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June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

June 19, 2020

Notable new talk of (badly needed) new nominees for the US Sentencing Commission

The US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration. With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I am fascinated to see this new NPR piece headlined "Concerns Mount Over Possible Trump Picks For Influential Crime Panel."  Here are the particulars:

The White House is preparing to fill several vacancies on the influential commission that makes policy used to punish tens of thousands of criminals every year, according to three sources familiar with the process.  But critics worry that the likely Trump nominees could adopt more punitive approaches at a time when a diverse group of protesters is marching for a different approach to policing and justice.

The sources said the White House is consulting aides on Capitol Hill and in the criminal justice community about four Republican candidates for the U.S. Sentencing Commission: three sitting federal judges and a fellow at the conservative think tank the Heritage Foundation.

An earlier Trump nominee, William Otis, is no longer under consideration, two sources said.  Otis' writings about race and crime had drawn criticism from civil rights groups and prisoner advocates when his name first emerged for the position two years ago.

Civil rights advocates who work on justice issues said the Trump candidates still under discussion are worrisome.  "The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds," said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights....

Here is a rundown of likely nominees in the coming months:

Senior U.S. District Judge Henry Hudson

Hudson is a former director of the U.S. Marshals Service nicknamed "Hang Em High Henry" for his work as a local prosecutor.  "I live to put people in jail," he once told The Washington Post during his stint in Arlington County, Va. Defense lawyers said Hudson has developed a well-deserved reputation in recent years for handing out long prison sentences from the federal bench.

Chief Judge K. Michael Moore of the Southern District of Florida

From his perch in Miami, Moore has presided over several high-profile drug cases.  Earlier in his career, Moore, too, led the U.S. Marshals under then-President George H.W. Bush.

Kentucky federal judge Claria Horn Boom

Boom was nominated to the judgeship by President Trump three years ago.  She won Senate confirmation for that post with only one negative vote.  Senate Majority Leader Mitch McConnell is one of her supporters.

John Malcolm, director of the Meese Center for Legal and Judicial Studies at the Heritage Foundation in Washington

The Meese Center is named after Reagan-era Attorney General Edwin Meese.  Malcolm helped put together an early list for candidate Trump in the event of a Supreme Court vacancy.  He's also defended the current attorney general, William Barr, for his handling of the special counsel report on Russian election interference and possible obstruction of justice by the president.  Malcolm, a former federal prosecutor, has reached out to allies across the political aisle to try to overhaul how many people serve prison time.  "In my opinion, under our current system, too many relatively low-level drug offenders are locked up for five, 10, and 20 years when lesser sentences would, in all likelihood, more than satisfy the legitimate ... goals of general deterrence, specific deterrence, and retribution," he told Congress five years ago.

Federal Appeals Court Judge L. Felipe Restrepo

Restrepo, who worked as a public defender before being selected for the federal judiciary by then-President Barack Obama, is under discussions for an open Democratic slot on the commission.  Restrepo, of the U.S. Court of Appeals for the Third Circuit, had been advanced for the same Sentencing Commission slot in 2018, but the Senate didn't hold a hearing on him or the other nominees at the time.

I find this story curious and fascinating for a whole lot of reasons.  In addition to seeming to confirm, as I speculated here a few weeks ago, that Bill Otis is no longer on a USSC short-list, this story leads me to wonder whether anyone really thinks any new slate of USSC appointments could get confirmed in the run up to the November election (or in the lame-duck period thereafter).  The addition of a favorite of Senate Majority Leader Mitch McConnell may be explained by this factor.  (Also, my understanding has been that there were three R spots and two D spots open on the Commission right now, so I am not sure this could be the full final slate.)  Very interesting.

Prior related posts:

June 19, 2020 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

More notable reporting on the persistently notable carceral challenges posed by COVID-19

It has only been a few days since I rounded up, in this post, some headlines and stories about incarceration nation's continued struggles with the coronavirus pandemic.  But, in just that short time, I have seen enough notable new pieces that I thought it time to do another one.  The first two pieces are lengthy accounts of prison failings and worth every moment, the others provide a snapshot of ugly realities in particular jurisdictions:

From The Marshall Project, "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps."

From ProPublica, "The Prison Was Built to Hold 1,500 Inmates. It Had Over 2,000 Coronavirus Cases."

 

From The Guardian, "San Quentin: outcry after Covid-19 cases at California prison triple in two weeks"

From KVUE, "State prisons remain a hot spot for COVID-19 in Texas"

From The News & Observer, "North Carolina to test all 31,200 state prison inmates for coronavirus"

From the St. Louis Post-Dispatch, "The coronavirus continues to spread in the Missouri prison system"

From The Spokesman-Review, "Central Washington prison has high number of COVID-19 cases"

From WTOC (Georgia), "Coastal State Prison reports highest number of inmate deaths related to COVID-19"

June 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

PENULTIMATE REMINDER of exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

I warned in this initial posting that I would be repeatedly promoting an exciting project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  Because the deadline for submissions is approaching (June 30), I figure this may be my second to last reminder.  But it is certainly not too late to get involved; the basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

June 19, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Terrific coverage of clemency in new issue of University of St. Thomas Law Journal

The latest issue of the University of St. Thomas Law Journal has a great collection of articles under the heading "Clemency: A Constitutional Power Moves into the Future."  Here are the titles, authors and links for all the pieces:

Memo to the President: Two Steps to Fix the Clemency Crisis by Mark Osler

Who Is My Brother’s Keeper? by Rudy Martinez

Clemency Must Play a Pivotal Role in Reversing the Damage Caused by the "Tough on Crime Era" by Mark V. Holden

Clemency, Pardons, and Reform: When People Released Return to Prison by Jessica Jackson

The Future of Presidential Clemency Decision-Making by Paul J. Larkin, Jr.

June 19, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 18, 2020

"Is Solitary Confinement a Punishment?"

The title of this post is the title of this new essay authored by John F. Stinneford now available via SSRN.  Here is its abstract:

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law.  Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence.  Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades.  Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment.  Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

June 18, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it now seems that the pace of the decline is slowing a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of decline increased to around 1,200 fewer reported prisoners in federal facilities.  But as we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as for June 11) to now a BOP reported total of 162,578.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  Time will tell.

Critically, though, dare anyone start wanting to think federal prisons are full of good stories, this new Marshall Project piece provides a reminder of grim realities in its full headline: "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps. The Bureau of Prisons was unprepared and slow to respond. Then officials took steps that helped spread the virus." 

A few of many prior related posts:

June 18, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

June 17, 2020

"Restorative Justice From Prosecutors' Perspective"

The title of this post is the title of this new article now available via SSRN and authored by Lara Bazelon and Bruce Green. Here is its abstract:

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well.  In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes.  Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use.

A handful of newly elected “progressive prosecutors” have expressed interest in applying restorative justice processes in these and other kinds of felony cases involving adult defendants.  But conventional prosecutors generally remain uninterested in or hostile to restorative justice, even though most accept problem-solving courts and other alternatives to prosecution and incarceration.  This Article explores why mainstream U.S. prosecutors are disposed against restorative justice and suggest how their concerns might best be addressed by restorative justice proponents.

June 17, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Though only mid-week, another long list of new COVID-influenced federal sentence reductions using § 3582(c)(1)(A)

I hope readers are not yet getting bored of my listing of COVID-influenced grants of federal sentence reductions using § 3582(c)(1)(A).  I have recently made a habit of assembling these lists on the weekends (see recent examples here and here).  But last week I put together this post with more than two dozen grants on a Friday because there were so many new sentence reductions being reported on Westlaw.  And, as this trend continues, I now felt a need to do a mid-week review of recent grants recently appearing on Westlaw.  So:

United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)

United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)

United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)

 

United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)

United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)

United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)

 

United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)

United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)

 

United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)

United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)

United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)

As I have mentioned repeatedly, some rulings do not appear on Westlaw right away and others do not show up at all.  As of this writing (mid-afternoon of June 17), this BOP page on the FIRST STEP Act is reporting 650 total grants of "Compassionate Releases / Reduction in Sentences."  The same BOP page reported less than 150 such grants before the COVID era began, so I think we can now confident state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.

Prior recent related posts since lockdowns:

June 17, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

June 17, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Progressive groups demand that Joe Biden "put forward a transformative and comprehensive policing and criminal justice platform"

As reported in this Hill piece, dozens of "liberal groups have signed on to a letter warning presumptive Democratic presidential nominee Joe Biden that he could lose the November election to President Trump if he doesn’t adopt more progressive policing policies." Here is more:

The letter, which is signed by leading national progressive groups, including the Working Families Party, Our Revolution and Black Voters Matter, urges Biden to adopt a 21-page policy proposal released by The Movement for Black Lives to promote reducing incarceration and scaling back police forces across the country.

The groups are also asking Biden to drop his recent proposal to add $300 million in funding for the Community Oriented Policing Services (COPS) program, which would hire and train additional police officers to patrol within the communities where they live.

“We make these demands first and foremost because we seek justice for George Floyd and Breonna Taylor — as well as all the other Black lives lost — and policies like these are what justice looks like in practice,” the letter says. “But we also make them with an eye toward the November election. … You cannot win the election without the enthusiastic support of Black voters, and how you act in this moment of crisis will play a big role in determining how Black voters — and all voters concerned with racial justice — respond to your candidacy. A ‘return to normalcy’ will not suffice,” they wrote.

The progressive groups were scathing in their assessment of Biden’s record on criminal justice issues. “In the course of your political career, you have designed and endorsed policies that have significantly exacerbated these problems,” the letter states. “As a Senator, you not only supported, but in many cases authored and championed laws that expanded mass incarceration, increased police powers, and exacerbated racial disparities in surveillance and sentencing. These laws … are a part of the history that has led us to this moment, and their ongoing fallout has contributed to the outpourings of grief and anger we are seeing today,” they wrote.

The full letter, which is datad June 11, is available at this link

A few related posts:

June 17, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

June 16, 2020

SCOTUS stays Texas execution based seemingly on clergy claim

As reported in this AP article, the "Supreme Court granted a reprieve Tuesday to a Texas inmate scheduled to die for fatally stabbing an 85-year-old woman more than two decades ago, continuing a more than four-month delay of executions in the nation’s busiest death penalty state during the coronavirus pandemic." Here are the details:

The justices blocked Ruben Gutierrez’s execution about an hour before he could have been executed. Gutierrez’s attorneys had argued his religious rights are being violated because the prison system won’t allow a chaplain to accompany him in the death chamber.

The Texas prison system last year banned clergy from the death chamber following a Supreme Court ruling that halted the execution of another inmate, Patrick Murphy, who had requested a Buddhist adviser be allowed in the chamber. In response to the ruling in Murphy’s case, the Texas prison system changed its policy, only allowing prison security staff into the execution chamber.

“As a devout Catholic, Mr. Gutierrez’s faith requires the assistance of clergy to help him pass from life into afterlife. The Texas Department of Criminal Justice changed its policy for its own convenience, but spiritual comfort at the time of death is not a convenience; it’s a protected legal right,” Shawn Nolan, one of Mr. Gutierrez’s attorneys, said after the stay was granted.

The Supreme Court said it granted the stay pending a ruling by the high court on Gutierrez’s petition on the issue of whether to allow a spiritual adviser to accompany him in the death chamber. A decision on the petition was expected at a later date....

If Gutierrez’s execution had been carried out, he would have been the first inmate in Texas to receive a lethal injection since Feb. 6 and the second U.S. inmate to be put to death since states began to reopen after the pandemic shut down much of the U.S. After the country began to reopen, Missouri resumed executions on May 19.

Six executions scheduled in Texas for earlier this year were postponed by an appeals court or judges because of the outbreak. A seventh was delayed over claims of intellectual disability. Gutierrez’s attorneys had also sought a coronavirus-related delay but were turned down Friday by the Texas Court of Criminal Appeals....

The Texas Catholic Conference of Bishops filed a brief with the high court in support of Gutierrez. “To deny a prisoner facing imminent execution access to spiritual and religious guidance and accompaniment is cruel and inhuman,” said Bishop Daniel Flores of Brownsville....

Gutierrez would have been the third inmate put to death this year in Texas and the seventh in the U.S.

The Supreme Court's stay order is available at this link, and here is its text in full:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.  In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.  The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

June 16, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors"

The title of this post is the title of this notable new (and massive) report by faculty and students at the Berkeley Law Death Penalty Clinic.  This release about the report provides background and a summary starting this way: "An eye-opening report from Berkeley Law’s Death Penalty Clinic finds that racial discrimination is a consistent aspect of jury selection in California. The exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color—especially African Americans—from state juries through prosecutors’ peremptory challenges."  Here is part of the report's executive summary:

Racial discrimination is an ever-present feature of jury selection in California.  This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval.  In California, peremptory challenges are defined by statute.

Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service.  These strikes were part and parcel of the systematic exclusion of Blacks from civil society.  We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes....

In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons.  Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism — known more often today as implicit bias.

Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries.

The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure.  Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson.  We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

June 16, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Another round-up of troubling carceral headlines and stories as coronavirus continues to ravage incarcerated populations

I did a round-up post last week of headlines and stories as a reminder of dire realities that persist as incarceration nation continues to confront a coronavirus pandemic.  As assembled below, a big new story from the New York Times highlighting increased COVID cases and deaths is just one of a number of new disconcerting stories emerging from our jails and prisons:

From ABC News, "Lawmakers worry about COVID-19 spread after Bureau of Prisons officers deployed to protests"

From The Appeal, "Grim Stories From Inside An Arkansas Prison Capture The Toll Of Covid-19"

From The Hill, "Coronavirus deaths up 73 percent in US prisons in past month: report"

From The New Yorker, "Punishment by Pandemic: In a penitentiary with one of the U.S.’s largest coronavirus outbreaks, prison terms become death sentences."

From the New York Times, "Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide"

From NPR, "As COVID-19 Spreads In Prisons, Lockdowns Spark Fear Of More Solitary Confinement"

From Quartz, "There are more Covid-19 cases in some US prisons than in entire countries"

From STAT, "‘Obsessed with staying alive’: Inmates describe a prison’s piecemeal response to a fatal Covid-19 outbreak"

June 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

June 15, 2020

Justice Department announces the scheduling of four new federal execution dates

As detailed in this DOJ press release, titled "Executions Scheduled for Four Federal Inmates Convicted of Murdering Children," new federal executions dates have been set for four murderers.  Here are the details:

Attorney General William P. Barr today directed the Federal Bureau of Prisons (BOP) to schedule the executions of four federal death-row inmates who were convicted of murdering children in violation of federal law and who, in two cases, raped the children they murdered. 

In July 2019, Attorney General Barr directed the BOP to revise the Federal Execution Protocol to provide for the use of a single-drug, pentobarbital — similar to protocols used in hundreds of state executions and repeatedly upheld by federal courts, including the Supreme Court, as consistent with the Eighth Amendment.  A district court’s preliminary injunction prevented BOP from carrying out executions under the revised protocol, but the U.S. Court of Appeals for the D.C. Circuit vacated that injunction — clearing the way for the federal government to resume capital punishment after a nearly two-decade hiatus....

In accordance with 28 C.F.R. Part 26, the BOP has scheduled executions for the following death-sentenced inmates:

  • Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl.  After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou.  On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death.  Lee’s execution is scheduled to occur on July 13, 2020.
  • Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane.  On November 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death.  Purkey’s execution is scheduled to occur on July 15, 2020.
  • Dustin Lee Honken shot and killed five people — two men who planned to testify against him, and a single, working mother and her ten-year-old and six-year-old daughters. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death.  Honken’s execution is scheduled to occur on July 17, 2020.
  • Keith Dwayne Nelson kidnapped a 10-year-old girl rollerblading in front of her home, and in a forest behind a church, raped her and strangled her to death with a wire. On October 25, 2001, Nelson pled guilty in the U.S. District Court for the Western District of Missouri to the kidnapping and unlawful interstate transportation of a child for the purpose of sexual abuse which resulted in death, and he was sentenced to death.  Nelson’s execution is scheduled to occur on August 28, 2020.

Each of these inmates has exhausted appellate and post-conviction remedies, and no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana.  Additional executions will be scheduled at a later date.

Notably, defendants Lee, Purkey and Honken were on the list of the initial five persons slated to be executed back in July 2019 (details here).  I assume that partially explains why their execution dates are all set for the same week a month from now while the new addition, Nelson, gets an extra month before his execution date.

Of course, there is on-going litigation before the Supreme Court about the lawfulness of the DOJ's execution method (basics here).  I figure that part of the point of these new execution dates is to ensure this litigation moves forward expeditiously.  I speculated in this post that the SCOTUS litigation could delay federal executions until 2022, but the Barr Justice Department is clearly eager for a quicker timeline. 

Prior related posts:

June 15, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

"Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay"

The title of this post is the title of this lengthy new report released today by the Harvard Law School Criminal Justice Policy Program.  Here is the text of an email I received today concerning the release:

Today, CJPP releases its latest report entitled Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay.  In this report, we highlight how jurisdictions use probation to collect and enforce fines, fees, and restitution, and how linking these two systems together exacerbates the harms caused by each.  When payment of outstanding financial sanctions is made a condition of probation, failure to pay can result in being found in violation of probation and punished accordingly.

Through a 50 state survey and interviews with over 100 lawyers, judges, probation officers, and advocates, we explore how linking probation to financial sanctions leads to increased debt amounts, longer system involvement, and highly punitive responses to nonpayment.  On the basis of these and other findings, we call for a complete decoupling of probation and financial sanctions systems.

We release this report amidst a historic outcry for meaningful change in the wake of more senseless deaths at the hands of law enforcement.  As momentum on that front continues to build, we hope that this report can serve as a resource to advocates, lawmakers, and others who are thinking broadly about necessary and long overdue changes, including changes to other harmful aspects of our criminal legal system.

We’ve included a one-page summary of our findings, as well as the full report.  We hope this report can help you in your work.

Sharon Brett, Neda Khoshkhoo, and Mitali Nagrecha

June 15, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (0)

By a vote of 6-3, SCOTUS finds deficient performance in Texas capital case and remands on prejudice issue

A dozen years ago, I wrote a full law review article to express my grumpiness about the felt reality that the Supreme Court often seems to care a whole lot more about cases involving persons sentenced to death than about just about any other criminal defendants.  That article is on my mind this morning upon seeing the 19-page per curiam decision that Supreme Court released in Andrus v. Texas, No. 18–9674 (S. Ct. June 15, 2020) (available here). 

The defendant in this case, Terence Andrus, killed two people in an attempted carjacking and was sentenced to death after his defense counsel plainly did a very lousy job developing mitigation on his behalf.  Here is the heart of the per curiam opinion's accounting of its ruling and rationale:

The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.” App. to Pet. for Cert. 7–8.  A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland, Andrus could not show that counsel’s deficient performance prejudiced him. Andrus petitioned for a writ of certiorari.  We grant the  petition, vacate the judgment of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with this opinion. The evidence makes clear that Andrus’ counsel provided constitutionally deficient performance under Strickland. But we remand so that the Court of Criminal Appeals may address the prejudice prong of Strickland in the first instance....

Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast
tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering
the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in
aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.

I am always pleased to see the Supreme Court call out, and find constitutionally inadequate, any sort of lousy defense work (though I sure would like to see this done a lot more in NON-capital cases).  And I suppose I should also be pleased that Andrus will be a "good" SCOTUS precedent for inadequate defense Strickland claims in the future.  But Justice Alito's seven-page dissent (which was jointed by Justices Thomas and Gorsuch) has me convinced that this was ultimately a "bad" case because the defendant seems sure to lose on the prejudice issue upon remand to the Texas state courts. Here is how Justice Alito's dissent concludes:

In sum, the CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus.  The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters.

The CCA has already held once that Andrus failed to establish prejudice.  I see no good reason why it should be required to revisit the issue.

June 15, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Over dissents by Justice Thomas, SCOTUS denies cert on qualified immunity and Second Amendment cases

I flagged in this post last week that the Supreme Court had been sitting on a number of qualified immunity and Second Amendment cases, which had prompted considerable speculation that the Justices might soon take up one or both of these high-profiles issues in one way or another.  But this morning's SCOTUS order list would appear to have denials of cert on all the cases in these arenas, and we get two dissents from Justice Thomas that suggest that the cases were being held primarily to give him time to pen his complaints about the denial of certiorari.

Justice Thomas' dissent in the qualified immunity arena comes in Baxter v. Bracey, and his six-page opinion gets started this way:

Petitioner Alexander Baxter was caught in the act of burgling a house.  It is undisputed that police officers released a dog to apprehend him and that the dog bit him.  Petitioner alleged that he had already surrendered when the dog was released.  He sought damages from two officers under Rev. Stat. §1979, 42 U.S.C. §1983, alleging excessive force and failure to intervene, in violation of the Fourth Amendment.  Applying our qualified immunity precedents, the Sixth Circuit held that even if the officers’ conduct violated the Constitution, they were not liable because their conduct did not violate a clearly established right.  Petitioner asked this Court to reconsider the precedents that the Sixth Circuit applied.

I have previously expressed my doubts about our qualified immunity jurisprudence. See Ziglar v. Abbasi, 582 U.S. ___, ___–___ (2017) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2–6). Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.

Justice Thomas' dissent in the Second Amendment arena comes in Rogers v. Grewal, and here he gets Justice Kavanaugh joining on to part of this 19-page opinion. That opinion gets started this way:

The text of the Second Amendment protects “the right of the people to keep and bear Arms.”  We have stated that this “fundamental righ[t]” is “necessary to our system of ordered liberty.”  McDonald v. Chicago, 561 U. S. 742, 778 (2010).  Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a “justifiable need” or “good reason” for doing so.  One would think that such an onerous burden on a fundamental right would warrant this Court’s review.  This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights.  And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion.  But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.

Petitioner Rogers is a law-abiding citizen who runs a business that requires him to service automated teller machines in high-crime areas.  He applied for a permit to carry his handgun for self-defense.  But, to obtain a carry permit in New Jersey, an applicant must, among other things, demonstrate “that he has a justifiable need to carry a handgun.” N.J. Stat. Ann. §2C:58–4(c) (West 2019 Cum. Supp.).  For a “private citizen” to satisfy this “justifiable need” requirement, he must “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” Ibid.; see also N. J. Admin. Code §13:54–2.4 (2020).  “Generalized fears for personal safety are inadequate.” In re Preis, 118 N.J. 564, 571, 573 A.2d 148, 152 (1990).  Petitioner could not satisfy this standard and, as a result, his permit application was denied.  With no ability to obtain a permit, petitioner is forced to operate his business in high-risk neighborhoods with no firearm for self-defense.

Petitioner asks this Court to grant certiorari to determine whether New Jersey’s near-total prohibition on carrying a firearm in public violates his Second Amendment right to bear arms, made applicable to the States through the Fourteenth Amendment.  See McDonald, 561 U. S., at 750; see id., at 806 (THOMAS, J., concurring in part and concurring in judgment).  This case gives us the opportunity to provide guidance on the proper approach for evaluating Second Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a square Circuit split on the constitutionality of justifiable-need restrictions on that right.  I would grant the petition for a writ of certiorari.

June 15, 2020 in Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

June 14, 2020

Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters?

As the Supreme Court finishes up a unique Term in the coming weeks, there is no shortage of "big" cases still to be resolved on topics ranging from abortion to DACA to LGBT discrimination to Prez Trump's tax returns.  But, disappointingly, we are not awaiting any big cases (or even little cases) dealing with any interesting sentencing issues or even significant criminal justice issues. This reality is partially because two cases that might have been consequential, Mathena v. Malvo on Miller's application and Walker v. US on ACCA application, both ended up getting dismissed (and replacement cases will not be heard until next Term).  But, as the title of this post suggests, I also think this reality is partially because the current Supreme Court has largely decided become particularly quiet on sentencing matters.

My fixation and frustration with this Term not having good "cases to watch" is compounded by my realization that, in recent decades, we have often gotten a number of really big and/or consequential sentencing rulings every five years or so.  Consider, for example: Apprendi v. New Jersey (2000)US v. Booker (2005); Roper v. Simmons (2005)Graham v. Florida (2010); Padilla v. Kentucky (2010)Glossip v. Gross (2015); Johnson v. US (2015).  Of course, there have been any number of big and/or consequential rulings in other years, too, with decisions like Ring v. Arizona (2002), Blakely v. Washington (2004), Gall v. US (2007), Baze v. Rees (2008), Kennedy v. Louisiana (2008), and Miller v. Alabama (2012) among those I think about a lot.  But other than maybe Hurst v. Florida (2016), Montgomery v. Louisiana (2016) and Timbs v. Indiana (2019), I have a hard time even recalling any big or consequential sentencing rulings from SCOTUS in the last few years.  US v. Haymond (2019) had the potential to be a big case, but the confusing 4-1-4 decision largely muted its impact and import.

My fixation and frustration with the absence of good sentencing "cases to watch" grows when I recall the significant number of significant sentencing issues that the Court has refused to take up in the last few years.  Cert petitions concerning haphazard application of the death penalty and extreme term-of-years sentences for juveniles and the functioning of Booker reasonableness review and the reach and application of sex offender restrictions and extreme mandatory sentences given to first offenders and the use of acquitted conduct at sentencing have all been rejected, typically without so much as a peep from any of the Justices to suggest any real interest in taking up these issues in the near future.

One might attribute recent sentencing quietness to recent SCOTUS transitions since Justice Scalia's death, combined possibly with certain Justices being eager to vote to deny cert on some issues in order to try to prevent certain issues from being decided "the wrong way" on full Court review.  But gosh knows the recent SCOTUS transitions have not prevented the Court from taking up all sorts of other important matters, and I think there is often great value in the Supreme Court bringing its spotlight to certain sentencing issues no matter how it might rule on the merits.  (The Malvo case, for example, seemed to help Virginia move forward with juvenile sentencing legislation before the Court even had a chance to rule.)

Of course, as a law professor and blogger, I have a strong professional interest in lots of SCOTUS rulings in my field, and so I may find SCOTUS quietness more problematic that others.  So I would be eager to hear if readers share my sense of SCOTUS quiesce and whether it bothers them as much as it bothers me.

June 14, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Should death-penalty juries learn about death penalty costs?"

The title of this post is the headline of this new AP article.  Here are excerpts: 

Debate over Utah’s death penalty is intensifying in 2nd District Court as attorneys prepare for the trial of an Ogden couple accused of starving and fatally abusing their 3-year-old daughter.  Prosecutors said earlier they will seek the death penalty against Miller Costello, 28, and Brenda Emile, 25, if they are convicted of aggravated murder in the July 6, 2017, death of Angelina Costello.

Over the past year, defense attorneys have filed several motions challenging the death penalty, including those asking that jurors be questioned about blood atonement and the comparative costs of execution versus life in prison.  They also have asked Judge Michael DiReda to strike the death penalty as “cruel and unusual punishment by practice and the consensus of the Utah citizenry” and because they contend the sentencing portion of the law unfairly shifts the burden of proof to defendants....

In a May 14 filing, county attorneys ... urged DiReda to reject the defense’s request to allow defense lawyers to quiz prospective jurors about death penalty costs.  “Questions of deterrence or cost in carrying out a capital sentence are for the Legislature, not for the jury considering a particular case,” the prosecution said.

Admitting evidence on death penalty costs “is akin to admitting evidence of the process of the death penalty, which has already been rejected by the Utah Supreme Court,” prosecutors said.  They added, “inviting the jury to determine whether the cost of the death penalty is worth it for a person that may be convicted of starving and physically abusing a three-year-old girl to death is very dangerous ground for the defendant.”

The defense had argued in its Jan. 21 filing that there’s ample evidence that imposing the death penalty far exceeds the cost of imposing a life sentence.  The Utah Commission on Criminal and Juvenile Justice published a study in 2018 determining that the average cost of an execution was at least $237,900 more than a decision of life in prison.  A more limited 2012 Utah study said the difference was as much as $1.6 million per case.

The defense noted that in the 2009-15 case of Weber County double-murder convict Jeremy Valdes, two dozen or more potential jurors said in their questionnaire that they would choose the death penalty over life in prison because they thought it would cost less to execute the defendant.

“Of course, that is not true,” the defense motion said.  “It is incumbent upon the court to ensure that the citizens who comprise the jury pool are well-informed. And those who would otherwise make good jurors should be educated as to the cost imposing the death penalty so they can be properly rehabilitated.”

I tend to be very supportive of sentencing decision-makers, whether judge or jurors, having as much relevant and accurate information as possible when making sentencing decisions. Especially if there is reason to fear that misinformation about costs may shape the work of capital sentencing jurors, I would strongly urge allowing then to have accurate information on this topic.

June 14, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)