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March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

"Focusing Presidential Clemency Decision-Making"

The title of this post is the title of this new paper now available via SSRN authored by Paul J. Larkin, Jr. Here is its abstract:

The Article II Pardon Clause grants the President authority to grant clemency to any offender.  The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary.  The clause authorizes the President to grant clemency as he sees fit, but does not tell him when he should feel that way.

As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven.  Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s clemency process, has recommended a rigorous standard for Presidents to use when making clemency decisions.  The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship.  The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

This Article offers a way to make clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and Presidential decision-making.  Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately.  In the case of pardons, Presidents should answer a series of questions — an algorithm, if you will — that would guide them when deciding whether to forgive an offender.  In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender.  Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system.  The hope is that, in so doing, Presidents will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or people he knows.  The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in clemency decision-making.

March 27, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

March 26, 2021

Senators Durbin and Lee re-introduce "Smarter Sentencing Act" to reduce federal drug mandatory minimums

As detailed in this new press release, it looks like some notable US Senators are trying yet again to reform federal mandatory minimums.  Here are the basics from the release:

Sen. Mike Lee (R-Utah) cosponsored the “Smarter Sentencing Act,” bipartisan legislation designed to bring judicial discretion and flexibility to non-violent drug charge sentencing. The bill is sponsored by Sen. Dick Durbin (D- Ill.) and cosponsored by 11 of their colleagues.

Since 1980, the number of inmates in federal prison has increased by 653%.  About 50% of those federal inmates are serving sentences for drug-related offenses, increasing the taxpayer burden by more than 2,000%.  In short, federal incarceration has become one of our nation’s biggest expenditures, dwarfing the amount spent on law enforcement.

Our burgeoning prison population traces much of its growth to the increasing number and length of certain federal mandatory sentences.  More than 60% of federal district court judges agree that existing mandatory minimums for all offenses are too high.  In the words of the members of the bipartisan U.S. Sentencing Commission, “the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently . . . .”

“Our current federal sentencing laws are out of date and often counterproductive,” said Sen. Lee. “The Smarter Sentencing Act is a commonsense solution that will greatly reduce the financial and, more importantly, the human cost imposed on society by the broken status quo.  The SSA will give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities.”

“Mandatory minimum penalties have played a large role in the explosion of the U.S. prison population, often leading to sentences that are unfair, fiscally irresponsible, and a threat to public safety,” Sen. Durbin said.  “The First Step Act was a critical move in the right direction, but there is much more work to be done to reform our criminal justice system. I will keep fighting to get this commonsense, bipartisan legislation through the Senate with my colleague, Senator Lee.”

Lee and Durbin first introduced the Smarter Sentencing Act in 2013.  Several important reforms from the Smarter Sentencing Act were included in the landmark First Step Act, which was enacted into law in 2018.  The central remaining sentencing reform in the Durbin-Lee legislation would reduce mandatory minimum penalties for certain nonviolent drug offenses.  The Congressional Budget Office has estimated that implementation of this provision would save taxpayers approximately $3 billion over ten years.

The full list of cosponsors includes: Sens. Patrick Leahy (D-Vt.), Roger Wicker (R-Miss.), Sheldon Whitehouse (D-R.I.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Ct.), Tammy Baldwin (D-Wis.), Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Angus King (I-Maine), and Tim Kaine (D-Va.).

I am not particularly optimistic that the SSA will make it through Congress this time around, but I should note that prior iterations of this bill got votes in Senate Judiciary Committee from the likes of Ted Cruz and Rand Paul. Moreover, the current chair of the Senate Judiciary Committee is Senator Durbin and the current President campaigned on a platform that included an express promise to "work for the passage of legislation to repeal mandatory minimums at the federal level."  Given that commitment, Prez Biden should be a vocal supporter of this bill or should oppose it only because it does not got far enough because it merely seeks to "reduce mandatory minimum penalties for certain nonviolent drug offenses," rather than entirely eliminate them.

March 26, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (4)

"The New York State Trial Penalty: The Constitutional Right to Trial Under Attack"

NYS_Trial_PenaltyThe title of this post is the title of this big new report released today by NYSACDL and NACDL which, according to this press release, is "the first-ever report on the decades-long impact of the trial penalty in New York State."  Here is some background and an overview from the press release:

Over the past three decades, the proportion of criminal cases that progress to trial in New York state has steadily declined. As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the result of guilty pleas — a troubling phenomenon that severely weakens the integrity of the justice system by circumventing juries. One of the most significant contributing factors behind this trend is the trial penalty, or the empirically greater sentence a criminal defendant receives after trial compared to what prosecutors offer in a pretrial guilty plea. The coercive impact of the trial penalty induces individuals to surrender a panoply of valuable rights under pain of far greater punishment, and it has been shown to induce innocent accused persons to plead guilty.

To better understand the scope of the trial penalty and its impact in New York, NYSACDL and NACDL conducted a survey of criminal justice practitioners across the state. More than three hundred criminal defense attorneys responded and shared how they and their clients experienced the trial penalty firsthand. NYSACDL and NACDL also conducted a statistical analysis of criminal case dispositions, including a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction data to investigate the prevalence and impact of the trial penalty in the borough.

Key findings from the resulting report include:

  • 94% of surveyed criminal justice practitioners agreed that the trial penalty plays a role in criminal practice in their county. Data analysis supported practitioners’ insights — in 66% of cases sampled, defendants experienced a trial penalty.
  • The trial penalty in New York manifests in numerous ways, including by limiting transparency and removing a critical check on law enforcement overreach and abuse.
  • The trial penalty is driven by a broad range of different factors — including aggressive charging, judicial pressure to plead guilty, and the prospect of severe criminal penalties, sentencing enhancements, and mandatory minimums — and therefore requires a broad range of solutions to overcome.

The report outlines 15 policy recommendations, which can be summarized in three overarching categories:

  1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look statutes, compassionate release legislation, and an expanded clemency process that ensures sentences remain proportionate while offering safety valves for older and sicker defendants or those with other extraordinary circumstances, including extraordinary rehabilitation.
  2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing defendants with longer sentences solely based on their decision to go to trial or challenge the government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver of constitutional or statutory rights, like the right to appeal, and ensure that criminal defense organizations have the resources to provide a zealous defense.
  3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial disposition quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers and sentencing dispositions to explore further how the trial penalty manifests in New York state.

March 26, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (5)

The new death penalty: latest reporting chronicles that COVID has now killed more than 2500 prisoners in the United States

I have been pleased that the encouraging slow down in the number of national COVID deaths has also been reflected in prisoner COVID death in recent times: though prisoner COVID death increased by over 100 some weeks in December and January, lately there have been only about a dozen weekly deaths reported.  However, I am still sad to be reporting that we have now passed yet another remarkable milestone in COVID prisoner deaths according to the data assembled by The Marshall Project. 

I am grateful that The Marshall Project is continuing the critical job of counting via this webpage prisoner deaths from coronavirus, reports as of Thursday, March 25, 2021 that there are now "at least 2502 deaths from coronavirus reported among prisoners."  It should come as no surprise to regular readers that we have generally seen increases and decreases in COVID cases and deaths that largely track the general population; in this particular context, prisons are very much reflective of broader community realities.   We are also seeing a relatively reduction in reports of correctional staff dying from COVID, but The Marshall Project still reports we are up to "at least 195 deaths from coronavirus reported among prison staff." 

I am hopeful that we are not far from having all incarcerated persons and staff fully vaccinated, though there are disconcerting reports of vaccines not being made available to prisoners and of prison staff refusing to get vaccinated.

A few of many prior related posts:

March 26, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

March 25, 2021

"Punitive Surveillance"

The title of this post is the title of this notable new paper by Kate Weisburd now available via SSRN. Here is its abstract:

Is there a “punishment exception” to the Constitution?  That is, can the deprivation of fundamental rights — such as the right to protest, to visit a mosque, or consult a lawyer — be imposed as direct punishment for a crime, so long as such intrusions are not “cruel and unusual” (under the Eighth Amendment)?  On the one hand, such intrusions seem clearly unconstitutional unless narrowly tailored to meet a compelling state interest; on the other hand, they seem less harsh than prison.  Surprisingly, the answer is not obvious. But the answer is critical as courts increasingly impose new forms of non-carceral punishment, such as GPS-equipped ankle monitors, smart phone tracking, and suspicionless searches of electronic devices.  This type of monitoring, what I term “punitive surveillance,” allows government officials and for-profit companies to track, record, search and analyze the location, biometric data and other meta-data of thousands of people on probation and parole.  With virtually no oversight or restraint, punitive surveillance strips people of fundamental rights, including privacy, speech, and liberty.  Thus far, courts have assumed that such intrusions are merely “conditions” of punishment or “regulatory” measures.  As a result, punitive surveillance is subject to almost no limitations.

This Article is the first to argue that these restrictive and invasive surveillance measures are — just like a prison sentence — punishment, and subject to constitutional limits.  The Article makes three contributions.  First, drawing on original empirical research of almost 300 state and local policies, it reveals the punitive and rights-stripping nature of electronic surveillance of those on court supervision.  Second, it explains why courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and the law of punishment.  Finally, it makes the case that punishment is still subject to constitutional limits beyond the Eighth Amendment and the Ex Post Facto Clause, as well as other limits.  Given the rights at stake, and that punitive surveillance entrenches race and class-based subordination, limiting punitive surveillance is crucial.

March 25, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Notable new briefings from the Prison Policy Initiative

Regular readers are familiar with my posts highlighting the cutting-edge research and analysis by the Prison Policy Initiative, and in recent weeks PPI has a bunch of notable new "briefings" on pressing and persistent prison and jail issues:

Visualizing the unequal treatment of LGBTQ people in the criminal justice system; LGBTQ people are overrepresented at every stage of our criminal justice system, from juvenile justice to parole.

New data on jail populations: The good, the bad, and the ugly; A new BJS report shows that U.S. jails reduced their populations by 25% in the first few months of the pandemic. But even then, the U.S. was still putting more people in local jails than most countries incarcerate in total.

Research roundup: Violent crimes against Black and Latinx people receive less coverage and less justice; We explain the research showing that violent crimes against Black Americans — especially those in poverty — are less likely to be cleared by police and less likely to receive news coverage than similar crimes against white people.

It’s all about the incentives: Why a call home from a jail in New York State can cost 7 times more than the same call from the state’s prisons

March 25, 2021 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

March 24, 2021

Virginia officially repeals its death penalty

I reported here last month that Virginia was on the verge of repealing the death penalty in the state.  Today, as reported in this new NPR piece, the repeal became official.  Here are some details:

Virginia Gov. Ralph Northam signed a bill into law abolishing the death penalty in the state after the Democratically-controlled legislature passed the measure late last month. "It is the moral thing to do to end the death penalty in the Commonwealth of Virginia," said the governor....

Virginia is the first state in what was the Confederacy to stop using the punishment. The commonwealth has executed more people than any other state since the first execution took place at Jamestown in 1608.

Opponents of the death penalty cite the high cost, the possibility of executing the innocent and the disproportionate racial impact. Black defendants are more likely to face death sentences, especially when victims are white. "The death penalty is the direct descendant of lynching. It is state-sponsored racism and we have an opportunity to end this today," said Democratic Del. Jay Jones, speaking on the floor of the House last month.

Virginia has gone through several racial reckonings in the last few years. Michael Stone, executive director of Virginians for Alternatives to the Death Penalty, says the 2019 controversy involving Gov. Northam and an old racist yearbook photo may have brought the state closer to this point. "I think the governor's blackface scandal certainly predisposed him to being far more sensitive about racial justice issues."

And then came the police killing of George Floyd by police in Minneapolis last year. "The Black Lives Matter protests turbocharged the move toward criminal justice reform in general, and death penalty abolition in particular," says Stone.

Two Republicans voted with Democrats in favor of abolition, but the party has been largely unified in opposition, along with law enforcement groups who want to keep the penalty for people who murder police officers.

Many victim's families have spoken out against the death penalty, saying it makes healing more difficult. Rachel Sutphin is a vocal opponent of the death penalty and objected to the 2017 execution of her father's killer. William Morva, who was the last person to be executed in Virginia, fatally shot her father, Eric Sutphin, a police officer, in 2006. She objected to Morva's execution in part because he was diagnosed with a serious mental illness....

Gov. Northam thanked lawmakers for getting the bill to his desk, "Virginia will join 22 other states that have ended use of the death penalty. This is an important step forward in ensuring that our criminal justice system is fair and equitable to all."

Prior recent related post:

March 24, 2021 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Notable Seventh Circuit panel finds insufficient explanation for revoking supervised release for missed drug test and assessments

Late last week, a Seventh Circuit panel handed down an interesting and seemingly important ruling in US v. Jordan, No. 19-2970 (7th Cir. Mar. 18, 2021) (available here). The 10-page unanimous ruling should be of interest to all federal sentencing fans because the ruling gives some teeth to "the parsimony principle of 18 U.S.C. § 3553(a)," but it also ought to be of interest to any other criminal justice fans concerned about drug policy and about how community supervision and revocations can undergird mass incarceration.

The start of the opinion highlights why the Jordan ruling caught my attention:

During his first three months while on supervised release, Anthony Jordan consistently tested negative on drug tests and called the probation office to find out about his next required tests.  Nonetheless, over two days in June 2019, he missed a drug test and two assessments, prompting his probation officer to petition to revoke his supervised release. The district court ruled that Jordan had committed the violations, revoked his supervised release, and sentenced him to six months in prison followed by 26 months of supervised release (including 120 days in a halfway house).  Jordan has appealed.  We conclude that the district court did not sufficiently explain its decision, consider Jordan’s defense that his violation was unintentional, or otherwise ensure that its sentence conformed to the parsimony principle of 18 U.S.C. § 3553(a).  We therefore reverse the judgment.

And here are excerpts from the heart of the opinion (which is very much worth reading in full, in part because it notes that the feds here "asked for 14 months of imprisonment"), as well as its closing paragraph:

Jordan’s core claim is that the district court failed to sufficiently justify both the revocation and prison sentence.  He invokes the due process clause of the Fifth Amendment, but we think this case fits better within “the supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).  This authority permits us to require sound procedures that are not specifically commanded by the statutes or other relevant provisions.  Thomas v. Arn, 474 U.S. 140, 146–47 (1985); Terry v. Spencer, 888 F.3d 890, 895 (7th Cir. 2018).

Under our supervisory authority, we see two flaws in the district court’s procedures and decision. First, the district court did not mention, let alone adequately explain, its rejection of Jordan’s defense that he lacked intent to violate the conditions of supervised release and had made reasonable and good faith attempts to comply.  Such an explanation is required.  United States v. Hollins, 847 F.3d 535, 539 (7th Cir 2017).  The need to address the defense is particularly important here because, before hearing a word of testimony, the court told Jordan that it was adopting the findings of violations from the probation officer’s memo.  We do not know why the court seemed to make findings about violations before the planned hearing on whether violations occurred.  But because it seemed to signal its view of the facts before hearing any evidence, we think that after the court heard the evidence, it needed to explain why that evidence did not move the court from that earlier view.  And it did not do so here.  We hasten to add that a revocation may have been justified.  We recognize that the testimony of offenders on supervised release might not be credible, and we know that district judges may hear a lot of creative excuses for failing to comply with conditions of supervised release.  But without an evaluation of the defense, we cannot review whether the district court’s rationale for rejecting it was permissible.

Second, the district court did not adequately explain its decision to imprison Jordan again for six months.  Sentences must always conform to the “broad command” of the parsimony principle, which requires that sentences be “‘sufficient, but not greater than necessary to comply with’ the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a). This principle is especially important in a case like this where the alleged violations were not criminal, the defendant asserted a lack of intent, and there was evidence of reasonable efforts and good faith, putting in question which of the purposes of sentencing apply.

The Supreme Court has observed that prison is not necessarily appropriate for every violation of a condition of release, such as where, as the defendant asserts here, the defendant made bona fide efforts to comply and does not obviously pose a threat to society.  Bearden v. Georgia, 461 U.S. 660, 668–70 (1983). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.”  Johnson v. United States, 529 U.S. 694, 708–09 (2000).  Sending a defendant back to prison for a violation that occurs despite reasonable and good faith efforts to comply may well undermine that transition....

We do not mean to imply that imprisonment may never be the appropriate response to violations like those charged here, missing a drug test and appointments for treatment. The district court may have had in mind the notion that the assurance of reimprisonment — even for a short time for intentional or even careless violations — deters future violations. We understand that different judges have different philosophies in balancing the factors under § 3553(a). But the district court needed to say explicitly why it thought that six months in prison was necessary for a defendant who had tested negative on every test and committed no other violations.

March 24, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"What is Public Safety?"

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

For literally hundreds of years, political leaders and thinkers have deemed public safety the first duty of government.  But they have defined public safety largely in terms of the “protection” function — protecting individuals from violent harm to person or property, from third parties, but also from natural elements.  As the first duty, the protection function is privileged.  Witness today how we valorize police and other first responders, defer to their decisions without sufficient scrutiny, and even immunize their mistakes.

Yet, is protection really all there is to public safety?  For most people, being safe depends on much more: food, clean water and air, housing, a basic income and the means to obtain it, meaning education and a job.  It might include health care, health insurance to obtain it, or the freedom from discrimination.

This Article argues that if individual safety includes some or all of these additional elements, then public safety — the government’s obligation to ensure people are safe — should be understood far more capaciously than the protection function.  At its analytic core, it shows that there is nothing particularly different about the protection function that justifies treating it as government’s first job, while the other vital functions of government are relegated to second-class status.  And it explores the many reasons that despite the fact that protection is not special, we nonetheless neglect all the other elements of individual safety.

Today, many argue that funding needs to be reallocated from policing to the other needs that challenged communities face.  This Article provides a theoretical basis for those claims, establishing that we over-privilege the protection function, and under-support much else government should be doing.  It demonstrates the very tangible harms people face because we definite public safety narrowly.  On the one hand, people starve, go without shelter, die from air and water that is not clean, from the travails of living in poverty, and from the lack of health care.  On the other hand, people are harmed at the hands of the police, because we do not scrutinize the protection function sufficiently to change this, we need to think more broadly about what safety — and public safety — means.

March 24, 2021 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

March 23, 2021

A "Call for Comment" from the ABA's Plea Bargaining Task Force

I am happy to be able to highlight here a "Call for Comment" from the American Bar Association Criminal Justice Section's Plea Bargaining Task Force:

The American Bar Association Criminal Justice Section has created a task force to more closely examine the role of plea bargaining in our modern system of criminal justice.  Its goal is to develop both broad policy oriented goals for the criminal justice system and, where necessary, specific recommendations for changes in the way plea bargaining operates within the larger criminal justice environment.  These issues will be examined from the perspective of all those involved in the criminal justice system, including prosecutors, defenders, defendants, judges, victims, and others.

To date, the task force has had the opportunity to hear from a number of advocacy groups, researchers, and policy makers regarding the benefits of the plea bargaining system, the negative consequences resulting from our reliance on plea bargaining and the current structure of the plea bargaining system, and potential reforms and paths forward.  To ensure that as wide a possible audience is able to voice concerns, perspectives, and ideas about the plea bargaining system as the task force begins drafting its report and recommendations, we encourage those interested to provide written comments to us.

Comments should be in written form and should be submitted to the Task Force’s Reporter, Professor Thea Johnson (thea.johnson @ rutgers.edu) by April 15, 2021.  Written comments may address any aspect of the plea bargaining system that the drafter believes will assist the committee in its work.  Please note that the task force intends to create a publicly accessible website with information about the work of the task force, the task force’s report, materials from the presentations that were made before the task force, and materials submitted for the task force’s consideration.  We hope that this repository will be a valuable tool for those interested in plea bargaining.  As a result, please note that your submitted comments, including the identity of the submitting individual(s) or organization(s), are not confidential and may (at our sole discretion and without further permission) appear in this public forum.  Reference to and quotations from comments received, including the identity of the author(s), may also (at our sole discretion and without further permission) appear in the official report of the committee.

We hope those interested in these topics will consider participating in this opportunity for comment.

March 23, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Was it fair?": Second Circuit judge questions charging practices of federal prosecutor

I helpful reader alerted me to an interesting concurring opinion by Judge Jon Newman in a Second Circuit decision yesterday in US v. Dumitru, No. 19-1486-cr (2d Cir. Mar. 22, 2021) (available here). Because my first job out of law school was clerking for Judge Newman, I tend to think everything he has to say is worth listening to.  But criminal justice fans may be especially interested in his discussion of prosecutorial charging in his short separate opinion in this case, and here is a small taste:

Prosecutors have extremely broad power to decide which criminal statutes to charge a defendant with violating.  That awesome power is only slightly limited....

The pending appeal strikes me as an example of a prosecutor’s decision to charge multiple counts that approaches, if not exceeds, the limits of fairness.  However, because the prosecutor’s selection of statutory violations to be charged in this case encounters no legal obstacle that a court is entitled to invoke, I concur in the Court’s opinion and judgment, but write separately to express views on the questionable fairness of the multiple counts in this case, views developed in many years as a prosecutor, trial judge, and appellate judge....

Atty. Andreea Dumitru prepared and submitted false asylum applications for a large number of her clients.  For that unlawful conduct the Government charged her with violating three different statutes.  The three-count indictment was lawful.  The question remains: Was it fair?

March 23, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

"The Gender of Gideon"

The title of this post is the title of this notable new paper authored by Jessica Steinberg and Kathryn Sabbeth now available via SSRN. Here is its abstract:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.  In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches.  The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests.  As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel.  Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued.  In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel.  Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases — family law, eviction, and debt collection — all disproportionately affect Black women.  As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy.  Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis.  First, their individual rights are routinely trampled.  Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law.  Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives.  Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination.  Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible.  This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

March 23, 2021 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

March 22, 2021

Notable SCOTUS partners urging (unavailable) USSC to clarify a guideline point

As noted before, the big SCOTUS news today for sentencing fans was the Justices' decision to grant cert to reconsider the reversal of the federal death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  (How Appealing collects some of the major media coverage here).  But for federal guideline gurus, the SCOTUS order list also included a fascinating little statement by Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Longoria v. United States, No. 20–5715. 

For starters, though seeing Justices Sotomayor and Gorsuch together might surprise some, folks who follow non-capital sentencing jurisprudence likely know that these two often speak in harmony on these kinds of issues.  More notable is what these Justices had to say within a three-paragraph statement focused on the application of one of the few downward adjustments in the US Sentencing Guidelines.  Here are highlights:

This petition implicates an important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b).  Most Circuits have determined that a suppression hearing is not a valid basis for denying the [extra one-point acceptance of responsibility] reduction....  A minority of Circuits have concluded otherwise.  In this case, for example, the Fifth Circuit accepted the Government’s refusal to move for a reduction after it had to prepare for a 1-day suppression hearing....

The Sentencing Commission should have the opportunity to address this issue in the first instance, once it regains a quorum of voting members. [FN*]  Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  I write separately to emphasize the need for clarification from the Commission.  The effect of a one-level reduction can be substantial.  For the most serious offenses, the reduction can shift the Guidelines range by years, and even make the difference between a fixed-term and a life sentence.  The present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced. When the Commission is able, it should take steps to ensure that § 3E1.1(b) is applied fairly and uniformly.

[FN*] Currently, six of the seven voting members’ seats are vacant.  The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.  See U.S. Sentencing Commission, Organization (Mar. 18, 2021), https://www.ussc.gov/about/who-weare/organization.

I am very pleased to see a couple Justices flag this issue, and I especially like the emphasis that the "effect of a one-level reduction can be substantial."  In other words, kudos to these Justices for making the point that even a single guideline point can be a big deal. (And I suspect that this sentence alone may end up in a lot of future briefs.)  I also like a high-profile shout out to a (non-functional) Sentencing Commission to take up this matter. 

But the split noted here has been kicking around for decades, meaning that the Commission has already long been able to, and long failed to, address this issue.  Moreover, because the Sentencing Commission currently lacks a quorum, practically speaking, it will not be able to address this issue until at least 2022 even if future members are eager to do so.

For the entire history of the federal sentencing guidelines, and as explained in the 1991 SCOTUS Braxton ruling, the Supreme Court has generally left it to the Commission to resolve conflicts over guideline interpretation.  I understand the thinking behind this kind of deflection (although I flagged some concerns in a long-ago article, The Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Fed. Sent. Rep. 142 (1994)).  Now that the guidelines are "effectively advisory," there is arguably even stronger reasons for SCOTUS not to spend its limited time on the resolution of circuit conflicts over guideline interpretation.

Still, this kind of case leaves me wondering if, at some point, the Justices can and should be prepared to actually adjudicate guideline matters that have long festered and allows "similarly situated defendants [to possibly] receive substantially different sentences depending on the jurisdiction in which they are sentenced."  Moreover, here we have a guideline provision being applied to functionally punish defendants seeking to vindicate constitutional rights through a court motion, a type of guideline issue which might be especially appropriate for the Supreme Court's intervention.

March 22, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

A request for lawprof input and other posts of note from Marijuana Law, Policy & Reform

I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform since mid January, and I am especially eager to flag this new post requesting information from folks teaching (or interested in teaching) a law course touching on drugs or the legal structures around cannabis (sought via a short survey at go.osu.edu/teaching-drugs-survey).  The first link below provides more context for this request, and thereafter you will find links to other recent posts at the intersection of criminal justice reform and marijuana reform from MLP&R

March 22, 2021 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences | Permalink | Comments (0)

Lots of statements about cert denials in criminal cases on latest SCOTUS order list

The big news this morning from the new Supreme Court order list was the Justices' decision to grant cert to reconsider the reversal of the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  But also of interest to criminal justice fans are three additional cases in which SCOTUS denied cert, but a few justices issues a statement about the issues in the case. 

One of these cases Longoria v. United States, No. 20-5715, involves a guideline issue that I am eager to discuss in a separate full post.  The other two involve muder defendants, and issues that obviously seemed worth noting by at least on Justice. 

In Thompson v. Lumpkin, No. 20–5941, Justice Kagan authored a concurrence in the denial of cert, joined by Justices Breyer and Sotomayor, flags various problems she see in the Fifth Circuit's application of AEDPA rules leading to its refusal of a state capital defendant's "request for an evidentiary hearing on two claims relating to his capital sentence."  Like many AEDPA issues, this matter is intricate, important and inevitably opaque.

in Smith v. Titus, No. 20–633, Justice Sotomayor issued a solo and lengthy dissent from the denial of certiorari.  Here is how her 13-page opinion gets started:

Because “the Sixth Amendment right to a public trial extends beyond the actual proof at trial,” courts must meet a high standard “before excluding the public from any stage of a criminal trial.”  Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam).  At Byron Smith’s trial, however, the judge cleared all members of the public from the courtroom before issuing a key evidentiary ruling.  Even though the judge did not justify the closure in accordance with the dictates of this Court’s precedents, the Minnesota Supreme Court found no constitutional error because it concluded that defendants have no public-trial right in so-called administrative proceedings.  That ruling was manifestly incorrect. Because the Minnesota Supreme Court’s decision contravened clearly established federal law, the Court of Appeals for the Eighth Circuit erred in denying Smith’s application for a writ of habeas corpus.  I would grant the petition for a writ of certiorari and summarily reverse.

March 22, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

SCOTUS grants cert to review First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

As noted in this post, the First CIrcuit last summer overturned the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, and the Trump administration sought review in October on these two questions in the government's cert petition:

  1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
  2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.

This morning, as detailed in this new order list, the US Supreme Court granted cert in US v. Tsarnaev.  Because the cert grant does not specify a particular question presented, I assume both of the questions presented flgged by the government will be before the Justices.

Of course, the new Biden Administration is purportedly opposed to the death penalty based on statements by then-candidate Joe Biden before his election.  (I do not believe Prez Biden has spoken to this matter directly and he had a history of supporting the death penalty in the past.)  Notably, the Biden Administration did not seek to withdraw the cert petition in Tsarnaev, and it will now be very interesting to see how it plans to move forward with this case now that cert has been granted.  

A few prior recent related posts:

March 22, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

March 21, 2021

New law journal issue covers "Progressive Prosecution: Perspectives from Activism, Academia, and Practice"

I recently saw that the new "Special Issue" of the Stanford Journal of Civil Rights & Civil Liberties is dedicated to the topic of "Progressive Prosecution: Perspectives from Activism, Academia, and Practice." Here are links to the four great-looking article is the issue:

Neighborhood Accountability Boards: A Case Study on the Promise and Limitations of Prosecutor-Led Reform by Kate Brubacher Murphy

Beyond Reform: Four Virtues of a Transformational Prosecutor by Taylor Pendergrass and Somil Trivedi

Beyond Non-Violent Offenses: Criminal Justice Reform and Intimate Partner Violence in the Age of Progressive Prosecution by Margo Lindauer and Emily Postman

A Public Defender Definition of Progressive Prosecution by Avanindar Singh and Sajid Khan

March 21, 2021 in Recommended reading, Who Sentences | Permalink | Comments (0)

Another deep look into the deep connections that eased the path to a clemency grant by Prez Trump

I sincerely wish the press would start focusing a lot more on compelling cases of persons who have not received clemency in our (pandemic-scarred) nation defined by mass incarceration and mass punishment.  But I suppose I understand why there is still interest and concern about how Prez Trump made clemency decisions and about who won the most recent round of the federal clemency lottery. 

Today this story is front-page news in the New York Times under this full headline: "Access, Influence and Pardons: How a Set of Allies Shaped Trump’s Choices: A loose collection of well-connected groups and individuals led by a pair of Orthodox Jewish organizations had striking success in winning clemency for white-collar criminals during the Trump presidency."  Here are excerpts from this lengthy piece:

The efforts to seek clemency for [various] wealthy or well-connected people benefited from their social, political, or financial ties to a loose collection of lawyers, lobbyists, activists and Orthodox Jewish leaders who had worked with Trump administration officials on criminal justice legislation championed by Jared Kushner.

That network revolved around a pair of influential Jewish organizations that focus on criminal justice issues — the Aleph Institute and Tzedek Association — and well-wired people working with them, including the lawyer Alan M. Dershowitz, Brett Tolman, a former U.S. attorney for Utah, and Nick Muzin, a Republican operative....

Of the 238 total pardons and commutations granted by Mr. Trump during his term, 27 went to people supported by Aleph, Tzedek and the lawyers and lobbyists who worked with them. At least six of those 27 went to people who had been denied clemency through the official Justice Department process during the Obama administration.

Over the years, at least four of those who received clemency or their families had donated to Aleph. Others or their allies and families had retained people like Mr. Dershowitz, who represented Mr. Trump in his first impeachment trial, Mr. Tolman and Mr. Muzin to press their cases before the Trump administration, often working in parallel with Aleph and Tzedek, according to public records and interviews.

The groups were not the only ones who had success with Mr. Trump. Alice Marie Johnson, an advocate for fairer sentencing who had her own drug conviction pardoned by Mr. Trump, was credited by the White House for championing 13 clemency grants, many of which went to drug offenders and African-American defendants given disproportionately long prison terms.

While Aleph worked with Ms. Johnson on some clemency cases — including for people convicted of nonviolent drug crimes — Aleph, Tzedek and their allies stood out for their success at winning clemency for white-collar offenders who had left a damaging trail of fraud in their wake. The majority of those who won clemency with their help had been convicted of financial crimes.

It was a new chapter especially for Aleph, which has long worked on behalf of people facing dire situations in the criminal justice system. Aleph has for years appealed for more lenient sentencing rules and pressed judges to reduce jail time in individual cases, while providing social and religious services to prisoners and their families. It only began seeking presidential clemencies during the Obama administration — and failed to secure any such grants until Mr. Trump took office.

The leaders of Aleph, Tzedek and their allies played a role in helping build support for a sweeping rewrite of federal sentencing laws in 2018, winning bipartisan praise and bolstering their clout in the administration.....

In the world of criminal defense lawyers and clemency seekers, Aleph, Tzedek and the people working alongside them came to be seen as among the most effective avenues to clemency, including for financial crimes of the sort that are usually less likely to garner support from criminal justice activists.

A spokesman for Aleph said the group selected candidates based on factors including humanitarian concerns, clear demonstrations of remorse and its commitment to addressing what it often sees as excessively long sentences. He acknowledged that Aleph had accepted donations from people whose clemencies its officials later supported to one degree or another, but said the group did its clemency work at no cost, and would not accept donations from people while working on their clemencies.

I am eager to note here that I have worked with a variety of folks connected to the Aleph Institute in a variety of settings for more than a decade.  I have sometimes helped in various ways in specific cases in which Aleph is advocating for a particular defendant to serve less prison time, and I have often been eager to participate in various ways in the great criminal justice reform conferences that Aleph has helped put on.

A few of many recent related posts:

March 21, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)