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November 13, 2020

The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

I am sad to report that we have passed yet another milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage of deaths from coronavirus reported among prisoners, and as of Thursday, November 12, this accounting had tabulated "at least 1412 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1990 to 2020.  According to DPIC data, there were a total of 1406 executions from the start of 1990 through today.

Of course, as I have mentioned before, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 93 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

November 13, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (7)

"Redeeming Justice"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Lopez, Terrell Carter and Kempis Songster.  Here is its abstract:

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison.  According to the United States Supreme Court, this sentence represented a determination that they were irredeemable.  This article will interrogate the legal determination that there are some human beings who are incapable of redemption.  In doing so, the article grapples with a basic, yet weighty question.  Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity.  Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.

Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system.  One that elevates humanity, not deprives it.  One that creates opportunities for healing and human development, not denies it.  As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption.  Rather, the law should restore hope that change is always possible.

November 13, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

November 12, 2020

Detailing the continued public health catastrophe of COVID in incarceration nation

Sadly, I have been blogging for the better part of a year now about the catastrophe of COVID in the United States for persons who are incarcerated persons, prison staff, their families, and the general public.  We have seen some political, legal and social responses, but this new Washington Post article, headlined "Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say," highlights how bad things have been and still are.  Here is the start of a lengthy piece worth reading in full:

Nobody knows how the ­novel coronavirus sneaked through the barbed wire and imposing gates of Ohio’s Pickaway Correctional Institution, where visitors and volunteers were barred from entering in March.  But the first case showed up April 4.  Within a week, 23 inmates and 17 staff members were found to be infected.  One inmate, Charles Viney Jr., a 66-year-old with a collapsed lung, died hours after testing positive.  Within a month, more than three-quarters of Pickaway’s roughly 2,000 inmates were confirmed positive.  By the end of May, 35 were dead.

Pickaway, where officials acknowledged that efforts to control viral spread were hectic and hindered by imperfect testing, exemplifies the broad challenges facing the nation’s jail and prison systems in the grip of the pandemic. Conditions long considered degrading — including overcrowded, unsanitary housing and inadequate inmate health care — have, in many places, become deadly.

“A prison is now a public health threat,” said Armen Henderson, an assistant professor of medicine at the University of Miami.  He and other criminal justice reform advocates have called for massive reductions in incarceration because of the pandemic.  They argue that measures such as distributing masks or allowing access to hand sanitizer do little to stop the spread of the virus in facilities where people live so close together.

More than 173,000 inmates nationwide have contracted the coronavirus, and almost 1,300 have died, according to the UCLA Law Covid-19 Behind Bars Data Project.  At least 37,000 corrections workers have tested positive and 78 have died.  A study prepared for the National Commission on Covid-19 and Criminal Justice reports that the rate of coronavirus cases in federal and state prisons is more than four times the national rate.  When adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.

In at least 39 states and D.C., governors, local officials or ­sheriff’s departments have taken steps to reduce prison and jail populations since the beginning of the pandemic.  The measures varied widely, from releasing some nonviolent inmates or those who are medically vulnerable to accepting only the most-violent offenders.

Between March and May, prison populations dropped an average of 8 percent and jail populations decreased about 30 percent, according to data reviewed by Sharon Dolovich, a UCLA law professor who directs the Behind Bars Data Project.  The American Civil Liberties Union has filed more than 50 cases aimed at freeing people from prisons, jails and immigration detention facilities, with limited success largely because a 1996 law limits inmates’ ability to sue.

Now, advocates say, those gains are being eroded, leading to fears about additional outbreaks and mounting death tolls.  A recent overview by the Covid, Corrections, and Oversight Project at the University of Texas at Austin found that the death curve in Texas prisons remains “stubbornly high”; in one East Texas prison, the Duncan Unit, nearly 6 percent of inmates have died.  “The truth is, there is really only one way to meaningfully reduce the risk of spread, and that is to release enough people to make it possible for those who remain to socially distance,” Dolovich said.

UPDATE: Here are is just a smattering of additional depressing recent headlines in this space:

November 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Nondelegating Death"

The title of this post is the title of this notable new paper just posted to SSRN and authored by Alexandra Klein.  Here is its abstract:

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

November 12, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

November 11, 2020

Eager to honor our veterans caught up in our nation's massive criminal justice systems

5fa97d96f3264.imageEvery year when Veterans Day rolls around, I find myself giving a lot more thought to all the veterans who get caught up in our criminal justice systems.  I often see exhortations to honor "all who served" on this important day, and that necessarily means we need to be sure to honor the disconcerting large number of veterans who spend this day behind bars, or under active criminal justice supervision, or struggling with the enduring burdens of a criminal record.

According to these latest (but dated) BJS statistics, "in 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  Even if the present-day percentage had shrunk considerably, we can still state without any question that there are tens of thousands of veterans spending Veterans Day behind bars today.

And though I cannot find any detailed data on veteran status and probation/parole rate, even if veterans were only 5% of all persons on probation/parole in the US, that would still means that there are hundreds of thousands of veterans currently spending Veteran's Day subject to active community supervision today.

And though I cannot find any detailed data on veteran status and criminal convictions, even if veterans were only 5% of all persons with a criminal record in the US, that would still means that there are millions of veterans currently burdened with a criminal record on Veterans Day 202.

As highlighted in some posts below, I have often used this day to urge the President of the United States to use his clemency pen to honor this day with some grants to veterans.  But, of course, the vast majority of veterans involved in our nation's criminal justice systems are caught up in a state system.  So, those of us eager to really honor all who served ought to be advocating that all chief executives play their part in doing something meaningful for a population that has done something meaningful for all of us.

Some older (some very older) prior related posts: 

November 11, 2020 in Data on sentencing, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

DPIC conducting webinar series on veterans and the death penalty

As detailed here via the Death Penalty Information Center's website, the "Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty." Here is more information and links on the topic:

The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty.  The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row....

The series opens November 9 with an overview of the issues by Veteran Advocacy Project Criminal Programs Director, Art Cody, DPIC Executive Director Robert Dunham, and former DPIC Executive Director and Battle Scars author Richard Dieter. This is followed by panels on Special Issues in Investigating and Presenting Veterans’ Mitigation (Nov. 12); Capital Punishment Under the Uniform Code of Military Justice (Nov. 13); Mental Health Issues in Veterans’ Capital Cases (Nov. 17), and Veterans, Race, and the Death Penalty (Nov. 18). It concludes on November 19, with a session on Wrongful Capital Convictions of Military Veterans, in which veterans Kirk Bloodsworth, Ray Krone, and Ron Wright tell the stories of their cases and how they were wrongfully sent to death row in the country that they had served.

November 11, 2020 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

Harvard Law Review SCOTUS issue covers the handful of notable criminal justice rulings from last Term

As hard-core law nerds know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as long-time readers know, in years past I have sometimes been disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, as noted in this post from last year, the 2019 HLR SCOTUS issue provided a sign of the modern criminal justice times with its Foreword and a lead commentary focused on criminal justice issues.  The November 2020 issue of the Harvard Law Review, which is available at this link, has its lead pieces understandably focused on other topics this year, but it remains heartening to see that seemingly all the noteworthy criminal cases of OT 2019 SCOTUS are covered in case comments in this issue: 

November 11, 2020 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Drug Policy Implications: Elections 2020"

Drug-Policy-Implications-Elections-2020_for-web-email2The title of this post is the title of this panel discussion taking place (on Zoom) next Monday afternoon, November 16, 2020 from 1-2:15 pm EST, sponsored by the Drug Enforcement and Policy Center.  Here is the basic description of the event and the planned speakers:

The 2020 election will have a monumental impact on how the United States addresses a broad range of policy issues, and drug enforcement and policy is no exception.  Numerous states approved medical or full marijuana legalization via ballot initiative, and voters in other states weighted in on drug-related criminal justice ballot initiatives.  At the federal level, marijuana reform has been gaining momentum and federal officials will undoubtedly take cues from the nationwide election results to determine the pace of reform on an array of drug enforcement and policy issues.

Join our panel of experts for a post-election discussion of the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Speakers

  • John Hudak, deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies, Brookings Institution
  • Maritza Perez, director of the Office of National Affairs, Drug Policy Alliance
  • Tamar Todd, legal director, New Approach PAC

Moderated by:

Douglas A. Berman, executive director, Drug Enforcement and Policy Center

November 10, 2020 in Campaign 2020 and sentencing issues, Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

November 9, 2020

"The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes?"

The title of this post is the title of this new paper now available via SSRN authored by Morris Hoffman, Francis Shen, Vijeth Iyengar and Frank Krueger. Here is its abstract:

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature.  Young female judges punished high harm crimes substantially more than their male and older female colleagues.  These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers.  They may also inform policies surrounding judicial selection, education, training, and retirement.

November 9, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

As reported in this local article, "Tennessee Gov. Bill Lee has granted death row inmate Pervis Payne a temporary reprieve due to the COVID-19 pandemic."  Here is more:

Payne's execution was scheduled for Dec. 3, 2020. The reprieve lasts until April 9, 2021. Lee said in a written statement that the reprieve was issued "due to the challenges and disruptions caused by the COVID-19 pandemic," but did not elaborate further.

Payne, who is being held on death row in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie.  Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

“This additional time will also allow us to investigate Mr. Payne’s strong innocence claim, together with the Innocence Project," said Kelley Henry, Payne's attorney.  "We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne’s family, we will continue the fight to prove Mr. Payne’s innocence.”

The reprieve also allows time for the Tennessee Black Caucus of State Legislators to potentially pass legislation that would allow a defendant already sentenced to the death penalty and whose conviction is final to still bring a petition regarding a claim of intellectual disability. Although members of the caucus filed the bill Wednesday, it cannot be passed until January at the earliest, initially after Payne's scheduled execution.

Payne has maintained his innocence, and his attorneys have said that he is intellectually disabled, but have been unable to litigate the claim in Tennessee due to procedural reasons. In federal court, Payne’s attorneys have filed a petition asking the court to prevent his execution until hearing his claim that he is intellectually disabled....

During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

The Shelby County District Attorney's Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming. An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there.  His baseball cap was found looped around the 2-year-old victim's arm, and his fingerprints were found inside the apartment.

Payne’s case has drawn the support of a large coalition of advocates, led by the Ben F. Jones Chapter of the National Bar Association, urging for the DNA testing.  The coalition includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH) and several leaders in the Church of God in Christ (COGIC), of which Payne is a member.

It strikes me as quite notable and ultimately disturbing that, for a crime that took place 33 years ago(!), it seems that a global pandemic was needed to justify a short reprieve to provide time "to investigate Mr. Payne’s strong innocence claim."  Also, if Payne is actually intellectually disabled and thereby categorically ineligible for execution under the Eighth Amendment, it seems quite problematic to preclude him from properly litigating this constitutional issue fully for mere procedural reasons.

These case specifics aside, this Death Penalty Information Center page details that this planned Tennessee execution had been the last state execution scheduled for 2020.  So, due to lots COVID disruptions as well as other factors, it appears the total number of state executions in 2020 will be only seven individuals, marking the lowest yearly total of state executions in almost 40 years.  But, of course, the federal government really revved up its machinery of death in 2020, and there have already been seven federal executions in 2020.  Moreover, there are three more federal executions still scheduled for 2020: as this BOP page details, one execution is scheduled for next Thursday, and two more are scheduled for the second week of December.

Even if we did not have a consequential federal election this month, the federal defendants scheduled for execution in the coming weeks would surely be seeking a reprieve based on COVID concerns and perhaps on other grounds as well.  But, especially given that the Joe Biden campaign talked about seek to abolish the federal death penalty, if these condemned defendants can find a way to get their executions postponed until after January 20, 2021, they might benefit from a new Administration eager to now completely turn off the entire federal machinery of death.

November 9, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

November 8, 2020

So who are you rooting for to be the next US Attorney General?

I would be eager to hear from readers about who they would like to to see nominated by Joe Biden to be the next US Attorney General.  This Politico article, headlined "Meet the contenders for Biden’s Cabinet," discusses these purported front-runners:

With Tommy Tuberville’s defeat of Sen. Doug Jones (D-Ala.) on Tuesday, Jones will be unemployed come January and available to join Biden’s cabinet. Jones wouldn’t add to the Cabinet’s diversity, but the former U.S. attorney in Alabama has credibility when it comes to civil rights: He led the successful prosecutions of two members of the Ku Klux Klan involved in the 1963 bombing of the 16th Street Baptist Church in Birmingham, nearly 40 years later. Jones also happens to be a friend of Biden’s, dating back to his work on Biden’s first presidential campaign in 1988.

Jones, however, is likely to have competition for the Attorney General post, including from Democratic National Committee Chairman Tom Perez. Perez is “in the mix,” said Oscar Ramirez, a Democratic lobbyist who worked in the Obama administration and is active in Latino Democratic circles. Another person who’s tracked the early jockeying for attorney general said allies of Perez have floated his name.

Perez has Justice Department experience: He served as assistant attorney general for civil rights in President Barack Obama’s administration before Obama tapped him as Labor secretary. But he also faces a potential obstacle with Republicans likely to remain in control of the Senate: No Republicans voted to confirm him as Labor secretary in 2013, and it’s unlikely that his years leading the DNC have endeared him to the GOP.

Another name being mentioned is Sally Yates, a former deputy attorney general in the Obama administration, who became a progressive cause célèbre when President Donald Trump fired her in the early days of his presidency for refusing to defend his executive order barring entry to people several Muslim countries. California Attorney General Xavier Becerra is another potential candidate, Ramirez said, although he’s also been mentioned as a possible Homeland Security secretary. California Gov. Gavin Newsom might also tap Becerra, a former congressman, to fill the Senate seat that Vice President-elect Kamala Harris will vacate in January. (Becerra previously succeeded Harris as California attorney general in 2017 following Harris’ election to the Senate.)

This USA Today article, headlined "President-elect Joe Biden seeks diverse Cabinet to 'look like America' in leading federal departments," throws out these additional names:

Sen. Amy Klobuchar, D-Minn., a white member of the Senate Judiciary Committee where she has been harshly critical of Attorney General William Barr. She dropped her presidential campaign after the South Carolina primary and endorsed Biden....

Stacey Abrams, a Black former member of the Georgia Legislature who was among those considered as Biden’s running mate.  Abrams has been a fierce advocate for voting rights after running an unsuccessful but high-profile campaign for governor of Georgia, a state that was surprisingly competitive for Biden.

Sen. Cory Booker, D-N.J., a Black member of the Senate Judiciary Committee and presidential candidate, was a key sponsor of sweeping criminal justice legislation aimed at cutting mandatory minimum sentences and reducing the federal prison population.

Preet Bharara, who was born in India, a former chief federal prosecutor in Manhattan’s Southern District of New York, was fired by Trump after the then-newly elected president had asked him to remain on the job.  Bharara subsequently described a series of contacts with Trump before his firing that he said threatened the Justice Department’s independence from the White House.

I have always been a big Cory Booker fan, in part because he has long been a vocal advocate for a range of federal sentencing reforms.  So I think he is the candidate I am rooting for, though I sense he may be a relative long shot.  And I am genuinely eager to hear from readers about their thoughts about people on this list or anyone else who might become our nation's next "top law enforcement officer" for the United States.

November 8, 2020 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (7)

Pondering marijuana reform echoes after another historic election cycle

I briefly flagged here a few days ago the remarkable success of drug policy reform ballot initiatives in red and blue states nationwide.  And the success particularly of marijuana reform initatives in Arizona, Mississippi. Montana, New Jersey, and South Dakota has me thinking and writing a lot about what's next in this space over at Marijuana Law, Policy & Reform.  Specifically, I have been blogging reactions to marijuana's big election night via these new posts:

November 8, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

"What Biden’s Win Means for the Future of Criminal Justice"

The title of this post is the headline of this extended new piece from The Marshall Project, which begins this way:

During his presidential campaign, Joe Biden promised to end private prisons, cash bail, mandatory-minimum sentencing and the death penalty.  Candidate Biden also said the U.S. could reduce its prison population by more than half.  While he didn’t put forward as progressive or as detailed a platform as many of his competitors for the Democratic nomination (including his running mate Kamala Harris), Biden has nevertheless, quietly, been elected on the most progressive criminal justice platform of any major party candidate in generations.  So what can he actually do?

Biden will face the same constraints as all incoming presidents after a campaign of big promises.  Government moves slowly, time and political capital are limited, and his administration will likely need to prioritize the pandemic and the related economic fallout in the early days.  But if he’s serious about tackling criminal justice, here’s what experts say to expect from the Biden administration on key issues.

I recommend checking out the full lengthy discussion, and here are snippets from a few of its sentencing pieces:

The Death Penalty

Biden can’t unilaterally end the death penalty, but he can speed up its demise and use symbolism to signal a new era.  Ultimately, the death penalty is symbolic. It has never been used to punish more than a tiny fraction of the most serious murders, but it makes very long prison sentences appear lenient by comparison.

On the campaign trail, Biden said he’d work to end the federal government’s use of the death penalty.  His record is mixed.... Although only Congress can fully abolish the federal death penalty, the president can do a great deal to speed its yearslong decline across the country.  Trump’s attorney general, William Barr, oversaw the most federal executions of any presidential administration since Eisenhower.  A new attorney general could stop them immediately, and return to the Obama-era practice of seeking no executions. A new attorney general could tell U.S. attorneys to only seek new death sentences for rare crimes like terrorism and mass shootings, which would still apply to defendants like Charleston church shooter Dylann Roof and Boston Marathon bomber Dzhokar Tsarnaev.... — Maurice Chammah

Mandatory Minimums

Biden has said he wants to eliminate mandatory minimum sentences, a legacy of the tough-on-crime ’80s.  To make this happen at the federal level, he’d need to appoint a range of officials who share this view, and get buy-in from Congress....

Biden’s criminal justice platform pledges to eliminate federal mandatory minimums.  Biden hasn’t specified which ones, but advocates say if he does tackle them, he will likely focus on drug crimes.  There are more than 60,000 people currently serving mandatory minimum sentences in federal prison, according to the U.S. Sentencing Commission. 10,000 entered the system last year alone.  A broad clemency effort or a law change, if it were retroactive, could reduce the federal prison population by a quarter almost overnight.

Repealing mandatory minimums — or passing a “safety valve” law that doesn’t repeal them but gives judges the discretion to sidestep them — would require an act of Congress. Part of the problem, say scholars who study the issue, are the Attorney General and the Department of Justice, whose opinions carry a lot of weight with Congress.  So the first step a President Biden could take to signal his commitment to repealing mandatory minimums is to appoint officials who share his view, says Rachel Barkow, a law professor at NYU and a former member of the U.S. Sentencing Commission, which helps draft federal sentencing guidelines.  An Attorney General who is skeptical of mandatory minimums could also instruct federal prosecutors to use them judiciously, as Eric Holder did in 2013.... — Beth Schwartzapfel

Clemency

Biden has lots of power to revamp and supercharge the clemency process — but he hasn’t given much indication that he intends to use it. Clemency, which includes reversing criminal convictions (pardons) and shortening sentences (commutations), is the president’s most direct means to reduce incarceration. Biden made no bold promises on these topics during the campaign. He has promised to “broadly use his clemency power for certain non-violent and drug crimes,” as Obama did at the end of his administration....

Biden could ask Harris to take the lead on clemency since she laid out a more detailed plan than his own during the Democratic primary. Harris said she would remove clemency decisions from the Department of Justice and open a federal sentence review unit, where a team of lawyers would be exclusively tasked with reviewing old sentences and considering reductions.... — Jamiles Lartey

Private Prisons

Biden can move the 14,000 federal prisoners currently held in private facilities without too much struggle. After that it gets harder.  Biden and Harris both pledged to end the federal government’s use of private prisons during the 2020 campaign, a position that is extremely popular among Democrats partywide.  Experts say the incoming administration is likely to build on guidance issued under the Obama administration in 2016, rescinded by Trump, that encourages the director of the Bureau of Prisons to stop renewing contracts with private facilities when they expire, in an effort to ultimately phase out their use.... — Jamiles Lartey

Reducing The Prison Population

Biden can’t implement new programs or rewrite outdated sentencing laws at the state level.  But he can use federal funding to send a message.  Crime prevention is a central feature of Biden’s criminal justice plan.  He has pledged to set aside $20 billion in federal funding to states that adopt evidence-based crime prevention programs and that opt for diversion programs over incarceration....

Under Biden’s plan, states would have access to federal funding if they agreed to implement programs designed to keep people out of prison.  The funding comes with some stipulations: States must eliminate mandatory minimums and they must create earned credit programs for people currently serving time.  It’s unclear what kinds of programs states could or should adopt in order to get the funding.  Biden has emphasized the need for states to invest in programs that address several underlying drivers of crime such as illiteracy and limited early education.  Congress would have to enact Biden’s plan.  — Nicole Lewis

Though indirectly mentioned in the Mandatory Minimum section, I am a bit disappointed that appointments to the US Sentencing Commission is not mentioned. The USSC, with the right appointees, could provide to be a particularly important and consequential agency at a moment in which implementation of the FIRST STEP Act is really still just getting started and during which other legislative reforms are being widely discussed.

November 8, 2020 in Criminal justice in the Biden Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations

Now that former VP Joe Biden is starting to begin work as Prez Elect Joe Biden, I started thinking about some of Dr. Martin Luther King's famous words about the persistent and pressing need for urgent action to advance justice.  As MLK put it in one 1967 speech:

We are now faced with the fact, my friends, that tomorrow is today.  We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there is such a thing as being too late.  Procrastination is still the thief of time.

With the fierce urgency of now in mind, I looked through the criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here) to see which ones might be acted upon ASAP.  Many of the recommendations involve matters that will require congressional action (e.g., "End the federal crack and powder cocaine disparity in sentences") or that must await Prez Elect Biden officially taking office (e.g., "Direct DOJ to collect data on federal prosecution practices").  But there are at least two notable recommendations involving the creation of an independent task force or board which could begin work right away: 

Task Force on Prosecutorial Discretion: Create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds. Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Notably, Prez Elect Biden has now promised to announce on Monday a COVID task force. I am pleased he is acting fast on this critical front; but in this unfolding conundrum of life and history, I am always going to be urging leaders to treat tomorrow as today with regard to criminal justice reforms.

November 8, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)