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February 21, 2020

Enjoy full day of "The Controlled Substances Act at 50 Years" via livestream

CSA at 50_socialBlogging will be light over the next few days as I am in the midst of helping to conduct this amazing conference which started last night at the Arizona State University Sandra Day O’Connor College of Law.  I have had the pleasure and honor of working with the amazing team at The Ohio State University's Drug Enforcement and Policy Center (@OSULawDEPC), along with the also amazing team at ASU's Academy for Justice (@Academy4Justice), to put together amazing and diverse array of panels and workshops on all sorts of topics relating to the past, present and future of the CSA's development, implementation and enforcement.

The basic agenda for the event can be found at this page, and last night  started with an amazing keynote by the amazing Keith Humphreys, Stanford University, Esther Ting Memorial Professor on "Federal Policy and the Dual Nature of Drugs," followed by an amazing response to keynote by Peter Reuter, University of Maryland, Professor of Public Policy and Criminology asking "Do Drug Problems have more influence on Drug Policy than vice versa?".

I am especially pleased and excited by this list of speakers who are participating, and today begins a series of terrific panels. and I can provide this link with its own links to the livestream for each of the panels. I think every part of the conference will be amazing, and I hope folks can make the time to tune in.

February 21, 2020 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tennessee completes yet another execution using the electric chair

As reported in this AP piece, a "convicted murderer was put to death in Tennessee's electric chair Thursday, becoming the state's fifth prisoner over 16 months to choose electrocution over the state's preferred method of lethal injection."  Here are the basics:

Nicholas Sutton, 58, was pronounced dead at 7:26 p.m. at the Riverbend Maximum Security Institution in Nashville.

Asked if he had any last words, Sutton looked directly into the witness room and spoke clearly. “I would like to thank my wife for being such a good witness to the Lord, and my family and many friends who loved and supported me and tried so very hard to save my life,” Sutton said. He also spoke of his Christian faith, saying that Jesus Christ had “fixed him.” He added, “I'm just grateful to be a servant of God, and I'm looking forward to being in his presence."

Sutton was sentenced to death in 1986 for killing fellow inmate Carl Estep in a conflict over a drug deal while both were incarcerated in an East Tennessee prison, where Sutton had been serving time for the killings of his grandmother and two others when he was 18....

Sutton's supporters, including several family members of his victims and prison workers, had recently asked Gov. Bill Lee to commute the sentence, saying Sutton had rehabilitated himself in prison and was not the same person who first entered prison 40 years ago. His supporters included two prison workers who credited Sutton with saving their lives.

Retired Correction Lt. Tony Eden had stated in an affidavit included with Sutton's clemency petition that Sutton confronted a group of armed inmates during a prison riot in 1985 and helped get Eden to safety “If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor,” Eden wrote.

But Lee said Wednesday that he would not intervene to stop the execution. And two last-ditch appeals to the U.S. Supreme Court were denied Thursday evening. The justices, in an emailed statement, gave no explanation for their decision.

Sutton had not indicated why he chose electrocution — an option for inmates whose crimes were committed before the state adopted lethal injection as its preferred execution method — but other inmates have said they thought the electric chair would be quicker and less painful.

In the death chamber after Sutton's last words, officers placed a large wet sponge on his head and a cap over it. They then attached to the cap a black shroud that covered Sutton's face. At 7:18 p.m. two jolts of electricity, with a pause in between, were delivered to his body, which stiffened and partially lifted out of the chair as his hands balled up. It was over in just under a minute....

Inmates' attorneys have argued without success that both lethal injection and electrocution violate the Constitution's ban on cruel and unusual punishment. The electric chair fell out of favor in the 1990s following several gruesomely botched executions, including a Florida execution in which smoke and flames shot from the head of the condemned inmate. Only one other state, Virginia, has used electrocution in recent years, and it has not done so since 2013.

During Tennessee's last electrocution in December, witnesses said they saw smoke or steam coming from the side of inmate Lee Hall's head. But witnesses on Thursday said they saw nothing unusual.

Over the last decade of litigation surrounding lethal injections as a means of execution (which contributed to states' struggling to secure lethal drugs), I have presumed that many legislatures and state prison officials have been disinclined to look to the electric chair as an alternative for fear of engendering even more litigation and controversy over execution methods.  But, it seems Tennessee has been able to move forward with this older execution method without too much litigation or other problems getting in their way.  And yet, interestingly, it still does not seem that other states struggling with lethal injection difficulties are inclined to follow the Tennessee path.

A few recent related posts:

February 21, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

"People Serving Life Exceeds Entire Prison Population of 1970"

The title of this post is the title of this new fact sheet released by The Sentencing Project’s Campaign to End Life Imprisonment.  Here is how the document (which is full of interesting images) get started:

As states come to terms with the consequences of 40 years of prison expansion, sentencing reform efforts across the country have focused on reducing stays in prison or jail for those convicted of nonviolent drug and property crimes.  At the same time, policymakers have largely neglected to address the staggering number of people serving life sentences, comprising one of seven people in prisons nationwide.  International comparisons document the extreme nature of these developments.  The United States now holds an estimated 40% of the world population serving life imprisonment and 83% of those serving life without the possibility of parole.  The expansion of life imprisonment has been a key component of the development of mass incarceration.  In this report, we present a closer look at the rise in life sentences amidst the overall incarceration expansion.

To place the growth of life imprisonment in perspective, the national lifer population of 206,000 now exceeds the size of the entire prison population in 1970, just prior to the prison population explosion of the following four decades.  In 24 states, there are now more people serving life sentences than were in the entire prison population in 1970, and in an additional nine states, the life imprisonment total is within 100 people of the 1970 prison population.  

February 21, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Lots of notable clemency news and notes and commentaries after Prez Trump's flourish of mercy

Unsurprisingly, a number of reporters and commentators have lots to report and comment upon in the wake of Trump's latest clemency work (basics noted here and here and here).  Here are just a few pieces that seem like must reads in full (with a taste to whet appetites):

From the Washintong Post, "White House assembles team of advisers to guide clemency process as Trump considers more pardons":

The White House is moving to take more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process as he weighs a flurry of additional pardon announcements, according to people familiar with the matter.... The group, essentially an informal task force of at least a half-dozen presidential allies, has been meeting since late last year to discuss a revamped pardon system in the White House. Jared Kushner, Trump’s son-in-law and senior adviser, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process that in past administrations has been housed in the Justice Department, officials said....

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more pardons before facing voters in November, one official said. “He likes doing them,” the official said...  While several of the pardons Trump granted Tuesday went to well-connected or wealthy associates, the president also commuted the sentences of three women who had been convicted of nonviolent offenses — part of the new task-force effort.

The women were recommended by [Alice] Johnson, who had her life sentence for a nonviolent drug offense commuted by Trump in 2018. Johnson has been working with the White House’s new clemency effort after Trump publicly asked her last year to submit a list of names of other people who deserved commutations, officials said. She recommended Crystal Munoz, Tynice Hall and Judith Negron, who each had their sentences commuted by Trump on Tuesday. Johnson is a member of the informal network of advocates providing clemency recommendations. Former acting attorney general Matthew G. Whitaker, Democratic commentator Van Jones and Brett Tolman, a former U.S. attorney in Utah, are also part of the group, according to a senior administration official.

From the New York Times, "The 11 Criminals Granted Clemency by Trump Had One Thing in Common: Connections":

The clemency orders that the president issued that day to celebrity felons like Mr. Kerik, Rod R. Blagojevich and Michael R. Milken came about through a typically Trumpian process, an ad hoc scramble that bypassed the formal procedures used by past presidents and was driven instead by friendship, fame, personal empathy and a shared sense of persecution. While aides said the timing was random, it reinforced Mr. Trump’s antipathy toward the law enforcement establishment.

From Zak Cheney-Rice in New York, "The Valuable Lesson Trump Pardonees Learned in Prison: Prison Is Bad and Unfair":

The president is not against aggressive sentencing. His entire foray into electoral politics is a testament to the opposite. The incoherence of his shifting positions on criminal justice and imprisonment is best accounted for by a simpler principle: He bristles when people he likes or who share his ideologies are held accountable for their misdeeds, and to fend off accusations of impropriety, he has found a convenient laundering mechanism for letting them off the hook by pardoning random black people. Reports suggest that Trump’s recent efforts to recast this dubious moral position as a broader commitment to criminal-justice reform is the brainchild of Jared Kushner, his son-in-law turned adviser, whose father spent several months in federal prison for tax evasion, witness tampering, and illegal political campaign contributions. Kushner and Trump seem to have come by their recent objections to the American criminal-legal system the same way that many people do: by having been personally affected by it and witnessing firsthand how unjust and destructive it is.

A few prior related posts:

February 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noting that condemned Tennessee inmates are opting for electrocution over lethal injection

This New York Times piece, headlined "Afraid of Lethal Injection, Inmates Are Choosing the Electric Chair," reviews execution trends nationwide just before Tennessee is scheduled to conduct another state killing through the use of the electric chair. Here are excerpts:

Nicholas Sutton, like other death row inmates in Tennessee, has a choice in how the state will end his life.  The default, as set by state law, would be a series of injections, one to sedate him, followed by others that would paralyze him and stop his heart.  Yet Mr. Sutton, like four other inmates executed before him in Tennessee since 2018, has chosen the state’s other option: Two cycles of 1,750 volts of electricity.

Nationally, the electric chair is a method of the past; no other state has used it since 2013.  But inmate advocates and lawyers say the condemned men in Tennessee are choosing electrocution because they fear being frozen in place and feeling intense discomfort while drugs work to kill them.

In Ohio, a federal judge recently wrote that part of the state’s lethal injection protocol is akin to waterboarding, and botched procedures in other states have left men writhing in agony....

Tennessee joined other states more than two decades ago in turning to lethal injection as the primary method for executions, with lawmakers viewing it as a visibly calmer and less violent alternative to electrocution. But that view has been challenged in recent years, as errors and problematic executions, including one in Oklahoma in 2014 in which an inmate regained consciousness, have gained widespread notice.  Many pharmaceutical companies have also made it more difficult for states to acquire the proper drugs, not wanting them associated with ending lives.

The death penalty, in general, has been on the decline in the United States, with seven states carrying out 22 executions in 2019, the second-lowest number since 1991.  Last year, New Hampshire became the 21st state, and the last in New England, to abandon capital punishment....

But other states have doubled down.  Last week, state officials in Oklahoma announced that lethal injection deaths would resume after a five-year hiatus and a series of botched executions....

With his execution scheduled for Thursday night, Mr. Sutton was moved on Tuesday into death watch at the Riverbend Maximum Security Institution, a facility in Nashville situated in a crook of the Cumberland River that houses Tennessee’s death row for men.

February 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

February 20, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

February 19, 2020

Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons

Roger Stone is scheduled to be sentencing on Thursday and this Bloomberg piece provides a bit of the lay of the land starting this way:

Roger Stone’s sentencing on Thursday is shaping up as a test of judicial independence after President Donald Trump inserted himself in the court’s deliberations over the fate of his longtime confidant. If U.S. District Judge Amy Berman Jackson sentences Stone in line with the Justice Department’s new and lower recommendation, partisans will see that as caving to Trump, former federal prosecutor Harry Sandick said. If she gives a jail term closer to the maximum, she’ll be seen as defying the pressure.

“Given how polarized the country is, some people will look to Jackson to be a hero and give him a long sentence, and others will look to her to be a hero and give him a short sentence, but she’ll likely come in somewhere in between,” Sandick said. “She doesn’t need to be a hero. She’s a federal judge.”

Jackson said Wednesday that she’ll allow Stone to remain free regardless while she considers his bid for a new trial and any other motions filed after the sentencing. Speculation that sending him straight to prison could prompt Trump to swiftly pardon him rose after the president issued a slate of high-profile clemencies Tuesday in cases often supported by conservatives.

I am a bit sad that I am not teaching my sentencing course this semester because so many of the elements around, and the challenges that surround, federal sentencing decision-making could be effectively taught through the lens of the Stone case.  Helpfully, a number of thoughtful folks have taking already penned thoughtful pieces that use the Stone case to spotlight various federal sentencing challenges and problems and lessons.  Here are some that have caught my eye that are worth reading in full (and that I quote from too briefly just to whet appetites):

By Michael Zeldin at CNN, "In Stone case, a blast from the Obama past":

Barr's approach, in this instance involving a Trump ally, was more consistent with the DOJ guidance for charging and sentencing issued by Attorney General Eric Holder under President Barack Obama -- a policy that the Sessions memorandum essentially reversed. What, you may be asking? Yes, in my opinion, in this case, Barr appears to have followed more closely DOJ's policy as it stood under Obama's attorney general, rather than under Sessions, who said at the time that he was ushering in the "Trump Era."

By Rory Fleming at Filter, "Can Roger Stone Case Spark Debate on the Dreadful US Sentencing Guidelines?"

Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal. And the standard of proof in court for aggravators is ”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable doubt.”

By Timothy Zerillo at Medium, "The Roger Stone Sentencing Highlights the Impact of Federal Sentencing Enhancements":

Every day, in all 94 of the District Courts throughout the United States, defendants will be sentenced and enhancements will be metered out. These enhancements, along with mandatory minimums and a desire to punish rather than rehabilitate, all serve to contribute to our culture of mass incarceration. Regardless of your opinion about Roger Stone, his situation highlights how sentences can skyrocket based on sometimes fair, sometimes ridiculously unfair, sentencing enhancements.

By Sarah Lustbader at The Appeal, "One Thing Barr Gets Right: The Sentencing Guidelines Are Indeed Too Harsh":

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

By Mike Scarcella at The National Law Journal, "The Hardest Thing About Being a Judge? What Courts Say About Sentencing":

“It is just not a natural or everyday thing to do—to pass judgment on people, to send them to prison or not," one federal appeals judge once remarked.  Here's a look at how judges across courts have described the challenge of sentencing, as Roger Stone prepares to learn his fate.

Prior related posts:

February 19, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Recognizing historic modern first-term commutation work by Prez Trump in a single day

Unsurprisingly, the pardons and commutations handed out by President Trump yesterday to high-profile individuals like Michael Milken, Rod Blagojevich, Bernie Kerik and Eddie DeBartolo have been dominating the news coverage of Trump's latest clemency work (basics noted here and here).  But I wanted to take a moment to note (and, in a sense, lament) that Prez Trump's granting of four commutations yesterday — to Tynice Nichole Hall, Crystal Munoz and Judith Negron along with Blagojevich — is quite historic in modern terms.

Last summer in this post, I used the official clemency statistics here from the Office of the Pardon Attorney to set out first-term commutation scorecard for US Presidents over the last half century.  Here are the particularly disconcerting numbers for the last four men in the Oval Office before Prez Trump:

Prez                     Commutations in entire first term

George HW Bush         3

William Clinton           3

George W Bush            2

Barack Obama             1

In other words, Prez Trump's granting of four commutations in a single day amounted to more commutations than any of the last four Presidents granted throughout their entire first term in the Oval Office.  (Of course, Prez Obama got quite busy with commutations in his second term, and so his final clemency scorecard looks a heck of a lot better than it looked at the end of his first term.)  In addition, with his four commutations yesterday, Prez Trump is now already up to a total of 10 commutations, which is one more than all of the last four Presidents combined granted throughout their entire first terms in the Oval Office.  

Prez Trump setting these modern commutation records is not really a reflection of robust use of his clemency pen as much as it serves as a sad commentary on the paucity of clemency granted by the four men in the Oval Office before Trump.  That said, Prez Trump seems to have come to appreciate (perhaps only for personal reasons) Alexander Hamilton's famous statement in Federalist 74 that the administration of justice can often "wear a countenance too sanguinary and cruel."  I sincerely hope he keeps on helping folks other than just friends and vocal allies with his clemency powers.

Prior related post:

February 19, 2020 in Clemency and Pardons, Data on sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under § 3582(c)(1)(A)

As regular readers know, in lots of prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I consider this provision a big deal because I think, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

I have previously flagged here and here and here  and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But I have not blogged lately about any recent § 3582(c)(1)(A) rulings because my Westlaw searches have largely turned up only denials rather than grants of these motions.  Thanks to a helpful reader, though, I learned of a notable recent grant in US v. Maumau,  No. 2:08-cr-00758-TC-11, 2020 WL 806121 (D. Utah Feb. 18, 2020) (also available for download below).  This decision, authored by District Tena Campbell, provides an extended, thoughtful review of recent compassionate release jurisprudence and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. 

I recommend review of the Maumau ruling in full for anyone working on or thinking about these isssues.  Here are some excerpts from the opinion that help highlight its importance:

Having reviewed all of the above cases, this court joins the majority of other district courts that have addressed this issue in concluding that it has the discretion to provide Mr. Maumau with relief, even if his situation does not directly fall within the Sentencing Commission’s current policy statement. Under the First Step Act, it is for the court, not the Director of the Bureau of Prisons, to determine whether there is an “extraordinary and compelling reason” to reduce a sentence....

As part of the First Step Act, Congress eliminated the consecutive stacking previously required for violations of § 924(c) [which had led to a 55-year sentence for the defendant for crimes committed at age 20]... When considered together, the court is inclined to find that Mr. Maumau’s age, the length of sentence imposed, and the fact that he would not receive the same sentence if the crime occurred today all represent extraordinary and compelling grounds to reduce his sentence.

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations.  But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.  First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act.... Finally, and perhaps most importantly here, at least one district court has modified a sentence based solely on the First Step Act’s changes to § 924(c) sentencing.... Like the Urkevich court, this court concludes that the changes in how § 924(c) sentences are calculated is a compelling and extraordinary reason to provide relief on the facts present here.

The United States objects to this conclusion because, it notes, Congress could have made its changes to § 924(c) retroactive but it chose not to do so. See Brown, 2019 WL 4942051 at *5.  While this is a relevant consideration, it ultimately has little bearing on the court’s conclusion. It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.  As just noted, that is precisely the approach taken by the Urkevich court.

Based on the above, the court concludes that a combination of factors — Mr. Maumau’s young age at the time of the sentence, the incredible length of the mandatory sentence imposed, and the fact that, if sentenced today, he would not be subject to such a long term of imprisonment — establish an extraordinary and compelling reason to reduce Mr. Maumau’s sentence....

Regarding what type of sentence to impose, Mr. Maumau “urge[s] the Court to ... hav[e] him brought to the district, where he can be interviewed by Probation and perhaps have an opportunity to address the Court.” (Def.’s Reply at 1 (ECF No. 1744).)  The court agrees that this is the best way for the court to determine an appropriate sentence modification.

Accordingly, the court sets this matter for a hearing at 2:00 p.m. on April 7th.  At that time, Mr. Maumau and the United States will be permitted to present their arguments regarding what would be an appropriate sentence for Mr. Maumau in light of the above factors.  The court further orders Mr. Maumau, in advance of the resentencing hearing, to meet with the Probation Office, and for the Probation Office to prepare a new Presentence Report that addresses Mr. Maumau’s character, his danger to the public, his likelihood of rehabilitation or recidivism, the type of sentence he likely would have received had he been charged and convicted after the First Step Act had been passed, and any other relevant considerations.

Download Maumau.DistrictCourtOpinion.Feb18.2020

Some (of many) prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

February 19, 2020 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Expansive Reach of Pretrial Detention"

The title of this post is the title of this timely new paper authored by Paul Heaton now available via SSRN.  Here is its abstract:

Today we know much more about the effects of pretrial detention than we did even five years ago.  Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process.  The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system.  Detention also reduces future employment and access to social safety nets.  This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety.

February 19, 2020 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Former NYC mayor Mike Bloomberg, on eve of his first Prez debate, releases full criminal justice reform plan

In this post from December, I noted this page on the campaign website of Mike Bloomberg that reported on "three criminal justice reform policy proposals" then announced by the then-new Democratic presidential candidate.  Unsurprisingly, that partial plan has not deflected criticisms of Bloomberg's record and past comments on criminal justice matters.  And, also unsurprisingly, Bloomberg has now announced more of a criminal justice platform via this piece headlined "Mike Bloomberg Expands Criminal Justice Reform Plan With Bold Initiatives to End Era of Mass Incarceration."  Here are excerpts (with emphasis and links in the original):

Commits $22.5 billion to reduce prison population by 50% by 2030, will slash youth incarceration by half in four years, and expands funding for public defenders

Invests $1 billion in programs to support young men of color and creates justice reclamation centers at historically black colleges and universities

Democratic presidential candidate Mike Bloomberg today released his comprehensive plan to restructure our country’s criminal justice system. On December 3, 2019, Mike released three key pillars of his criminal justice reform policy as the first policy announcement of his campaign.  In the 12 weeks since, the campaign and Mike have met with leaders, advocates, and activists to receive input and feedback, which culminates in today’s release of Mike’s full criminal justice reform platform. As president, Mike will end the era of mass incarceration by heavily investing federal resources to halve the prison population within the next decade, increase funding for public defenders, and confront deep-seated racial and economic inequities that fall largely on Black, Latino, and other underserved communities.

Mike’s plan promises to protect people at every touchpoint in the justice system, from innovative pre-trial efforts that stop the reliance on incarceration to addressing unjust and excessive sentencing in the courtroom, and from re-imagining our prisons as a place for rehabilitation to a new work program and robust services for people returning to their communities. Mike will also commit $22.5 billion over 10 years for reform at the state and local level, with a new Justice Reform Office at the Department of Justice to fund the most-needed reforms on a state-by-state basis....

Mike’s Plan to Reform America’s Criminal Justice System

The United States has a mass incarceration problem. The U.S. has 5% of the world’s people, yet confines nearly a quarter of the world’s prison population. America’s criminal justice system has dramatic racial disparities: Latino adults are three times more likely to be incarcerated than White adults, and Black Americans make up 13% of the U.S. population but are 40% of all incarcerated people. The system unfairly punishes people for their poverty, often further entrenching them in a vicious cycle of poverty and incarceration.

In Jackson, Mississippi last December, Mike pledged to prioritize juvenile justice, fund local violence interrupter programs, reform the bail system, and bring new re-entry and career-training programming to prisons. Mike’s full plan, announced today, will:

  • Protect the public and rebuild community trust: Mike will invest in innovative community-led partnerships, focused deterrence programs and smart and just policing. Mike will sign a bill raising the standard for federal officers’ use of force, ensuring deadly force is used only when necessary to prevent serious injury or death — and will pressure states to enact similar statutes. He will require de-escalation and bias training, body-worn cameras and early intervention for police who present warning signs. He will promote independent police oversight boards, re-invigorate civil rights investigations to keep police accountable and make it a national priority to expand and analyze data on police use of force.
  • Cut incarceration rates and re-imagine prison as a place for rehabilitation from day one: Mike will invest $22.5 billion to launch a Department of Justice reform hub to evaluate and fund state-level criminal justice reform efforts, set a goal to reduce incarceration by 50% by 2030 and cut crime across the U.S., and spread the use of alternatives to prison pioneered in New York City. Additionally, he will increase funding to improve health and safety in federal, state and local prisons, along with education and job training.
  • Address injustice in the legal system: Mike will boost funding for public defense, end cash bail, court fines and punitive fees and roll back punitive sentencing practices. Public defense is underfunded in the states, leading to longer sentences and wrongful convictions. Mike will fund $2.5 billion over ten years for public defense – requiring grantees to have pay parity for defenders and prosecutors, as well as workload limits that ensure fair representation. He will also end federal cash bail, end court fines and punitive fees and propose new federal sentencing structure to reverse an overly punitive legacy. Mike’s plan will decriminalize possession and use of marijuana nationwide, commute any existing sentences and expunge any records.
  • Help formerly incarcerated people re-enter society: Mike will start a federal work program for the formerly incarcerated, including providing employers with a multi-year tax incentive and expanding “ban the box initiatives.” He will bolster federal funding for re-entry services and also expand social services for children whose parents are incarcerated.
  • Increase support and services for victims of domestic violence, gun violence, hate crimes and human trafficking: Mike will increase funding to build family justice centers, which provide holistic services for survivors of domestic violence—and make it easier for victims to seek justice. He will also re-authorize the Violence Against Women Act, with necessary improvements; eliminate the national rape kit backlog; start a national helpline for gun violence and make hate crimes and human trafficking a top federal priority.
  • Invest in young men of color: Mike’s plan will invest $100 million annually to revive and sustain the My Brother’s Keeper Initiative as a federal program. Using the Neighborhood Equity and Opportunity Office (NEO), proposed in the Greenwood Initiative, Mike will launch a permanent funding stream to invest in young men of color. Building on the Young Men’s Initiative that Mike created as mayor, this national program will focus on creating opportunity while preventing entry into the criminal justice system. He will also establish a National Trauma-Informed Care Task Force to study the effects of early trauma – and to recommend practices to formalize the delivery of quality care across federal agencies that touch low-income families and justice-involved people.
  • Create restorative justice centers at historically black colleges and universities (HBCUs): Mike’s plan also includes funding justice reclamation centers at HBCUs across the country. Mike will set up a network of justice reclamation as hubs of history and public education that will chronicle an era, create the conditions for healing based on the best social science and devise constructive strategies for policing, remediation and community involvement. These centers will be a collaborative place to gather existing expertise and develop best new solutions — with a special focus on restorative justice. The centers will partner with local My Brother’s Keeper projects, helping give communities the tools to drive meaningful criminal justice reform.

Given the recent buzz around the Roger Stone sentencing and Prez Trump's latest clemencies, as well as Bloomberg's first appearance on the Democratic debate stage and his "stop and frisk" record, I am thinking tonight's debate in Nevada is likely to include some (perhaps even a lot) of criminal justice issues.  Notably, Nevada is the first state to vote this season that has fully legalized marijuana, so that too could perhaps be a topic for tonight discussion.

Prior related post:

February 19, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

February 18, 2020

Is Ohio really likely to repeal the death penalty "in the next year or so"?

The question in the title of this post come in response to this local article, headlined "Conservatives organize to end Ohio’s death penalty," reporting on the latest indication that the Buckeye State may be moving pretty swiftly toward death penalty abolition.  Here are the details:

As Ohio’s years-long struggle to obtain execution drugs continues with no end in sight, there’s a new effort underway to completely abolish capital punishment in the state – this time, with increasing involvement by conservatives.

But though activists say they’re confident that state lawmakers will soon get rid of the death penalty, whether legislators will actually take such action isn’t a foregone conclusion.

At a Statehouse news conference Tuesday, the newly created Ohio chapter of Conservatives Concerned About the Death Penalty released a list of conservatives in favor of abolishing Ohio’s death penalty, under which more than 50 people have been put to death since the state resumed executions in 1999.

The list includes a number of former Republican officeholders, including former Attorney General Jim Petro, ex-Gov. Bob Taft, and longtime U.S. Rep. Pat Tiberi. Several former staffers of ex-Gov. John Kasich also signed on – though Kasich himself has not.

Only three people on the list are sitting GOP lawmakers: state Reps. Craig Riedel of Defiance, Laura Lanese of suburban Columbus, and Niraj Antani of the Dayton area.

Ohio House Speaker Larry Householder, a Perry County Republican, has repeatedly said that his support of the death penalty is eroding. Gov. Mike DeWine, a Greene County Republican, has put a freeze on executions in Ohio because pharmaceutical companies have refused to sell drugs to the state for use in lethal injections, though he has stayed silent about whether he continues to support the death penalty.

Hannah Kubbins, director of the non-partisan Ohioans To Stop Executions, said she and Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, have already spoken with a majority of Ohio lawmakers about getting rid of capital punishment. “I think that we will see repeal in the next year or so,” Kubbins said in an interview. “The conversations are encouraging. …It’s becoming a conservative-led, bipartisan-supported movement.”

Some Republican lawmakers, she said, were already skeptical about capital punishment on religious grounds, or because of concerns about the high taxpayer-funded expense of putting someone to death. Others, she said, are becoming anti-death penalty because of Ohio’s problems with death drugs. Another factor is conservatives’ preference for smaller government. “To give big government power over life and death is rather concerning to a lot of us,” Lanese said Tuesday.

Despite the optimism, repealing Ohio’s death penalty is anything but a done deal. Senate President Larry Obhof, a Medina Republican, said earlier this month that it’s “unlikely” that the Ohio General Assembly would abolish the death penalty completely in the next year, adding that most lawmakers still favor executions in “particularly heinous cases.”...

Lanese said while she admires Kubbins’ optimism about lawmakers abolishing the death penalty within a year, such a move won’t happen overnight. “We’re going to chip away at this,” Lanese said. “I do know that this is a deeply held belief for a lot of people on both sides, so it’s going to take a lot of work – especially with conservatives.”

I am following this discussion so closely in part because I am based in Ohio and have former students involved in capital litigation.  But I also continue to view Ohio as an important bellwether, and I think it could prove especially significant foe there to be repeal of the death penalty in a state that has executed many persons in the past and that is currently controlled entirely by GOP officials.

Prior related posts:

February 18, 2020 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

"Trump grants clemency to 11, including former junk bond king Michael Milken"

I have previously noted in this post three of Prez Trump's the high-profile clemency recipients today — Blagojevich, DeBartolo and Kerik — and I could not help but note these three were all white men of relative privilege convicted of crimes of power.  But now I see this Los Angeles Times piece, which has the headline that serves as the title of this post, and I am learning that a total of 11 persons have received clemency from Prez Trump today:

President Trump Tuesday granted full pardons to seven convicted felons including Michael Milken, the former junk bond king who became a face of the insider trading financial scandals of the 1980s. An official White House statement praised Milken, who served two years in prison in the 1990s, was for his philanthropy.

Trump also commuted the sentence of former Illinois Gov. Rod Blagojevich, found guilty nine years ago for trying to sell an open U.S. Senate seat.  Trump announced the news at Joint Base Andrews as he embarked on a four-day west coast swing and just hours after the White House announced the first pardon, that of former San Francisco 49ers owner Edward DeBartolo, Jr., who was convicted in a gambling fraud scandal....

Trump also issued full pardons to Ariel Friedler, Paul Pogue, David Safavian and Angela Stanton. And he commuted sentences for three others: Tynice Nichole Hall, Crystal Munoz and Judith Negron. 

Here is the link to the "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing lots of background on all these individuals. Because of the sentencing element, I find the commutations especially interesting and here is how they are described (with bolding in the original):

In addition, the President is commuting the sentences of four individuals who have paid their debts to society and have worked to improve their lives and the lives of others while incarcerated.

Rod Blagojevich was the Governor of Illinois from 2003 until 2009, when he was charged with, among other things, offering an appointment to the United States Senate in exchange for campaign contributions. He was convicted of those charges and sentenced to 14 years in prison. Although the Seventh Circuit reversed some of his convictions related to the Senate appointment, it did not alter his 14-year sentence. He has spent 8 years in prison. People from across the political spectrum and from varied backgrounds have expressed support for shortening Mr. Blagojevich’s sentence, including Senator Dick Durbin, Reverend Jesse Jackson, Sr., former Representative Bob Barr, Representatives Bobby Rush and Danny Davis, former Attorney General Eric Holder, and Bishop Byron Brazier. Additionally, more than a hundred of Mr. Blagojevich’s fellow inmates have written letters in support of reducing his sentence. During his confinement, Mr. Blagojevich has demonstrated exemplary character, devoting himself to improving the lives of his fellow prisoners. He tutors and teaches GED classes, mentors prisoners regarding personal and professional development, and speaks to them about their civic duties. Notwithstanding his lengthy sentence, Mr. Blagojevich also counsels inmates to believe in the justice system and to use their time in prison for self-improvement. His message has been to “keep faith, overcome fear, and never give up.”

Tynice Nichole Hall is a 36-year-old mother who has served nearly 14 years of an 18-year sentence for allowing her apartment to be used to distribute drugs. While in prison, Ms. Hall has completed a number of job-training programs and apprenticeships, as well as coursework towards a college degree. In addition, Ms. Hall has taught prison educational programs to other inmates. She has accepted responsibility for her past behavior and has worked hard to rehabilitate herself. Among those who support this grant of clemency are Clemency for All Non-Violent Drug Offenders Foundation, Alice Johnson, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, and John Hostettler.

Crystal Munoz has spent the past 12 years in prison as a result of a conviction for having played a small role in a marijuana smuggling ring. During this time, she has mentored people working to better their lives, volunteered with a hospice program, and demonstrated an extraordinary commitment to rehabilitation. The Texas A&M Criminal Defense Clinic, the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson are among the many who support this grant of clemency.

Judith Negron is a 48-year-old wife and mother who was sentenced to 35 years in prison for her role as a minority-owner of a healthcare company engaged in a scheme to defraud the Federal Government. Ms. Negron has served 8 years of her sentence and has spent this time working to improve her life and the lives of her fellow inmates. Her prison warden and her counselor have written letters in support of clemency. According to her warden, Ms. Negron “has always shown herself to be a model inmate who works extremely well with others and has established a good working relationship with staff and inmates.” This grant of clemency is supported by the Clemency for All Non-Violent Drug Offenders Foundation, Dan Schneider, Matt Whitaker, Adam Brandon, Kevin Roberts, Brett Tolman, John Hostettler, and Alice Johnson, among others.

I am pretty sure based on postings at the CAN-DO site that Tynice Nichole Hall, Crystal Munoz and Judith Negron are all women of color.   Gosh darn that Prez Trump, who always seems to find a way to both confirm and refute criticisms of how he approaches criminal justice matters.

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Prez Trump pardons former 49ers owner amidst talk of clemency for former Illinois Gov and former NYPD commissioner

Prez Trump has his clemency pen out again, and a number of notable names are involved as per this breaking NBC News piece headlined "Trump expected to grant clemency to former Ill. Gov. Rod Blagojevich, ex-NYPD commissioner Bernard Kerik." Here is what is being reported just before 2pm:

President Donald Trump is expected to grant clemency to former Illinois Gov. Rod Blagojevich, who was impeached and removed from office in 2009 on corruption charges, and to former New York police commissioner Bernard Kerik, two people familiar with the president's plans said Tuesday.

The news comes hours after Trump signed an executive order granting a full pardon to former San Francisco 49ers owner Eddie DeBartolo Jr. related to a decades-old corruption charge.

Blagojevich, 63, was sentenced in 2011 to 14 years in federal prison on corruption charges related to his solicitation of bribes in an attempt to "sell" the Senate seat Barack Obama left open after being elected president. Blagojevich, a Democrat, has been serving his term at the low-security Federal Correctional Institute in Englewood, Colorado.  He was a contestant on Trump’s reality TV show "The Celebrity Apprentice" in 2010.

Kerik was sentenced in 2010 to four years in prison after pleading guilty to eight felony charges, including tax fraud.

The president said in August of last year that he was "very strongly" considering giving Blagojevich a reprieve — not the first he'd publicly floated the idea. "I'm thinking about commuting his sentence very strongly," Trump told reporters aboard Air Force One then. "I think it’s enough — seven years," he added, referring the amount of time the ex-governor has already served....

In 2018, in the weeks after he pardoned conservative provocateur Dinesh D'Souza, Trump had said he’d been “thinking about” taking the action on behalf of the ex-governor. Trump told reporters in May 2018 that Blagojevich had received a lengthy sentence "for being stupid and saying things that every other politician, you know, that many other politicians say” and “that he was treated unfairly.” The remarks were likely a reference to what the then-governor was picked up saying on secret federal wiretaps about his authority to appoint someone to Obama's open Senate seat.

Blagojevich has argued he was a victim of federal prosecutors run amok — a claim Trump himself levied at former special counsel Robert Mueller’s team, which investigated Russian interference in the 2016 election and the president. “Under the legal arguments that prosecutors used to convict me, all fundraising can be viewed as bribery," the ex-governor wrote in a 2018 op-ed in The Wall Street Journal that was widely viewed as a personal appeal to Trump for clemency.

Democrats — including Sen. Dick Durbin, D-Ill., and former Attorney General Eric Holder — have said publicly in the past that they’d support efforts by Trump to commute Blagojevich's sentence.

Notably, I blogged a few days ago about  of this recent USA Today commentary authored by Professor Nora Demleitner which noted that most people given clemency by Prez Trump are not disadvantaged people of color convicted of drug crimes like Alice Marie Johnson, but rather are white men of privilege convicted of crimes of power.  Blagojevich, DeBartolo and Kerik all fit that latter description.

A few (of many) prior related posts:

UPDATE: Here are new headlines seemingly confirming that two different forms of clemency have been granted to Blagojevich and Kerik:

February 18, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Effective looks at an effective look at the reality of community supervision

The-second-chance-club-9781982128593_lgI have now seen a number of positive review of the new book by Jason Hardy, The Second Chance Club: Hardship and Hope After Prison.  Here is the description of the book from the publisher's website:

A former parole officer shines a bright light on a huge yet hidden part of our justice system through the intertwining stories of seven parolees striving to survive the chaos that awaits them after prison in this illuminating and dramatic book.  Prompted by a dead-end retail job and a vague desire to increase the amount of justice in his hometown, Jason Hardy became a parole officer in New Orleans at the worst possible moment.  Louisiana’s incarceration rates were the highest in the US and his department’s caseload had just been increased to 220 “offenders” per parole officer, whereas the national average is around 100.  Almost immediately, he discovered that the biggest problem with our prison system is what we do — and don’t do — when people get out of prison.

Deprived of social support and jobs, these former convicts are often worse off than when they first entered prison and Hardy dramatizes their dilemmas with empathy and grace. He’s given unique access to their lives and a growing recognition of their struggles and takes on his job with the hope that he can change people’s fates — but he quickly learns otherwise.  The best Hardy and his colleagues can do is watch out for impending disaster and help clean up the mess left behind.  But he finds that some of his charges can muster the miraculous power to save themselves. By following these heroes, he both stokes our hope and fuels our outrage by showing us how most offenders, even those with the best intentions, end up back in prison — or dead — because the system systematically fails them. Our focus should be, he argues, to give offenders the tools they need to re-enter society which is not only humane but also vastly cheaper for taxpayers.

As immersive and dramatic as Evicted and as revelatory as The New Jim Crow, The Second Chance Club shows us how to solve the cruelest problems prisons create for offenders and society at large.

I hope to find time to read this new book, but in the meantime I have already seen these helpful substantive reviews from some notable reviewers:

February 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

February 17, 2020

So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions

Though SCOTUS is in the midst of a long all-star break, SCOTUSblog continues to post some notable new copy.  A couple of new posts on the death penalty caught my eye and are worthy reads:

The latter of these two posts notes that the "Department of Justice has recently announced its intention to resume federal executions, prompting challenges that are currently pending."  That last phrase reminded me that, as reported here, back in early December the Supreme Court denied an application to lift a lower court injunction precluding federal executions while stating that it would "expect that the Court of Appeals will render its decision with appropriate dispatch."  In a companion two-page statement authored by Justice Alito (joined by Justices Gorsuch and Kavanaugh) ended this way:

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

We are now 73 days from when these matters were addressed by the Supreme Court on December 6, 2019, and these issues were argued before the DC Circuit now more than a month ago.  I am still expecting that an opinion will be coming from the DC Circuit this month, but the fact that we are already two week past the 60-day "recommendation" from Justice Alito serves as yet another reminder of how slowly the wheels of capital justice can turn.

Prior related posts:

February 17, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Spirited (but problematic?) advocacy for Bernie Madoff to receive compassionate relief

The New York Times has this notable new opinion piece authored by headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison.  He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people.  But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release.  He is as close to the financial equivalent of a serial killer as one might encounter.  Still, there is a good argument to be made for compassionate release.  It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.

If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm.  We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.

The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform.  The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims.  Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses.  The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims.  But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst. 

This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row.  It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison.  But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration.  There will always be another high-profile case that can impede the implementation of more humane policies.

Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.”  These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners?  There are 200,000 people over the age of 55 incarcerated in the United States.  The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.

Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison.  This is not to say he deserves sympathy, but he has been punished.  In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough.  Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.

When considering compassionate release, we also have to ask: Has the person been rehabilitated?  Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution?  (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)

Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy.  Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years.  It was the offenders’ worst impulses that led them to commit their crimes.  Our justice system should appeal to our higher ethical ambitions.

I agree fully that "retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm." I also agree fully that criminal justice policy should not "be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst" and that we should be troubled if "high-profile cases continue to drive policy." And whether a person has been rehabilitated also seem to me to be an important consideration here.  But I am not sure granting compassionate relief to Bernie Madoff furthers these interests, and I worry it could undermine them.

For starters, it is critical at this stage to realize that we are not really dealing with a "policy" matter, as the FIRST STEP Act altered the policy for compassionate relief and did so in a way that included Bernie Madoff and all other federal prisoners.  Though the FIRST STEP Act has some "worst of the worst" carve-outs in other parts of the Act, but its new process for pursuing compassionate relief applies to all federal prisoners (which is one reason I think it is such an important and valuable part of the Act).  in other words, in this context there is no need to worry about creating any "separate category for Mr. Madoff, sex offenders or those 'others' in the criminal justice system."  If a federal judge decided to deny Madoff compassionate relief, after considering all the facts of Madoff's case and all the factors of 3553(a), that judge will be adjudicating and resolving a single case, not creating any broad "criminal justice policy."

As to the facts of Madoff's case, I have seen little evidence that Madoff has been truly remorseful or rehabilitated.  In fact, this 2016 ABC News article reports that "Madoff has done little to express his remorse or regret to the estimated 20,000 investors in his scheme, many of whom lost their life savings in the $64 billion fraud.  Other than a brief reference to his victims during his sentencing hearing, Madoff has spent a lot of his time behind bars in an effort to rehabilitate his own image and actually shift the blame to the investors for expecting unrealistic returns which he claims is why he set up his fraud."   And though surely Madoff's victims may not speak in one voice on these matters, I suspect many are open to a vision of "justice ... much more extensive than the incarceration," but are concerned that they have not seen any other form of extensive justice achieved here (though a whole lot of assets have been recovered after a decade of work).  Madoff not only committed arguably the worst white-collar offense in US history, but it seems he has not really done all that much to try to make amends.

Though I may be getting too nitpicky here, I wanted to comment on this piece because I found one particular sentence to be particularly disturbing: "The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims."  The truth is, there are tens of thousands, probably hundreds of thousands, of entirely "sympathetic" people in US prisons who could be released without any scruples by the public or affront to their victims.  Just a quick look at "The Whole Pie" of incarceration shows over 275,000 persons imprisoned for drug offenses and another 200,000 in for "public order" offenses.  Not all of these the underlying crimes were victimless, but even if only one of every ten of these prisoners are "sympathetic," that still gets us to nearly 50,000 sympathetic prisons to consider for release.  Mass incarceration is so very troubling in part because there really are quite a large number of sympathetic cases, and I am particularly eager for there to be continued efforts to give voice to, and get relief for, the huge number of sympathetic folks wasting time (and taxpayer resources) in unduly lengthy prison terms.

This piece rightly notes "there are 200,000 people over the age of 55 incarcerated in the United States" and it is rightly concerned that "compassionate release for Mr. Madoff affects not only him but these others and their victims as well."  But these data and my fears tethered to Madoff's failure to demonstrate remorse run the argument the other way in my view: though I hope there would not be a backlash were Madoff to receive compassionate relief, I worry he could become the poster child for restricting this important relief mechanism for tens of thousands of other prisoners who would seem a lot more sympathetic.  That said, I do like imagining a (realistic?) future in which a decision to release Madoff prompts many more federal judges to grant compassionate release to many more federal prisoners.

Prior related post:

February 17, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Pathways to Reintegration: Criminal Record Reforms in 2019"

The title of this post is the title of this terrific new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel. (I noted in this post a few weeks ago the series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns, and I believe this new report brings all of this important material together.)  Here is part of this report's introduction:  

In 2019, 43 states, the District of Columbia, and the federal government enacted an extraordinary 152 laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and in many other areas of daily life.  This prolific legislative track record, augmented by one important executive order, reflects a lively national conversation about how best to limit unwarranted record-based discrimination and to promote reintegration.

Last year, we reported what was then an unprecedented number of new record reform laws: 32 states enacted 57 new laws in 2018. In terms of the number of new laws enacted and their importance, 2019 breaks every record set in 2018.  Lawmakers across the country took major actions to restore voting and other civil rights; authorize expungement and other forms of record relief; expand diversion programs to avoid conviction; limit the use of criminal records in occupational licensing, employment, and housing; alleviate immigration consequences; and curb driver’s license penalties unrelated to driving offenses. Approaches to relief varied widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect.

This report on 2019 criminal record reforms continues CCRC’s efforts to document an extraordinarily fruitful period of law reform in the United States, one that began around 2013 and has continued to gather steam into 2020.  The overall purpose of this law reform movement has been to advance a public policy of promoting reintegration for people with a criminal record.  In the seven-year period in which CCRC has been following the trend, every state legislature and the federal government has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in society.

This introduction highlights key developments from this past year.  A Report Card, new this year, grades the progess of the most (and least) productive state legislatures in 2019. The body of the report provides topical discussions of reform measures, and is followed by an appendix that organizes the laws enacted by jurisdiction.  A link to the text of each law is included, as well as a statutory citation where available.  More detailed information about each state’s laws is available in the CCRC Restoration of Rights Project.

February 17, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

February 16, 2020

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

February 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Over 1000 former DOJ employees calling for Attorney General William Barr to resign

As this Politico piece details, "more than 1,100 former Justice Department employees have signed an online petition pressing Attorney General Bill Barr to resign and commending the four prosecutors who withdrew from the Roger Stone case."  In this context, I am tempted to make a sour joke that it would seem that AG Barr's eagerness to recommend a below-guideline sentence for a non-violent first offender finally  crossed a line in the sand in the eyes of all these former DOJ employees.  But, of course, this controversy has much more to do with political interference rather than with sentencing decision-making (although I recall few took note when DOJ decided to seek the death penalty in a high-profile New York case after Prez Trump tweeted they should).

Here is more from the Politico piece about the online petition (which is available here and it still seeking signatures):

Last week, all four prosecutors quit the Stone case after what they perceived as interference from the White House.  The prosecutors had recommended a seven- to nine-year prison sentence after Stone — President Donald Trump’s longtime friend — was convicted of lying to Congress and of obstruction....

Barr and other top officials then pushed for a softer prison recommendation in a revised filing that offered no specific sentence term, though the attorney general has said he didn’t speak to the president about it.  The sentencing is set for Thursday, though the judge has set a conference call with the lawyers in the case for Tuesday.

“Such behavior is a grave threat to the fair administration of justice.  In this nation, we are all equal before the law.  A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President,” the online petition read. Signatures for the letter were gathered by Protect Democracy, a nonprofit legal group that had also gathered signatures for a letter claiming the Mueller report presented enough evidence to charge Trump with obstruction of justice. That letter was also critical of Barr.

The petition's signatories include Justice Department employees dating back to the administrations of President Dwight Eisenhower and President John F. Kennedy, though most are of more recent vintage.  Among them are three who served as assistant attorney general: Sanford Litvack, Jimmy Gurule and Laurie Robinson. The current total is 1,143, though Protect Democracy said it would continue to add names.

The former Justice Department employees welcomed Barr’s “belated acknowledgment that the DOJ’s law enforcement decisions must be independent of politics.”  On Thursday, Barr had offered a rare rebuke of his boss, telling ABC, "I think it's time to stop the tweeting about Department of Justice criminal cases.”

However, the online petition read, “Mr. Barr’s actions in doing the President’s personal bidding unfortunately speak louder than his words.  Those actions, and the damage they have done to the Department of Justice’s reputation for integrity and the rule of law, require Mr. Barr to resign.” 

Since they said they had little expectation Barr would actually step down, the former employees called on the Justice Department’s career officials to report unethical conduct.  They applauded the prosecutors for upholding their oaths and standing up for the department’s independence.  “We call on every DOJ employee to follow their heroic example and be prepared to report future abuses to the Inspector General, the Office of Professional Responsibility, and Congress; to refuse to carry out directives that are inconsistent with their oaths of office; to withdraw from cases that involve such directives or other misconduct; and, if necessary, to resign and report publicly — in a manner consistent with professional ethics — to the American people the reasons for their resignation.”

Prior related posts:

UPDATE: One notable former DOJ employee, namely Donald Ayer, former Deputy AG for Prez George H. W. Bush, has this notable new extended Atlantic piece under the full headline "Bill Barr Must Resign: The attorney general is working to destroy the integrity and independence of the Justice Department, in order to make Donald Trump a president who can operate above the law."

February 16, 2020 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

"Don't be fooled by slick ad. Most people given clemency by Trump don't look like Alice Marie Johnson."

N_msnbc_trumppardon_180825_1920x1080The title of this post is the headline of this recent USA Today commentary authored by Nora Demleitner.  I recommend this piece in full, and here are excerpts:  

Alice Marie Johnson, whose life term President Donald Trump cut short, was the star of a Super Bowl ad. It portrayed Trump as the country’s leading criminal justice reformer, a man who actively and compassionately assists the downtrodden.  As is standard fare for Trump, the ad was based on half-truths and misleading claims. But that is not its worst feature.  The ad was a cynical ploy to provide white voters with a feel-good message and an argument to rebut charges of Trump's racism.  At the same time, it reinforced the message of black criminality....

The spot conflated two federal criminal justice issues — the First Step Act and presidential clemency power.  The president commuted Johnson’s sentence, which led to her immediate release from prison.  She had served 21 years of a life sentence for a nonviolent drug conviction. Reality TV star Kim Kardashian West championed Johnson’s case, even visiting the White House to make her argument.  Johnson is one of only 24 people to receive clemency under the Trump administration, according to a list on the Department of Justice website.

Presumably, the reference to the release of thousands was to the president signing the First Step Act.  The act has led to the early release of a good number of federal inmates. It retroactively decreased crack cocaine sentences and added other mechanisms, such as expansion of compassionate release....

The ad failed to indicate that both of the president’s attorneys general have insisted on continuing federal policies that have fueled the nation's mass incarceration and increased disparities seen in the criminal justice system against black and brown people.  The Department of Justice has opposed First Step Act sentence reductions and releases.  The department has also vilified progressive local prosecutors who have implemented reforms (which include not going after low-level drug offenders or choosing to divert cases from the criminal justice system).  At best, one could call this administration’s record on criminal justice reform mixed, at worst hypocritical....

Most of the people Trump has given clemency to did not look like Johnson.  Of the other five commutations the president has issued so far, only one involved another drug offender, and that offender was not African American.  In addition to the commutations, Trump has handed out 18 pardons.  Rather than uniting thousands of families, as the ad claimed, Trump has used his clemency power to reunite just two dozen.

And the majority of his clemencies have been politically motivated.  Joe Arpaio, the notorious Maricopa County sheriff, received one even before he was sentenced. Others went to men like Scooter Libby, a former aide to Vice President Dick Cheney; Dinesh D’Souza, a right-wing commentator; Conrad Black, a former media mogul and Trump biographer; and Pat Nolan, a former Republican lawmaker....

Only two of Trump's best known acts of clemency have gone to African Americans.  One went to the above mentioned Johnson, featured in the Super Bowl ad, and the other went, posthumously, to Jack Johnson.  The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines.  But two is hardly anything to brag about.

In fact, Trump has done less for nonviolent drug offenders with his commutation powers than many of his predecessors, including Barack Obama, a president Trump seems obsessed with outdoing.  Within his first three years in office, President Obama had given clemency to only 18 people compared with Trump's 24.  But of those whose sentences Obama either pardoned or commuted, the majority, 11, had been incarcerated on nonviolent drug offenses. Only four of the people given clemency under Trump were nonviolent drug offenders.

The Alice Johnson ad falsely appeases voters who may be concerned that Trump isn't addressing racial inequities in our criminal justice system and who may even be troubled by the president’s racist language.  We need a visual of the true beneficiaries of this president’s clemency power: A gallery of white, Republican men.

A google search helped me find the above image showing nine of the two dozen persons to get a pardon or a commutation from President Trump.  The image above certainly over-represents people of color among the full group, as I think every single other clemency recipient is am white man.

Covering somewhat similar group, the Washington Post ran this interesting piece by Philip Bump under the headline "Trump’s approach to crime and punishment is centered on his own power: The inverted criminal justice of President Trump." The piece helps highlight just why, given the ultimate leader in charge, criminal justice work in the Trump Administration is likely always certain to be "mixed."

February 16, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Can a new conservative group help get the death penalty abolished in Ohio?

The question in the title of this post is prompted by this recent local press piece, headlined "Conservative group vows to end the death penalty."  Here are excerpts:

Activists have pushed to end the death penalty for years but there's a new effort to abolish it by a new group of more recent converts — conservative Republicans.  "Conservatives Concerned with the Death Penalty" includes prominent former lawmakers like Governor Bob Taft and former Congressman Pat Tiberi.

Governor Mike DeWine has delayed several upcoming executions because the state's previous methods of lethal injection are on hold in the courts. An alternative that will pass legal muster hasn't been figured out. House Speaker Larry Householder said in December the death penalty may not be enforceable.

“I’ve been pro-death penalty pretty much my entire career as a political operative," said Michael Hartley, a Republican operative for more than 20 years.  Hartley said he saw the toll executions had on the attorneys general and governors he worked for and that made him re-evaluate his stance.  “It is a pro-life state, it’s a fiscally responsible state and when you look at that, a lot of people question if it matches their values," he said. “We can’t even deliver our own mail.  Why should they be in charge of executing humans?”

He is part of the group "Conservatives Concerned with the Death Penalty."  That group will formally launch in Ohio on Tuesday....  Hartley said some conservatives have soured on the death penalty because it doesn't make fiscal sense. Executing an inmate costs more money in legal fees than imprisoning them for life.  Morally, Hartley said he can't stand for it after learning of people being exonerated after they've already been killed. “If we’ve executed one person that was innocent, this shouldn’t exist," Hartley said.

When state lawmakers might vote on abolishing the death penalty is unknown.  Not all Republicans, who have large majorities in both the Ohio House and Senate, have changed their minds about it.  Hartley said if Ohio were to end the death penalty, it could spark similar bans across the Midwest and rest of the nation.

This press notice from the national Conservatives Concerned About the Death Penalty group reports on speakers schedule for an Tuesday morning press conference that includes one active member of the Ohio General Assembly, namely Representative Laura Lanese, R-Grove City.  If there were another dozen or so Republican Ohio House members prepared to support abolition (and a comparable number in the state Senate), I might actually start thinking this could possibly happen.

Prior related posts:

February 16, 2020 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)