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January 16, 2021

Might Prez Trump announce his next round of clemency grants this weekend?

The question in this post is prompted by this Politico article headlined "Trump weighing a pardon for Steve Bannon." The start of the article suggests that some actually were expected some action on the clemency front last night:

President Donald Trump is considering granting a pardon to Steve Bannon, his former White House chief strategist and top campaign aide, who was charged with swindling donors to a private crowdsourcing effort to build a wall along the U.S.-Mexico border, according to two sources familiar with the matter.

The potential pardon would follow a wave of reprieves the president has recently granted to political allies who have been convicted, charged or reportedly under federal investigation. Two additional batches of pardons are expected — one on Friday night and one Wednesday morning before President-elect Joe Biden is sworn into office, according to one of the people.

I have been wondering in recent days about how the Capitol riot and Prez Trump's second impeachment might be impacting his clemency plans (and they advice he may be getting from his remaining advisors). Ultimately, I have given up making Trumpian predictions, but these recent articles reveal we can readily predict that Prez Trump will keep recieving clemency requests:

From The Daily Beast, "‘QAnon Shaman’ Seeks Trump Pardon for Riot, Says President Invited Him"

From Newsweek, "Jenna Ryan, Who Took Jet to Capitol Riot, Asks Donald Trump for a Pardon"

A few recent related posts:

UPDATE: These new stories highlight the Trumpian realities already shaping the clemency:

From The Guardian, "Giuliani associate told ex-CIA officer a Trump pardon would 'cost $2m’ – report"

From the New York Times, "Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump"

Here are portions of the NYTimes piece:

As President Trump prepares to leave office in days, a lucrative market for pardons is coming to a head, with some of his allies collecting fees from wealthy felons or their associates to push the White House for clemency, according to documents and interviews with more than three dozen lobbyists and lawyers....

Legal scholars and some pardon lawyers shudder at the prospect of such moves, as well as the specter of Mr. Trump’s friends and allies offering to pursue pardons for others in exchange for cash.

“This kind of off-books influence peddling, special-privilege system denies consideration to the hundreds of ordinary people who have obediently lined up as required by Justice Department rules, and is a basic violation of the longstanding effort to make this process at least look fair,” said Margaret Love, who ran the Justice Department’s clemency process from 1990 until 1997 as the United States pardon attorney....

Few regulations or disclosure requirements govern presidential clemency grants or lobbying for them, particularly by lawyers, and there is nothing illegal about Trump associates being paid to lobby for clemency.  Any explicit offers of payment to the president in return could be investigated as possible violations of bribery laws; no evidence has emerged that Mr. Trump was offered money in exchange for a pardon.

Some who used resources or connections to try to get to Mr. Trump say clemency should be granted to more people, independent of their clout.

January 16, 2021 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

SCOTUS clear way for 13th federal execution in six months, prompting extended dissents from Justices Breyer and Sotomayor

The now familiar federal execution drama has now played out one more time, this time around with Dustin Higgs securing a stay in lower courts only to see the Supreme Court allowing the execution to go forward.  Notably, with this last scheduled federal execution, Justice Beyer and Justice Sotomayor each sought to say their piece in extended dissents.  Justice Breyer's fourt-page dissent starts this way:

Last July the Federal Government executed Daniel Lee. Lee’s execution was the first federal execution in seventeen years.  The Government’s execution of Dustin Higgs tonight will be its thirteenth in six months.  I wrote in July that “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.”  Barr v. Lee, 591 U.S. ___, ___ (2020) (dissenting opinion) (slip op., at 2).  The cases that have come before us provide several of those examples.

And Justice Sotomayor's ten-page dissent starts and ends this way:

After seventeen years without a single federal execution, the Government has executed twelve people since July.  They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson.  Today, Dustin Higgs will become the thirteenth.  To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes....

There is no matter as “grave as the determination of whether a human life should be taken or spared.”  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).  That decision is not something to be rushed or taken lightly; there can be no “justice on the fly” in matters of life and death.  See Nken v. Holder, 556 U.S. 418, 427 (2009).  Yet the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.  Those whom the Government executed during this endeavor deserved more from this Court.  I respectfully dissent.

This AP article reports on the execution, and includes these passages:

Higgs, 48, was pronounced dead at 1:23 a.m. Asked if he had any last words, Higgs was calm but defiant, naming each of the women prosecutors said he ordered killed. “I’d like to say I am an innocent man. ... I am not responsible for the deaths,” he said softly. “I did not order the murders.”

He did not apologize for anything he did on the night 25 years ago when the women were shot by another man, who received a life sentence.

January 16, 2021 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

January 15, 2021

"Top Trends in State Criminal Justice Reform, 2020"

The title of this post is the title of this short paper from Nicole Porter at The Sentencing Project. Here is how it gets started and its concluding paragraph:

The United States is the world leader in incarceration and keeps nearly 7 million persons under correctional control.  More than 2 million are in prison or jail, and 4.6 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 100 million have a criminal record.  The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.  Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences.  This briefing paper highlights key reforms undertaken in 2020 prioritized by The Sentencing Project....

Lawmakers advanced policy reforms to address mass incarceration and scale back collateral consequences.  Too few policy changes were adopted to address COVID-19 and its impact on the incarcerated in overcrowded congregate lock ups.  While reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take substantial changes to significantly reduce the nation’s rate of incarceration.  Given the limited impact of incarceration on crime, there continues to be potential for substantial reductions in state prison populations.  Lawmakers and advocates must explore key changes that limit the use of incarceration by retroactively ending mandatory minimum sentencing, adopting universal sentencing review policies, challenging racial disparities through structural reforms, and addressing collateral consequences.

January 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Feds complete yet another late-night execution of convicted killer of seven from Virginia

As reported in this CNN piece, headlined "Federal government executes Corey Johnson following prolonged legal fight," the latest federal execution followed, yet again, what has become the standard litigation script with the Supreme Court ultimately rejecting all final arguments for a delay.  Here are some of the details: 

Corey Johnson was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and was pronounced dead at 11:34 p.m. ET on Thursday.

Johnson was sentenced to die after he was convicted of killing seven people in 1992 as a part of the drug trade in Virginia.  The weeks preceding his execution were defined by a tense legal battle after he contracted Covid-19 while on death row.

In his final statement, Johnson apologized for his crimes and told the families of the victims that he hoped they would find peace. He also thanked the staff at the prison, the prison's chaplain, his minister and his legal team....

The Supreme Court denied a last-ditch effort late Thursday by Johnson's legal team that leaned on claims of an intellectual disability and his Covid-19 diagnosis, arguing that his infection paired with a lethal injection would amount to a cruel and unusual punishment.  That appeal came after an appellate court on Wednesday tossed out a lower court's decision to stay the executions of Johnson and another death row inmate who contracted the virus, Dustin Higgs, whose execution is scheduled to take place Friday....

Johnson was found guilty of seven counts of capital murder in 1993, with the US District Court for the Eastern District of Virginia jury unanimously recommending seven death sentences.

Thursday's execution, six days before President-elect Joe Biden takes office, coincides with a new push from more than three dozen members of Congress for Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions.  While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice plan, 40 members of Congress want to make sure the practice ends on his first day in office.

January 15, 2021 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

January 14, 2021

"Incarcerated Activism During COVID-19"

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

Incarcerated people have a notoriously difficult time advocating for themselves.  Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy.  Also like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest.  Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts.  Indeed, a dramatic increase in prisoner activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practice, it reveals both the dangers of silencing prisoner speech and the potential for prisoner self-advocacy.  This Essay first discusses silencing and speech in carceral spaces during the pandemic using a theory of political philosophy called epistemic injustice.  The theory of epistemic injustice addresses how disfavored social groups are excluded from sharing knowledge in public conversations. The stifling of prisoner speech occurs in part because incarcerated people are deliberately separated from the outside world.  But it also reflects their status as a stigmatized — and thus discredited — group.  Even when their speech is heard, it is discounted as manipulative and untrustworthy.

Second, this Essay argues that the self-advocacy efforts made by incarcerated people during the pandemic demonstrates the democratic value of their participation.  Among the necessary predicates to meaningful change in criminal legal practices is the democratic participation of the targets of those practices, including suspects, criminal defendants, and prisoners.  Their participation in the political sphere serves a vital democratic function the absence of which is felt not only in the authoritarian structure of prisons, but in the society-wide failure to enact widespread change to criminal legal practices.

January 14, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020"

The title of this post is the title of this notable new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel.  Here is part of this great report's "Overview":

Since 2013, every state legislature has taken at least some steps to chip away at the negative effects of a criminal record on the ability to earn a living, to access housing, education, and public benefits, and otherwise to fully reintegrate into society.  Some states have entirely remade their post-sentence relief systems.  Some state governors have also issued executive orders or class-wide pardons in support of this restoration effort.  Congress also has rather belatedly become interested in criminal records issues, limiting background checks in federal employment and contracting in 2019, and removing barriers to public benefits in 2020 spurred by the effects of the pandemic.

The past year saw a continuation of these legislative trends.  While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.

In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.

As in 2019, a majority of the new laws in 2020 involve what we have come to call “record relief,” measures that operate on the criminal record itself to reduce its negative effect.  Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment.  Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to dangerous driving.

Approaches to record reform continue to vary 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. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination.

January 14, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

"Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018"

The title of this post is the title of this notable new statistical brief from DOJ's Bureau of Justice Statistics.  Here are portions of the first few paragraphs of the document:

In 2018, based on data from the FBI’s Uniform Crime Reporting (UCR) Program, black people were overrepresented among persons arrested for nonfatal violent crimes (33%) and for serious nonfatal violent crimes (36%) relative to their representation in the U.S. population (13%).  White people were underrepresented.  White people accounted for 60% of U.S. residents but 46% of all persons arrested for rape, robbery, aggravated assault, and other assault, and 39% of all arrestees for nonfatal violent crimes excluding other assault.  Hispanics, regardless of their race, were overrepresented among arrestees for nonfatal violent crimes excluding other assault (21%) relative to their representation in the U.S. population (18%).

These UCR data on incidents of nonfatal violent crime can be compared to data from the National Crime Victimization Survey (NCVS) to determine how much offense and arrest diferences by race and ethnicity can be attributed to diferences in criminal involvement.  The NCVS collects information on victims’ perceptions of ofenders’ race, ethnicity, and other characteristics in incidents of violent crime.  This survey is administered to persons age 12 or older from a nationally representative sample of U.S. households. The 2018 NCVS data fle includes interviews from 151,055 households.

An examination of ofenders’ characteristics, as reported by victims in the NCVS, provides information on racial and ethnic disparities beyond an arrestee and population-based comparison.  Based on the 2018 NCVS and UCR, black people accounted for 29% of violent-crime offenders and 35% of violent-crime offenders in incidents reported to police, compared to 33% of all persons arrested for violent crimes.

At the same time, white offenders were underrepresented among persons arrested for nonfatal violent crimes (46%) relative to their representation among offenders identifed by victims in the NCVS (52%).  When limited to offenders in incidents reported to police, white people were found to be arrested proportionate to their criminal involvement (48%). Hispanic offenders were overrepresented among persons arrested for nonfatal violent crimes (18%) relative to their representation among violent offenders (14% of all violent offenders and 13% of violent offenders in incidents reported to police).  However, victims were unable to determine if the offender was Hispanic in 9% of single-offender incidents and 12% of multiple-offender incidents, which may have resulted in some underestimates of Hispanic offenders’ involvement in violent crime.

January 14, 2021 in National and State Crime Data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

January 13, 2021

Details on Ohio's new ban of juve LWOP and the broader national landscape

JLWOP202101-1200x802As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

January 13, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"More states need to use their 'good time' systems to get people out of prison during COVID-19"

The title of this post is the title of this new briefing from the Prison Policy Initiative. The subtitle highlights its themes: "Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren’t more states using this tool to safely reduce prison populations during COVID-19?".  Here is an excerpt (with links from the original):

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives.  But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect....

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions.  A solution — albeit one that will require legislative action in most states — is for states to immediately change their “good time” policies.

Good time” — also called “earned time,” “meritorious credit,” or similar — is a system by which people in prison can earn time off their sentences.  States award time “credits” to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether.  Good time systems vary between states (see the National Conference of State Legislatures’ detailed table) but time credits are often given out for participating in programs.  For example, New York offers a six-month credit for completion of the GED.  26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting).  Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules.  During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions “akin to solitary confinement.”  Yet most have not been rewarded with additional “good time” for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it’s the fair thing to do but because it will allow some people to leave prison immediately.

January 13, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

After SCOTUS reverses stays by 6-3 votes, US complete early morning execution of only woman on federal death row

As reported here via SCOTUSblog, the "Supreme Court on Tuesday night cleared the way for the execution of Lisa Montgomery, the first woman to be executed by the federal government in 68 years.  Montgomery was convicted in 2008 of strangling Bobbie Jo Stinnett, a Missouri woman who was eight months pregnant, and extracting the premature baby to pass off as her own child." Here is more:

In a series of brief, unsigned orders, the Supreme Court reversed a pair of rulings from federal appeals courts that had put Montgomery’s execution on hold, and it denied two other last-minute requests in which Montgomery argued she was entitled to a postponement. In two of the orders, the court’s three liberal justices indicated that they dissented and would not have allowed the execution to proceed.

Soon after the court issued its final late-night order, Montgomery was put to death by lethal injection at the federal execution facility in Terre Haute, Indiana.  She was pronounced dead at 1:31 a.m.

Four separate cases relating to Montgomery’s execution reached the justices in emergency litigation over the past several days....

Montgomery was the first woman to be executed by the federal government since 1953.  No other women are currently on federal death row.  Montgomery also became the 11th person to be put to death by the federal government since last July, when the Trump administration ended a 17-year moratorium on federal executions.

The Justice Department has scheduled two more executions in the waning days of the Trump administration.  It wants to execute Corey Johnson on Thursday and Dustin Higgs on Friday, but both men recently tested positive for COVID-19, and a federal judge on Tuesday halted their executions based on a risk that lung damage associated with the virus could cause them to suffer severe pain during a lethal injection. 

I had been following all the litigation in the run up to the scheduled execution, but I did not blog about any of the stays because it seemed to me quite likely that the Supreme Court would ultimately clear the path for the feds to move forward.  In most of the previous 10 federal executions over the last six months, the condemned defendant secured or argued forcefully for a stay; in every single case, SCOTUS has allowed the execution to go forward.  I will be surprised if this pattern does not repeat itself again twice more this week with the scheduled executions of Corey Johnson and Dustin Higgs.

As the SCOTUSblog post notes, Montgomery was the first woman executed by the federal government in the modern death penalty era.  She is also the first woman executed anywhere in the US in more than five years; Georgia executed Kelly Gissendaner for orchestrating the murder of her husband back in September 2015.  Montgomery is also the first person executed in 2021.  This DPIC page details that she is the 17th woman executed in the modern death penalty era (out of a total of 1530 total executions).

January 13, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (0)

January 12, 2021

"Legitimacy Matters: The Case for Public Financing in Prosecutor Elections"

The title of this post is the title of this new article in the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice authored by Rory Fleming.  Here is a part of its introduction:

Part I of this Article will present the results of two interlinked studies on candidate campaign finance in every election with a progressive prosecutor candidate from 2015 through 2019.  The first study examines campaign funding disparities between incumbent prosecutors and progressive challengers, while the second examines the differentials using the Cost Per Vote (CPV) metric.  Part II will discuss the major findings of the two studies, such as how progressive challengers in Democratic primaries seem to only win when a sufficient amount of Soros PAC money is granted, and how higher CPV values translate to greater tensions between local prosecutor offices and their communities.  Part III traces how the Soros-reliant funding model for progressive prosecutors has created an unprecedented crisis of prosecutorial legitimacy in many major urban counties.  Part IV presents public funding for prosecutor selections as one solution that can balance the desirability of competitiveness in prosecutor elections with the need to curb the backlash against prosecutors working to end mass incarceration.  V concludes.

January 12, 2021 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Split Third Circuit panel declares that planned safe injection site would be in violation of federal law

As noted in this post from 15 months ago, a federal district judge ruled a Philadelphia nonprofit group's plan to open a sef injection site would not violate the Controlled Substances Act. But, as reported in this local press piece, headlined "A federal court rejected the plan for a supervised injection site in Philly," a Third Circuit panel has now reversed this ruling. Here is the start of the majority opinion in US v. Safehouse, No. 20-1422 (3d Cir. Jan. 12, 2021) (available here):

Though the opioid crisis may call for innovative solutions, local innovations may not break federal law.  Drug users die every day of overdoses.  So Safehouse, a nonprofit, wants to open America’s first safe-injection site in Philadelphia.  It favors a public-health response to drug addiction, with medical staff trained to observe drug use, counteract overdoses, and offer treatment.  Its motives are admirable. But Congress has made it a crime to open a property to others to use drugs.  21 U.S.C. §856.  And that is what Safehouse will do.

Because Safehouse knows and intends that its visitors will come with a significant purpose of doing drugs, its safeinjection site will break the law.  Although Congress passed §856 to shut down crack houses, its words reach well beyond them. Safehouse’s benevolent motive makes no difference.  And even though this drug use will happen locally and Safehouse will welcome visitors for free, its safe-injection site falls within Congress’s power to ban interstate commerce in drugs.

Safehouse admirably seeks to save lives.  And many Americans think that federal drug laws should move away from law enforcement toward harm reduction.  But courts are not arbiters of policy. We must apply the laws as written.  If the laws are unwise, Safehouse and its supporters can lobby Congress to 11 carve out an exception.  Because we cannot do that, we will reverse and remand.

The dissenting opinion authored by Judge Roth starts this way:

The Majority’s decision is sui generis: It concludes that 8 U.S.C. § 856(a)(2) — unlike § 856(a)(1) or any other federal criminal statute — criminalizes otherwise innocent conduct, based solely on the “purpose” of a third party who is neither named nor described in the statute.  The text of section 856(a)(2) cannot support this novel construction.  Moreover, even if Safehouse’s “purpose” were the relevant standard, Safehouse does not have the requisite purpose.  For these reasons, I respectfully dissent.

It will be interesting to see if Safehouse seeks en banc review and/or certiorari.  It will also be interesting to see if the Justice Department under the Biden Administration might have a different view on safe injections sites than the Trump Administration.

January 12, 2021 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

"Criminal Municipal Courts"

The title of this post is the title of this new article authored by Alexandra Natapoff just published in the latest issue of the Harvard Law Review. Here is its abstract:

Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system.  Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce.  This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon.  Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue.  At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants.  Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions.  As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

This Article provides a framework for appreciating the institutional complexity of this lowest tier of American criminal justice.  Municipal courts deviate substantially from the classic model of courts as neutral, independent guardians of law. They are also vehicles for cities to express their political autonomy and redistribute wealth, and thus constitute underappreciated engines of local governance.  As criminal adjudicators, they quietly contribute to localized mass incarceration while threatening the integrity of some foundational features of the criminal process.  At the same time, they represent a potentially attractive opportunity to render criminal institutions more locally responsive.  Finally, they reveal a deep dynamic at the bottom of the penal pyramid: low-status cases and institutions exert a formative influence over law itself.  These complexities make reform especially challenging.  There are doctrinal reforms that could strengthen municipal court operations, but they are inherently limited.  The deeper reform would be to stop dismissing these courts as minor, inferior institutions and to take them and their millions of defendants seriously across the board of law, policy, and politics.  Widely influential, jurisprudentially challenging, and democratically complicated, municipal courts deserve a more central place in the modern legal conversation.

January 12, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

January 11, 2021

Ohio enacts new laws precluding death penalty for those with "serious mentally illness" and largely eliminating LWOP for juvenile offenders

As detailed in this official notice, Ohio Governor Mike DeWine over the weekend signed a bunch of new bills into law, and two are sure to be of interest to sentencing fans:

House Bill 136, sponsored by Representative Brett Hudson Hillyer, prohibits the death penalty if offender was mentally ill at time of offense. 

Senate Bill 256, sponsored by Senator Nathan Manning and former Senator Peggy Lehner, regards sentencing offenders under the age of 18. 

This local press piece provides a bit of background on these new Ohio laws:

Gov. Mike DeWine has also signed bills taking the death penalty off the table for murders committed by the severely mentally ill... House Bill 136, sponsored by Rep. Brett Hillyer (R., Uhrichsville), prohibits the death penalty for murderers who demonstrate they suffered from a “serious mental illness” at the time of the crime. The most severe punishment would be life without the possibility of parole.

In addition to future cases, the law would open a one-year window for some people currently on death row to ask judges to commute their death sentences. While execution is not an option now for juveniles and the mentally disabled, Ohio law still allows for capital punishment in cases involving mental illness claims that fall short of the threshold for a verdict of not guilty by reason of insanity.

“Serious mental illness” is defined as schizophrenia, schizoaffective disorder, bipolar disorder, or any delusional disorder significantly impairing the accused's ability to exercise rational judgment in complying with the law and fully appreciating the consequences of conduct....

Senate Bill 256, sponsored by Sens. Nathan Manning (R., North Ridgeville) and Peggy Lehner (R., Kettering), to remove life without parole as a sentencing option for juveniles and to allow for parole hearings for juveniles after certain periods of time in prison.

It will be fascinating to see how these new laws get implemented.  This other local piece, headlined "Mother of murder victim advocated for new parole changes," partially speaks to the application of the juve LWOP law while also highlighting the powerful role that crime victims can play in advancing criminal justice reform:

A bill that will change Ohio's parole options, signed by Governor Mike DeWine on Saturday, was advocated for by a local mother whose son was murdered in South Cumminsville in 2015.

Suliman Abdul-Mutakallim was walking home with food for his family in June, 2015, when he was shot dead and robbed. "When three assailants walked up behind him and shot him in the back of the head, they didn't even say 'stick 'em up.' They just shot him," said Rukiye Abdul-Mutakallim, Suliman's mother.

The three then took $40 from Suliman, stole his phone and the food he was bringing home. For Rukiye, it was difficult to ignore that two of the three responsible for her son's death were children: The youngest was just 14 years old. "I found it unfathomable. These are human beings, aren't they?" said Rukiye. "And then when I saw them in court and they were children? Ahh."...

"For her to recognize that they were children who made terrible, terrible mistakes and has the grace to understand and hold that out to say, 'This is not what I would want for them,' is really remarkable," said Kevin Werner, with the Ohio Justice and Policy Center. 

Werner said there are currently 11 prisoners in Ohio affected directly by SB 256, which will retroactively apply to juveniles already convicted and sentenced.  The bill instead adds parole possibilities at 18 years, 25 years and 30 years, depending on the severity of the crime.

"It doesn't go far enough and we know that, but it is the beginning," said Rukiye.... "If we are throwing our babies away, we have no future," said Rukiye.

January 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Interesting accounting of the "Top 5 Criminal Justice Reforms Advocates Want Under Biden"

Law360 has this notable new piece under the headline "Top 5 Criminal Justice Reforms Advocates Want Under Biden." Here is the preamble to the annotated Top 5 list, as well as the list itself:

Joe Biden's election as president has sparked hope among criminal justice advocates and organizations that his administration will overhaul the U.S. criminal justice system and implement reforms they have been seeking for years.

Biden's campaign website promises that the Democratic president-elect will "strengthen America's commitment to justice and reform our criminal justice system," and includes dozens of proposed changes to be made under his administration. But whether he will achieve all of these promises is unclear.

Advocates told Law360 that Biden's biggest challenge will be fighting political opposition and uniting Congress. However, they believe having a president who prioritizes criminal justice reform could sway lawmakers to pass legislation that has been collecting dust on their desks.

"Even though there's bipartisan consensus around the need for criminal justice reform, what that means in practice, what the fine print is, is where all the challenge is, and there isn't necessarily consensus right now," said Kara Gotsch, director of strategic initiatives for The Sentencing Project, a nonprofit research organization seeking to reduce incarceration rates.

Here are the top five criminal justice reforms that advocates told Law360 they want under Biden's administration and what the president-elect has promised he will do:

1.  Address COVID-19 in Prisons and Jails...

2.  End Mandatory Minimum and Life Sentences...

3.  Expand Decriminalization of Drug Use...

4.  More Policing Accountability and Alternatives...

5.  Expand Incarceration Alternatives and Community Programs...

Especially because there are three federal executions scheduled for this week, I am a bit surprised that this list did not include abolishing the federal death penalty.  I also know many advocates are eager to see clemency reform as part of the Biden agenda (though the commentary includes suggestions that aggressive use of clemency by Prez-elect Biden could help achieve these other goals).

Because there is so much criminal justice reform work to do, it will be quite interesting to see what CJ issues are given priority in the weeks and months ahead.  Of course, what gets prioritized and what actually gets done will not just be shaped by Biden's appointments to the Justice Department, but also by what folks on Capitol Hill might have in mind.  Especially with certain GOP legislators now talking about the importance of "unity," perhaps federal legislators can unify around getting some significant criminal justice reform enacted in the first 100 days of the Biden Adminstration.

Some prior related posts:

January 11, 2021 in Criminal justice in the Biden Administration, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

January 10, 2021

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

January 10, 2021 in Assessing Miller and its aftermath, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Racial Justice Requires Ending the War on Drugs"

The title of this post is the title of this new article authored by Brian Earp, Jonathan Lewis and Carl Hart along with with Bioethicists and Allied Professionals for Drug Policy Reform  in the American Journal of Bioethics. Here is its abstract:

Historically, laws and policies to criminalize drug use or possession were rooted in explicit racism, and they continue to wreak havoc on certain racialized communities.  We are a group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists, psychologists, and other allied professionals who have come together in support of a policy proposal that is evidence-based and ethically recommended.  We call for the immediate decriminalization of all so-called recreational drugs and, ultimately, for their timely and appropriate legal regulation.  We also call for criminal convictions for nonviolent offenses pertaining to the use or possession of small quantities of such drugs to be expunged, and for those currently serving time for these offenses to be released.  In effect, we call for an end to the “war on drugs.”

January 10, 2021 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (0)