« July 5, 2020 - July 11, 2020 | Main | July 19, 2020 - July 25, 2020 »

July 18, 2020

Washington and Lee Journal of Civil Rights and Social Justice explores federal sentencing realities and reform

The introductory essay I saw on SSRN (and blogged about here) altered me to the fact that the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice has a full set of terrific-looking articles about the modern federal sentencing system.  Here are the titles and links:

Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit by Nora V. Demleitner

Federal Sentencing: A Judge’s Personal Sentencing Journey Told Through the Voices of Offenders He Sentenced by Mark W. Bennett

Sentencing Disparities and the Dangerous Perpetuation of Racial Bias by Jelani Jefferson Exum

Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers by Mae C. Quinn and Grace R. McLaughlin

Technology’s Influence on Federal Sentencing: Past, Present, and Future by Matthew G. Rowland

Crime and Punishment: Considering Prison Disciplinary Sanctions as Grounds for Departure Under the U.S. Sentencing Guidelines
by Madison Peace

July 18, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (2)

July 17, 2020

Feds, revving up machinery of death, complete third execution of week

As reported in this Fox News piece, a "drug kingpin from Iowa was executed on Friday afternoon, after he was convicted of murdering two young women and three adults, marking the third time this week that a federal inmate has been put to death after a 17-year capital punishment hiatus." Here is more:

Department of Justice (DOJ) spokeswoman Kerri Kupec issued the following statement after the execution was carried out. “Today, Dustin Lee Honken was executed at USP Terre Haute in accordance with the death sentence imposed by a federal district court in 2004. Honken was pronounced dead at 4:36 p.m. EDT by the Vigo County Coroner," she wrote.

"In 1993, Honken, a meth kingpin, kidnapped, fatally shot, and buried Lori Duncan, a single, working mother, Duncan’s two young daughters — 10-year-old Kandi and 6-year-old Amber — and Greg Nicholson, a government informant who testified against Honken on federal drug trafficking charges. Honken also murdered Terry DeGeus, who Honken thought might also testify against him, by beating him with a bat and shooting him. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous federal offenses, including five counts of continuing criminal enterprise murder, and he was sentenced to death."...

Honken had also befriended Daniel Lewis Lee, 47, who was the first federal inmate to die this week, hours after the Supreme Court greenlit the first federal execution to take place since 2003. Lee was convicted of multiple offenses, including three counts of murder in aid of racketeering in the 1996 slayings of William Frederick Mueller, his wife Nancy Ann Mueller and his 8-year-old stepdaughter, Sarah Elizabeth Powell, in Arkansas.

Wesley Ira Purkey was the second man to be put to death two days later, after being convicted in the 1998 kidnapping and killing of 16-year-old Jennifer Long, whose body was dismembered, burned and dumped in a septic pond. That same year, Purkey was also convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio.

After Honken was convicted in 2004, the jury recommended a death sentence. U.S. District Judge Mark Bennett -- who claimed to mostly oppose the death penalty -- said, “I am not going to lose any sleep if he is executed,” The Associated Press reported.

Recent prior related posts:

July 17, 2020 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Notable headlines about COVID and lots more in incarceration nation

As we enter month five of the US coronavirus crisis, it is disturbingly easy to become numb to how this pandemic is playing out in jails and prisons.  Helpful, the press and commentators are keeping these critical stories covered, along with other comparable discouraging tales about the realities of prison punishment in the US.  Here is a round-up of just some headlines and pieces catching my eye today:

July 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"A Vision for the Modern Prosecutor"

The title of this post is the title of this intriguing new five-page document produced by the Executive Session of the Institute for Innovation in Prosecution at John Jay College. Here is the piece's introduction and some key elements:

In the wake of unprecedented and overdue attention on the criminal legal system and its role in our Nation’s legacy of racial injustice, as elected prosecutors and members of the Institute for Innovation in Prosecution’s Executive Session on the Role of the Prosecutor, we believe that it is possible to describe and call for an emerging vision for the role of a modern prosecutor.  In doing so, we find it necessary to contrast this vision with a description of the traditional ways that prosecutors have carried out their responsibilities.  In this paper we describe this contrast between traditional practice and a vision of the future by comparing their conceptions of justice, modes of operation, culture, accountability, and metrics. In making these contrasts, we celebrate the power and potential of the current wave of prosecutorial reform that we are witnessing around the country. We have high hopes that this movement will support the broader re-examination of our society’s response to crime and aspiration for justice.

Conceptions of Justice

Traditionally: Prosecutors have defined their role principally as part of a larger criminal justice system that operates with a primary focus on case processing....

We believe the future of prosecution requires that: Prosecutors explicitly set aside this notion of the criminal justice system as a case processing apparatus.... 

 

Modes of Operation

Traditionally: Prosecutors have been largely reactive....

We believe the future of prosecution requires that: Prosecutors no longer regard themselves as recipients of other actors’ cases or as limited by existing system options with respect to dispositions of those cases....

 

Culture

Traditionally: Prosecutors have been acculturated to consider themselves to be the “us,” and the “good guys,” in an “us vs. them” and “good vs. bad” world....

We believe the future of prosecution requires that: Prosecutors recognize the complexity of the people with whom they engage and of the matters to which they attend....

 

Accountability and Metrics

Traditionally: Prosecutors have relied on internal, narrow, and often ill-defined standards for judging their performance....

We believe the future of prosecution requires that: Prosecutors develop broad, explicit and transparent standards and expectations for their actions and outcomes....

Prosecutors must make violence and violence prevention a top priority.

July 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

July 16, 2020

Via 6-3 vote, SCOTUS refuses to vacate Eleventh Circuit stay that prevents certain persons with felony convictions from registering to vote

As reported in this CNBC piece, headlined "Supreme Court leaves in place Florida ‘pay-to-vote’ law aimed at felons," the Court this afternoon left in operation "a Florida law requiring those with felony convictions to pay fines before they may vote, potentially blocking about three-quarters of a million otherwise-eligible voters from the polls."  Here is more of the legal essentials: 

The case concerned an a 2018 ballot initiative in which voters in the state ended the permanent disenfranchisement of felons who had completed “all terms of sentence including parole or probation.”  The legislature defined the phrase the following year to include fines, restitution and other fees. Gov. Ron DeSantis, a Republican, signed the bill in June 2019. 

After civil rights groups challenged the legislature’s move, a federal judge blocked the law from going into effect, but that decision was halted by the 11th U.S. Circuit Court of Appeals, which is continuing to consider the matter.

The American Civil Liberties Union, the Southern Poverty Law Center, and Campaign Legal Center asked the top court to reverse the 11th Circuit’s decision.  The groups argued in court papers that most of the 750,000 potential voters could not afford what they owed, and that many had no way of knowing how much they were required to pay.  In court papers, they urged the justices to block the law so that the August and November elections would not be “undermined by chaos and disenfranchisement.”

Attorneys for DeSantis argued that states were “under no obligation to reenfranchise felons at all.” They argued that “all Floridians will be irreparably harmed” if the court allowed “hundreds of thousands of ineligible voters to take part in the upcoming elections.”

Paul Smithvice president of the Campaign Legal Center, said in a statement on Thursday that the Supreme Court’s order was “deeply disappointing.”

“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”

Technically, all that SCOTUS did today via this order was turn down an application to vacate the stay that the Eleventh Circuit had put in place. This order was via 6-3 vote, with Justice Sotomayor authoring a dissent joined by Justices Ginsburg and Kagan that starts and ends this way:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.  And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial.  I would grant the application to vacate the Eleventh Circuit’s stay....

This Court’s inaction continues a trend of condoning disfranchisement.  Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.  See Republican National Committee v. Democratic National Committee, 589 U.S. ___ (2020) (per curiam).  Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement — a situation that Purcell sought to avoid — the Court balks.

July 16, 2020 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (4)

Important review of just why "Prison Populations Drop by 100,000 During Pandemic"

The quoted portion of the title of this post comes from the headline of this Marshall Project piece that has its theme in the subtitle: "But not because of COVID-19 releases."  The article chronicles nationwide what seems to be the story at the federal level, namely that prison populations are going down largely because a lot fewer people are going in, not so much because a lot of new people are coming out.  Here are the details:

There has been a major drop in the number of people behind bars in the U.S.  Between March and June, more than 100,000 people were released from state and federal prisons, a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  The drops range from 2 percent in Virginia to 32 percent in Rhode Island.  By comparison, the state and federal prison population decreased by 2.2 percent in all of 2019, according to a report on prison populations by the Vera Institute of Justice.

But this year’s decrease has not come because of efforts to release vulnerable prisoners for health reasons and to manage the spread of the virus raging in prisons, according to detailed data from eight states compiled by The Marshall Project and AP.  Instead, head counts have dropped largely because prisons stopped accepting new prisoners from county jails to avoid importing the virus, court closures meant fewer people were receiving sentences and parole officers sent fewer people back inside for low-level violations, according to data and experts.  So the number could rise again once those wheels begin moving despite the virus....

While many people may be qualified for early releases, very few actually got out.  In April, Pennsylvania launched a temporary reprieve program, allowing the state’s corrections department to send people home under the condition that they return to finish their sentences once the pandemic passes.  The governor’s office predicted more than 1,500 would be eligible for release.

So far, the state's corrections department has recommended 1,200 people for reprieves, but the application process is slow and tedious, said Bret Bucklen, the department’s research director.  Each application needs approval from the governor, the secretary of corrections and the assistant district attorney who oversaw the initial conviction.  Nearly three months later, fewer than 160 people have been released through the reprieve program, while Pennsylvania’s total prison population dropped by 2,800.

As in Pennsylvania, data from states such as North Carolina, Illinois and New Jersey shows coronavirus releases only account for less than one-third of the decrease in prison population, which suggests something else is driving the drop.  According to Martin Horn, professor emeritus at John Jay College of Criminal Justice and a former corrections commissioner for New York City, the pandemic has slowed the entire criminal justice system, which means fewer people are going to prisons...

Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project, a group that advocates for sentencing reform, said that while the prison population decreases are a step in the right direction, she is disappointed by the numbers.  Even if the COVID-19 release policies work as intended, they might not lower the prison population enough because states often exclude violent offenders from such releases, Ghandnoosh said.  “Even though we are sending too many people to prison and keeping them there too long, and even though research shows people who are older have the highest risk from COVID-19 and the lowest risk of recidivism, we are still not letting them out,” Ghandnoosh said.

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

Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection

As reported here earlier this week, the federal government completed the execution of Daniel Lewis Lee, which had been scheduled for Monday, around 8am on Tuesday morning after a divided  Supreme Court around 2am vacated lower court ruling that were blocking the execution.  It was déjà vu all over again today:  sometime not long after 2am this morning, the US Supreme Court issued this order vacating the injunction, with four Justices in dissent and Justices Breyer and Sotomayor writing up the basis for their disagreement.  This new AP article reports on the execution and some of the legal wrangling that preceded it:

The United States on Thursday carried out its second federal execution this week, killing by lethal injection a Kansas man whose lawyers contended he had dementia and was unfit to be executed.

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey was convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio....

As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT. His spiritual adviser was in the room, wearing a face mask and a surgical mask and appeared to be praying, his gloved hands held together at the palms.

The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, like they did for the first case earlier this week. Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

It was the federal government’s second execution after a 17-year hiatus. Another man, Daniel Lewis Lee, was put to death Tuesday after his eleventh hour legal bids failed. Both executions were delayed into the day after they were scheduled as legal wrangling continued late into the night and into the next morning....

Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions....

The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, was scheduled for execution Friday.

We may see this pattern play out one more time this week, as I suspect that Honken still has some legal claims to press to try to block his execution tomorrow and that the Supreme Court will eventually turn away those claims so that his execution goes forward. DPIC has this webpage trying to track all the legal developments in all these cases, though it looks like they all are going to end the same way.

Some prior recent related posts:

UPDATE: Over at SCOTUSblog here, Amy Howe has an extended post with more details on the litigation and rulings leading up to Purkey's execution this morning under the headline "Justices allow second federal execution to proceed (updated)."

July 16, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Federal prison population, according to BOP report of "Total Federal Inmates," now at 158,838

Another Thursday morning calls for another COVID-era check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers; we continue to see historic declines, though this week's decline is a bit lower than we have seen in weeks past.  This prior post detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.

As of mid-July, we have hit another new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 158,838.   This total represents a decline of 854 persons from last week's total of 159,692.  (For more recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).) 

Because of the disconcerting reality that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that generate lots of federal criminal cases like Arizona, California, Florida and Texas, I doubt these federal prison population declines are going to reverse anytime soon.  This new AP article discussing prison populations declines more generally highlights that "head counts have dropped largely because prisons stopped accepting new prisoners from county jails to avoid importing the virus, court closures meant fewer people were receiving sentences and parole officers sent fewer people back inside for low-level violations."  It seems to me unlikely that these trends will stop in the near future.

A few of many prior related posts:

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

July 15, 2020

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

July 15, 2020 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit"

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

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment.  Sentencing has long been unfair to minority defendants, African Americans in particular, though the guidelines have in part mitigated racial disparities.  Still the injustices perpetuated through federal sentencing have reinforced larger racial biases and contributed to ongoing racial stereotyping.

Empirical research and today’s technology can help both decrease race-based differentials and bring about shorter and more rehabilitation-focused sentencing, as long as we have the will to follow their lead.  Ultimately, we need to bring compassion, mercy, and Menschlichkeit to sentencing. Criminal defendants are not the “other” but “of us.”  Those values need to be part of our legal experience and of legal education lest law become merely an exercise in logic or ideology.

July 15, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

An ever-timely offer for compassionate release help from one who was recently released

I suspect a number of readers know the name Chad Marks, perhaps from these prior recent posts about his case:

As the second of this posts details, Chad secured a significant sentence reduction this year, allowing him to leave prison last month.  My understanding that Chad quite selflessly helped a number of his fellow prisoners with legal claims and filings while he was incarcerated, and I saw from this new Facebook posting that he is eager to continue to do so:

With COVID-19 ramping back up in our prison system if you and your loved ones need help with preparing a 3582 motion, or if you need help with a 2255 contact me at www.myfreedomfighters.com

Posted by Chad Marks on Wednesday, July 15, 2020

Because I get a lot of inquiries about getting help with compassionate release motions, I wanted to here be able to share this important and insightful human resource.  Chad welcomed my suggestion of posting his Facebook offer, and I am grateful he has.

July 15, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

As detailed in this new AP piece, this morning a DC District Judge "halted the execution of a man said to be suffering from dementia, who had been set to die by lethal injection in the federal government’s second execution after a 17-year hiatus." Here is more:

Wesley Ira Purkey, convicted of a gruesome 1998 kidnapping and killing, was scheduled for execution Wednesday at the U.S. Penitentiary in Terre Haute, Indiana, where Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed.

U.S. District Judge Tanya Chutkan in Washington, D.C., imposed two injunctions on Wednesday prohibiting the federal Bureau of Prisons from moving forward with Purkey’s execution. The Justice Department immediately appealed in both cases. A separate temporary stay was already in place from the 7th U.S. Circuit Court of Appeals.

The early morning legal wrangling suggests a volley of litigation will continue in the hours ahead of Purkey’s scheduled execution, similar to what happened when the government executed Lee, following a ruling from the Supreme Court. Lee, convicted of killing an Arkansas family in a 1990s plot to build a whites-only nation, was the first of four condemned men scheduled to die in July and August despite the coronavirus pandemic raging inside and outside prisons.

Purkey, 68, of Lansing, Kansas, would be the second, but his lawyers were still expected to press for a ruling from the Supreme Court on his competency. “This competency issue is a very strong issue on paper,” said Robert Dunham, executive director of the Death Penalty Information Center. “The Supreme Court has halted executions on this issue in the past. At a minimum, the question of whether Purkey dies is going to go down to the last minute.”

Chutkan didn’t rule on whether Purkey is competent but said the court needs to evaluate the claim. She said that while the government may disagree with Purkey’s lawyers about his competency, there’s no question he’d suffer “irreparable harm” if he’s put to death before his claims can be evaluated.

Lee’s execution went forward a day late. It was scheduled for Monday afternoon, but the Supreme Court only gave the green light in a narrow 5-4 ruling early Tuesday.

The issue of Purkey’s mental health arose in the runup to his 2003 trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of 16-year-old Jennifer Long in Kansas City, Missouri. Prosecutors said he raped and stabbed her, dismembered her with a chainsaw, burned her and dumped her ashes 200 miles (320 kilometers) away in a septic pond in Kansas. Purkey was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.

But the legal questions of whether he was mentally fit to stand trial or to be sentenced to die are different from the question of whether he’s mentally fit enough now to be put to death. Purkey’s lawyers argue he clearly isn’t, saying in recent filings he suffers from advancing Alzheimer’s disease. “He has long accepted responsibility for the crime that put him on death row,” one of this lawyers, Rebecca Woodman, said. “But as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him.”

Purkey believes his planned execution is part of a conspiracy involving his attorneys, Woodman said. In other filings, they describe delusions that people were spraying poison into his room and that drug dealers implanted a device in his chest meant to kill him.

While various legal issues in Purkey’s case have been hashed, rehashed and settled by courts over nearly two decades, the issue of mental fitness for execution can only be addressed once a date is set, according to Dunham, who teaches law school courses on capital punishment. A date was set only last year. “Competency is something that is always in flux,” so judges can only assess it in the weeks or days before a firm execution date, he said.

In a landmark 1986 decision, the Supreme Court ruled the Constitution prohibits executing someone who lacks a reasonable understanding of why he’s being executed. It involved the case of Alvin Ford, who was convicted of murder but whose mental health deteriorated behind bars to the point, according to his lawyer, he believed he was pope.

Purkey’s mental issues go beyond Alzheimer’s, his lawyers have said. They say he was subject to sexual and mental abuse as a child and, at 14, was diagnosed with schizophrenia, bipolar disorder, major depression and psychosis. Last week, three mental health organizations urged U.S. Attorney William Barr to stop Purkey’s execution and commute his sentence to life in prison without possibility of parole. The National Alliance on Mental Illness, Mental Health America and the Treatment Advocacy Center said executing mentally ailing people like Purkey “constitutes cruel and unusual punishment and does not comport with ‘evolving standards of decency.’”

The mother of the slain teenager, Glenda Lamont, told the Kansas City Star last year she planned to attend Purkey’s execution. “I don’t want to say that I’m happy,” Lamont said. “At the same time, he is a crazy mad man that doesn’t deserve, in my opinion, to be breathing anymore.”

US District Judge Chutkan’s 14-page ruling granting a preliminary injunction to  halt the execution can be accessed here.  I was able to accurately guess at this time two days ago that Judge Chutkan's order blocking Daniel Lewis Lee's execution would get vacated on appeal.  But the nature of Purkey's claim make (as well as other litigation he has afoot) leads me to think it somewhat more likely that Purkey's scheduled execution will not go forward today.  But as I said before and will surely say again, one really never knows just what will happen when it comes to last-minute capital litigation.

July 15, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

July 14, 2020

Highlighting the link between crime and criminal justice reform efforts

Charles Lane has this new Washington Post commentary that serves as a reminder of the reality that criminal justice reformers always need to keep an eye on crime trends.  The headline captures the pieces themes: "The declining violent crime rate has been a win for criminal justice reform. A reversal would be a loss."  Here are excerpts:

Since 1994, Americans have grown less hawkish on law enforcement: Support for “tough” measures — such as the death penalty or mandatory minimums — has fallen to levels not seen in almost 50 years, according to an innovative index of “punitive sentiment” first published in 2013 by political scientist Mark D. Ramirez of Arizona State University.

For several years, in fact, U.S. public opinion has been receptive to new approaches based less on policing and incarceration, and more on social services and rehabilitation.  In 2016, only 45 percent of Americans considered crime policy “not tough enough,” according to Gallup.  Public reaction to the death of George Floyd in Minneapolis police custody in May simply accelerated the preexisting trend.

And why is the public less punitive? This brings us to the second lesson of recent history: Punitive sentiment tends to move in tandem with the actual level of crime.  Public support for harsh measures rose with violent crime rates in the 1970s and 1980s, then came down as the violent crime rate declined over the past quarter-century.

Ramirez identifies political leadership as a key variable: Punitive sentiment grew in the ’70s and ’80s as part of a broader racial backlash, including demonization of alleged black offenders, that white conservative politicians deliberately stoked.

Also, the public generally tends to believe the worst about crime, usually telling pollsters that it is growing even when official data show the opposite....

We may be experiencing a real-world test of these dynamics right now, in the sense that President Trump came to office railing against crime as if nothing had changed since the 1980s, when he took out newspaper ads decrying “roving bands of wild criminals” and calling for society to “unshackle” cops “from the constant chant of ‘police brutality.’ ”

Yet punitive sentiment kept on moving down during Trump’s presidency, along with the violent crime rate. (Ramirez’s 2013 article used opinion poll data collected between 1951 and 2006.  In an email, he supplied an update showing trends through 2019.) In backhanded acknowledgment of this, Trump leavens his calls for shooting rioters and jailing statue-topplers with boasting about his signature on the First Step Act, which reformed federal sentencing and modestly reduced incarceration.

An important point for reform is to deny Trump and other opponents any basis — either in rhetoric or in reality — for reigniting fear of crime.... It is also why the recent upsurge in shooting deaths in cities such as Chicago, Atlanta and St. Louis is such an urgent issue, in human terms but also politically. Trump is already trying to exploit it.

The past two-plus decades of declining violent crime was one of the best things that ever happened for the cause of criminal justice reform. A reversal of that progress could be one of the worst.

July 14, 2020 in Elections and sentencing issues in political debates, National and State Crime Data | Permalink | Comments (0)

"The United States of Risk Assessment: The Machines Influencing Criminal Justice Decisions"

The title of this post is the title of this very useful Law.com/Legaltech News article and related research project by Rhys Dipshan, Victoria Hudgins and Frank Ready. The subtitle of the piece provides an overview: "In every state, assessment tools help courts decide certain cases or correctional officers determine the supervision and programming an offender receives. But the tools each state uses varies widely, and how they're put into practice varies even more."  This companion piece, titled "The Most Widely Used Risk Assessment Tool in Each U.S State," provides this introduction:

There are dozens of risk assessment tools in use in local criminal justice systems around the country.  Not all have a far reaching impact, such as those specialized to a specific risk like domestic violence or those assessing risk for a certain demographic like juvenile offenders.  Tools that have the broadest impact and deployment, however, are ones that look at recidivism pretrial risk in adult populations.

Below, we highlight these specific tools in use in each state, and the criminal justice decisions point they influence.  These findings are part of a broader research project examining how jurisdictions implement risk assessment tools, and how they determine they accurately work and are implemented as intended.  The project also dives into how risk assessment tools generate their scores and the debate around whether these instrument exacerbate or mitigate bias in criminal justice decision making.

July 14, 2020 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (2)

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

July 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

July 13, 2020

"Abolishing Private Prisons: A Constitutional and Moral Imperative"

The title of this post is the title of this new paper authored by andré douglas pond cummings and Robert Craig available via SSRN. Here is part of the paper's abstract:

President Richard Nixon declared a “War on Drugs” in 1971. President Ronald Reagan federalized and militarized this “war” in the 1980s.  Shortly after the War on Drugs was declared, federalized, and militarized, a private for-profit company in Tennessee sprang up calling itself the Corrections Corporations of America (CCA).  The creation of this private prison corporation ushered in a new carceral era where the traditional government function of adjudicating crime, punishment, and imprisonment became intertwined with the corporate governance principles and goals of profit maximization for shareholders; executive compensation based on profits and share price; forward-looking statements forecasting more robust prison populations; and increased profit levels built almost solely on human misery and degradation....

Private prison executives and lobbyists seek to increase privatization of the industry by promising that their prisons are run more efficiently at lower costs, with greater safety records, improved facilities, and with greater outcomes for prisoners.  However, studies and reports now show that these declarations by private prison executives and lobbyists are deceitful.  Private prisons are increasingly being shown to cost contracting governments’ more, not less, are less safe, and less economical.  The exchange of taxpayer funds from governments and municipalities into the hands of corporate shareholders and executives is nothing more than an unabashed transfer of taxpayer monies into the personal accounts of those with a stake in private prisons — which are being shown to provide no real benefit in return.  Private incarceration makes no sense morally, and it is increasingly apparent that the industry makes no sense economically and, in fact, is likely unconstitutional....

This article will show: first, that mixing profit with the core governmental function of incarceration leads to damaging consequences for prisoners, employees (of both private and public prisons), and the public at large while benefiting a small group of executives and shareholders; second, that the implementation of for-profit incarceration in the United States hampers access to justice, particularly for already marginalized groups; and third, that the serious constitutional concerns noted by Professor Robbins have been borne out, and they now deserve consideration by the United States Supreme Court.

July 13, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions

As detailed in this new AP piece, a "district judge on Monday ordered a new delay in federal executions, hours before the first lethal injection was scheduled to be carried out at a federal prison in Indiana. The Trump administration immediately appealed to a higher court, asking that the executions move forward." Here is more:

U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that “the public is not served by short-circuiting legitimate judicial process.” The executions, pushed by the administration, would be the first carried out at the federal level since 2003. Chutkan said the inmates have presented evidence showing that the government’s plan to use only pentobarbital to carry out the executions “poses an unconstitutionally significant risk of serious pain.”

Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered ”flash pulmonary edema,” which she said interferes with breathing and produces sensations of drowning and strangulation. The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.

The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The new hold on executions came a day after a federal appeals court lifted a hold on the execution of Daniel Lewis Lee, of Yukon, Oklahoma, which is scheduled for 4 p.m. EDT on Monday at the federal prison in Terre Haute, Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell....

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks. On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.

The victim’s family hopes there won’t be an execution, ever. They’ve asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August. The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

US District Judge Chutkan’s 22-page ruling granting this stay can be accessed here. I would be inclined to guess that this stay will be vacated on appeal, but one never knows when it comes to last-minute capital litigation.

July 13, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

When might we get any data (or even a statement) from US Sentencing Commission about the COVID state of federal sentencing?

Today marks exactly four months since Prez Trump, on March 13, officially proclaimed that "the COVID-19 outbreak in the United States constitutes a national emergency."  In this post back in March, I expressed disappointment, but understanding, regarding the US Sentencing Commission's failure at that time to put out any data or statement about the coronavirus outbreak and its impact on the federal criminal justice system.  As I said in that post, USSC is not really geared up for producing real-time data even under the best of circumstances, and these are obviously not the best of circumstances.

But since March, the USSC has actually managed to produce and disseminate an impressive array of new publications even during a global pandemic. Here are links to the posts I have done in the last four months reporting on notable new USSC publications:

And this list is an incomplete accounting of the USSC's pandemic productivity, as it has also produced nearly 30 new insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications, as well as a number of other notable and valuable documents like an updated new set of training  "Primers" on a wide array of topics. 

But, disappointingly, amidst all this impressive continued productivity, we are still awaiting the US Sentencing Commission producing any data (or even some kind of statement) about COVID's on-going (and evolving?) impact on the federal criminal justice system.  As I have mentioned before, it would prove extremely helpful to advocates, researchers and surely persons involved in the federal sentencing system to know just about anything about how and how many sentencings are being conducted in federal courts.  I suspect I am not the only one eager to see any data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And any data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting.

I do not mean to unduly assail the USSC during these challenging times, but I fear its failure to say publicly a single word about the COVID state of federal sentencing can make these times even more challenging for those working in the federal system.  In my view, having the USSC discuss ASAP what data it is trying to collect and when the USSC might report on this data could be of great service and could help advance the cause of thoughtful and consistent federal sentencing amidst uncertain times.

July 13, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

July 12, 2020

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

July 12, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Tongues wagging about Prez Trump using his clemency pen to grant compassionate release to Roger Stone

Unsurprisingly, lots and lots of folks have lots and lots to say about Prez Trump's decision late Friday to commute the prison sentence of Roger Stone (basics covered here).  I will start this post with two quick points and then round up below some of the other copious commentary already making the rounds.

1. Now do more, Mr. Prez: I am pleased Prez Trump has finally delivered, at least for an old friend with dirt on him, on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the COVID pandemic.  I am being cheeky here, of course, but meaning to make a serious point: the Stone commutation bothers me far less than Prez Trump's failure to use his clemency powers far more — both before and especially since the coronavirus crisis — to release the many federal prisoners who, like Stone, are older, medically vulnerable and present no clear risk to public safety. 

Back in February 2020, Prez Trump coupled some high-profile clemency grants with commutations to three women of color with no political connections (details here).  I sure wish Prez Trump and key advisers — Kushner?  Kushner?  Kushner? — had tried to couple the Stone commutation with clemency relief for just a few other older federal prisoners whose incarceration may prove deadly and serves little public safety purpose.  But it is not too late to make up for lost time: now do more comparable commutations, Mr. Prez!

2. Now do even more, federal judges: As the title of this post is meant to suggest, the Stone clemency strikes me as another form of compassionate release.  The official statement announcing the commutation made much of an "improper investigation," of "overzealous prosecutors" and of "serious questions about the jury" while also stressing that "Mr. Stone would be put at serious medical risk in prison" and that "Roger Stone has already suffered greatly."  These comments suggest Prez Trump concluded, in the words of 18 USC § 3582(c)(1)(A), that there were "extraordinary and compelling reasons warrant[ing] a reduction" in Stone's prison sentence and that such a reduction was consistent with 3553(a)'s purposes of punishment. 

Thanks to the FIRST STEP Act, judges now have authority to grant comparable sentence reductions, and district judges have granted hundreds of compassionate release motions in response to the COVID crisis.  But thousands of compassionate release requests have been denied, many coming from prisoners who are likely even more vulnerable and even more sympathetic than Stone.  In more than a few cases, I have seen judges indicate considerable sympathy for the plight of a vulnerable older inmate, only to refuse release because the movant had not yet served enough time in prison.  But Roger Stone did not serve any prison time, and yet Prez Trump was still moved by his "medical risk" and by the fact he had "already suffered greatly" even before serving a single day in federal prison.  So this commutation should also be a message to federal judges: do more comparable compassionate releases, even if vulnerable offenders have served little or even no prison time.

I could go on, but rather than continue my tongue wagging about the Stone commutation, I will conclude here with a round-up of just a few other notable takes:

From Robert Mueller, "Roger Stone remains a convicted felon, and rightly so."

From Politico, "'Historic corruption': 2 Republican senators denounce Trump's commutation of Stone"

From Brett Tollman and Arthur Rizer, "Romney wrong to attack Trump commutation of Roger Stone prison sentence"

From Jack Goldsmith and Matt Gluck, "Trump’s Aberrant Pardons and Commutations"

From Jonathan Turley, "Why this Roger Stone commutation is not as controversial as some think"

From Jeffrey Tobin, "The Roger Stone Case Shows Why Trump Is Worse Than Nixon"

July 12, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)