The findings bolster the argument that adequacy of counsel has greater implications for the administration of the death penalty than other legal factors.  These findings also have implications beyond the death penalty and they underscore the importance of a structural understanding of the Sixth Amendment right to counsel in our system of criminal justice.

SCOTUS finally resolves Jennings v. Rodriguez, ruling Ninth Circuit erred when deciding detained aliens have a statutory right to periodic bond hearings

The Supreme Court granted cert in Jennings v. Rodriguez nearly two years ago, but the case got set for re-argument this Term and now has finally resulted in an opinion concerning certain procedural rights for detailed aliens.  The full Jennings opinion is lengthy and intricate, and the opinion for the Court authored by Justice Alito sets up the discussion this way:

In this case we are asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings.  All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.  But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.  But a court relying on that canon still must interpret the statute, not rewrite it.  Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

I believe the context and content of the majority's ruling likely mean the Jennings decision will not have many big implications outside the immigration detention setting. But Justice Breyer's lengthy dissenting opinion discusses bail and due process more broadly, and his closing sentiments highlights why a ruling the other way in Jennings might have been significant for a broad array of criminal defendants:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required.  Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail.  Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings.  I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed.

The bail questions before us are technical but at heart they are simple.  We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.”  We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.  And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail.  It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.  I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.  I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.

Split California Supreme Court holds 50-year sentence for juve kidnapper violates the Eighth Amendment after Graham

This afternoon, the Supreme Court of California issued a 93-page opinion in California v. Contreras, No. S224564 (Cal. Feb. 26, 2018) (available here), which extends the limits that the Supreme Court's Eighth Amendment ruling in Graham places on juvenile sentencing for non-homicide crimes. Here is how the majority opinion, authored by Justice Liu, gets started:

Defendants Leonel Contreras and William Rodriguez were convicted in a joint trial of kidnapping and sexual offenses they committed as 16 year olds. Rodriguez was sentenced to a term of 50 years to life, and Contreras was sentenced to a term of 58 years to life.  We granted review to determine whether the sentences imposed on these juvenile nonhomicide offenders violate the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham).  We hold that these sentences are unconstitutional under the reasoning of Graham.

The lead dissenting opinion, authored by Chief Justice Cantil-Sakauye, gets started this way:

I respectfully dissent. The majority’s erroneous interpretation and extension of Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not intend — the categorical condemnation of all sentences in which juvenile offenders convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same time, the majority fails to properly account for legislation and regulations that afford defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no later than when they reach the age of 60.  These measures take defendants’ sentences outside of Graham’s purview even under the majority’s mistaken approach to that decision. Defendants’ sentences do not violate the Eighth Amendment to the United States Constitution, and I would so hold.

Because this ruling appears to rest squarely on application of the Eighth Amendment of the US Constitution rather than on the parallel provision in article I, section 17 of the California Constitution, it would seem the state of California could seek to appeal this expansive application of the Graham ruling to the US Supreme Court. It will be interesting to see if California pursues an appeal and what might become of it were the state to do so.

At just what level of Dante's Inferno does modern ACCA jurisprudence reside?

The silly question in the title of this post is my silly reaction to a not-so-silly ruling from a Fourth Circuit panel today flagged for me by a helpful reader.  I will get to that ruling in a minute, but first I must spotlight this website's helpful explanation of the circles of hell set forth in Dante's Inferno:

The Levels of Hell

In Dante's Inferno, Hell is described as having 9 different levels, or circles, each lower than the last.  As one descends into the depths of hell, he comes closer to the 9th circle where Satan himself resides.  Each level of hell is reserved for different types of sinners, and different punishments are inflicted on the damned depending on the nature and severity of their sin.  The greater their sin, the lower the level to which they are condemned to spend eternity.

Notably, the "seventh level of hell is reserved for those who are guilty of violence, whether it be against themselves, property, nature, or other people."  I suppose that would be the fitting level for locating the modern federal court jurisprudence over application of the Armed Career Criminal Act because what is typically debated within this jurisprudence is whether a defendant's prior conviction qualities as a "violent felony." 

But, in referencing Dante's Inferno, I am really thinking about federal criminal practitioners and federal judges who must feel like they are dropping through various levels of hell as they sort through various intricate precedents to try to figure out what is and what is not a "violent felony" for ACCA purposes.  Last week I noted here a big split Fifth Circuit en banc ruling holding that Texas burglary convictions do not serve as predicates for the Armed Career Criminal Act.  Today, it is a Fourth Circuit panel ruling that has my ACCA head hurting; US v. Middleton, No. 16-7556 (4th Cir. Feb. 26, 2018) (available here), gets started this way:

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA.  Due to the idiosyncrasies of the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force.  We conclude that it does not and reverse.

Critically, there is no suggestion in this opinion that Jarnaro Carlos Middleton's conviction for involuntary manslaughter had anything to do with selling alcohol to a minor.  But a 1992 opinion of the Court of Appeals of South Carolina upholds an involuntary manslaughter conviction involving selling alcohol to a minor, and that fact ends up shaping whether Jarnaro Carlos Middleton faces a 15-year statutory mandatory minimum or a 10-year statutory mandatory maximum for the federal crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).  Somewhere Franz Kafka (as well as Dante Alighieri) is blushing.  And if the realities of the majority opinion does not whet your ACCA appetite, Middleton comes with a partial concurrence that starts this way:

The majority concludes that a conviction for South Carolina involuntary manslaughter does not categorically qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).  While I agree with that conclusion, I hesitate to join the majority’s analysis.  In my view, our recent decisions in In re Irby, 858 F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), undermine the majority’s reasoning that South Carolina involuntary manslaughter can be committed with de minimis force and by simply causing injury without using force.  Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an ACCA predicate because, although the ACCA force clause requires a higher degree of mens rea than recklessness, an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct.  Therefore, while I write separately as to Part II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.

Natch.

Alabama joins Ohio as only modern state to truly botch an execution

As long time readers know, I try to draw a distinction between ugly and botched executions: ugly executions are those that do not go smoothly, but still result in the condemned prisoner ending up dead (as in Oklahoma in 2014); botched execution are those that involve prison official actively seeking to complete an execution and ultimately failing.  Leaving aside a botched electrocution in Louisiana in the 1940s, my own state of Ohio had the distinction of being the only jurisdiction with a modern botched execution history and, as noted here, has had two inmates return to death row after failed lethal injection attempts.

But now, as this NBC News piece details, Alabama is clearly a new player in this sad universe as details of its execution efforts last week are emerging.  The press report is headlined "Lawyer describes aborted execution attempt for Doyle Lee Hamm as ‘torture’," and here are some details (as well as a reminder Ohio is still beating Alabama in botched executions) :

An Alabama execution team left a death-row inmate with more than a dozen puncture marks in his legs and groin and may have penetrated his bladder and femoral artery before the lethal injection was called off, the prisoner's attorney said Sunday. "This was clearly a botched execution that can only be accurately described as torture," attorney Bernard Harcourt said in a statement after a doctor examined his client, convicted murderer and cancer survivor Doyle Lee Hamm, in prison.

State officials did not respond to a request for comment following the examination. Last week, they said that after the execution started late Thursday because of last-minute appeals, the team wasn't sure it could find a good vein before the death warrant's midnight expiration. "I wouldn't necessarily characterize what we had tonight as a problem," Corrections Commissioner Jeff Dunn told reporters at the time.

Afterward, Harcourt went to federal court and convinced a judge to permit a doctor of his choosing to examine Hamm, who has been on death row for 30 years for the 1987 murder of a motel clerk. The attorney said that while Hamm was strapped to the gurney, the IV team "simultaneously worked on both legs at the same time, probing his flesh and inserting needles."

"The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day," he said. "They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen." During the execution, Hamm "was lying there praying and hoping that they would succeed because of the pain, and collapsed when they took him off the gurney," Harcourt said. In addition to the puncture marks, Hamm has bruising and swelling in his groin and pain from his abdomen to upper thigh, the lawyer said. He was still limping on Sunday....

Before Thursday, Harcourt had warned that due to Hamm's history of drug abuse and his illnesses, it would be impossible to find good veins to deliver the deadly drugs. A judge ruled the execution could proceed as long as the IV wasn't inserted in Hamm's arms. The U.S. Supreme Court, with three justices dissenting, then declined to stop the lethal injection.

Prison officials have given few details about what went on in the death chamber before Hamm got a reprieve. Dunn told reporters Thursday that he did not think the trouble the team had finding a vein would prevent the state from killing Hamm in the future.  "The only indication I have is that in their medical judgement it was more of a time issue, given the late hour," the commissioner said.

Harcourt wanted to examine the execution chamber and the notes prison workers took during the procedure, but the judge turned him down.  The judge did, however, order the Department of Corrections to preserve the notes and any other material from the execution try, including the clothing Hamm was wearing.

Hamm is not the first inmate to survive an execution attempt because of bad veins.  Three months ago, Ohio called off the execution of Alva Campbell after the medical team tried for 30 minutes to find an access point without success.  And in 2009, another Ohio inmate, Romell Broom, was spared after the execution worked for two hours to insert a needle. In appeals, he argues a second attempt would constitute cruel and unusual punishment.

"Divided Justice: Trends in Black and White Jail Incarceration 1990-2013"

The title of this post is the title of this notable new report released today by the Vera Institute of Justice.  This Vera webpage provides this overview and a key takeway:

Overview

Recent data analyses on jail incarceration — taken from Vera’s Incarceration Trends tool — reveal that although significant racial disparities still exist between black and white jail incarceration rates, incarceration rates for black people are declining, while rates for white people are rising.  This report dives into the data on black and white incarceration trends from 1990 to 2013, and poses several questions for further exploration that might explain why these rates are shifting.  However, the report also argues that we need more data to fully understand the causes and consequences of racial disparities in incarceration — and to begin enacting more race-conscious jail reduction efforts.

Key Takeaway

While black incarceration rates have declined — and white incarceration rates have risen — over the past several decades, the lack of complete and accurate data prevents effective analyses of the causes and drivers of these trends and on racial disparities more broadly in the justice system.

SCOTUS takes up Alabama case concerning competency to be executed while again turning away post-Hurst capital challenges

The US Supreme Court issued this order list this morning, and capital punishment followers will find a few SCOTUS cert decisions of note.  First, the Court granted certiorari in Madison v. Alabama, No. 17-7505, and the docket number here is quite important because Vernon Madison had two notable cert petitions pending: Madison v. Alabama, 17-7505, which was granted raises asked whether Alabama may "execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?";  Madison v. Alabama, 17-7535, which was denied raised the issue of whether Alabama could move forward with the execution of a defendant whose death sentence result from the state's now-abolished practice of judicial override.

The death sentencing procedural issue that the Supreme Court decided not to take up in Vernon Madison's case is, of course, yet another off-shoot of what I have long called the "post-Hurst hydra."  After the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation destined to develop in various ways in various courts as state and federal judges tried to make sense of just what Hurst must mean for past, present and future capital cases.  I am further reminded of that hydra because today's SCOTUS order list concluded with two short dissents from the denial of certiorari authored by Justices Breyer and Sotomayor in two Florida capital cases.  Justice Sotomayor's dissent is a bit longer and joined by Justice Ginsburg and includes these passages:

Dale Middleton and Randy Tundidor were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional.  See Hurst v. Florida, 577 U. S. ___ (2016).  Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst.  By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to the petitioners’ death sentences.

Having so concluded, the Florida Supreme Court continually refuses to grapple with the Eighth Amendment implications of that holding.  If those then-advisory jury findings are now binding and sufficient to satisfy Hurst, petitioners contend that their sentences violate the Eighth Amendment because the jury instructions in their cases repeatedly emphasized the nonbinding, advisory nature of the jurors’ role and that the judge was the final decisionmaker.  This Court has unequivocally held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).

"The Perverse Power of the Prosecutor"

The title of this post is the title of this notable new commentary authored by John Pfaff in the journal Democracy. The piece asks this question in a subheadline: "How responsible are prosecutors for holding back progressive criminal justice reform?". And here is how it starts:

One of the more important shifts in criminal justice reform over the past five or so years has been a growing awareness of just how powerful and influential prosecutors truly are. Perhaps startled to find themselves under such attention after decades of little to no scrutiny, prosecutors are now pushing back.  One common rebuttal prosecutors make is that they don’t actually have that much power.  It is the legislature, they argue, which passes the laws and thus really calls the shots.  Prosecutors simply impose what the legislature enacts.

Such claims, however, are quite disingenuous, since they conveniently overlook one of the most important sources of prosecutors’ power: their oversized influence over the legislative process.  District attorneys are not passive players in the politics of crime, sitting idly by awaiting their orders from on high.  In states from Pennsylvania to Louisiana to California, district attorneys aggressively, and effectively, lobby against reforms they dislike and for new laws that they do.  Louisiana recently adopted an expansive criminal justice reform bill, but the final version was significantly watered down from the original proposal, almost entirely due to aggressive and effective lobbying by the state’s district attorneys.  And in Pennsylvania the House of Representatives recently passed a bill (which still languishes in the Senate) reinstating drug-focused mandatory minimums that had been invalidated by the state’s supreme court; despite a majority of voters of all ideological stripes opposing the bill, it passed unanimously thanks to the concerted efforts of the state’s prosecutors.

In other words, as reformers start to pay closer attention to the power of prosecutors, they need to keep their eyes not just on how prosecutors have driven up incarceration rates in their day-to-day decisions — like deciding how many people to charge with felony charges or what type of sentence to impose on them during plea bargaining — but also on how they shape the broader politics of criminal justice.  Many former prosecutors are now judges and legislators, and current district attorneys frequently work hard to impose tougher laws and to stifle reform.  Regulating prosecutors will require looking at not just their direct powers, but their significant indirect political influence as well.

Prez Trump reportedly "would love to have a law to execute all drug dealers here in America"

The quoted portion of the title of this post comes from this new Axios report by Jonathan Swan headlined "Trump privately talks up executing all big drug dealers." The piece is notable for more than just the death penalty talk, and here are extended excerpts:

In Singapore, the death penalty is mandatory for drug trafficking offenses.  And President Trump loves it.  He’s been telling friends for months that the country’s policy to execute drug traffickers is the reason its drug consumption rates are so low.  "He says that a lot," said a source who's spoken to Trump at length about the subject. "He says, 'When I ask the prime minister of Singapore do they have a drug problem [the prime minister replies,] 'No. Death penalty'."

But the president doesn't just joke about it. According to five sources who've spoken with Trump about the subject, he often leaps into a passionate speech about how drug dealers are as bad as serial killers and should all get the death penalty.  Trump tells confidants a softer approach to drug reform — the kind where you show sympathy to the offenders and give them more lenient sentences — will never work. He tells friends and associates the government has got to teach children that they'll die if they take drugs and they've got to make drug dealers fear for their lives.

Trump has said he would love to have a law to execute all drug dealers here in America, though he's privately admitted it would probably be impossible to get a law this harsh passed under the American system.

Kellyanne Conway, who leads the White House's anti-drug efforts, argues Trump's position is more nuanced, saying the president is talking about high-volume dealers who are killing thousands of people. The point he's making, she says, is that some states execute criminals for killing one person but a dealer who brings a tiny quantity of fentanyl into a community can cause mass death in just one weekend, often with impunity.

Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl.  Currently, you have to deal forty grams to trigger the mandatory five-year sentence. (The DEA estimates that as little as two milligrams is enough to kill people.)...

Conway told me this kind of policy would have widespread support. “There is an appetite among many law enforcement, health professionals and grieving families that we must toughen up our criminal and sentencing statutes to match the new reality of drugs like fentanyl, which are so lethal in such small doses,” she said. "The president makes a distinction between those that are languishing in prison for low-level drug offenses and the kingpins hauling thousands of lethal doses of fentanyl into communities, that are responsible for many casualties in a single weekend."

Trump wants to get tough on drug traffickers and pharmaceutical companies. Stay tuned for policy announcements in the not-too-distant future. Trump and some of his advisers are discussing whether they might adopt other aspects of Singapore's "zero tolerance" drug policies, like bringing more anti-drug education into schools.

Notably, Section 109 of the Sentencing Reform and Corrections Act of 2017 that just recently passed through the Senate Judiciary Committee includes a five-year mandatory consecutive term of imprisonment for dealing fentanyl.  So the report that "Trump may back legislation requiring a five-year mandatory minimum sentence for traffickers who deal as little as two grams of fentanyl" may be a reference to this provision of the SRCA or it might be a reference to another piece of proposed legislation.  Either way, it would seem that Prez Trump is now inclined to embrace a punitive mind-set for dealing with the nation's drug problems (though, as this old press story reveals, he once previously said "you have to legalize drugs to win that war ...  to take the profit away from these drug czars.")

What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings

This recent local article, headlined "Why Philly DA Krasner could let 180+ juvenile lifers out of prison early," reports on the impact the recently elected Philadelphia prosecutor is having local cases demanding resentencing in the wake of the Supreme Court's Eighth Amendment ruling in Miller. Here are the details:

Philadelphia has sentenced more teens to life in prison with no chance of parole than any other jurisdiction in the world — and that meant it had the largest number to resentence after the U.S. Supreme Court two years ago ruled that its 2012 ban on mandatory life-without-parole sentences for minors must be applied retroactively.

As of this week, 127 out of approximately 315 juvenile lifers from Philadelphia have been resentenced. For those whose cases are still in process, the election of District Attorney Larry Krasner appears to have immediately and dramatically changed the outlook.

It means new deals are already on the table for 17 who had rejected offers made under the previous District Attorney’s Office, which mostly stuck close to current state sentencing guidelines that set minimums at 35 years to life for first-degree murder and 30 to life for second-degree murder. The latest offers make all but two of the lifers eligible for parole right away; it would also keep them all on parole for life. Some set minimums as low as 21 years for first-degree murder.

As for the remaining resentencings, Krasner said he intends to consider each case individually. Rather than relying on the sentencing guidelines, he said he would look to the historical, national and international context that has made Pennsylvania second in the nation in imposing life-without-parole sentences. “We are being consistent as we do our duty, which is to consider all these unique factors in resentencing,” he said. “It’s worth bearing in mind that Pennsylvania is an extreme outlier in excessive sentencing, and the United States is an extreme outlier in excessive sentencing.”

What’s unclear, however, is whether a Philadelphia judge will sign off on those agreements. At a recent status hearing, Common Pleas Judge Kathryn Streeter-Lewis, who is in charge of approving agreements in juvenile-lifer cases, asked the district attorney to submit briefs defending the deals’ legality in light of precedent-setting rulings by Pennsylvania’s appellate courts in the case of Qu’eed Batts, an Easton man who was 14 when he participated in a gang-related execution. In his case, the court acknowledged each judge has discretion to craft individualized minimum sentences, but said “sentencing courts should be guided” by current state law. “I understand that there is a different administration,” she said, but added, “Some of these [offers] are very much below the guidelines the decision required. … I’m going to need some reasons.”

One such case involved Avery Talmadge, who’s been locked up 22 years and was offered a time-served deal that — in a departure from past practice for the District Attorney’s Office — contemplates whether the original conviction was even appropriate. “The case was a street fight that turned into a shooting,” Assistant District Attorney Chesley Lightsey told Streeter-Lewis. “The [DAO’s internal resentencing] committee believes this is closer to a third-degree, though it was a first-degree conviction.” She said he also had an excellent prison record, reflecting the Supreme Court’s underlying rationale that kids, while impulsive and immature, also have a great capacity for rehabilitation.

Bradley Bridge of the Defender Association, which represents many of the lifers, believes the new offers will withstand judicial scrutiny — and that of the public. Krasner, he said, “sees the dangers of overincarceration and has come up with a meaningful solution.  He has reevaluated offers and, consistent with the protection of the public, has recognized that new offers can take into account to a more significant degree the juvenile’s growth while in prison.”...

Krasner said offers he’s approved so far have included minimums ranging between 40 years and just under 20 years.  He declined to specify a floor for minimum sentences. “I see no arbitrary number. We are approaching this the way the Anglo-American court system has approached these for centuries: on a case-by-case basis.”

"Solitary Troubles"

The title of this post is the title of this notable new paper authored by Alex Reinert available via SSRN. Here is the abstract:

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike.  Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited.  This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz

The New York Times has this lengthy new article exploring some particulars and players involved in the possible capital prosecution in Florida of teenage mass murderer Nikolas Cruz. I recommend the full piece, headlined "After a Massacre, a Question of One More Death: The Gunman’s," and here are excerpts:

Among the suspects on the list of the country’s 10 worst mass shootings, Nikolas Cruz is alone in one thing: He was taken alive.  His arrest raises the rare prospect of a death penalty trial for a massacre, a huge undertaking with far-reaching consequences for all involved. Some would not be satisfied without an execution, while for others the trial itself would bring anguish.

The chief prosecutor here in Broward County has said that the killing of 17 people at a high school on Valentine’s Day “certainly is the type of case the death penalty was designed for.”  A trial may be the only opportunity to lay bare all of the facts.  But it would also likely be televised and followed by lengthy appeals, provoking years of public agony, as well as sustained attention for Mr. Cruz, who has already confessed.

Over years of mass shootings, from a university campus in Huntsville, Ala., to a movie theater in Aurora, Colo., prosecutors have struggled with this conundrum, testing political winds, spending days talking with survivors and families of the dead and reflecting on the intersection between morality and the oath of office.

Even Broward County’s public defender, whose office is representing Mr. Cruz and who wants to save his life, readily acknowledges the wrenching emotions that are part of a case that is only beginning. “If it were my daughter, I would want to personally kill my client, make no mistake about it,” said Howard Finkelstein, the public defender, an elected position. Later, though, he said that perhaps he would “try to go on and build a future. I don’t know what I would do. I just don’t know.”

Already, Mr. Finkelstein’s office has offered a way to avoid a trial: Mr. Cruz’s guilty plea in exchange for a punishment of 17 consecutive life sentences without parole. But Mr. Finkelstein recognizes that for some victims, that might not be enough: “I’m a father. I don’t know whether I would take my offer.”

Relatives of the victims of the massacre at Marjory Stoneman Douglas High School in Parkland, Fla., have not yet made their feelings about the death penalty widely known.  And it is not clear where Michael J. Satz, Broward County’s prosecutor, is in his deliberations.  He declined to comment.  Mr. Satz, who was elected state attorney when Gerald R. Ford was president, is regarded as a hard-edged prosecutor, but he is still likely to consider an array of factors, including the odds of persuading a jury.

Although jurors condemned men for massacres in Charleston, S.C., where nine churchgoers were killed, and at Fort Hood, Tex., where there were 13 fatalities, they spared the life of the Aurora gunman who killed 12, citing his history of mental illness. In the Huntsville shooting, the prosecutor said his conversations with the families of the victims were a reason he did not seek execution.

George Brauchler, the lead prosecutor in the Aurora case, said he had engaged in “serious soul-searching” about whether to pass up a plea deal and seek the death penalty. “This is as much a moral decision as it is a decision about justice, and that is not an easy decision to make,” he said....

A crucial consideration in potential capital cases, prosecutors and defense lawyers said, is whether failing to seek the death penalty in a mass shooting would set a precedent, making it more difficult to seek it in cases with lower death tolls. In Charleston, the federal government had a sharp internal debate, and met with resistance from family members of victims, before it decided to seek the death penalty against Dylann S. Roof....

For defense lawyers seeking to spare their client’s life, an appeal to efficiency is one of the few cards they can play — particularly when, as Mr. Finkelstein says, the “case is not a whodunit.” Expecting that Mr. Satz will seek the death penalty, Mr. Finkelstein and his deputies are already preparing for a “long, arduous legal battle” and intend to concentrate on jury selection. Because juries must unanimously recommend death sentences in Florida, a single juror could prevent execution. Mr. Finkelstein said the defense would likely focus on mental health and the accumulation of failures by government agencies to stop Mr. Cruz from opening fire....

In Florida, where 347 people are on death row after an execution on Thursday night, state law spells out a roster of aggravating factors and mitigating circumstances that jurors may consider in capital cases.  Aggravating factors, at least one of which must be proven for someone to be eligible for a death sentence, include a finding that a defendant “knowingly created a great risk of death to many persons” or that a homicide was “committed in a cold, calculated and premeditated manner.”

Mitigating circumstances, like a defendant’s age and whether he or she was under the “influence of extreme mental or emotional disturbance” at the time of the crime, can legally tilt jurors toward a punishment of life in prison.  Mr. Finkelstein made plain that he is dreading any trial here, and not just for legal reasons. In his dimly lit office, he raspily declared a hope that “divine intervention” would persuade Mr. Satz to avoid a trial and an airing of the tragic details.

Prior related post:

• Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?