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December 26, 2020

Federal judge blocks January 12 execution date for only woman on federal death row

As repoted in this AP piece, a "federal judge said the Justice Department unlawfully rescheduled the execution of the only woman on federal death row, potentially setting up the Trump administration to schedule the execution after president-elect Joe Biden takes office." Here is more about a ruling that was handed down before Christmas:

U.S. District Court Judge Randolph Moss also vacated an order from the director of the Bureau of Prisons that had set Lisa Montgomery’s execution date for Jan. 12.  Montgomery had previously been scheduled to be put to death at the Federal Correctional Complex in Terre Haute, Indiana, this month, but Moss delayed the execution after her attorneys contracted coronavirus visiting their client and asked him to extend the amount of time to file a clemency petition.

Moss prohibited the Bureau of Prisons from carrying out Lisa Montgomery’s execution before the end of the year and officials rescheduled her execution date for Jan. 12.  But Moss ruled on Wednesday that the agency was also prohibited from rescheduling the date while a stay was in place.  “The Court, accordingly, concludes that the Director’s order setting a new execution date while the Court’s stay was in effect was ‘not in accordance with law,’” Moss wrote....

Under the order, the Bureau of Prisons cannot reschedule Montgomery’s execution until at least Jan. 1.  Generally, under Justice Department guidelines, a death-row inmate must be notified at least 20 days before the execution.  Because of the judge’s order, if the Justice Department chooses to reschedule the date in January, it could mean that the execution would be scheduled after Biden’s inauguration on Jan. 20.

A spokesperson for Biden has told The Associated Press the president-elect “opposes the death penalty now and in the future” and would work as president to end its use in office.  But Biden’s representatives have not said whether executions would be paused immediately once Biden takes office.

Montgomery was convicted of killing 23-year-old Bobbie Jo Stinnett in the northwest Missouri town of Skidmore in December 2004. She used a rope to strangle Stinnett, who was eight months pregnant, and then a kitchen knife to cut the baby girl from the womb, authorities said.

Prosecutors said Montgomery removed the baby from Stinnett’s body, took the child with her, and attempted to pass the girl off as her own.  Montgomery’s legal team has argued that their client suffers from serious mental illnesses....

Two other federal inmates are scheduled to be executed in January but have tested positive for coronavirus and their attorneys are also seeking delays to their executions.

December 26, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Trump pardoned us. But pardons don’t replace criminal justice reform."

The title of this post is the title of this Washington Post commentary authored by Christopher 2X and Topeka K. Sam.  Here are excerpts:

In this holiday season, in a year of racial unrest, record gun violence in our cities, and a devastating pandemic, we received a blessing — a presidential pardon for our drug convictions.

We are extremely grateful. We’re fortunate to have many friends who have supported our work for justice, second chances and nonviolence since we left prison.  They vouched for us even though a pardon wasn’t something we requested for ourselves.

The blessing of a pardon, however, comes with a stark reminder of so many thousands who are not as fortunate as we are.  They are still stuck in a still flawed justice system that prizes the punitive over the rehabilitative — and they should not be.  For every one of us, there are thousands who are powerless and voiceless, who do not deserve the harsh punishment and treatment they’ve received in our criminal justice system, and whose names will never appear before a president for a pardon.

Because pardons alone can’t solve what needs fixing....  We incarcerate too many Black people, with horrible impacts on Black communities and families that last for generations — including distrust of government and police, and an inability for many to see the humanity in each other, even at early ages.  To young Black people, understandably, and tragically, the government is the demon.

It doesn’t have to be that way, and if we want safer, more just communities, it’s unsustainable.  But if we are ever going to coexist in peace so all children can reach their potential, we must reverse our history of racial injustice — a history, and a present, in which Black and Brown people have been excluded from the economy and society....

We’re grateful to be pardoned for our convictions.  We strived, when we left prison, to atone for the pain we inflicted on our family and friends, which gave us the motivation to work for justice and peace.

We plan to use our pardons as an example to others that there is such a thing as redemption in this country.  But we intend to keep fighting for change, in our laws and across society.  We must keep working intentionally and with determination to build a more equitable, just society, one in which everyone is treated with dignity and respect.

I am hopeful (though not optimistic) that Prez-elect Joe Biden will have the good sense to nominate to the US Sentencing Commission at least on person with direct expereince with the federal criminal justice system as a defendant. The commentary has me thinking that it could be especially meaningful and valuable for Biden to nominate to the uSSC persons like Christopher 2X and Topeka K. Sam who received pardons from Prez Trump.

December 26, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

December 24, 2020

Rounding up some (but not enough) state clemency stories this holiday week

With Prez Trump setting quite the clemency pace (basics here and here), it would be nice if I could report here about similar holiday-week grants of pardons and commutations coming from Governors in every single state across the nation.  Sadly, my Google news searches have so far revealed reports of clemency grants from only a handful of states.  But I am still keen to highlight these stories, especially because grants from the Centennial State include a long-ago, high-profile "15 minutes of fame" case:

From Colorado, "Gov. Jared Polis pardons Balloon Boy’s parents, grants clemency to 20 othersGovernor also commutes sentence of white collar criminal who received one of longest prison terms in state history."

From Michigan, "Whitmer grants clemency to 4, including state's 'longest serving non-violent offender'"

From Missouri, "Missouri governor pardons 24, commutes the sentences of four offenders"

From New York, "Governor Cuomo Grants Clemency to 21 Individuals"

From North Carolina, "NC governor pardons 5, including man wrongly imprisoned for 44 years"

From Texas, "Gov. Greg Abbott pardons seven Texans ahead of Christmas"

For those who do not remember the "Balloon Boy" case, here are prior posts about the case from way back in 2009:

December 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month

It is hardly surprising that Prez Trump has kicked off his final weeks in office with sets of clemency grants that include all sorts of friends and family and politically-charged defendants (basics here and here).  It is perhaps even less surprising that Trump's latest flourish of clemency grants is garnering lots and lots of criticisms from lots and lots of quarters (just a few examples are here and here and here and here and here). 

But particularly notable in the first wave of reaction was US Senator Chris Murphy tweeting here that "It’s time to remove the pardon power from the Constitution."  Many tweeters have pushed back, and Rachel Barkow's tweet thread here is especially effective and I wanted to highlight some of what she says.  I recommend the whole thread, but these portions (with my bolding) partially motivated the title of this post:

[T]he Congress of which he is a part has established no functioning second-look mechanisms for shortening sentences or expunging convictions, commutations and pardons are the only mechanisms for correcting injustices in the federal system.  And it's not as if those injustices are rare.

Go to any federal correctional facility, and take time to learn who is there and about their cases, and you find literally thousands of people whose sentences were grossly excessive given their offenses.  Those people need commutations as a corrective because there is no parole or other second look in place to address that....

Pardons are essential as well because the collateral consequences of convictions can be devastating for people trying to get housing, employment, and education after being convicted. There is no other way to clear a federal conviction than a pardon....

The solution to what's happening now is to get a better leader, which we've done.  And my hope is that leader will see that the pardon power's utility is critical, and he'll show everyone what a real leader does when wielding it.

While I fully understand frustrations with how Prez Trump has been using his pardon power, I think much energy now should go to urging Prez-elect to do better and to do better right away! Among the many problems with the modern exercise of the federal clemency power is the modern tendency for Presidents to entirely ignore this power until late in their terms.  Notably, as detailed in this DOJ data, Prez Trump at least thought to use his clemency power, and did so nearly a dozen times, during his first couple years in office.  Neither Barack Obama nor George W. Bush nor Bill Clinton bothered to pick up their clemency pen for a single individual during their first two calendar years in office. 

As regular readers likely know, I think disuse of clemency powers is always a much bigger problem than the misuse of this power.  And disuse, not misuse, has defined the start of modern presidencies.  So this post presents my suggestion for what those troubled by Trump's final month clemencies ought to do — namely help identify for the incoming Biden Administration persons currently in federal prison and/or burdened by a federal conviction who should get a clemency grant during Biden's first month in office because they are at least as worthy as some of Trump's final-month clemency recipients.  Helpfully, Jack Goldsmith and Matthew Gluck have this current list of all Trump clemency recipients, and I would urge advocates to demand that Prez Biden grant many "good" clemencies as he gets situated in the Oval Office to balance Trump's "bad" use of this power on his way out the door.

I will start this process by flagging a group of federal prisoners that should be easy first cases for a Biden Administration, namely the "Life for Pot" crowd.  I do not think it is entirely misguided to describe persons still serving extreme federal terms for marijuana offenses as political prisoners, especially now that so many states have fully legalized marijuana and the US House has likewise voted to do so.  The Life for Pot website spotlights those Serving Sentences of Life without Parole in Federal Prison for Marijuana and those Serving De Facto Life.  I hope Senator Murphy will become an advocate for some of these kinds of prisoners and the thousands more who need the historic clemency power used more and better rather than needing it removed from the Constitution.

December 24, 2020 in Clemency and Pardons, Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging"

The title of this post is the title of this new paper now available via SSRN authored by Alison Lynch and Michael L. Perlin.  Here is its abstract:

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy.  While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns.  In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation.  Specifically, we will focus on how the use of these terms has a disproportionate negative impact on persons of color.

Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy and excluded from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V).  However, this category of offenders presents dramatically different characteristics than individuals with antisocial personality disorder, which is often incorrectly conflated with psychopathy.  Emerging research using neuroimaging is demonstrating that the brain of a psychopath responds differently to punishment than the brains of other non-psychopathic criminal offenders.  As research continues, it is critical for criminologists, attorneys and judges to begin thinking about whether brain science should affect our modern views of punishment, and whether individuals should be punished differently based on their diagnosis or neurophysiology.  This is not a topic that has been the subject of substantial contemporaneous legal analysis, and we hope that this article invigorates the conversation.

In this article, we first present some background on the controversy of "psychopathy" diagnosis, sharing in this context what we call the “inside baseball” about the debate — on the differences between psychopathy and ASPD — that has rocked the psychology academy.  We focus next on how the instruments that are used to assess these conditions are subject to significant racial bias.  We then unpack these issues through a lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.  We will also analyze how our current ideas about punishment and recidivism could change, using psychopathy research as a case study. Finally, we will consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases.

December 24, 2020 in Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Lots of federal death penalty news and notes after record-setting executions

The historic recent killing spree that the federal government has been conducting — with 10 executions in the last six months and three more slated for early January — has prompted a lot of headlines and commentary.  Here is a sampling of some of the pieces that have caught my eye recently:

From America, "William Barr, a Catholic, went out of his way to use the death penalty (and defy church teaching)"

From Bloomberg Opinion, "The Wrong Way to Fight the Death Penalty"

From NBC News, "Senators ask Justice Department watchdog to investigate federal executions under Trump"

From New York Magazine, "Will Biden Use His Powers to Crush the Death Penalty?"

From Pro Publica, "Inside Trump and Barr’s Last-Minute Killing Spree"

From Refinery29, "Lisa Montgomery Endured Years Of Abuse Before Committing Murder. Can Her Death Sentence Be Overturned?"

From Slate, "The Life Story of Lisa Montgomery"

From Tennessean, "Mary, Jesus, Christmas and the death penalty

From USA Today, "Trump's execution spree reflects death penalty system 'shaped by racial bias,' critics say"

From Vice, "Trump Is Executing 3 More People Before He Leaves Office. Here Are Their Stories."

December 24, 2020 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

December 23, 2020

Prez Trump issues 29 more clemencies on Festivus that include full pardons to Paul Manafort, Roger Stone and Charles Kushner

As reported in this CNN piece, "President Donald Trump on Wednesday evening announced 26 new pardons, including ones for longtime ally Roger Stone, former campaign chairman Paul Manafort and White House senior adviser Jared Kushner's father, Charles." Here is a bit more:

Also included in Trump's pardon list Wednesday evening is former California GOP Rep. Duncan Hunter's wife, Margaret, just one day after Trump granted Duncan Hunter a full pardon. Margaret Hunter had pleaded guilty last year to conspiring "knowingly and willingly" to convert campaign funds for personal use.

Beyond the high-profile pardons, Trump also pardoned more than 20 other individuals, including those who had pleaded guilty to various cyber crimes, firearm possession and mail fraud. He also commuted the sentences of three others.

The full statement listing all the recipients of clemency today can be found at this link, and here are just a few (among many) names from the list that caught my eye:

Today, President Donald J. Trump granted Full Pardons to 26 individuals and commuted part or all of the sentences of an additional 3 individuals....

Rickey Kanter — President Trump granted a full pardon to Rickey Kanter. Mr. Kanter was the owner and CEO of Dr. Comfort, a company which manufactures special shoes and inserts for diabetics [who was the focal point of a notable Second Amendment case that then-Judge Amy Barrett dissented in]....

Topeka Sam — President Trump granted a full pardon to Topeka Sam....

Daniela Gozes-Wagner — President Trump commuted the sentence and restitution order imposed upon Ms. Gozes-Wagner [who raised strong claims that she was subject to a trial penalty at sentencing].

December 23, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Versari Crimes"

The title of this post is the title of this new article authored by Stephen Garvey available via SSRN. Here is the abstract:

The versari doctrine alleges that if a person commits a crime, he or she is strictly liable for all the resulting consequences.  This doctrine, which goes back to canon law, doesn't get much attention these days from criminal law theorists.  But it probably should.  A fair case can be made that the doctrine underwrites the felony murder rule, the misdemeanor manslaughter rule, the legal wrong doctrine, constructive malice, the natural and probable consequences doctrine, and the Pinkerton doctrine.  Those doctrines don't have many friends in the academy today, although they endure in positive law despite all the academic criticism.  Because they endure, criminal-law theorists should perhaps pay more attention to the versari doctrine.  Perhaps they should try to understand what the doctrine says and why it seems to have some intuitive appeal to some people, despite not having much intuitive appeal to those inside the academy.  The paper, written for a conference ASU sponsored on mens rea and criminal justice reform, is an effort to better understand the versari doctrine

December 23, 2020 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

December 22, 2020

Prez Trump issues 15 full pardons and 5 commutations on Festivus eve

As detailed in this White House press release, titled "Statement from the Press Secretary Regarding Executive Grants of Clemency," Prez Trump issued a set of notable clemency grants this evening.  Here are the basics from the statement:

Today, President Donald J. Trump granted Full Pardons to 15 individuals and commuted part or all of the sentences of an additional 5 individuals.

Alfonso Costa — President Trump granted a full pardon to Alfonso Costa, a dentist from Pittsburgh...

Alfred Lee Crum — President Trump granted Alfred Lee Crum a full pardon....

Crystal Munoz — Today, President Trump commuted Crystal Munoz’s remaining term of supervised release, having previously commuted her sentence of incarceration after she had served 12 years in prison....

Tynice Nichole Hall — President Trump has commuted the remainder of Tynice Nichole Hall’s term of supervised release.... 

Judith Negron — President Trump has today commuted the remainder of Judith Negron’s term of supervised release....

Steve Stockman — Today, President Trump commuted the remaining prison sentence of Steve Stockman....

Duncan Hunter – At the request of many Members of Congress, President Trump granted a full pardon to Duncan Hunter....

Chris Collins – Today, President Trump granted a full pardon to Chris Collins, at the request of many Members of Congress....

Ignacio Ramos and Jose Compean – Today, President Trump granted full pardons to Ignacio Ramos and Jose Compean....

George Papadopoulos – Today, President Trump granted a full pardon to George Papadopoulos....

Alex van der Zwaan – Today, President Trump granted a full pardon to Alex van der Zwaan....

Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard – Today, President Trump granted full pardons to Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard....

Weldon Angelos – Today, President Trump granted a full pardon to Weldon Angelos.... 

Philip Lyman – Today, President Trump granted a full pardon to Philip Lyman....

Otis Gordon – Today, President Trump granted a full pardon to Otis Gordon.... 

Philip Esformes – Today, President Trump commuted the term of imprisonment of Philip Esformes, while leaving the remaining aspects of his sentence, including supervised release and restitution, intact. 

Many of these names are high-profile, and I suspect some of these grants will generate a bit of controversy.  I am particularly excited to see Weldon Angelos' name on this list. It was not that long ago that I was helping Weldon with his 2255 petition while he was incarcerated serving a ridiculous 55-year federal prison term for low-level marijuana dealing.  A few years ago, Weldon was able to secure release from prison, and he has been using his freedom to advocate on behalf of other persons subject to draconian sentences. I am so pleased now he gets to do so without any of the still-onerous collateral consequences that flow from even a low-level drug conviction.

Here are headlines from a few early press reports about these grants:

From The Hill, "Trump pardons individuals charged in Russia probe, ex-GOP lawmakers"

From the New York Times, "Trump Pardons Two Russia Inquiry Figures and Blackwater Guards"

From the Washington Post, "Trump grants clemency to 20 people, including three GOP former members of Congress and two men convicted in the Russia probe"

December 22, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

DOJ produces huge "Final Report" from the work of the President's Commission on Law Enforcement and the Administration of Justice

The day before current Attorney General William Barr is stepping down, the US Department of Justice has released this 300+ page "Final Report" to conclude the work of the Presidential Commission on Law Enforcement and the Administration of Justice.  This press release provides the context for this big document:

Today, following months of virtual meetings, testimony and study, U.S. Attorney General William P. Barr submitted the final report of the President’s Commission on Law Enforcement and the Administration of Justice to the White House.  This report represents the first comprehensive study of law enforcement in more than 55 years.

On Oct. 28, 2019, President Donald J. Trump signed Executive Order No. 13896, which directed the Department of Justice to establish the “Commission on Law Enforcement and the Administration of Justice.”  The purpose of the Commission was to conduct a modern study of the state of American policing and determine specific measures to reduce crime and promote the rule of law.  At the conclusion of this study, the Commission was to issue a report.

“This report is the result of significant effort and commitment by hundreds of working group members, dozens of staff, nearly 200 individual testimonies, and of course the 18 distinguished commissioners, who, as I’ve said before, truly reflect the best there is in law enforcement,” said Attorney General Barr.  “We could not have foreseen the challenges 2020 would present when we set out to accomplish our goal of researching important current issues facing law enforcement and the criminal justice system.  Yet despite these challenges, the Commission produced a thoughtful and comprehensive report.”

At a ceremony in January 2020, Attorney General Barr announced the establishment of the Commission and the individuals who would serve as commissioners.  From January through July, the Commission met formally more than 50 times — adjusting to the challenges brought on by the COVID-19 pandemic — with the goal of making improvements to American law enforcement for years to come.  Throughout that time, the Commission assembled a report that reviewed a variety of important issues affecting law enforcement and their capacity to safeguard American communities.

Though this big report is primarily about policing and is produced by a law enforcement agency rather than by an independent body, I still think it serves as a must-read for sentencing fans and reformers of all stripes.  Here, for example, is one paragraph from the report's executive summary that provides plenty of grist for any reformer's mill:

In addition to public programs that can better treat the social conditions that produce criminal behavior, there are additional elements of the criminal justice system that can complement law enforcement’s efforts.  Specifically, juvenile justice and reentry services are essential and remedial instruments of crime prevention and reduction.  These systems may assist in stopping troubled youths from committing crimes in the future, and also bring adults who have committed crimes in their past back to normal lives of peace and prosperity.  While law enforcement often puts the wheels of criminal justice into motion, there are many ways that judges, prosecutors, defense attorneys, and correctional officials — at various stages of the legal proceedings — can work towards a fairer and more just system that best serves victims, defendants, and the community at large in the collective goal of reducing crime.  To that end, the Commission recommends improved coordination among law enforcement and prosecutors; greater transparency among prosecutors, defense attorneys, and victims as to guilty plea agreements; increased use of treatment courts for certain categories of crimes and defendants; and a refined bail system based on public safety and accountability.

December 22, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Exciting DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Second-Chance-Contest_for-socialRegular readers likely recall may regular reminders in the first half of 2020 of this drafting contest that emerged from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC) and centered around imaging a comprehensive "second-look sentencing provision" for Ohio law.  This competition proved a great success, and I fear I have been slow to note the great ongoing follow-up contest, which this time also includes the involvement of the Collateral Consequences Resource Center (CCRC).  Here are the basic details from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

December 22, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Split Michigan appeals court upholds sentencing of mass molester Larry Nassar over claims of misconduct by sentencing judge

As detailed in posts here and here from nearly three years ago, there was a lot of chatter and commentary about the high-profile conduct of the Michigan state sentencing judge during the high-profile state sentencing of Larry Nassar, the former USA Gymnastics team doctor who sexually abused many girls under his care.  Today, as reported in this local press piece, Michigan appeals court judges opined on the sentencing judge's conduct in a split ruling upholding Nassar's sentencing.  Here are the details from the press report:

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but one judge chastised the conduct of Ingham County Circuit Judge Rosemarie Aquilina during his sentencing. In a 22-page opinion, a three-judge panel split 2-1 against Nassar's effort to be resentenced by a new judge.  The former Michigan State University doctor was accused of sexually assaulting hundreds of women under the guise of medical treatment over more than two decades.  He also collected 37,000 images and videos of child pornography on his computer.

Nassar was sentenced in three courts to what amounted to a life sentence but appealed a 2017 sentence of 40-175 years issued by by Aquilina.  Though Nassar admitted guilt, he argued that his Ingham County sentence was invalid due to Aquilina's bias based on comments she made during his sentencing.

"Although Nassar argues that the judge 'made numerous statements throughout the proceedings indicating that she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began,' the fact of the matter remains that the judge imposed a minimum sentence that fell within the range of Nassar’s agreed-upon plea," wrote appeals court Judges Thomas C. Cameron and Michael F. Gadola, who ruled against Nassar's appeal.

"Once a defendant has been adjudged guilty in a fair proceeding, 'the presumption of innocence disappears,'" Cameron and Gadola wrote. "A trial judge 'may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.' We conclude that the judge’s imperfect articulation of these principles does not establish bias or an appearance of impropriety."

But appeals court Judge Douglas Shapiro dissented, saying the case is "bad facts making bad law." He wrote that Nassar is guilty for abusing his position of trust and the sentence is not disproportionate outside the range of his plea agreement. "I therefore sympathize with the majority’s wish to overlook the trial court’s errors," Shapiro wrote. "However, doing so makes bad law. The process by which this sentence was imposed challenges basic notions of judicial neutrality, due process, the right to counsel, and the use of social media by judges. The errors at sentencing were neither minor nor isolated and by approving of them, even if reticently, the majority invites further distortions of sentencing procedures."

Shapiro also said, "contrary to the prosecution’s argument on appeal, the responsibility of a judge to render decisions impartially does not end with a guilty verdict or plea."  "The facts that come to light during a trial or sentencing may be grounds for a fair and impartial judge to impose a harsh sentence, but even when doing so, it is the judge’s responsibility to maintain judicial neutrality, and determine a proper sentence on the basis of the defendant’s crimes and character rather than the judge’s personal anger, or the extent of revenge sought by the defendant’s victims," Shapiro wrote....

As the decision spread on Twitter, some expressed relief at the court's ruling. Kaylee Lorincz, one of the women abused by Nassar, tweeted that the decision was, "the best christmas gift I could ever ask for."

Jacob Denhollander, the husband of Rachael Denhollander — the first woman to publicly accuse Nassar — said he was glad he lived in America where someone like Nassar can seek appeals and find due process.  "The reminders, trauma, & triggers for victims means that the justice system is not primarily the place where victims find closure & peace," Denhollander tweeted. "Closure and peace comes from the communal response of belief and validation of the victims and their own ability to construct an identity apart from what was done to them. The justice system can be part of that, but can also be traumatizing."

Nassar was charged in Ingham County in 2017 with multiple counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with multiple counts of criminal sexual conduct, and also in federal court for possessing child pornography. In addition to his physician role at MSU, Nassar treated scores of athletes including the nation's top gymnasts while working for USA Gymnastics and the U.S. Olympic Committee....

Nassar argued that Aquilina showed bias in numerous ways such as saying that she had signed his "death warrant" during sentencing and also saying that the law did not allow her to impose cruel and unusual punishment on him. "If it did, I have to say I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow someone or many people to do to him what he did to others," said Aquilina.

In addressing Aquilina's comments, and other comments, during sentencing, the Cameron and Gadola wrote that Nassar had admitted guilt so the presumption of innocence had ended. "The sentencing judge’s statement was wholly inappropriate," they wrote. "In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited."

"Nassar has failed to establish plain error given that the sentencing judge’s comments did not indicate actual bias or prejudice," the majority judges continued. "We further conclude that Nassar has failed to establish that the alleged actual bias and/or prejudice affected his substantial rights. Specifically, as part of the plea agreement, Nassar agreed to a guidelines minimum sentence range between 25 and 40 years’ imprisonment for each count, with the sentencing judge having the discretion to determine the minimum sentence within that range as well as the discretion to determine the maximum sentence for all seven counts.

But Shapiro said Aquilina erred. "A guilty verdict terminates the presumption of innocence but it does not terminate a judge’s responsibility to exercise her judicial responsibilities consistent with the law and the Code of Judicial Conduct," he wrote.

I have quoted at length from this article because I cannot yet find the opinion online.  But that opinion is surely not to be the last work on these matters: I presume Nassar will appeal this decision up to the Michigan Supreme Court and perhaps thereafter in federal habeas (even though his various state and federal sentences for his many crimes surely ensure he will never see the outside of a prison even if he were to prevail on some of these matters).

Prior related posts:

UPDATE: A helpful reader via the comments flagged that the 16-page "unpublished" majority opinion is available here, and the six-page dissent is available here.

December 22, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

December 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

December 21, 2020

Pondering next steps in federal sentencing reform on the second anniversary of the FIRST STEP Act

The FIRST STEP Act, which is fully titled the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, was signed by Prez Trump into law on Dec. 21, 2018.  That means today is the second anniversary of what many have rightly called the biggest federal criminal justice reform legislation in a generation — while others have also rightly called this law a relatively small modification to the federal criminal justice system.  Because I consider the FIRST STEP Act a very big deal and also a very small start of needed federal sentencing reform, I am inclined to ponder today just what could and should be the next steps after the FIRST STEP.

I am not quite sure if future big federal reform bills should be called the NEXT STEP or the SECOND STEP, but I am quite sure some of the criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62) would make a good starting point for the next Congress.  Here are just a few proposals that I would be eager to prioritize:

Mandatory Minimums: Empower judges to determine appropriate sentences, by fighting to repeal mandatory minimums at the federal level and give states incentives to repeal their mandatory minimums.

Retroactive Reforms: Make all sentencing reforms retroactive to allow for individualized resentencing.

Crack/Cocaine Sentencing Disparity: End the federal crack and powder cocaine disparity in sentences, and make the change retroactive.

Bureau of Prisons Oversight: Create a Bureau of Prisons ombudsman position for people who are incarcerated and their families to make complaints and get prompt redress.

Removing barriers to reentry: Remove restrictions on access to public housing, employment, occupational licenses, driver’s licenses, and public benefits.  Create a U.S. Reentry Commission to conduct a comprehensive review of barriers to reentry, with the goal of taking executive action and proposing legislation to remove as many as possible.

Juvenile Sentencing Reform: Abolish life without parole for juveniles.

There are lots of other good ideas in the Biden-Sanders Unity Task Force recommendations, but I have highlighted a few proposals which would largely require action by Congress (rather than reforms that might be achieved just though executive action or other means).  I am sure readers may have other ideas for legislative sentencing reforms that the next Congress should prioritize.

Though the FIRST STEP Act is now two years old, and though I do not think it is too early to think about the NEXT STEP or the SECOND STEP, I also think it critical that the next Congress and the Biden Adminstration keep working hard on robust application of the FIRST STEP Act.  Helpfully, the implementation picture is informed by the US Sentencing Commission's recent intricate data report (and this infographic) on “First Step Year One,” and the federal Bureau of Prisons and the National Institute of Justice have useful webpages about various other aspect of the Act.  But there is much more work still to do to ensure the FIRST STEP Act fulfills its full potential and has its maximum impact; I hope in 2021 that FIRST STEP work can move forward while another reform bill gets going.

A few of many, many prior related FIRST STEP Act posts:

December 21, 2020 in Criminal justice in the Biden Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (1)

Congress agrees on education reforms that include restoring Pell Grants for incarcerated persons!!

As well reported in this NPR piece, headlined "Congress Poised To Simplify FAFSA, And Help People In Prison Go To College," it appears federal lawmakers have reaching a deal on an array of higher-education reforms that include a very important reform for incarcerated individuals.  Here are the details (with links) from the NPR piece:

For the past 26 years, one sentence in federal law has withheld federal Pell Grants from the nearly 1.5 million people in state and federal prison. The proposed change would strike this line from the law, and allow incarcerated people eligibility to use federal dollars to pay for college while in prison. This change was already approved by the U.S. House in July.

The ban stems from the 1994 crime bill, which was signed into law by President Bill Clinton.  Without that federal funding, higher education programs in prisons began to disappear.  That's despite research that's shown education to be one of the most cost-effective ways to keep people from returning to prison once they're released.  The Vera Institute of Justice estimates restoring Pell for inmates would open the grant up to about half a million people -- and there's growing interest among higher education providers to once again offer credentials and classes to incarcerated people.

Over the last three years about 17,000 people have enrolled in higher ed classes while in prison, according to the Vera Institute.  That's thanks to a pilot program, started by the Obama administration, called Second Chance Pell. The program made Pell Grants available to a handful of college-in-prison programs across the country, and has won the support of both Democrats and Republicans.

I am not prepared to fully celebrate this news until I see official legislation passed by Congress and signed by the Prez.  But, even before this is fully official, this news is worthy of considerable attention because it impacts all prisons and prisoners nationwide, not just those in the federal system.  Moreover, I have sensed for a number of years that there has been growing "pent-up demand" among colleges to provide instruction to prisoners if and when adequate resources were available to do so.  And now that a pandemic has allowed us to figure out we can (effectively?) provide higher education instruction remotely, these grants could and should be a catalyst for dramatically expanding higher education availability into a segment of society that can and should benefit from it greatly.  Huzzah!

A few of many prior related posts:

December 21, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"Equality in Multi-Door Criminal Justice"

The title of this post is the title of this notable essay authored by Richard Bierschbach now available via SSRN. Here is its abstract:

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex.  This essay, written for a symposium on multi-door criminal justice, explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. 

Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders.  But we need not view that as fatal to multi-door criminal justice.  Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals.  At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones.  The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal — or unequal in more palatable ways — than what we have now.

December 21, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

December 20, 2020

Is there any chance COVID might halt the three pending federal executions slated for next month?

The question in the title of this post is prompted by this AP piece headlined "Lawyers: 2nd US inmate scheduled to be executed has COVID-19."  Here are the details:

A second federal inmate scheduled to be put to death next month in a series of executions by the Trump administration has tested positive for COVID-19, his lawyers said Friday. The diagnosis of Cory Johnson, who was convicted of killing seven people related to his drug trafficking in Virginia, comes a day after attorneys for Dustin John Higgs confirmed he tested positive at a U.S. prison in Terre Haute, Indiana, where both men are on death row.

Johnson, Higgs and a a third inmate, Lisa Montgomery, are scheduled to be put to death by lethal injection at a death chamber at the federal prison complex in Terre Haute just days before President-elect Joe Biden takes office.

Johnson’s lawyers, Donald Salzman and Ronald Tabak, called on federal authorities to strike their client’s current execution date of Jan. 14.  Higgs is scheduled to die a day later. Montgomery’s execution date is Jan. 12, but because she is the only woman on federal death row she is currently held at a separate prison for female inmates in Texas but would need to be brought to Indiana to be executed.

Johnson’s attorneys said his infection would make it difficult to interact with him in the critical days leading up to his scheduled execution, adding that “the widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike.” “If the government will not withdraw the execution date, we will ask the courts to intervene,” they said.

The Justice Department and Bureau of Prisons did not immediately respond to requests for comment.

Prosecutors alleged that Johnson was one of three crack cocaine dealers who carried out a string of murders and that he killed seven people in 1992 in an attempt to expand the territory of a Richmond, Virginia, gang and silence informants. His legal team has argued that he is intellectually disabled, with a far-below average IQ, and therefore ineligible for the death penalty.

Higgs was convicted of ordering the 1996 murders of three women in Maryland. Montgomery was convicted of using a rope to strangle a pregnant woman in 2004 and then using a kitchen knife to cut the baby girl from the womb, authorities said. She would be the first woman executed federally in more than half a century....

The Bureau of Prisons confirmed in a statement to The Associated Press on Thursday that inmates held on federal death row — known as the Special Confinement Unit — have tested positive for COVID-19.  As of Thursday, there were more than 300 inmates with confirmed cases of COVID-19 at FCC Terre Haute.  The Bureau of Prisons said “many of these inmates are asymptomatic or exhibiting mild symptoms.”

Assuming that Higgs and Johnson are asymptomatic or exhibit only mild symptoms in the coming weeks, I greatly doubt that their diagnosis will lead the Trump Administration or courts to decide to postpone their scheduled executions. (In this post a few weeks ago, I wondered if the coming departure of AG Barr might impact somehow federal execution plans.  But, after two more federal executions went forward earlier this month, I somewhat doubt that the incoming Acting AG will be eager to change course absent clear direction from Pez Trump.)

Ironically, if Higgs and/or Johnson were to get seriously ill from COVID and need to be hospitalize for an extended period, such a turn of events might extend their lives.  Despite pending execution dates, it would be unconstitutional for federal prison officials to knowingly refuse to provide needed medical care for Higgs or Johnson.  And if needed medical care kept Higgs and/or Johnson in a hospital facility at the time of their execution dates, I do not think prison officials would be logistically able to carry out the planned executions.  And yet, adding another layer of irony, even if Higgs and/or Johnson were to get very ill and need hospitalization, federal authorities could and likely would work extra hard to nurse them back to health just in time for other federal authorities to move forward their scheduled executions.

December 20, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (0)

Read papers from "The Controlled Substances Act at 50 Years" in the latest issue of the Ohio State Journal of Criminal Law

EphuZAlXYAEwllCThough 2020 has been a rough year, I still feel fortunate that the last big in-person event I attended was this amazing conference, "The Controlled Substances Act at 50 Years," which was hosted in February 2020 by the Arizona State University Sandra Day O’Connor College of Law and put together by the amazing team at The Ohio State University's Drug Enforcement and Policy Center and ASU's Academy for Justice.  This terrific conference is on my mind now because the terrific Ohio State Journal of Criminal Law has recently published its Fall 2020 issue which includes these nine terrific papers from the conference:

The Tools at Hand: Surveillance Innovations and the Shifting Role of Federal Law Enforcement in Drug Control by Anne E. Boustead

Mandatory Minimum Entrenchment and the Controlled Substances Act by Stephanie Holmes Didwania

Preemption Up in Smoke: Should States Be Allowed a Voice in Scheduling Under the Controlled Substances Act? by Oliver J. Kim

Reconsidering Federal Marijuana Regulation by Paul J. Larkin Jr.

The Bureaucratic Afterlife of the Controlled Substances Act by Lauren M. Ouziel

Goodbye Marijuana Schedule 1 — Welcome to a Post-Legalization World by Melanie Reid

The Complex Interplay Between the Controlled Substances Act and the Gun Control Act by Dru Stevenson

Making Drug-Related Deportability 1914 Again? How a Strict “Categorical Approach” to the CSA Would Eliminate Unpredictable Agency Interpretation of the Immigration and Nationality Act by Michael S. Vastine

The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction by Erica Zunkel & Alison Siegler

December 20, 2020 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)