Sentencing Law and Policy

Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug

Because there have been so many fewer executions nationwide in recent years, it seems there have been fewer struggles over access and use of execution drugs in recent years.  But Ohio, which always struggles in so many ways with carrying out death sentences, has already had significant 2019 developments in this arena.  This lengthy new article at The Intercept, headlined "Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding," provides a great review of these developments.  I recommend the piece in full, and here are some excerpts:

At the coroner's office in Dayton, Ohio, Dr. Mark Edgar stood over the body of Robert Van Hook. The deceased 58-year-old weighed 228 pounds; he wore blue pants, a white shirt, and identification tags around his ankles.  Edgar, a professor of pathology at Emory University School of Medicine, had done countless autopsies over the years. But this would be the first time he examined the body of someone executed by the state.

Van Hook had died one day earlier, on July 18, 2018, inside the death chamber at the Southern Ohio Correctional Facility in Lucasville. After a tearful apology to his victim’s family, he was injected with 500 milligrams of midazolam — the first of a three-drug formula adopted in 2017. Media witnesses described labored breathing from Van Hook shortly afterward, including “gasping and wheezing” loud enough to be heard from the witness room. Nevertheless, compared to recent executions in Ohio, things seemed to go smoothly.

Still, Edgar had cause for concern. For the past few years he had been examining the autopsy reports of men executed using midazolam across the country. He found a disturbing pattern. A majority showed signs of pulmonary edema, an accumulation of fluid in the lungs. Several showed bloody froth that oozed from the lungs during the autopsy — evidence that the buildup had been sudden, severe, and harrowing. In a medical context, where a life is to be saved, pulmonary edema is considered an emergency — it feels like drowning. Even if someone is to be deliberately killed by the state, the Constitution is supposed to prohibit cruel and unusual punishment. To Edgar, the autopsies showed the executed men felt the panic and terror of asphyxiation before they died....

Ohio does not conduct autopsies following executions. But Ohio Federal Public Defender Allen Bohnert secured permission on Edgar’s behalf.  “The autopsy was conducted in the usual manner,” Edgar wrote in a subsequent report.  He made a Y-shaped incision into the chest and abdomen.  A technician removed and weighed Van Hook’s organs and Edgar examined them, looking for anything unusual.  When he got to the lungs, he found “significant abnormalities.”  They were unusually heavy — one telltale sign of congestion.  When he cut into them, he found a mix of blood and frothy fluid.

Of the 27 previously available autopsy reports for people executed using midazolam, Edgar had found evidence of pulmonary edema in 23.  Van Hook was the 24th. A few weeks later, Tennessee used midazolam to execute Irick, who moved and made choking sounds — another grim sign. In a motion seeking a stay of execution and preliminary injunction for Warren Keith Henness, who was scheduled to die in Ohio in February 2019, Bohnert urged a federal magistrate judge to consider these recent developments. “At some point the courts cannot explain away the ever-growing mountain of evidence” against midazolam, he wrote.

Magistrate Judge Michael Merz granted an evidentiary hearing.  After four days of testimony, he issued a damning 148-page order on January 14. The evidence surrounding midazolam had become far more persuasive since Merz last presided over such a proceeding. Not only was he now convinced that midazolam had no analgesic properties, but the drug was “sure or very likely” to cause pulmonary edema, which was akin to “waterboarding.” Yet Merz said he could not stop Henness’s execution. Under Glossip, people challenging lethal injection protocols had to prove that there was an alternative method readily available for the state to use to kill them. Henness had not met this burden.

“This is not a result with which the court is comfortable,” Merz wrote. “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

Ohio seemed poised to carry out Henness’s execution. But then, on January 22, the governor’s office issued an order of its own. Newly inaugurated Gov. Mike DeWine granted a warrant of reprieve, delaying Henness’s execution until September. In the meantime, he ordered a review of the state’s options and an examination of “possible alternative drugs.”...

Bohnert points to an irony about Glossip and its legacy. “The fact that the states have been allowed to continue to execute using midazolam is in large part what allowed the evidence to accumulate,” he says. Although it is not clear what will happen next in Ohio, “I think we had a tipping point here.”

A few (of many) prior recent related posts:

• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• "Behind the Curtain: Secrecy and the Death Penalty in the United States"
• Ohio completes its first execution since botched execution of another inmate late last year
• 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 

Michigan Attorney General files amicus briefs in state Supreme Court supporting challenges to state's sex offender registry

As reported in this press release, "Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court [Friday, Feb 8] in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community."  Here is more from the release:

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 — especially geographic exclusionary zones and in-person reporting requirements — are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

The filed amicus briefs are linked here for Michigan v Snyder and here for People v Betts.  The full introductions in both briefs are the same, and that intro seems worth reprinting in full here:

The tide is changing.  For years, federal and state courts consistently held that sex offender registration and notification requirements were not punishments and therefore did not violate the Ex Post Facto Clause.  Their conclusions relied heavily on the U.S. Supreme Court’s analysis in Smith v Doe, 538 US 84 (2003), and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive.  But more recently, both state and federal courts have been rethinking the issue in light of the significant additional burdens that have been added to these statutes since Smith upheld a “first generation” registration statute.  State Supreme Courts in Alaska, California, Indiana, Kentucky, Maine, Maryland, Ohio, Oklahoma, and Pennsylvania have concluded that their registries constitute punishment and their retroactive application an ex post facto violation — either by distinguishing Smith or by relying on their state Ex Post Facto Clause.  In 2015 the Sixth Circuit reviewed Michigan’s Sex Offender Registry Act (SORA), determining that SORA was “something altogether different from and more troubling than Alaska’s first-generation registry law” and holding that its 2006 and 2011 amendments were punishment and that their retroactive application violated the federal Ex Post Facto Clause.  Does #1–5 v Snyder, 834 F3d 696, 703, 705 (CA 6, 2016), reh den (September 15, 2016), cert den Snyder v John Does #1–5, 138 S Ct 55 (2017).  The Sixth Circuit cautioned that Smith was not “a blank check to states to do whatever they please in this arena.” Id. at 705.

Smith’s rationale, which was premised on the limited nature of Alaska’s registration scheme, seems outdated with respect to modern registration schemes.  It surely is with respect to Michigan’s sex offender registry, which has changed greatly since its initial character as a tool to help law enforcement keep Michigan citizens safe from dangerous sexual predators and far exceeds the baseline federal requirements for such registries.  It has become a bloated statute whose recent amendments are out of touch with the practical ramifications of its geographic restrictions and in-person reporting requirements, with society’s evolving relationship with the Internet, with the needs of law enforcement, and with a more balanced and researched understanding of recidivism.

There are dangerous sexual predators, to be sure, and the public needs to be protected from them.  But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense.  The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

UPDATE:  Over at Simple Justice, Guy Hamilton-Smith has this potent guest post spotlighting some highlights from these briefs and why they their filing is so important.  I recommend the post in full, and here is an excerpt:

Reading the briefs, it is impossible not to be struck by their tone.  When the government is forced to concede a point in a filing, it is usually done in the smarmiest, most back-handed way possible.  There is no trace of that here.  There is, instead, a forceful eloquence and a vision of what effective public safety could look like when it comes to sexual harms. Instead of signing off on the idea of registries being a fundamentally good policy, weaved throughout these briefs is a strain of skepticism as to their utility at all.

To state it differently, these are some of the strongest briefs written assailing public registration as public safety. That they came out of an AG’s office is astonishing.

It is much too early to tell what the extended impact of this will be.  Now that an Attorney General, as opposed to a civil rights litigator (or even a judge) has called a spade a spade, one hopes that others will be willing to follow suit in the quest to earnestly, effectively, and humanely address the spectre of sexual harms in our society.

Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up.

Notable new paper on "Race and Prosecution"

For (too) many years, the work of prosecutors tended to go under-discussed and under-studied in criminal justice reform circles.  But in recent years, lots and lots of folks are giving lots and lots more attention to the work of prosecutors.  As but one example, the John Jay College of Criminal Justice's Institute for Innovation in Prosecution has a notable new publication from its Executive Session on Reimagining the Role of the Prosecutor in the Community.  This new paper, titled simply "Race and Prosecution," is authored by Angela J. Davis, John Chisholm, and David Noble. It gets started this way:

The long-standing inequities in the American criminal justice system and society as a whole cannot be blamed solely on prosecutors.  However, prosecutors do not operate in a temporal vacuum. Every action that a prosecutor’s office takes is colored by this country’s historical record of oppressing racial minorities.  In its present state the justice system both reflects and exacerbates our societal ills.  Prosecutors seeking to address systemic disproportionality and disparity must first come to appreciate how these phenomena came to be. This paper aims to unearth the roots of racial inequality in the United States, discuss how those roots produced racial disparities in the criminal justice system, and provide guidance on how the prosecutor’s office can transform those disparities into positive change in policy and practice. 

US Supreme Court, voting 5-4, vacates Eleventh Circuit stay of execution in Alabama for Muslim death row prisoner

The Supreme Court this evening, voting 5-4 along usual ideological lines, vacated the stay of execution entered yesterday by the Eleventh Circuit to allow the court to hear an Alabama death row defendant's religious liberty claims concerning who could be present at his execution.  The opinion of the majority of the court runs these two paragraphs:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the Court, is granted.

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019.  Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.  See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

A two-page dissent, authored by Justice Kagan, and Joined by Justices Ginsburg, Breyer and Sotomayor, gets started and ends this way:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life.  Yesterday, the Eleventh Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits.  Today, this Court reverses that decision as an abuse of discretion and permits Mr. Ray’s execution to go forward. Given the gravity of the issue presented here, I think that decision profoundly wrong....

This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed.  See, e.g., Dugger v. Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J., dissenting). Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death.  The Eleventh Circuit wanted to hear that claim in full.  Instead, this Court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the State can meet its preferred execution date. I respectfully dissent.

Prior related posts:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims
• Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution 
• Eleventh Circuit panel grants stay of execution in Alabama for Muslim death row prisoner

Another review of the bad mess surrounding the "good time" fix in the FIRST STEP Act

I have done a few prior FIRST STEP Act implementation posts here and here focused on the problems with immediate application of its "good time" fix.  This recent Mother Jones article, fully headlined "Trump’s One Real Bipartisan Win Is Already Turning Into a Mess: Confusion and division over a provision in the First Step Act has left thousands of well-behaved inmates in limbo," effectively explains the issue and reports on the latest state of affairs. Here are excerpts:  

The law stipulates that prisoners can use these credits to shave off as many as 54 days from their sentences each year, up from 47 days previously — a change that also applies retroactively. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays.

Lawmakers speaking in private to advocacy groups were reportedly clear that the credits would be recalculated right away — in order to take immediate effect — according to activists I spoke with who were involved in discussions about the bill on Capitol Hill and at the White House leading up to its passage. “There’s no doubt what the intent was,” says Jessica Jackson Sloan, national director of #cut50, an organization that seeks to reduce the prison population and that lobbied hard for the bill. “This stuff was debated ad nauseam publicly on the floor of the Senate,” adds Holly Harris, executive director of the Justice Action Network. “Legislative intent is very clear.”

On December 22, just one day after the First Step Act was signed, Vivek Shah, a federal prisoner in Chicago, tested that theory. He filed a habeas corpus petition in federal court seeking his immediate release from confinement because of the new rule on good-time credits. But in early January, US District Judge Sharon Johnson Coleman denied his request, saying that the law did not actually allow for his release until a later date. Technically, she wrote in her decision, the First Step Act stipulates that these extra credits can’t be doled out to inmates until after the Justice Department develops a risk and needs assessment program, a process that could take more than seven months, according to a deadline that she notes was laid out in the law.

Advocacy groups quickly shot back. The risk assessment, they argue, is specifically intended to help prisons figure out which inmates can spend extra days in halfway houses—a completely different point unrelated to determining which inmates can shave off time for good behavior. “There’s literally nothing in the good-time credits that has anything to do with the risk and needs assessment,” says Erin Haney, a policy director at #cut50. “These are people who are in good standing and have been given 47 days, and it just has to be recalculated to 54 days.”

The discrepancy in the policy’s interpretation seems to be a result of lawmakers putting the provision about good-time credits in a section that deals with the risk assessment program, a fact Judge Coleman notes in her ruling. Activists from the group FAMM, which advocates for families of incarcerated people, have suggested this was a legislative drafting error given the previous assurances about speedy recalculation of credits. “Everyone, including us, missed this mistake in the bill,” says Molly Gill, vice president of policy at FAMM. “We have notified lawmakers of the problem and asked them to fix it.”

To address the issue, lawmakers could pass a rider clarifying that good-time credits should be recalculated immediately, Gill says, or the DOJ could issue an administrative directive ordering the Bureau of Prisons not to delay the process.

But when contacted by Mother Jones, several lawmakers who co-sponsored the legislation declined to comment on the record about whether it was a drafting mistake or their intent to make well-behaved inmates wait for the risk assessment program. Taylor Foy, a spokesman for Sen. Chuck Grassley (R-Iowa), who helped craft the law and chaired the Judiciary Committee when it was passed, said it was not an error. “The text of the bill has been around for quite a while. It shouldn’t be a surprise,” Foy said, adding that Grassley hopes the risk assessment can be developed as quickly as possible. Sen. Dick Durbin (D-Ill.), one of the Democrats who championed the bill, declined to comment about his interpretation of the provision, as did Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), who were crucial in drafting the legislation.

The Bureau of Prisons appears to be on the same page as Grassley. “We know that inmates and their families are particularly interested in the changes regarding good conduct time,” it said in a statement to Mother Jones. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates.” The agency added that it would wait until “the risk and needs assessment system is issued by the Attorney General.” It did not say whether it had provided guidance on the matter to individual prisons, but at least two facilities sent the same statement to inmates in January, according to advocacy groups.

The Bureau of Prisons is likely in a holding pattern for the near future, since any directive about the First Step Act would “need the cooperation of the attorney general, which is what makes the Barr hearing so critical,” says Harris of the Justice Action Network, referring to William Barr, Trump’s nominee for the position. During his Senate confirmation hearing, Barr said he had “no problem” reforming the prison system and would “faithfully implement the law,” but his record of tough-on-crime rhetoric raises questions about the extent to which he would intervene to help inmates get out sooner....

Matters were made even more complicated over the past month because of the record-making government shutdown. Lawmakers have largely been consumed by the impacts of the shutdown and negotiations over border security, while the Justice Department furloughed workers and delayed its development of the risk assessment program during those weeks. “So the long and short of it is that prisoners will end up waiting at least seven months, and likely longer, before they can get their sentences reduced with the extra good time promised under the First Step Act,” says Gill....

In the meantime, those 4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers. “Many inmates…are disappointed that nothing is happening,” an incarcerated man at the Federal Prison Camp in Duluth, Minnesota, wrote to me during the shutdown, speaking generally about the First Step Act’s implementation. “There’s nothing more urgent than freedom,” adds Haney.

Prior related posts:

• Spotlighting how FIRST STEP Act implementation challenges and uncertainty has already begun
• Spotlighting problems with immediate application of expanded good time credit in the FIRST STEP Act 

Updated versions of great reads from the "Square One Project" on criminal justice policy and reform

In this post from last fall, I noted the new Square One Project working to "reimagine justice" and conducting executive sessions and roundtables on the future of justice policy. In that post, I noted some early draft of interesting papers from the project, and yesterday I got an email pointing me to this page with links to these now finalized papers:

Bruce Western, The Challenge of Criminal Justice Reform

After three decades of growth in the U.S. incarceration rate, we have entered a period of criminal justice reform.  However, efforts to reverse mass incarceration need to address the social conditions of poverty, racial inequality, and violence in which punitive criminal justice policy has expanded.  Efforts that aim only to reduce prison populations, or neglect the harsh socioeconomic conditions in poor communities of color, will fail to sustainably reduce the burdens of over-imprisonment.  A new, socially-integrative, vision of community health and economic flourishing is the best way to respond to the problem of violence in contexts of poverty and racial injustice.

Arthur Rizer, A Call for New Criminal Justice Values

The U.S. criminal justice system expresses our nation’s values, for better or worse.  For most of the early and middle 20th century, rehabilitation guided criminal justice policies, but in the 1970s and 1980s, notions of retribution, deterrence, and incapacitation emerged as replacements and signaled a dramatic shift in criminal justice policy.  Now, as we enter an era of criminal justice reform, it is time for a new set of values.  Parsimony in criminal punishment, which seeks the least coercive response, can undo the damage of overreaching incarceration.  Parsimony in punishment serves the more fundamental values of liberty and limited government, which embody a distinctively American commitment to human freedom.  While our history has clearly disappointed the values of parsimony, liberty, and limited government, the oncoming era of criminal justice reform opens the door to new and exciting possibilities.

"The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims"

The title of this post is the title of this new article authored by Paul Cassell and James Marsh, which is forthcoming in the February 2019 issue of the Federal Sentencing Reporter.  Here is its abstract:

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country.  Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic.

Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States.  Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”

In the ensuing years, lower courts have struggled to implement this holding.  Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short).  President Trump signed the legislation into law on December 7, 2018.

In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed.  We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling.  Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes.  One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.

Eleventh Circuit panel grants stay of execution in Alabama for Muslim death row prisoner

I highlighted in recent posts here and here the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama on Thursday.  A helpful reader alerted me to this new unanimous 28-page panel ruling from the Eleventh Circuit which grants a stay.  Here is how the opinion starts and a few key paragraph within:

Petitioner Domineque Ray has moved this Court for an emergency stay of his execution, scheduled to take place at 6:00 p.m. (CST) on February 7, 2019 at the Holman Correctional Facility (“Holman”) in Atmore, Alabama, for the 1995 rape, robbery, and murder of fifteen-year-old Tiffany Harville. He also appeals from the determination of the district court denying his emergency motion for a stay and dismissing two of his claims under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and under § 1983 and the Establishment Clause of the First Amendment....

During the January 23 meeting with the Warden, Ray made three requests for the accommodation of his religious beliefs: first, that his Imam be present in order to provide spiritual guidance for him at the time of his death; second, that the institutional Christian Chaplain be excluded from the chamber; and, finally, that he not be required to undergo an autopsy because it conflicted with his religious beliefs.  The Warden denied the first two requests and explained that she had no decisional authority over the autopsy....

After review of this exceedingly limited record, we reject the district court’s analysis, and its refusal to grant an emergency stay in the face of what we see as a powerful Establishment Clause claim.  Because Ray has demonstrated a substantial likelihood of success on the Establishment Clause and because the other equitable factors tip in his favor, Ray’s emergency motion for stay is granted.  We direct the Clerk of Court to expedite the appeal of Ray’s case so that we may promptly address and resolve these claims.

It will be interesting to see if and how Alabama pursues further appeal of this ruling either to the full Eleventh Circuit or to the US Supreme Court. Stay tuned.

Prior related posts:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims
• Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution 

UPDATE: As reported in this AP article, Alabama completed this execution following the vacating of the stay: "Dominique Ray, 42, was pronounced dead at 10:12 p.m. of a lethal injection at the state prison in Atmore."

"Neuroscience and Punishment: From Theory to Practice"

The title of this post is the title of this notable new paper appearing in the journal Neuroethics and authored by Allan McCay and Jeanette Kennett.  Here is its abstract:

In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment.  According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems.  Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience.

In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice.  Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert.  It is thus more consistent with the predictive claims of Morse than of Greene and Cohen.  We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment.  Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. 

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

Jerry Sandusky convictions affirmed on post-conviction review, but resentencing ordered (on a Blakely/Alleyne issue)

This USA Today article, headlined "Court rules Jerry Sandusky should be resentenced after turning down his appeal," reports on the result of a high-profile (and lengthy) intermediate state-court ruling.  Here are the details:

Jerry Sandusky lost a bid for a new trial Tuesday but a Pennsylvania appeals court ordered him to be re-sentenced for a 45-count child molestation conviction. The former Penn State assistant football coach was sentenced in 2012 to 30 to 60 years, but a Superior Court panel said that included the improper application of mandatory minimums.

In a 119-page opinion , the appeals panel struck down argument after argument that lawyers for Sandusky, 75, had made in seeking a new trial. His defense lawyer, Al Lindsay, said he was disappointed but will ask the state’s highest court to reconsider.

Lindsay said he was unsure if the new sentencing is likely to result in a substantially different sentence. “I suppose it depends on the judge and what happens before the sentencing and after the sentencing,” Lindsay said.

The U.S. Supreme Court has indicated that jurors must consider anything that could result in a longer sentence, and such elements must be proven beyond a reasonable doubt. A judge, not jury, sentenced Sandusky.

The state attorney general’s office said it was pleased that Sandusky’s convictions remained intact. “The Superior Court has agreed with our office that it was proper for the court below to reject Sandusky’s claims,” said Joe Grace, a spokesman for the prosecutors. “We look forward to appearing for the new sentencing proceedings and arguing to the court as to why this convicted sex offender should remain behind bars for a long time.”

This description of the basis of the ruling suggests our old pal, the Sixth Amendment, played a role in the sentencing outcome.

A few prior related posts:

• Jerry Sandusky found guilty on 45 counts
• "Sandusky sentenced to 30 to 60 years"

UPDATE: I just came across this link to the full 119-page opinion in this appeal, and on page 118 one can find these sentences:

Appellant is entitled to application of Alleyne, notwithstanding his failure to raise this claim in the PCRA court.  Therefore, we agree with the parties that pursuant to the holdings in Alleyne and Wolfe, the imposition of mandatory minimum sentences was illegal.  Therefore, Appellant is entitled to a remand for re-sentencing without application of any unlawful mandatory minimum sentences.

"White House Opioid Plan: Recycled ‘War on Drugs’?"

The title of this post is the headline of this effective new Crime Report commentary authored by Roman Gressier discussing the recently released “National Drug Control Strategy” report from the White House Office of Drug Control Policy. I recommend the whole commentary, and here is how it gets started:

With the federal shutdown temporarily at bay, it’s back-to-school time for the White House, which recently released a drug policy report strikingly reminiscent of former President Reagan’s “Just Say No” response to the so-called “crack epidemic” of the 1980s — and of the hardline rhetoric of the Nixon administration.

The “National Drug Control Strategy” report issued last week by the White House Office of Drug Control Policy (ONDCP) asserts that the current opioid crisis is “unprecedented,” while seeming to undercut claims by President Trump and his advisers that the “Wall” is critical to stopping the flow of illicit drugs into the U.S.

According to some critics, the report is simplistic.  The 20-page report reads “like a book report from a student who may or may not have read the book, and who may or may not have wrote his report on the bus ride to school,” carped Reason.com.

The report’s “policy priorities” will surprise no one who has advocated for focusing policymakers’ attention on an epidemic held responsible for 130 overdose deaths a day.

• Reduce the size of the drug-using population through education and prevention programs;
• Remove barriers to long-term recovery programs; and
• “Aggressively reducing the availability of illicit drugs in America’s communities.”

But it rachets up the rhetoric, noting that “the drug crisis our country faces today is unprecedented,” warning that it has “evolved over the past several decades and has steadily worsened with time,” directly affecting every state and county and “every socio-economic group.”

Prez Trump's special guests for his 2019 State of the Union Address suggest he will give significant attention to criminal justice reforms

This new White House release details a baker's dozen list of "the special guests who will join the President and First Lady at the U.S. Capitol when President Donald J. Trump delivers the second State of the Union Address of his presidency."  Here are two names on the list that should be familiar to regular readers of this blog:

Matthew Charles

Matthew Charles’s life is a story of redemption.  In 1996, he was sentenced to 35 years in prison for selling crack cocaine and other related offenses. While in prison, Matthew found God, completed more than 30 bible studies, became a law clerk, taught GED classes, and mentored fellow inmates.  On January 3, 2019, Matthew was the first prisoner released as a result of the First Step Act....

Alice Johnson

President Trump granted Alice Johnson clemency on June 6, 2018.  Alice had been serving a mandatory life sentence without parole for charges associated with a nonviolent drug case.  During her nearly 22 years of incarceration, Alice accomplished what has been called an “extraordinary rehabilitation.”  After her release, she was overjoyed to be reunited with her family.  She has now dedicated her life to helping those who are in a similar position as she was and giving a voice to the criminal justice reform movement.

I am so very pleased that Matthew Charles and Alice Johnson will have the opportunity to attend the State of the Union and in so doing will provide such a positive and importance face for criminal justice reform efforts.  I am also hoping (though not really expecting) that Prez Trump might talk about clemency activity (and reform to the clemency process) and further reform of mandatory-minimum sentences (including retroactive application of recent reforms) as potential next steps for his administration and as important agenda items for the new Congress.

Prior related post:

• Any predictions (or suggestions) for what Prez Trump will say about FIRST STEP Act in coming State of the Union?

"18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal Defendant with Rehabilitation, Training, and Treatment in 'the Most Effective Manner'"

The title of this post is the title of this notable new (and very timely) article authored by Erica Zunkel now available in the Notre Dame Journal of International & Comparative Law.  Here is its abstract:

The vast majority of federal criminal defendants are sentenced to prison, and non-incarceration sentences have become vanishingly small.  During the sentencing process, federal district court judges are required to consider what sentence will provide the defendant with necessary rehabilitation and treatment in the most effective manner pursuant to 18 U.S.C. § 3553(a)(2)(d).  Courts regularly undervalue, ignore, or even violate this statutory command.  Some courts seem to believe that the Bureau of Prisons can provide adequate rehabilitation and treatment and do not explain how this squares with what the statute requires.  Other courts barely engage with the issue.  Only a minority of courts take the statutory command seriously. 

This is problematic because evidence shows that the Bureau of Prisons is ill-equipped to provide defendants with the most effective rehabilitation and treatment, particularly medical care and mental health care.  This Article concludes that the courts should take § 3553(a)(2)(D)’s mandate much more seriously in sentencing federal criminal defendants. Likewise, defense attorneys should engage in vigorous advocacy at sentencing to ensure that courts understand the Bureau of Prisons’ severe limitations in providing effective, let alone adequate, rehabilitation and treatment.

Highlighting how much punishment comes with the misdemeanor process

LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution

I highlighted in this post last week the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama this coming Thursday.  I just saw this local article from a few days ago, headlined "Judge denies stay of execution for Alabama inmate," which provides this update on the state of the litigation:

A federal judge on Friday denied a stay of execution request from a Muslim death row inmate who claimed the absence of his spiritual adviser in Alabama's death chamber would violate his religious rights.

Domineque Ray this week filed a stay of execution, which is slated for Feb. 7, to challenge Alabama's practice of placing a Christian prison chaplain with inmates in the state execution chamber. Ray argued in court documents that he should have access to his Muslim spiritual adviser in the moments before his death. Failing that, Ray requested the Christian prison chaplain not be present.

On Thursday, the Alabama Department of Corrections acquiesced to Ray's first request, agreeing to keep the prison chaplain out of the chamber. But lawyers argued security concerns required Holman prison limit the execution chamber to trained corrections employees.

In a written order on Friday, U.S. District Judge Keith Watkins agreed that allowing a "free world" spiritual adviser into the death chamber would overburden ADOC's execution process. "Though a state chaplain is usually in the death chamber, he is also a trained member of the execution team. He has witnessed dozens of executions and trained on how to respond if something goes wrong," Watkins wrote. "If the chaplain disobeys orders, he will face disciplinary action. In contrast, Ray’s private spiritual adviser is untrained, inexperienced, and outside the State’s control."

Spencer Hahn, Ray's co-counsel, argued Thursday training nonemployee spiritual advisers to be present in the execution chamber should not be a barrier to providing inmates their religious rights. "We are disappointed that the District Court's order did not uphold the substantial claim that Mr. Ray's free exercise of religion is being interfered with, or the claim that the State is violating the establishment clause of the First Amendment of the United States Constitution," said John Palombi, an attorney for Ray. "We will be appealing this ruling and asking the Court of Appeals to stay Mr. Ray's execution to allow these important issues to be resolved in a more deliberate manner."

ADOC policies allow a death row inmate's chosen spiritual adviser visitation up to 5:15 p.m. on the day of an execution, when they are then allowed to view the execution from a witness room adjacent to the execution chamber. "Why does Mr. Ray not get the same benefit that a Christian would?" Hahn asked the court.

Ray was sentenced to death for the 1995 rape and fatal stabbing of 15-year-old Tiffany Harville of Selma. Months before his death penalty trial, he was sentenced to life for a 1994 slaying of two teen brothers, The Associated Press reports.

As indicated above, this litigation is headed to the Eleventh Circuit Court of Appeals, and likely will get the Supreme Court this week in some form regardless of how the Eleventh Circuit might rule.  In this context, it bears recalling that the Supreme Court four years ago in Holt v. Hobbs ruled unanimously in favor of a Muslim prisoner based on the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Alito was the author of the opinion in Holt, and I am interested to see how he and other Justices might approach this case.

Prior related post:

• Condemned Alabama inmate seeks stay of execution based on notable religious claims

What remedies can those trapped without heat and light in Brooklyn's Metropolitan Detention Center secure through their lawsuit?

I am so very relieved to hear that the awful situation that developed last week at Brooklyn's Metropolitan Detention Center seems to be getting (somewhat) resolved, and so now I am wondering about what might result from the resulting litigation.  This NBC News piece provides the ugly background:

When the sun goes down, one inmate can't read the labels on his heart medication, he said. Another inmate said he was brought to tears in fear that no one will notice if he suffers an asthma attack.  "I'm scared I won't wake up," the inmate said, according to David Patton, the executive director of the Federal Defenders of New York.

These are just a handful of the stories Patton said he heard on Saturday when he visited Brooklyn's Metropolitan Detention Center.  Located in the neighborhood of Sunset Park, the jail encountered problems after a fire broke out in a gear switch room on Jan. 27, according to the Federal Bureau of Prisons.  As a result, inmates inside have become panic-stricken as they wait for the heat and electricity amid dangerously cold weather, according to reports from lawyers and lawmakers.  "It's disgraceful and it breaks your heart when you talk to people who are frantic and scared and entirely cut off from the outside world," Patton told NBC News on Sunday.

Patton said he and his colleagues will file a lawsuit on Monday spelling out the "unconstitutional conditions" the inmates have been kept in over the past week.  Patton said he was unable to go into detail about the suit until after it is filed.  "The big power issue that has caused significant problems this week resulted from the fire on [last] Sunday, but they may have been having other electrical problems before that," Patton said. "The heating problems seem to be independent."

In a statement released on Sunday, the Federal Bureau of Prisons, which oversees the Metropolitan Detention Center, said that power had been restored and staff was working to restore the facility to normal operations.  The bureau also said that new electrical panel was installed on Saturday and that the work on the electrical panel should be finished by Monday.  It added that heating to the building was unaffected and inmates have hot water in the showers and in the cells, in addition to access to hygiene items and medical services. "We continue to work expeditiously to restore power to the facility as quickly as possible," the statement read.

However, the attorneys who visited the jail described a different scene. In notes taken during a tour of the jail and shared with NBC News, Deirdre von Dornum, the attorney-in-charge of the Federal Defenders for the Eastern District of New York, described water leaking into inmates' beds from cracks in the ceiling, pitch black cells, and tepid water in the showers.  Hot meals were being served during von Dornum's tour, she wrote, but several inmates showed her cups with "brown or cloudy water from the tap and said it is not drinkable."

She described some inmates not receiving medical treatment for things like bipolar disorder and Crohn's disease.  "These units had a panicky feeling," von Dornum wrote.  "One man showed us his infected open leg wound and told us his colitis is so bad that he woke up bloody — and no fresh sheets are available."...

When Patton toured the prison on Saturday, he said he saw thermometers in several inmates cells showed the temperature ranged between 50 degrees and 69 degrees, with temperatures varying depending on location and proximity to the windows....

Protesters who stood outside the detention center when the lights came back on celebrated and cheered in support.  Earlier, both New York senator Kirsten Gillibrand and Governor Andrew Cuomo got involved.  Gillibrand penned a letter to acting Attorney General Matthew Whitaker asking him to take immediate action and fix the problem and Cuomo asked the U.S. Department of Justice to investigate reports of civil rights violations at the prison.

Patton said his office began having problems contacting inmates during the 35-day government shutdown. He said he's still not sure if some of the issues in the jail stem from the staffing and funding shortages during the shutdown, which may have caused maintenance issues.... "They feel like they’re trapped in intolerable conditions and have no idea if anyone out there knows about it," Patton said on Sunday.

Although power is scheduled to be restored on Monday, Patton said the issues of jail conditions reach far past this week.  "We're going to get through this immediate crisis at some point," Patton said.  "But I hope people don’t forget about the issues of prison conditions because they're terrible even when power doesn’t go out."

Relatedly, this morning I received this news release from the National Association of Criminal Defense Lawyers titled "Nation’s Criminal Defense Bar Demands Immediate and Comprehensive Investigation into the Emergence and Handling of the ‘Inhumane and Cruel’ Conditions at the Federal Metropolitan Detention Center in Brooklyn."  I am not an expert in prison conditions lawsuits, but I hope those who are will be helping on this matter to reduce the odds of this kind of ugly event happening again.

Could there soon be a western wave of death penalty repeals?

The question in the title of this post is prompted by this group of headlines that I saw in my news feed recently:

From Colorado, "Friednash: I helped expand the Colorado death penalty; now I support its repeal"

From Nevada, "Nevada's Future: 'Broken' death penalty could be banned in 2019 legislative session"

From Wyoming, "Wyoming is the closest it's ever been to repealing the death penalty"

Because the Wyoming House of Representatives actually voted for repeal last week, that state seems to present the greatest prospect for capital abolition. Given that Wyoming have not executed anyone for more than a quarter-century and has nobody currently on its death row, repeal by the state would be more symbolic than consequential in the state. But symbolism matters a lot to a lot of folks in this setting, so a repeal in the Equality State would not be without meaning or import.