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February 7, 2020

Great coverage of new and notable 2019 laws at Collateral Consequences Resource Center

Regular readers are used to my regularly reminder to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific on-going series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns.  Here are the first four post in the series now available:

New 2019 laws restore voting rights in 11 states

New 2019 laws reduce workplace barriers for people with a criminal record

Record-breaking number of new expungement laws enacted in 2019

New 2019 laws on diversion and other non-conviction dispositions

UPDATE: The fine CCRC folks have now posted "the fifth and final comment on new 2019 laws restoring rights or delivering record relief":

New 2019 laws on immigration consequences and driver’s license suspension

February 7, 2020 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0)

Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal

As reported in this Los Angeles Times piece, "Douglas Hodge, once the leader of an international bond manager and now an admitted felon, was ordered Friday to spend nine months in federal prison for paying bribes totaling $850,000 to get four of his children into USC and Georgetown as fake athletic recruits."  Here is more about the latest sentencing in Operation Varsity Blues:

Hodge, 62, received the longest prison term of any of the 14 parents who have so far been sentenced for fraud and money laundering crimes they admittedly committed with William “Rick” Singer, a Newport Beach college admissions consultant who has acknowledged defrauding some of the country’s most selective universities for years with rigged exams, fake athletic credentials and bribes.  In addition to his prison term, U.S. District Judge Nathaniel M. Gorton ordered Hodge to pay a $750,000 fine, serve 500 hours of community service and remain on supervised release for two years.

“I know that I unfairly, and ultimately illegally, tipped the scales in favor of my children over others, over the hopes and dreams of other parents, who had the same aspirations for their children as I did for mine,” Hodge said in a statement. “To those children, and their parents, I can only express my deepest and sincerest regret.”

From the day he surrendered to authorities last March, Hodge, a resident of Laguna Beach, was among the highest-profile names in a scandal headlined with them. He rose to the head of Pimco, the bond management company based in Newport Beach, before retiring from the post of chief executive in 2016.

Prosecutors from the U.S. attorney’s office in Boston had asked Gorton to send Hodge to prison for two years. In a memo filed before his sentencing, they criticized Hodge as a hypocrite, appearing to the world the image of success and integrity while leading “a secret double life, using bribery and fraud to fuel a mirage of success and accomplishment.”

Hodge’s lawyers said the request for a two-year prison term reflected the Boston prosecutors’ “single-minded obsession” with obtaining undeservedly lengthy sentences in the high-profile case. Gorton handed down in November what was previously the longest sentence in the case, a six-month term, to Toby Macfarlane. The Del Mar title insurance executive is incarcerated in Tucson scheduled to be released in June, according to Bureau of Prison records.

Hodge pleaded guilty in October to conspiring to commit fraud and money laundering. Along with three other parents, he reversed his not-guilty plea after prosecutors warned of a new indictment carrying a bribery charge.

Eleven parents — a group that includes the actress Lori Loughlin and her husband, J. Mossimo Giannulli — balked at the threat, maintained their not-guilty pleas and were indicted on a bribery charge. Fifteen parents have pleaded not guilty; 21 have admitted their guilt or said they plan to do so...

Justin D. O’Connell, an assistant U.S. attorney in Boston, said Hodge did more than look away from Singer’s scheme. Hodge, he wrote in a memo, “engaged in the scheme more often, and over a longer period of time, than any of the defendants charged to date.” After his daughter was admitted to Georgetown, Hodge repeated the scam at the school for his oldest son and at USC for two more children, spending $850,000 in all. In arguing for a two-year sentence, O’Connell pointed to what he said was Hodge’s willingness to bring his children into his crimes.

He told his daughter to “stay under the radar,” and not tell a Georgetown interviewer that she had already been admitted through tennis, O’Connell wrote. Hodge vehemently disputed this. “The government simply has the facts wrong on this,” he said. His lawyers said he took “great steps” to hide from his children the scheme to transform them into elite athletes on paper, and that prosecutors have no evidence they were aware of, let alone complicit in, the fraud.

Prior related Varsity Blues posts:

February 7, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Texas completes execution of mass murderer of his own family

As reported in this news piece, "Dallas man was executed Thursday evening for a shooting in which he killed his wife, two children and two other relatives during a drug-fueled rage nearly 18 years ago."  Here is more context surrounding what was the third execution in the United States this year (and the second in Texas):

Prosecutors say Abel Ochoa was high on crack cocaine and looking for money to buy more drugs when he started shooting inside his home in August 2002. Ochoa, 47, was pronounced dead at 6:48 p.m., 23 minutes after receiving a lethal injection at the state penitentiary in Huntsville for the slayings of his wife, Cecilia, 32, and his 7-year-old daughter, Crystal. He also killed his 9-month-old daughter, Anahi; his father-in-law, 56-year-old Bartolo Alvizo; and his sister-in-law, 20-year-old Jacqueline Saleh, and seriously injured his sister-in-law Alma Alvizo....

Jonathan Duran, who watched Ochoa die, said he accepted Ochoa's apology. “I accepted the fact as a child, at 12 years old, when I buried my mother, my sisters, my aunt and my grandfather,” Duran said. “Nothing's going to bring them back. It's up to us to keep their memory alive, rebuild what we lost. I can't ever replace my mother or my sisters.

“After 17 years, me, my family, .. the whole tree. We can finally say we got closure, we got justice."...

The execution was carried out after the U.S. Supreme Court turned down a request by Ochoa's attorneys to halt it. They wanted a review of whether his rights were violated because he initially wasn’t allowed to film a prison interview with his legal team for his state clemency petition. A Texas appeals court this week turned down a different request for a stay on claims that there were problems with paperwork related to Ochoa's death warrant. The Texas Board of Pardons and Paroles also turned down a clemency petition.

Ochoa's attorneys said in court documents that his death sentence should be commuted to a life sentence because of “his deep and sincere remorse.” Ochoa’s trial attorneys had described him as a hard-working, law-abiding citizen whose life unraveled amid a 2½-year addiction to crack....

At trial, Ochoa’s attorneys argued that he shot his family in a cocaine-induced delirium and had brain damage from drug abuse. Ochoa testified that he didn’t remember shooting his family.

Howard Blackmon, one of the Dallas County prosecutors who tried the case, said he argued that Ochoa killed his family in frustration and anger. “It’s just a horrendous set of circumstances for a parent just to murder, gun down their own children,” said Blackmon, who is now a criminal defense lawyer in Dallas.

Alma Alvizo testified that Ochoa had become aggressive toward his wife after learning she had a son from a previous relationship. Alvizo said her sister told her Ochoa had pointed a gun at her three weeks before the killings.

February 7, 2020 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

February 6, 2020

Latest issue of Ohio State Journal of Criminal Law full of capital punishment discussion

Just like a New Yorker forgets to make time to visit the Statute of Liberty, I sometimes forget to blog about exciting sentencing work done in my own backyard.  Specifically, I have failed to previously note that that latest issue of the Ohio State Journal of Criminal Law has a half-dozen articles on the death penalty authored by a number of notable folks.  Here are title and likes of the pieces:

February 6, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"What If Ordinary Juries Were More Like Impeachment Juries?"

The question in the title of this post is from this great new piece from The Appeal by Sarah Lustbader.  The piece thoughtfully builds off this post of mine from the past weekend titled "Some GOP Senators, fully aware of the mandatory minimum sentence, embrace a form of jury nullification to justify acquittal of Prez Trump."  Here is how it concludes:

Rubio and Alexander are probably trying to hold on to their jobs; it’s hard to believe that they are taking a principled stance about mandatory minimums and sentencing. And yet, there may be a valuable insight to be taken from the politicized nature of the impeachment process. Ordinary juries are told over and over just how limited their role is in the larger criminal legal process.  They are told that they simply decide whether the prosecution has proved its case beyond a reasonable doubt, and they must give no thought as to the potential consequences of that decision.  In most jurisdictions, the jury is not told the potential sentence if they choose to convict and are forbidden from researching the question.  Once, after losing a trial, I spoke to a few of the jurors who told me in no uncertain terms that if they had known the severity of the sentence awaiting my client, they never would have voted to convict.

Often, jurors report feeling like “cogs” in a “machine” whose sole aim is to punish people as frictionlessly as possible.  Paul St. Louis, a Virginia resident, was on a federal jury that found a man, Frederick Turner, guilty of drug offenses. “It wasn’t easy to arrive at this verdict, and the result of our deliberations gave us no pleasure,” he later wrote in the Washington Post. “A few months later, I found out the result of our verdict was worse than I expected: Turner, a meth addict with no prior criminal convictions, received a mandatory minimum sentence of 40 years on two counts of having a firearm while dealing drugs. I was astonished; we had no idea that we were sending someone to prison for four decades.” Less than a year into that sentence, Turner killed himself in prison. “Today,” St. Louis wrote, “I feel like a pawn used to send a man down a path that led to his unjustified death.” If he could go back in time, St. Louis says he would nullify because the “sentence he received was simply unjust.”

Seth Stevenson, writing in Slate, recounts his deep regret at reaching a guilty verdict in a 1998 case. “It was the language of the law that hemmed me in. It seemed strict and unyielding.” Stevenson also noticed that cabining people’s roles throughout the system helped make the conviction more likely, and seemed to relieve each player of moral responsibility. “None of these professionals felt they’d had much control over the case’s outcome.  The prosecutor who tried a minor as an adult, the judge who sentenced that teenager to decades in prison even though she felt he wasn’t maximally ‘culpable’ in the crime, and the defense attorney who didn’t second-guess any tactical choices on behalf of a losing client — they all felt they’d done what the system required of them.”  Both the defense attorney and the judge “reminded me that the onus of the verdict is on the jury. I saw them as the machine’s operators and myself as one of the gears they were turning.  They told me I’d been the one in control the whole time.”

At the very least, an impeachment trial forces its jurors to take responsibility for their decision.  This is actually closer to the way juries functioned in the U.S. in the 19th century.  “Between 1880 and 1930, states and municipalities used law to increase governmental controls over the full range of nineteenth-century avenues for democratic participation,” law professor Tabatha Abu El-Haj writes in a 2011 law review article. “Prior to that, the practice of democratic politics in the United States was less structured by law.” Juries, she writes, “were widely understood to have a legitimate political function and were insulated from judicial second-guessing.” But at the end of the 19th century, “long-standing efforts to limit the criminal jury to the status of a mere fact finder succeeded … putting an end to the republican political conception of the jury.”

It is clear, though, that this goal is still floating around somewhere in the notion of jury service.  As Justice Anthony Kennedy wrote for the Supreme Court in the 1991 case Powers v. Ohio, by providing an “opportunity for ordinary citizens to participate in the administration of justice,” the jury trial “preserves the democratic element of the law” and “places the real direction of society in the hands of the governed.”

Prior related post:

February 6, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

February 5, 2020

Terminally ill, Bernie Madoff is latest high-profile fraudster to seek compassionate release from federal prison thanks to FIRST STEP Act

As reported here a few months ago, former WorldCom CEO Bernie Ebbers secured compassionate release from federal prison thanks largely to a provision of the FIRST STEP Act and to a federal judge believing his claim that he was extremely ill.  Though federal prosecutors questioned just how ill Ebbers really was (as noted here), the judge was proven right in this case: Ebbers passed away this past weekend.

Now, as reported here in a lengthy Washington Post piece, another notable high-profile fraudster is seeking compassionate release: "Ponzi scheme king Bernie Madoff, who bilked investors out of billions, seeks medical release from prison."  Here are the details:

The man convicted of the greatest Ponzi scheme in modern American history, guilty of bilking thousands of investors in 49 states and more than 120 countries, is asking a judge to release him from a life sentence so he can die outside prison walls.  Bernie Madoff said he is in the end stages of kidney disease, must use a wheelchair and is in need of round-the-clock help.  At 81, he is too old for a transplant, and he has been moved to palliative care within the Federal Medical Center prison in Butner, N.C.  He is asking for compassionate release so he can die at home.

In phone interviews with The Washington Post, Madoff expressed remorse for his massive fraud, in which he swindled investors out of billions, and said his dying wish is to salvage relationships with his grandchildren.  He has served 11 years of the 150-year sentence he was given in 2009, after pleading guilty to 11 criminal counts, including fraud and money laundering.  “I’m terminally ill,” Madoff said.  “There’s no cure for my type of disease. So, you know, I’ve served. I’ve served 11 years already, and, quite frankly, I’ve suffered through it.”

Relatively few inmates seeking compassionate release have had their petitions approved by the Federal Bureau of Prisons since the federal program was created in 1984.  But a bipartisan criminal justice reform law passed in late 2018 gave prisoners the right to appeal denials to a federal judge, and that is what Madoff is attempting.  His attorney filed a motion late Wednesday in the Southern District of New York.

Madoff’s request will test the justice system’s capacity for compassion weighed against his unprecedented crimes.  His scheme ruined scores of lives, stole the financial futures of thousands and sent many retirees back to work after wiping out their nest eggs.   At least four people connected to Madoff have died by suicide, including his son, Mark, who hanged himself on the second anniversary of his father’s arrest. Madoff’s remaining child, Andrew, died of cancer in 2014.

Others continue to suffer. Gregg Felsen’s savings were wiped out. Now 72, Felsen works as a wedding and event photographer in Palm Springs, Calif., to make a living. He said that he will never be able to retire and that Madoff doesn’t deserve to be granted a compassionate release.   “I never got a break; why should he get a break? He’s terminally ill? I’m terminally broke,” said Felsen, who said he did not receive restitution.  “He ruined a lot of people’s lives and changed them forever. He deserves no leniency whatsoever.”

The Bureau of Prisons acknowledges that Madoff has about 18 months to live, according to his medical records.  A prison doctor diagnosed him with end-stage renal disease, hypertension, cardiovascular disease and hyperparathyroidism, among other ailments.  The Bureau of Prisons said he fits the criteria for compassionate release but rejected his application in December.“His condition is considered terminal with a life expectancy of less than 18 months,” Ken Hyle, general counsel for the Bureau of Prisons, wrote in the rejection letter.  “However, Mr. Madoff is accountable of a loss to investors of over $13 billion.  Accordingly, in light of the nature and circumstances of his offense, his release at this time would minimize the severity of his offense.”...

Madoff said he is on dialysis and takes about 10 medications a day, including amlodipine and diltiazem for high blood pressure, atorvastatin (Lipitor) for high cholesterol, and calcitriol (a man-made form of vitamin D).   He said he has been given a back brace, bed wedge, medical shoes and a lower bunk.  He said that he has pain and cramping in his thighs, hips and knees and that he rarely sleeps more than an hour at a time, often waking from leg cramps.  Prison records indicate that Madoff is Care Level 4, defined as “functioning may be so severely impaired as to require 24-hour skilled nursing care or nursing assistance.”...

Considered the most significant prison rehabilitation law in more than a decade, the First Step Act was highlighted by President Trump in his State of the Union address Tuesday.  But the law has also been criticized by some conservatives who say its leniency was misguided and opened the door for notorious criminals such as Madoff to be released.  At least 124 people were granted compassionate release in 2019, the first full year of the First Step Act, according to the Justice Department, compared with 34 in all of 2018.

Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, worked with lawmakers drafting the First Step Act and said society gains nothing by letting people who are losing their physical and mental faculties languish in prison.  With their bodies and minds failing, he said, prison walls become redundant.  “For some, it’s never enough, but none of what he suffers is going to get a dime back to what he swindled or cheated,” Nolan said. “And, again, I don’t minimize at all [what Madoff has done]. But it’s the hallmark of a society to not punish somebody beyond reasonableness.”

Madoff’s attorney, Brandon Sample, said there shouldn’t be a compassionate release program if all prisoners, including Madoff, aren’t eligible.  “What does it say about us as a society? Are we going to be so insistent that it doesn’t matter, let them suffer there in prison? If that’s the case, why do we need compassionate release?” he asked.  “I don’t dispute that his conduct, his offense behavior impacted many, many people’s lives and caused harm.  There’s no dispute. But the question now is, with his present situation, what would that hypothetical jury do today faced with the Bernie Madoff who’s in a wheelchair, who’s on his last legs of life?”

In light of the extraordinary crimes of Bernie Madoff and their extraordinary consequences, I actually think a hypothetical jury might well demand that Madoff spend the rest of his dwindling day behind bars.  But, under federal law, this issue is not one for a jury to decide.  Rather, specifically pursuant to 18 USC 3582(c)(1)(A)(i), a federal judge will have to decide, "after considering the factors set forth in section 3553(a)," if she finds "extraordinary and compelling reasons warrant"  a sentence reduction for Madoff.  (Ivory tower aside: arguably a federal judge might have power to impanel an advisory jury to assist with making this judgment, but only a crazy Apprendi-addled academic like me could ever even imagine such a move.)

Notably, the judge who originally sentenced Madoff to the maximum available term of 150 years, Judge Denny Chin, is no longer a District Judge after his elevation to the Second Circuit by Prez Obama.  Consequently, some other District Judge in the Southern District of New York will resolve Madoff's motion.  I am inclined to predict that a judge may be inclined to embrace the BOP's view that "in light of the nature and circumstances of his offense, [Madoff's] release at this time would minimize the severity of his offense."  But this one will be interesting to watch.

UPDATE: Here is a copy of the motion that was filled in this matter.

February 5, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Noting political import and impact of Prez Trump's Super Bowl ad touting criminal justice reform

This New York Times article, headlined "Trump and Kushner Saw Super Bowl Ad as Way of Making Inroads With Black Voters," provides more on the context and consequences of the criminal justice reform advertisement from the Trump campaign aired during the Super Bowl.  Here are excerpts:

In front of an audience of 102 million Super Bowl viewers Sunday night, Alice Marie Johnson, a 63-year-old African-American woman, became the unlikely face of President Trump’s re-election campaign.  In a 30-second spot that cost Mr. Trump’s campaign millions of dollars, Ms. Johnson’s face fills up the screen as she tearfully thanks “President Donald John Trump” for her early release from prison. Mr. Trump commuted her sentence in June 2018, after the reality television star Kim Kardashian West personally appealed to the president on her behalf.  Ms. Johnson had been serving a life sentence for a nonviolent drug conviction.

Even before the ad, Ms. Johnson was already something of a touchstone for Mr. Trump, who invited her to attend his State of the Union address last year and highlighted her story in his speech. But elevating the administration’s work on criminal justice reform to Super Bowl status was another effort by Mr. Trump’s son-in-law, Jared Kushner, to reach black voters.

The Johnson ad was made late last year and was tested with focus groups months in advance, aides said. Mr. Trump himself made edits to the spot and ultimately settled on it as the “most impactful” of a flight of ads he was given to choose from in the days leading up to the Super Bowl, people familiar with the process said.

Mr. Trump was not wrong: Salesforce data indicated that online, the ad featuring Ms. Johnson was the most talked about one of the game, and that most of the chatter around it was positive.

But privately, several senior Trump aides expressed skepticism of Mr. Kushner’s belief that broad numbers of black voters, whose views of the president are overwhelmingly negative, are persuadable. Running an ad aimed at black voters — which could also have the effect of reassuring white suburban women, a worrisome demographic for the campaign, that the president is not racist — was a change of strategy from Mr. Trump’s previous efforts to simply energize and turn out his base....

Mr. Kushner has been advising Mr. Trump that black voters can be converted into supporters if they are simply educated on his policies. Mr. Trump’s biggest challenge, Mr. Kushner has told people, is a “knowledge gap” on many of the president’s accomplishments, particularly on the issue of criminal justice reform, which Mr. Kushner has spearheaded....

Jessica Jackson Sloan, the national director of #Cut50, a prisoner advocacy group, said the ad was helpful to her work on the state level, regardless of any political advantage Mr. Trump was trying to achieve.  “We’ve heard many times what happened to this country when the Republican candidate for president was playing Willie Horton ads,” Ms. Sloan said, referring to an infamous ad in the 1988 presidential race that highlighted the story of a black man who had raped a white woman and assaulted her husband while free on a prison-furlough program supported by Michael Dukakis, the Democratic candidate.

“Regardless of what reasons he did it,” she added of Mr. Trump, “the fact we have a sitting Republican president campaigning on criminal justice reform is 180 degrees from where we’ve been in the past. It’s really going to help us with some of these Republican state legislatures.”

February 5, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

"Lost in Translation: 'Risks,' 'Needs,' and 'Evidence' in Implementing the First Step Act"

The title of this post is the title of this notable new paper now available via SSRN authored by Jennifer Skeem and John Monahan.  Here is its abstract:

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk.  We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism.  Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.

February 5, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

February 4, 2020

Ohio legislators predict more talk, but no likely action, on state's dormant death penalty

As regular readers know, Ohio has not had an execution in over 18 months and Gov Mike DeWine has repeatedly delayed scheduled executions because of concerns about the state's execution drugs.  This stalemate has led to some talk of legislative repeal, but this local news story, headlined "Ohio lawmakers unlikely to address state’s death-penalty problems soon," suggests that both executions and repeal are unlikely in the near future:

Ohio legislative leaders indicated Tuesday that they will likely not take action anytime soon to abolish or formally freeze the state’s death penalty despite ongoing problems with finding lethal-injection drugs.

Speaking at the Associated Press’ annual legislative preview event, House Speaker Larry Householder and Senate President Larry Obhof acknowledged that fellow Republican Gov. Mike DeWine is in a “dilemma” by having to repeatedly reschedule execution dates because pharmaceutical companies have refused to sell the state the drugs used in lethal injections.

However, Householder said House Republicans, who hold a legislative supermajority, are “very much mixed” when it comes to what to do about the problem. “I do not know if we will have legislation this year,” the speaker said. “We continue to have discussions, [and] they are extremely mixed, as all of us have questions about this.  But we are talking, and I think that’s good.”

Householder again expressed qualms about keeping the death penalty in Ohio, saying it’s “extremely expensive to put someone to death” and that “we have a law on the books that quite frankly we can’t enforce.”  He ruled out switching the state’s execution method to a firing squad or hanging. “I think maybe it's a far greater penalty on people to have to live by themselves in a cell and deal with the demons that they have in their life every single day for the crimes that they've committed,” the speaker said.

Obhof said it’s “unlikely” that lawmakers would abolish the death penalty completely in the next year, as most lawmakers favor keeping Ohio’s death penalty for “particularly heinous cases.”  However, he predicted that both the House and Senate will “have substantial discussions about where we want to head overall” in the coming months.

Multiple bills have been introduced in recent years to abolish Ohio’s death penalty, mostly by Democrats. Those bills have gone nowhere, though legislation to prohibit executions of the severely mentally ill is currently moving through the legislature....

Ohio hasn’t put anyone to death since Robert Van Hook in July 2018. Since taking office last year, DeWine has postponed executions seven times, stating there will be no more executions in Ohio until the state can procure execution drugs. DeWine expressed concerns that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs.

In addition, DeWine said he was concerned about a judge’s ruling last year that the lethal-injection drugs Ohio had been using were unconstitutional because they produced a painful drowning sensation comparable to the torture tactic of waterboarding.  That ruling was later overturned on appeal, but it still gives DeWine pause.

As of December, Ohio had 138 people on Death Row.  Twenty-four executions have been scheduled — the next being June 17, when Romell Broom, a murderer and child rapist from Shaker Heights, is set to be put to death.  Broom survived a botched execution attempt in 2009, after state officials tried unsuccessfully for two hours to find a vein to use for the lethal-injection drugs.

Prior related posts:

February 4, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Jury Nullification: The Current State of the Law"

The title of this post is the title of this notable new resource authored by Louisa Heiny now available via SSRN.  Here is its abstract:

In 2018, the Utah legislature considered a proposed bill that would have explicitly granted jurors the right to nullify in criminal cases.  This research, done in preparation for committee testimony, contains the most up-to-date law on the topic.  It includes a fifty-state survey on whether juries in various jurisdictions are (1) given the right to consider the possible sentencing penalty before rendering a verdict; (2) told they may disregard the law; or (3) instructed on the right to nullify.  Additionally, the research includes fifty-state survey data on whether judges may lie to juries about the right to nullify, and how various jurisdictions treat attempts by outside organizations to notify potential jurors of their right to nullify.

February 4, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

February 3, 2020

Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Law360 has this lengthy new piece, headlined "In Dissent: Why 2 Justices Keep Spotlighting Career Offenders," which flags the notable sentencing-related work of a couple of Justices in orderl lists. Here are the essentials:

Close watchers of the U.S. Supreme Court may have noticed a recurring theme in orders issued over the past two years.

In at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by “career offenders,” or people serving extra-long sentences due to prior violent crime or drug convictions.

The petitioners claim that the U.S. Sentencing Guidelines, which were mandatory at the time of their sentencing hearings, defined violent crimes by using an unconstitutionally vague phrase.  Their argument is supported by [the 2015 Johnson] high court ruling that invalidated the exact same phrase as it was used in a separate law.  The Seventh Circuit Court of Appeals and district courts in four other circuits have explicitly agreed with their reasoning, but six appellate courts have rejected it. Sotomayor highlighted that fact in an October 2018 dissent called Thilo Brown v. U.S. — the first time she and Ginsburg publicly scolded their colleagues for refusing to take up the split.

“This case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people,” Sotomayor wrote, citing figures in an amicus brief supporting Brown. “That sounds like the kind of case we ought to hear.”...

Despite their efforts, the two justices have had no success in peeling off peers. With the court looking unlikely to resolve the circuit split, some career offenders in places like Wisconsin, Illinois and Texas are getting out years earlier than planned. Others, in places like California, Tennessee and Kansas, have no shot at relief beyond a presidential clemency or legislative reform....

Part of the reason for the other justices’ reluctance to take up the issue could be the fact that the alleged injustice is an “issue of diminishing importance,” according to Leah Litman, a University of Michigan law professor who co-signed briefs in related cases. “No one is still being sentenced under that provision,” Litman said. “It just concerns people being resentenced. Because it won’t arise in the future, it has less purchase on the court’s time.”

February 3, 2020 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

A deep look into the still deeply problematic world of federal clemency

The Washington Post has this long new article about the federal clemency power headlined "Most Trump clemency grants bypass DOJ and go to well-connected offenders."  I would recommend the article in full, even though I think the piece fails entirely to note widespread criticisms of the modern failings of the Office of the Pardon Attorney and also fails to note that many Democratic candidates for Prez have proposed reforms to DOJ's clemency role.  Here are excerpts:

Under Trump, the pardon office has become a bureaucratic way station, according to government data and interviews with lawyers, criminal justice advocates, and former pardon and White House officials.  Most of Trump’s grants of clemency have gone to well-connected offenders who had not filed petitions with the pardon office or did not meet its requirements, The Post review shows.

“The joy you get finding meritorious people, working on those cases, making recommendations that go to the White House, seeing people receive the grants — you feel like you’ve done something,” said Larry Kupers, the former head of the office, who quit last year.  “If that’s not happening, it feels like you are spinning your wheels.”

Trump’s approach is perfectly legal.  The Constitution’s only restrictions on the pardon power is that it applies only to federal crimes and not to impeachment.  Trump has reveled in that clout, saying “the power to pardon is a beautiful thing,” and claiming he has the “absolute power” to pardon himself. He has used the power, however, very sparingly....

Asked what advice he would give offenders seeking leniency, Kupers said, “Find a way to get to Kim Kardashian. I’m very serious about that.”...

For decades, federal offenders filed petitions for clemency with the pardon office, which assigns a staff attorney to investigate each case.  The office may be one of the least visible and least understood corners of a federal government scorned by a president who has declared war on what he calls the “deep state.” With an annual budget of about $4.5 million, the office employs about 19 people, including 11 attorneys.

For pardons, the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to justice department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation....

[Trump's] administration inherited a backlog of more than 11,300 petitions, according to justice department statistics. Nearly 7,600 petitions have been filed since Trump took office, as of late January. About 5,900 petitions have been closed by the pardon office during Trump’s tenure because the inmate was released, died or ineligible for clemency.

Trump’s decisions on only 204 petitions means nearly 13,000 people are waiting. A Justice Department spokeswoman declined to say how many of its recommendations are backlogged at the White House.... The current pardon attorney, Rosalind Sargent-Burns, said she was not authorized to talk to the press....

Most presidents in recent decades have faced accusations at one time or another that they exploited the pardon power. Bill Clinton issued pardons in the final hours of his presidency to his half brother, a Whitewater business partner, his former housing secretary and a fugitive commodities trader married to a major Democratic donor.

Presidents also have circumvented the formal pardon process to advance national interests, as when Obama offered clemency to seven Iranians charged with violating U.S. trade sanctions in exchange for the release of four Americans imprisoned in Iran, including Post reporter Jason Rezaian.

Under Trump, however, politically motivated grants have become the rule, not the exception....

Lawyers who specialize in clemency say the system has moved slowly for decades. The way they tell it, the pardon office is like a black box — the only updates available on petitions are “pending” and “denied.” Deputy attorneys general, who make the final determination before petitions reach the White House Counsel’s Office, tend to be reluctant to mitigate decisions made by fellow prosecutors in the criminal justice system.

As regular readers now, I am more than happy to criticize Prez Trump for his distinctive approach to the use of his clememcy powers. But he does merit praise for using the power at all, and prior Presidents have not had sounder records on this front even when paying more attention to the (often harsh and dysfunctional) advice of the Justice Department.

February 3, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

US Sentencing Commission publishes latest FIRST STEP/FSA resentencing data

The US Sentencing Commission today released the latest in a series of data reports titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through December 31, 2019 and for which court documentation was received, coded, and edited at the Commission by January 29, 2020.

These new data from the USSC show that 2,387 prisoners have been granted sentence reductions, and that the average sentence reduction was 71 months of imprisonment among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to state that this part of the FIRST STEP Act, by shortening nearly 2400 sentences by nearly 6 years, has now resulted in over 14,000 prison years saved(!).

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation.  But these latest data show yet again how this small piece has had huge impact that can be measure in lots of years of lots of lives.  And, of course, people of color have been distinctly impacted: the USSC data document that over 91% of persons receiving FSA sentence reductions were Black and more than another 4% were Latinx.

February 3, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

"What Would a World Without Prisons Be Like?"

The question in the title of this post is the title of this recent piece from The New Yorker.  Of course, the question does not lend itself to an easy answer, and this piece includes a 20+-minute podcast to dig deeper.  Here is how the segment is previewed:

Mass incarceration is now widely regarded as a prejudiced and deeply harmful set of policies.  Bipartisan support exists for some degree of criminal-justice reform, and, in some circles, the idea of prison abolition is also gaining traction.  Kai Wright, the host of the WNYC podcast “The United States of Anxiety,” spoke about the movement with Paul Butler, a law professor and former federal prosecutor who saw firsthand the damage that prosecution causes, and sujatha baliga, a MacArthur Foundation fellow and a survivor of sexual violence who leads the Restorative Justice Project at the nonprofit Impact Justice.

“Prison abolition doesn’t mean that everybody who’s locked up gets to come home tomorrow,” Butler explains.  Instead, activists envision a gradual process of “decarceration,” and the creation of alternative forms of justice and harm reduction.  “Abolition, to my mind, isn’t just about ending the prisons,” baliga adds. “It’s about ending binary processes which pit us as ‘us, them,’ ‘right, wrong’; somebody has to be lying, somebody’s telling the truth. That is not the way that we get to healing.”

February 3, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

February 2, 2020

Prez Trump's reelection campaign premieres ad focused on criminal justice reform during Super Bowl

As reported in this Washington Times article, headlined "'Trump got it done': Trump's Super Bowl ad highlights criminal-justice reform," there was one especially notable ad during the big game for sentencing fans.  Here are the details and context:

President Trump’s reelection campaign aired a surprise TV ad on criminal-justice reform during the Super Bowl Sunday night featuring the president’s grant of clemency for former inmate Alice Johnson.

Trump campaign manager Brad Parscale contrasted the president’s leadership on criminal-justice reform with NFL players who previously knelt during the Star-Spangled Banner to protest injustices in the legal system. “President Trump strongly disagreed with how some in the NFL chose to disrespect our flag, our country, and the people who serve it, just to express their views of the criminal justice system,” Mr. Parscale said. “The Super Bowl is the perfect place to debut this ad, because it clearly communicates how President Trump expressed his concerns about the issue – he acted and he helped improve people’s lives.”

The 30-second spot in black and white showed Mrs. Johnson, a grandmother who is African-American, expressing jubilation and gratitude to Mr. Trump upon her release from prison after serving 21 years for a first-time drug offense....

The ad states that “politicians talk about criminal justice reform. President Trump got it done. Thousands of families are being reunited.” The campaign had kept the ad under wraps until it aired. The president’s re-election team also paid for a 30-second spot highlighting his efforts to keep America secure and prosperous.

Mr. Trump commuted the sentence for Mrs. Johnson in June 2018. Six months later, he signed into law the First Step Act, which is aimed at providing thousands of prison inmates with a second chance. The law provides inmates with opportunities to take part in vocational training, education, and drug treatment programs to help them gain their release and obtain jobs.

I think all supporters of criminal justice reform should find this ad heartening in the wake of some reports suggesting Prez Trump had soured on reform and viewed the issue now as a political liability (see here).  It seems that at least some folks on Prez Trump's reelection team view criminal justice reform as a winning political issue. 

At the same time, it is a darn shame that Prez Trump is promoting his clemency work when he has still granted relatively few commutations.  Regular readers likely recall that, back in 2018, Prez Trump talked grandly about considering thousands of clemency requests and Alice Marie Johnson potently advocated that the President free "thousands more" federal prisoners like her.  I never really expected Prez Trump to grants thousands of commutations, but I had hoped he would do many more than the six that he has done so far.

February 2, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (2)

"Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment"

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

The racial dimensions of the death penalty are well-documented.  Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit — against black defendants in particular.  Research points to an even more alarming factor.  The race of the victim, not the defendant, steers cases in the direction of death.  Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks.  This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives Matter movement and showing how it relates to the broader, systemic devaluation of African-American lives.

February 2, 2020 in Death Penalty Reforms, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)