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May 18, 2019

"'Balanced Liberty' – Justice Kennedy's Work in Criminal Cases"

The title of this post is the title of this new essay authored by Rory Little and available via SSRN. Here is its abstract:

During his 43 years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a cautionary tale). Below I offer four general themes that emerge from my review of Justice Kennedy’s written work in criminal cases:

(1) Perhaps surprising to some, when writing for the majority, Justice Kennedy ruled more often for a defense-side view than for the government;

(2) His expansive vision of “liberty,” as expressed in civil cases, was more “balanced” in the criminal context;

(3) His balanced-liberty approach was less defendant-friendly in habeas cases; and

(4) His work was most impactful in (obviously?) death penalty and race-focused cases, as well as plea-bargaining; and he was consistently correct about the doctrine of “willful blindness.”

In conclusion, Justice Kennedy’s 30 years of writings on the U.S. Supreme Court mark him as one of the most influential Justices of our time in shaping criminal law doctrine.

May 18, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Rounding up some interesting criminal justice reads

Frequently, when I come across interesting criminal justice news pieces or commentary while working on other matters, I will email the link to myself with the hope I will find time later to blog about the item.  This week seemed to lead to an especially large number of these items in my in-box, and so I will blogging about them all through this round up.   

A few of these pieces are news accounts of notable court rulings, but most are commentary.  And everyone on of these pieces could justify its own post, which is my way of saying folks should check them all out.  So, in no particular order:

By Seth Mayer, "What Criminal Justice Reformers Can Learn from the Green New Deal"

By Adureh Onyekwere and Ames Grawert, "Welcome To The Age Of Bipartisan Criminal Justice Reform"

By Kara Gotsch, "Criminal justice includes food security — we can't ban the social safety net"

By John Pfaff, "Five myths about prisons"

By David Nathan, Joycelyn Elders and Bryon Adinoff, "21st Century Reefer Madness"

By Andrew Wolfson, "A prosecutor ridiculed a couple's patron saint. So a court reversed their drug convictions."

By John Ellement, "SJC orders release of Wayne Chapman, convicted child rapist"

By Tamara Gilkes Borr, "How the War on Drugs Kept Black Men Out of College"

By Doyle Murphy, "St. Louis’ Justice System Grapples Daily with an Impossible Question: What Punishment Fits the Crime?"

May 18, 2019 in Recommended reading, Who Sentences | Permalink | Comments (2)

May 17, 2019

"Incorporating Collateral Consequences into Criminal Procedure"

The title of this post is the title of this notable new paper now available on SSRN authored by Paul Crane. Here is its abstract:

A curious relationship currently exists between collateral consequences and criminal procedures.  It is now widely accepted that collateral consequences are an integral component of the American criminal justice system.  Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants.  Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process.  Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure.  Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

May 17, 2019 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Cruel State Punishments"

The title of this post is the title of this new article authored by William Berry available via SSRN. Here is its abstract:

The Supreme Court has almost systematically expanded the Eighth Amendment over the past decade and a half, proscribing categorical limitations to the death penalty and juvenile life without parole.  With Justice Kennedy’s recent retirement, this expansion seems like it might be ending.  As this door is closing, however, another door may be opening for restricting excessive punishments — state constitutional analogues to the Eighth Amendment.  A close examination of such provisions reveals that some of the provisions use “or” instead of “and,” a linguistic difference that suggests many state constitutions might be broader than the Eighth Amendment.

This article explores the consequences of linguistic differences between the Eighth Amendment and its state constitutional analogues, focusing in particular on the effect of disjunctive state constitutional provisions.  Specifically, the article argues that these linguistic differences open the door to broader application of state Eighth Amendment analogues to rein in excessive punishment practices of state governments.

In Part I, the Article begins by providing an overview of Eighth Amendment doctrine and the importance of the conjunction in its application to criminal sentences.  Part II surveys the state constitutions and examines the language of the provision analogous to the Eighth Amendment, grouping these provisions into three broad categories.  In Part III, the Article advances its core claim — state constitutional prohibitions against “cruel” punishments should limit the ability of states to impose disproportionate punishments.  Part IV concludes the Article by exploring the many practical consequences of limiting the imposition of cruel punishments.

May 17, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

May 16, 2019

Alabama and Tennessee both complete executions in same night

As reported in this extended AP piece, two states carried out executions this evening.  Here are the details:

A man convicted of killing his wife decades ago at a camping center he managed in Memphis was put to death Thursday in Tennessee.  Separately, a man condemned to die for his role in a quadruple killing that followed a dispute over a pickup truck was put to death Thursday evening in Alabama, declining to make any last-minute appeals in the hours preceding his execution.

Sixty-eight-year-old inmate Don Johnson was executed for the 1984 suffocation of his wife, Connie Johnson.  He was pronounced dead at 7:37 p.m. after a lethal injection at a maximum-security prison in Nashville.  He had initially blamed his wife's slaying on a work-release inmate who confessed to helping dispose of the body and who was granted immunity for testifying against Johnson.

Johnson became the fourth person executed in Tennessee since August.  The last two inmates executed in Tennessee chose the electric chair, saying they believed it offered a quicker and less painful death than the state's default method of lethal injection.

Johnson had spent half his life on death row and seen three execution dates come and go as his appeals played out in court, including challenges to Tennessee's lethal injection protocols.  The state's present default method is a three-drug combination that includes the sedative midazolam, which inmates have claimed causes a prolonged and excruciating death. Three more executions are scheduled for later this year in Tennessee.

Gov. Bill Lee announced Tuesday that he would not intervene, following "prayerful and deliberate consideration" of Johnson's clemency request. Religious leaders, including the president of the worldwide Seventh-day Adventist Church, to which Johnson belongs, had asked Lee to spare Johnson's life.  Supporters of clemency said Johnson had undergone a religious conversion and cited his Christian ministry to fellow inmates. Johnson is an ordained elder of the church in Nashville....

Alabama administered a lethal injection Thursday evening to 41-year-old Michael Brandon Samra.  Samra was pronounced dead at 7:33 p.m. following a three-drug injection at the state prison at Atmore, authorities said.

Samra and a friend, Mark Duke, were convicted of capital murder in the deaths of Duke's father, the father's girlfriend and the woman's two elementary-age daughters in 1997.  The two adults were shot and the children had their throats slit.  Evidence showed that Duke planned the killings because he was angry his father wouldn't let him use his pickup.

In a last statement, Samra made a profession of Christian faith.  "I would like to thank Jesus for everything he has done for me," Samra said as he lay strapped on a gurney with his arms extended. He ended with the word "amen."

After drugs began flowing, Samra went still and his chest heaved three times.  He took a few deep breaths and his head moved slightly. Then an officer checked to see if he was still conscious.  A few moments later, Samra's hands curled inward, his chest moved like he was taking some breaths and his mouth fell slightly agape.  The execution procedure began about an hour after the scheduled 6 p.m. start time, and Prison Commissioner Jeff Dunn said there was no particular reason for the delay. "There were no issues that I was aware of," Dunn said in a statement....

Though Duke and Samra were both originally convicted of capital murder and sentenced to death, Duke's sentence was overturned because he was 16 at the time, and the Supreme Court later banned executing inmates younger than 18 at the time of their crimes.

Samra was 19 at the time and asked the U.S. Supreme Court to delay his execution while the Kentucky Supreme Court considers whether anyone younger than 21 at the time of a crime should be put to death, but the justices refused.

May 16, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

"Promoting Equality Through Empirical Desert"

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

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability.  This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory.   Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform.  Chief among them: it draws from community intuitions, and community intuitions — as the theory acknowledges — are sometimes immoral.  In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice — and beyond.  Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology.   Moreover, it can do even better. T  his Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination.  It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections.  Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them.  In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

May 16, 2019 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

California felony murder revisions showcase, yet again, the varied challenges of giving retroactive effect to sound reforms

The Marshall Project has this notable new article about the application of California's new felony murder law under the headline "California Law Says This Man Isn’t a Murderer. Prosecutors Disagree." Here are excerpts:

After California changed its murder laws last fall, Neko Wilson was the first man to walk free. Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County.  No one accused him of killing anyone, or even being in the family’s home that night, but prosecutors said he helped plan the break-in.  At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs.

But in September 2018, the legislature limited murder charges to people who actually participate in a slaying. And so in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles....

That freedom may be short-lived.  Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California’s constitution and that freeing him was a mistake.  A hearing is set for May 16.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.  As prisoners around the state seek release, some judges have agreed with the constitutional argument and others have rejected it, setting up a fight that is likely to end up in the state’s highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration.  After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows.  But the trend has angered some prosecutors, who say lawmakers are risking public safety.

May 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Brennan Center releases great new collection of essays titled "Ending Mass Incarceration: Ideas from Today's Leaders"

Back in late April 2015, roughly 18 months before a big election, the Brennan Center for Justice released this fascinating publication (running 164 pages) titled "Solutions: American Leaders Speak Out on Criminal Justice."  That 2015 publication had nearly two dozen leaders, mostly prominent political figures with big histories and/or plans, discussing a variety of criminal justice reform topics from a variety of perspectives.  In my original post about this great 2015 collection, I expressed concern that former Prez Bill Clinton was tasked with authoring the forward and that former Prez George Bush was not a contributor to the collection.  Others noted, quite rightly and tellingly, that Hillary Clinton's essay in this collection was filled "with platitudes and self-aggrandizing references" within a "shallow discussion" that was "especially embarrassing compared to Ted Cruz's."  I also noted here that the seven GOP political leaders included in the collection had set forth an array of reform priorities and proposals that made me optimistic for potential future bipartisan reforms.

Fast forward four years, and the Brennan Center for Justice is at it again.  Specifically, this morning it just released a 2019 version of timely criminal justice essays, this time under the title "Ending Mass Incarceration: Ideas from Today’s Leaders."  Interestingly, this new must-read collection is a bit shorter (only 112 pages), and it feels a lot more titled toward the left.  Specifically, as noted above, the 2015 collection had essays from seven prominent GOP politicians as well as two additional essays from past or present leaders of right-leaning advocacy groups (not to mention tough-on-crime Democrats like both Clintons and then-VP Joe Biden).  The new collection of essays, though it does include pieces by Jared Kushner, Mark Holden and Holly Harris, fails to have any essays from any elected Republicans or would-be presidential aspirants other than those running for the Democratic nomination.  Given that then-VP Joe Biden appeared in the last volume, I would have liked to now see an essay by current VP Mike Pence on these topics.  Notably, interesting Dem voices like Cory Booker and Kamala Harris got a chance to do repeat performances in this latest volume, but interesting GOP folks like Rand Paul and Rick Perry do not.  And many folks running for Prez on the Dem side are included, but we do not hear from folks like William Weld or John Kasich or any other distinctive right leaning voices.

I would not be surprised if the Brennan Center tried to get more GOP voices involved and ultimately had their requests for contributions denied.  So my goal here is not to fault the efforts in putting together this still very important volume.  I just think it important and significant (and perhaps telling) that the essays here do not appear nearly as bipartisan as they did back in 2015.  But that reality makes this collection no less significant, and I am looking forward to finding time soon to read (and perhaps blog about) all these essays here.

Prior related posts about 2015 volume:

UPDATE: I now see that the New York Times has this good article about this new publication under the bad headline "Left and Right Agree on Criminal Justice: They Were Both Wrong Before." (It is a bad headline because the "Right" is not really fully captured in this collection.)  Here are excerpts from the Times piece:

Of the more than 20 politicians and activists who contributed essays, all but three framed the issue explicitly as a matter of racial justice, emphasizing the deep disparities in a system in which people of color are many times more likely than white people to be incarcerated. Nine called for reducing or abolishing mandatory minimum sentences.  Eight called for eliminating cash bail.  Seven called for alternatives to prison for nonviolent crimes....

No one in the 2015 report suggested decriminalizing marijuana, but Mr. Booker, Senator Elizabeth Warren of Massachusetts and former Representative Beto O’Rourke of Texas did in the new one, and other candidates have suggested it elsewhere.  In 2015, limiting employers’ ability to ask about criminal history was the central proposal from Cornell William Brooks of the N.A.A.C.P.  This year, Mr. Booker, Mr. Kushner, Mr. O’Rourke and Senator Sherrod Brown of Ohio all called for it.

The new centerpieces include eliminating cash bail and getting rid of mandatory minimum sentences altogether.  Senator Kirsten Gillibrand of New York suggested abandoning prison sentences for low-level offenses.  Senator Bernie Sanders of Vermont, Ms. Warren and Mr. O’Rourke proposed abolishing for-profit prisons, which, Mr. Sanders wrote, “have a greater interest in filling the pockets of their shareholders by perpetuating imprisonment” than in rehabilitation.

May 16, 2019 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

May 15, 2019

Prez Trump pardons Conrad Black and Pat Nolan

Prez Donald Trump has his clemency juices flowing again, and he is back to his high-profile pardon practices today with grants to two offenders whose names should be familiar to readers of this blog.  Here are the details from The Hill:

President Trump on Wednesday signed granted a full pardon to media tycoon Conrad Moffat Black and Patrick Nolan, former Republican leader of the California State Assembly.

Black, a Canadian-born British citizen, served as the chief executive of Hollinger International, which published the Chicago Sun-Times, The Daily Telegraph and The Jerusalem Post.  He was convicted in 2007 on three counts of mail fraud and one count of obstruction of justice in U.S. District Court in Chicago.

The 74-year-old media mogul spent 3.5 years in prison, the White House said in a statement announcing his pardon. In its statement, the White House said the Supreme Court "largely disagreed and overturned almost all charges in his case. "Two of his three fraud convictions were later overturned, leading his sentence to be shortened. He was released from a Florida prison in May 2012 and subsequently deported from the United States.

"An entrepreneur and scholar, Lord Black has made tremendous contributions to business, as well as to political and historical thought," the White House said. Black wrote a book about the president, called “Donald Trump: A President Like No Other,” published in 2018.

Nolan, who also was pardoned Wednesday, was a California legislative leader who spent years in prison after being convicted in the 1990s in an FBI sting.  Nolan was secretly recorded accepting checks from an undercover FBI agent and was later charged with using political office to solicit illegal campaign contributions, the Los Angeles Times reported.

He later pleaded guilty on one count of racketeering and served 25 months in federal prison.

The White House characterized Nolan's choice to plead guilty as a "difficult" one. "He could defend himself against charges of public corruption and risk decades in prison, or he could plead guilty and accept a 33-month sentence," the White House said. "Determined to help his wife raise their three young children, Mr. Nolan chose to accept the plea."

"Mr. Nolan’s experiences with prosecutors and in prison changed his life. Upon his release, he became a tireless advocate for criminal justice reform and victims’ rights."

Criminal justice reform advocates know how hard Pat Nolan has worked in this space for years, and Conrad Black has been a trenchant critic of the federal criminal justice system since he got caught up with it.

A few prior related posts with a few commentary from Black and Nolan:

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

An illuminating study highlighting bright ways to deter and prevent crime other than through prison punishments

Some of the (shrinking?) fans of incarceration, if pressed about the utilitarian crime-control value of this costly form of punishment, can sometimes be heard to say that even if prison does not effectively deter or rehabilitate offenders, at least it serves to incapacitate and prevent repeat offenses.  One important response to such a claim is that prisoners can and do still commit crimes in prison.  But an even more important and satisfying response is that monies used to imprison might often be much better used on other government activities that will better deter and prevent crime, and that kind of response is supported by this interesting new National Bureau of Economic Research Working Paper.  The paper, titled "Reducing Crime Through Environmental Design: Evidence from a Randomized Experiment of Street Lighting in New York City," is authored by Aaron Chalfin, Benjamin Hansen, Jason Lerner and Lucie Parker, and here is its abstract:

This paper offers experimental evidence that crime can be successfully reduced by changing the situational environment that potential victims and offenders face.  We focus on a ubiquitous but surprisingly understudied feature of the urban landscape — street lighting — and report the first experimental evidence on the effect of street lighting on crime. Through a unique public partnership in New York City, temporary streetlights were randomly allocated to public housing developments from March through August 2016.  We find evidence that communities that were assigned more lighting experienced sizable reductions in crime.  After accounting for potential spatial spillovers, we find that the provision of street lights led, at a minimum, to a 36 percent reduction in nighttime outdoor index crimes.

May 15, 2019 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (2)

"The Governor's Clemency Power: An Underused Tool to Mitigate the Impact of Measure 11 in Oregon"

The title of this post is the title of this notable new paper authored by Aliza Kaplan and Venetia Mayhew recently posted to SSRN.  Here is its abstract:

In this article, we analyze the historical use of the clemency power at both the federal and state levels; including the factors that occurred during the 20th century which resulted in both presidents and governors gradually using the power less, up until the 1980’s.  We examine how the “war on crime” and other political and legal changes, including the imposition of new mandatory minimum sentencing laws during the 1980’s and 1990’s, has led to mass-incarceration at both a national and Oregonian level.  We discuss how this new punitive sentencing and incarceration philosophy has resulted in a general souring on the use of the pardon power and is now seen as a challenge to powerful prosecutors who generally oppose clemency as an extra-judicial attack on their own policies.  In looking at the current prison population in Oregon, we argue that the current Governor should use her pardon power as tool to mitigate some of the prevalent injustice in Oregon.

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New opinion memo from DOJ concludes FDA lacks jurisdiction to regulate execution drugs

As long-time readers know, state execution efforts have sometimes been thwarted in recent years because of an inability to access needed drugs for lethal injections. This new Washington Post article, headlined "Justice Department says FDA ‘lacks jurisdiction’ over death-penalty drugs," reports on the possible start to a new chapter in this long-running saga. Here are the details:

The Justice Department says in a new legal opinion that the Food and Drug Administration does not have authority over drugs used in lethal injections, a stance sure to be challenged by death-penalty opponents. The department’s Office of Legal Counsel said that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’ ”

The legal opinion, issued this month, comes as states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined.

In 2015, the FDA blocked Texas from importing shipments of an anesthetic from an overseas distributor, finalizing the decision two years later. The agency argued the importation was illegal because the drug, sodium thiopental, was not approved in the United States and was improperly labeled. It also cited a 2012 federal injunction barring the agency from allowing the drug’s importation.

Texas responded to the FDA’s move by suing the agency in early 2017, claiming the agency was interfering with the state’s responsibility to carry out its law enforcement duties. The lawsuit was filed shortly before President Trump took office. Trump has long been a supporter of capital punishment. while his Senate-confirmed attorneys general — Jeff Sessions, who left the post last year, and William P. Barr, who assumed the job this year — have also backed the practice.

The legal opinion from the Justice Department this month sides against the FDA and with Texas. It says that drugs intended for executions are different from any others, noting that “they exclusively inflict harm” and “are not intended to produce any benefit for the end user.” It expressly highlights “the narrowness of our conclusion,” saying that it does not address whether the FDA “has jurisdiction over drugs intended for use in physician-assisted suicide.”

But it also takes a broad view of the issues at hand, arguing that if the FDA had jurisdiction over drugs meant for executions, it would have similar power over other areas — such as firearms — which the agency has not sought to regulate.

The Justice Department’s opinion is unlikely to have any immediate effect, however, because the FDA is still operating under the 2012 injunction. It is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle.

The opinion seems aimed at “giving a green light” to corrections officials to look abroad for drugs needed for executions, said Deborah Denno, a law professor at Fordham University and a death-penalty expert. “I think this has very broad ramifications, unfortunately,” Denno said in an interview. “This is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so.”

While European companies have objected to their products being used in executions, corrections officials could have more luck turning to countries such as China or India, Denno said. “It has the potential to open the floodgates,” she said....

The FDA, in defending its efforts to block states from importing unapproved sodium thiopental has cited the 2012 injunction relating to the drug. That ruling came after death-row inmates filed a lawsuit against the Obama administration, saying the FDA was acting unlawfully by exercising “enforcement discretion” to allow states to import unapproved sodium thiopental from an unregistered foreign facility.

Despite the 2012 order, however, states continued to order sodium thiopental from overseas. BuzzFeed News found that at least three states — Nebraska, Texas and Arizona — had tried to import drugs from a supplier in India despite getting warnings from the FDA in 2015.

The Texas lawsuit, filed in the waning days of the Obama administration, says the state alerted federal officials in June 2015 that its Department of Criminal Justice — which is responsible for the state’s executions — planned to “import thiopental sodium intended for law enforcement purposes.” The lawsuit said the state’s “foreign distributor” shipped 1,000 vials of the drug to Houston in late July 2015, and not long after, the drugs were impounded. According to the FDA, the agency also impounded a shipment intended for Arizona that same year. Texas officials said they had obtained the drugs legally and referred to the government’s actions as an “unjustified seizure.”

The OLC opinion is titled "Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions."  The opinion runs 26 pages and is available at this link.  Here is its concluding paragraph:

We conclude that articles intended for use in capital punishment by a State or the federal government cannot be regulated as “drugs” or “devices” under the FDCA. FDA accordingly lacks jurisdiction to regulate such articles for that intended use.

Chris Geidner, who did terrific reporting on these issues when at BuzzFeed News, has this lengthy tweet thread criticizing the substance of the OLC memo and concluding with just the right questions:

FINALLY: I'm not sure I get what the point of this OLC memo is.  To quote Madonna as Evita, "Where do we go from here?"  The injunction still exists.  This is OLC's opinion.  Is someone going to seek to have the injunction vacated?  Does DOJ think they can just ignore it?  What now?

May 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

May 14, 2019

"Individualized Executions"

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

States continue to botch lethal injection attempts.  The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents.  In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence.  Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.  The Court’s execution technique cases proscribe the imposition of punishments that create a substantial risk of inflicting pain.  As such, application of the Woodson-Lockett principle to executions would require that courts assess the imposition of such execution techniques on a case-by-case basis to determine the constitutionality of the technique — as applied to the particular inmate — prior to execution.

In Part I, the Article describes the recent epidemic of failed lethal injection executions and highlights the need for reform in this area.  Part II describes the Woodson-Lockett doctrine, and explores its prior applications.  Part III then explains why this doctrine ought to apply to execution techniques, not just the kind of punishment imposed.  Finally in Part IV, the Article argues for the adoption of this approach, highlighting its advantages both on individual and systemic levels.

May 14, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Is anyone collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act?

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(c)(1) without awaiting a motion by the Bureau of Prisons.   I see this provision is as such a big deal because I think, if applied appropriately, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive prison sentences reduced.

The value and impact this part of the FIRST STEP Act will turn on how judges approach compassionate release, which is one reason I am hopeful (but not optimistic) that the US Sentencing Commission will report real-time data on how this part of the new law is being applied.  Valuably, the FIRST STEP Act provides that "not later than 1 year after December 21, 2018, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A)."  But yearly reports on this topic seem insufficient given that judges considering sentence reduction motions, as well as lawyers litigating them, would benefit greatly from knowing more immediately about what kinds of motions are being brought and granted.

Last month, DOJ reported that "22 inmates have already received sentence reductions under this program," but I was unable to find any sentence reduction orders under § 3582(c)(1) via a quick Westlaw search.  I have blogged here and here reports on some sentence reductions, and a helpful lawyer recently sent me a copy of another such order in a Tennessee case from earlier this month (Download Pesterfield Order).  I will try to post in this space any news and information I receive on this front, but the question in the title of this post might be sensibly recast as a wishful thinking: "I sure hope someone is collecting and analyzing sentence reduction orders under § 3582(c)(1)."  If anyone is doing so, please loop me in as I fear there is still too much darkness and uncertainty in an arena that now presents the opportunity for much more transparency and light. 

A few prior related posts:

Since FIRST STEP:

Prior to FIRST STEP:

May 14, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

May 13, 2019

Recent Harvard Law Review issue covers prison abolition

I managed to miss that the Development in the Law section of the April issue of the Harvard Law Review examined prison abolition from multiple angles.  Here are titles and links to the articles:

May 13, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Is the latest SCOTUS sparring in capital cases only likely to get worse and worse?

The question in the title of this post is prompted by today's Supreme Court developments in older capital cases, some of which I missed when just blogging here about the morning order list.   Specifically, I missed that Justice Alito penned a lenghty dissent to a stay in a capital case from Texas six week ago(!), which in turn prompted a four-page defense of the stay by Justice Kavanaugh.  (This discussion can be found at this link following the original stay.)   Adam Liptak summarizes all the action in the New York Times article headlined "Tempers Fraying, Justices Continue Debate on Executions."  Here are excerpts:

Several Supreme Court justices on Monday continued a heated debate on how to handle last-minute requests in death penalty cases, issuing a series of unusual opinions about actions the court had taken several weeks ago.

Continuing to fight those battles is an indication that feelings remain raw on a court that is increasingly divided over capital cases.

A guiding principle at the Supreme Court, Justice Stephen G. Breyer has said, is that “tomorrow is another day.” The court very rarely supplements its original rulings with later explanations and responses.

In one opinion, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., explained why they had voted in March to stay the execution of Patrick H. Murphy, a Buddhist inmate in Texas whose request that his spiritual adviser accompany him to the death chamber had been denied though Christian and Muslim chaplains were allowed....

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, responded on Monday with a statement. The inmate’s delay in asserting his claim, Justice Alito wrote, should have justified letting his execution go forward....

In a footnote, Justice Alito continued a discussion of an even older case, from February, in which the court had allowed a Muslim inmate to be executed outside the presence of his Muslim imam although Christian chaplains were allowed. At the time, Justice Elena Kagan, writing for the court’s four liberal members, said the majority was “profoundly wrong.”...

In a third opinion on Monday, Justice Thomas, joined by Justices Alito and Gorsuch, wrote to “set the record straight” about why they had voted last month to allow the execution of an Alabama inmate, Christopher Lee Price, a move that had prompted an anguished middle-of-the-night dissent from Justice Breyer.

As might be obvious by my question in the title of this post, I think this sparring could get even more heated in part because the reduced number of executions in recent years heighten the stakes (and litigation opportunities) around each execution.

May 13, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

No new grants, but lots of notable chatter on criminal cases in latest SCOTUS order list

It seems like a while since the Supreme Court has granted certiorari in an interesting criminal case, but today's SCOTUS order list has intrigue in the form of four interesting opinions regarding other dispositions in criminal cases. The opinion that will likely garner the most attention is the lengthy one by Justice Thomas, joined by Justices Alito and Gorsuch, in a capital case from Alabama, Price v. Dunn. That opinion gets started this way:

I concur in the denial of certiorari. I write separately to set the record straight regarding the Court’s earlier orders vacating the stays of execution entered by the District Court and the Court of Appeals in this case.  See Dunn v. Price, 587 U. S. ___ (2019).  In a late-night dissenting opinion accompanying one of those orders, JUSTICE BREYER asserted that petitioner’s death sentence was being “carried out in an arbitrary way” and that Members of this Court deviated from “basic principles of fairness.”  Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the circumstances leading to the now-delayed execution makes clear that petitioner’s execution was set to proceed in a procedurally unremarkable and constitutionally acceptable manner.

For First Amendment fans concerned about speech rights in prison, the next opinion on the order list may be event more interesting.  This one comes in Dahne v. Richey, and involves a dissent from the denial of cert authored by Justice Alito and is joined by Justices Thomas and Kavanaugh.  Here is the start and end of the opinion:

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard? Or may the prison insist that the prisoner rewrite the grievance to eliminate any threatening language? In this case, respondent Thomas Richey, an inmate currently serving a sentence for murder in Washington state prison, submitted a written prison grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a “fat Hispanic,” but contained language that may reasonably be construed as a threat.....

In the decision below, the Ninth Circuit doubled down on its earlier ruling, holding that prisoners have a clearly established constitutional right to use “disrespectful” language in prison grievances and that Richey was entitled to summary judgment on his First Amendment claim.

We have made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated.  See, e.g., Shaw v. Murphy, 532 U. S. 223, 229 (2001). Prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. See Turner v. Safley, 482 U. S. 78, 89–91 (1987).  Even if a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats?  I doubt it, but if the Court is uncertain, we should grant review in this case.  Perhaps there is more here than is apparent on the submissions before us, but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.

In addition, we get an opinion in an ACCA case, Myers v. US, a case which is GVRed back to the Eighth Circuit but which prompts a short statement from the Chief Justice in dissent joined by Justices Thomas, Alito, and Kavanaugh.  That opinion starts this way: 

I dissent from the Court’s decision to grant the petition, vacate the judgment, and remand the case. Nothing has changed since the Eighth Circuit held that Myers’s conviction for first-degree terroristic threatening qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U. S. C. §924(e). The Government continues to believe that classification is correct, for the same reasons that it gave to the Eighth Circuit. But the Solicitor General asks us to send the case back, and this Court obliges, because he believes the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result. He wants the hard-working judges of the Eighth Circuit to take a “fresh” look at the case, so that they may “consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious injury language sets forth an element of the crime,” and then re-enter the same judgment the Court vacates today. Brief for United States 9, 11.

I see no basis for this disposition in these circumstances.

Finally (and not noticed by me when I did this post too quickly while on the move this morning), Justice Sotomayor has a two paragraph dissent from the denial of certiorari in Abdur-Rahman v. Parker at the very end of the order list.  (Thanks to the helpful reader who made sure I caught this.)  Here is this opinion's closing paragraph: 

The Court has recently reaffirmed (and extended) the alternative-method requirement. See Bucklew v. Precythe, 587 U.S. ___, ___–___ (2019) (slip op., at 14–20).  And today, the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement. Because I continue to believe that the alternativemethod requirement is fundamentally wrong — and particularly so when compounded by secrecy laws like Tennessee’s — I dissent.

The substance of each of these opinions could merit additional commentary (and readers are urged to use the comments to do so).  But I find especially interesting which of the conservative justices are NOT among those supporting each of the opinions authored by other conservative Justices.  In the big capital case, it is the Chief and Justice Kavanaugh not signing on with Justice Thomas; the the First Amendment prisoner case, it is the Chief and Justice Gorsuch not signing on with Justice Alito; in the ACCA case, it is only Justice Gorsuch not signing on with the Chief Justice.  Hmmm.

May 13, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 12, 2019

"Next Steps in Federal Corrections Reform: Implementing and Building on the First Step Act"

The title of this post is the title of this terrific new Urban Institute issue brief authored by Julie Samuels, Nancy La Vigne and Chelsea Thomson.  This webpage provides this abstract:

Advocates and legislators across the political spectrum celebrated the passage of the First Step Act in December of 2018, the first large federal prison reform bill in nearly a decade.  This research brief reviews key measures in First Step, describes the actions and oversight needed for faithful and vigorous implementation of the act, and highlights some of the law’s limitations.  Working from the original set of recommendations made by the Charles Colson Task Force on Federal Corrections, we then describe additional measures that represent the next logical — and evidence-based — steps in federal corrections reform.  These steps include expanding eligibility for earned time credits, making all sentencing provisions retroactive, further reducing mandatory minimum penalties, and creating a second look provision for people serving extremely long sentences to petition the court for sentence reductions.

May 12, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners | Permalink | Comments (0)

Split Sixth Circuit panel finds statutory max sentence substantively unreasonable(!) for felon-in-possession with long criminal history

A helpful reader made sure I did not miss the interesting (unpublished!) ruling of a Sixth Circuit panel late last week in US v. Warren, No. 18-3141 (6th Cir. May 10, 2019) (available here). Here is how the majority opinion in Warren starts and ends:

At Davian Warren’s sentencing hearing, both Warren and the government sought a 51-to-63-month sentence — a term that was recommended in Warren’s presentence report and that fell within the applicable Sentencing Guidelines range.  Instead, the district court imposed the statutory maximum of 120 months’ imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court’s explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum.  We agree, vacate Warren’s sentence, and remand for resentencing....

To be clear, we have declined to impose a “bright-line rule” that district courts cannot rely on factors accounted for by the Guidelines in imposing a variance, Tristan-Madrigal, 601 F.3d at 636 n.1, and we have affirmed the imposition of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal history, e.g., United States v. Villarreal, 609 F. App’x 847, 850 (6th Cir. 2015) (finding that serious criminal history “warranted a slight upward variance”); United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (finding that serious criminal history warranted 42-month sentence, which was “well above [the defendant’s] advisory Guidelines range of 18 to 24 months, though considerably below the statutory maximum sentence of 60 months”).  But we have also made plain that “the greater the district court’s variance, the more compelling the evidence must be.” Stall, 581 F.3d at 281–82.  Even granting that some variance based on Warren’s criminal history was justified, we are left with the definite and firm conviction that, in this case, the trial court imposed a sentence that was “greater than necessary” in roughly doubling the recommended sentence and imposing the statutory maximum based on Warren’s criminal history without a fuller consideration of whether such a sentence avoids unwarranted sentencing disparities.  Vowell, 516 F.3d at 512.

On the record before us, the district court failed to provide a sufficiently compelling justification to impose the greatest possible upward variance under the statute.  See Gall, 552 U.S. at 50; Stall, 581 F.3d at 281–82.  We are “confident that on remand, the district court can fashion a sentence that reflects [the defendant’s] actual crime, that takes into account his dangerousness to the community, and that is sufficient, but not greater than necessary, to achieve the purposes of sentencing.” Allen, 488 F.3d at 1262.

Here is how the dissenting opinion authored by Judge Batchelder gets started:

I respectfully dissent.  The majority holds that, “Because the district court’s only discussion of whether the selected sentence avoids unwarranted sentencing disparities hinges on criminal history factors addressed by the Guidelines, the district court insufficiently distinguished Warren from other offenders in the same criminal history category,” and thus the district court’s reasoning was “insufficient to justify such a stark departure from the Guidelines.”  The majority also characterizes Warren’s criminal record as “the only reason” offered by the district court for the sentencing disparity. I must disagree.  The district court’s extensive discussion of its reasoning for an upward variance did not only “hinge on criminal history factors,” and in my view the district court did sufficiently explain how Warren was different “from other offenders in the same criminal category.”  The district court’s reasoning for imposing an above-Guidelines sentence for Warren was clear: the danger to the community posed by the unique combination of his refusal to be “deterred” by prior sentences and his “violent nature.”

I always find it heartening to see a circuit court take seriously its responsibility to review sentences for substantive reasonableness, and I wonder if this kind of rulings has become a bit more common now that there is more bipartisan concern for mass incarceration and the severity of federal sentences.  As long-time readers know, I followed reasonableness review patterns closely for a number of years after Booker, but ultimately got very discouraged by this jurisprudence due to the unwillingness of many circuits to ever find within-guideline sentences unreasonable (and their eagerness to find below-guideline sentences unreasonable).  The federal defenders have this notable list of reasonableness reversals through Nov 2017, and I think it would be a great empirical project to explore in great detail how reasonableness review has operated in the 15 years since the Booker ruling.

While excited by the Sixth Circuit panel here giving teeth to reasonableness review, I am also struck by the interesting fact that the defendant in this case was not subject to the extreme mandatory sentencing enhancement of the Armed Career Criminal Act given his extended criminal history.   Given the Sixth Circuit setting here, I am reminded of a case from five years ago, US v. Young, in which a unanimous panel upheld against a constitutional challenge the 15-year ACCA sentence for a defendant with a much more modest criminal history than Davian Warren.  Of course, Eighth Amendment claims are even harder to win (unless you are on death row) than reasonableness appeals.  But comparing these defendants and the appellate outcomes serves as another reminder of how much arbitrariness infests the federal sentencing system.

May 12, 2019 in Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

A Mother's Day round up of stories in incarceration nation

Last year in this post I did a review of mom-related incarceration articles in honor of Mother's Day. And another year brings another set of these articles worth posting:

From the Boston Globe, "Criminal justice reform must focus on women who are incarcerated"

From the Idaho State Journal, "Mother's Day Behind Bars: Card contest helps Pocatello women's prison inmates cope"

From the Marshall Project, "Why Mothers Are the Unsung Heroes of Prison"

From NBCNews, "#FreeBlackMamas works to bail black mothers out of jail in time for Mother's Day"

From WNYT, "Schenectady man offers shuttle so adult kids can visit mom in prison"

May 12, 2019 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (1)

Split California Court of Appeal rejects claim that second-degree felony murder provision unconstitutionally vague

A helpful reader made sure I saw an interesting and lengthy split California Court of Appeal ruling in In re White, No. E068801 (Cal. 4th App. Dist. April 30, 2019) (available here). Here is how the majority opinion gets started, along with the start of its substantive analysis:

Petitioner Gregory White challenges the constitutionality of his conviction for second degree felony murder (Pen. Code, § 187) on the basis of the United States Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson), and seeks relief via a petition for writ of habeas corpus....

As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule.  However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.  Accordingly, we will deny the petition.

Here is how the dissenting opinion authored by Judge Raphael gets started:

Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions.  The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine — in general, not in White’s case in particular — was “inherently dangerous to human life” such that it qualified as a felony murder predicate.  If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.

Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague.  The Legislature would have provided notice to the public and adequately guided the courts.  But there is no statutory list of predicate crimes for second degree felony murder.  A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent-dangerousness-to-life standard....

I conclude that under Johnson, California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.

May 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)