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June 19, 2021

Juneteenth reflections on American justice systems

Befitting this forum, I thought to celebrate the first official federal holiday year for Juneteenth by rounding up some recent articles about the perspective it can provide on criminal justice issues in our nation. Here goes:

From the AP, "Lawmakers mark Juneteenth by reviving ‘abolition amendment’"

From the Brookings Institution, "To celebrate Juneteenth, elect officials focused on ending mass incarceration"

From PBS NewsHour, "Lawmakers call for an end to forced labor for felons to mark Juneteenth"

From Teen Vogue, "Juneeteenth Is a Celebration of Liberation, But Mass Incarceration Lives On"

From the Vera Institute of Justice, "The Chains of Slavery Still Exist in Mass Incarceration"

From the Wausau Pilot & Review, "Juneteenth: Freedom’s promise is still denied to thousands of blacks unable to make bail"

June 19, 2021 in Race, Class, and Gender | Permalink | Comments (0)

June 18, 2021

"Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony"

The title of this post is the title of this new essay authored by Lucian Dervan now available via SSRN Here is its abstract:

Plea bargaining is an institution that has come to dominate the American criminal justice system.  While little psychological research was done in the decades following the 1970 Supreme Court decision that approved the practice of plea bargaining, many advances have been made in this field in the last decade.  We now know, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain.  Further, we know that the presence of counsel can actually increase, not decrease, the prevalence of false pleas of guilty.  We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent.  Finally, we know that defendants will not only falsely plead guilty, but that they will also falsely testify against a co-defendant in return for the benefits of the deal.  This piece examines each of these findings and considers what this research means for the future of bargained justice. 

June 18, 2021 in Data on sentencing, Procedure and Proof at Sentencing | Permalink | Comments (0)

"The Mark of Policing: Race and Criminal Records"

The title of this post is the title of this recent piece authored by Eisha Jain published in the Stanford Law Review Online. Here is its abstract:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records.  Arrests alone — regardless of whether they result in convictions — create criminal records.  Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences.  This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.  The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction.  Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas.  The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible.  This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

June 18, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Spotlighting many challenges "winning the peace" after drug decriminalization reform in Oregon

As we mark 50 years waging the drug war in the United States, legal reforms and polls make clear that Americans are eager to embrace public health rather than punitive responses to drug activity.  But a growing political will to end the "war on drugs" does not instantly create a practical way forward.  Growing interest in ending the drug war makes it critical for policy markers and advocates to focus on "winning the peace" as we move beyond criminalization models.  But new NPR article, headlined "Oregon's Pioneering Drug Decriminalization Experiment Is Now Facing The Hard Test," highlights the many challenges lie ahead.  I recommend the piece in the full, and here are excerpts:

Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.

The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state's pot industry as well as from expected savings from a reduction in arrests and incarceration....

But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure's promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure's promised expansion of care.

Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that's not at all ready to handle an influx of more people seeking treatment. Advocates for decriminalization "don't understand the health care side, and they don't understand recovery," says Mike Marshall, co-founder and director of the group Oregon Recovers. "Our big problem is our health care system doesn't want it, is not prepared for it, doesn't have the resources for it and honestly doesn't have the leadership to begin to incorporate that [expanded treatment]," says Marshall, who is in long-term recovery himself....

Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment. But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. "So we put the cart before the horse," he says. In fact, Marshall and others worry the treatment and harm reduction horse isn't even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing. "There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks," Marshall says.

"Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system," says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. "Unfortunately, here in Oregon, we don't have that. What we have is decriminalization, which is a step in the right direction."

There's also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There's also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.

Prior recent related post:

June 18, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

June 17, 2021

"Life Without Parole Isn’t Making Us Any Safer"

The title of this post is the title of this video guest essay now on the New York Times opinion page.  Here is the text which accompanies the video:

Robert Richardson robbed a bank of about $5,000 in 1997 and was sentenced to 60 years in prison without the possibility of probation or parole.  He was 30 years old when he was locked away in the Louisiana State Penitentiary, making his penalty a virtual life sentence.

Mr. Richardson doesn’t deny that he did wrong.  He concurs with the adage “Don’t do the crime if you can’t do the time.”

But in the video guest essay above, he contends that life sentences without parole are counterproductive — for the prisoner and society alike — and should be prohibited.  He is joined in the video by his wife, Sibil Fox Richardson, whose decades-long effort to secure his release was documented in the film “Time,” and by one of their sons, Freedom.

Mr. Richardson focuses his lobby on Louisiana, one of the states with the most prisoners serving life sentences without parole.  Gov. John Bel Edwards of Louisiana has sought to shed the state’s reputation as the nation’s incarceration capital, signing into law a package of criminal justice reform bills intended, in part, to reduce the size of the prison population.

But Mr. Richardson says there’s an urgent need for further reform, and he implores the governor and the state legislature to ban life sentences without parole.

June 17, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Drug war ... huh ... after 50 years, what is it good for?

War-HUH-Good-god-y-alll-What-is-it-good-for-AbsoluIn July 1969, Prez Richard Nixon delivered a special message to Congress warning about the "serious national threat" of drugs, and he thereafter prodded Congress to pass in 1970 the federal Controlled Substance Act.  But on this day in 1971, Prez Nixon delivered an address in which he declared drug abuse "public enemy No. 1" and stated that "to fight and defeat this enemy, it is necessary to wage a new all-out offensive." Consequently, many mark this day back in 1971 as the start of the "War on Drugs," which it turn means that today marks 50 years, a full half century, of the modern drug wars.

I consider it important to not lose sight of the fact that the US has had a very long history with criminal approaches to intoxicating substances. As this History.com page details, some states passed some drug bans in the 1800 and Congress in the early 1900s enacted the Smoking Opium Exclusion Act and the Harrison Act that functionally banned certain drugs in various ways. And, of course, alcohol prohibitions gained steam in the states in these eras and culminated in the ratification of the 18th Amendment, the only provision added to our Constitution (now repealed) expressly intended to reduce rather than expand the individual liberties of Americans. And a host of punitive and repressive (and racially motivated) drug laws were enacted in the US at the federal, state and local levels throughout the entire 20th Century.

But even though we have been waging so many drugs wars in the US for so many decades, I am still pleased to see others use today's Nixonian anniversary as an opportunity to reflect on what the last half-century of drug policy has meant and done in the United States. Here is an abridged list of some new commentary and news pieces on this always important beat:

From Al Jazeera, "As the drug war turns 50, the US is still public enemy number one"

From Filter, "Poll Shows Huge Public Opposition to 'War on Drugs,' After 50 Years"

From Marijuana Moment, "Most American Voters Support Decriminalizing All Drugs, Another New Poll Finds"

From NPR, "After 50 Years Of The War On Drugs, 'What Good Is It Doing For Us?'"

From Project Syndicate, "A Half-Century of Endless Drug War"

From the Washington Post, "Lost cause: 50 years of the war on drugs in Latin America"

From the Washington Post, "The War on Drugs turns 50 today. It’s time to make peace."

UPDATE: Here are a few more recent press pieces in this genre:

From CNBC, "America has spent over a trillion dollars fighting the war on drugs. 50 years later, drug use in the U.S. is climbing again."

From The Hill, "Fifty failed years later — it's time to end and dismantle the war on drugs"

From Marijuana Moment, "On 50th Anniversary Of Nixon’s Drug War Declaration, Congressional Lawmakers Demand Reform"

June 17, 2021 in Drug Offense Sentencing | Permalink | Comments (1)

June 16, 2021

"Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform"

The title of this post is the title of the scheduled congressional hearing called by the Subcommittee on Crime, Terrorism, and Homeland Security of the U.S. House Committee of the Judiciary. The hearing is to take place on Thursday, June 17, 2021 at 10am and can be streamed here. The witness list, available here, should make this a must-see event:

Rachel E. Barkow, Vice Dean and Charles Seligson Professor of Law, Faculty Director, Center on the Administration of Criminal Law, NYU School of Law

William R. Underwood, Senior Fellow, The Sentencing Project

Kyana Givens, Assistant Federal Public Defender, Office of the Federal Public Defender for the Eastern District of North Carolina

Kassandra Frederique, Executive Director, Drug Policy Alliance

Marta Nelson, Director, Government Strategy, Advocacy and Partnerships Department, Vera Institute of Justice

Jillian E. Snider, Director, Criminal Justice & Civil Liberties, R Street Institute

John Malcolm, Vice President, Institute for Constitutional Government, Director, Meese Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

June 16, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

Notable recent commentary on links between lead exposure and crime rates

Long-time readers may recall that I have long been intrigued by the (often under-discussed) social science research that suggests lead exposure levels may better account for variations in crime rates than just about any other single variable.  In an number of older posts (linked below), I have flagged some articles on this topic, and I have always been eager to note work by researcher Rick Nevin and others who have been eager to put a spotlight on the lead-exposure-crime-link evidence. 

This week, interestingly, I have seen not only some new work by Rick Nevin on this topic, but also by another notable empiricist.  Here are links to the new pieces:

From Jennifer Doleac via the Niskanen Center, "Research Roundup: Lead Exposure Causes Crime"

From Rick Nevin at Juvenile Justice Information Exchange, "Lead Exposure’s Link to Crime Should Shape Criminal Sentencing, Early Release"

From Rick Nevin at his website, "Why are prisons “getting Whiter”?"

I will close here by just quoting one paragraph from the start of the first of these pieces by Jennifer Doleac:

Below, I summarize the latest evidence on the effects of lead exposure on criminal behavior.  Given the tremendous cost of crime to society, investing more in lead remediation to protect children from the dangerous effects of this toxin would be an extremely cost-effective strategy to improve public safety, and one that deserves bipartisan support.

Some prior related posts from this blog:

June 16, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

"The False Hope of the Progressive-Prosecutor Movement"

The title of this post is the title of this recent notable Atlantic piece by Darcy Covert that is summarized via its subheadline: "Well-intentioned reformers can’t fix the criminal legal system. They have to start relinquishing power."  I recommend the piece in full, and here are some excerpts (links from the original):

[P]rogressive prosecutors’ approach won’t bring about meaningful change.  The progressive-prosecutor movement acknowledges (as research has shown) that prosecutors’ “breathtaking” power is a major source of America’s criminal-justice problems.  It asks its adherents to use that power for good, and trusts them to do so. But true reform won’t come from using that power for good; instead, prosecutors will need to have less of it in the first place.  It is unrealistic to expect that even reform-minded prosecutors (or anyone, for that matter) can and will dispense justice when they have virtually boundless power and almost unlimited discretion to use it against criminal defendants.  To transform the criminal legal system, prosecutors must stop resisting — and indeed start supporting — efforts by courts and legislatures to reduce their power....

Declining to prosecute minor offenses won’t end mass incarceration, when most individuals in prison are there for violent crimes.  Diversion programs, which offer treatment only to those willing to comply with onerous supervision requirements and face jail time if they slip up, won’t keep large portions of people affected by mental illness, addiction, and poverty out of the criminal legal system.  Studies show that — because of their position in this adversarial system — prosecutors are often unable to evaluate cases with the neutrality needed to systematically identify the innocent and decide how much punishment is necessary for the guilty.  Nor will gathering and publishing data address the disproportionate representation of people of color in the criminal legal system, because transparency is not a cure for the disparities that data show.

Here is a better prescription: If you are a prosecutor committed to transforming the criminal legal system, support the reallocation of power away from your office — by your office, and by the legislature and courts.

Expand the consideration of who should not face criminal punishment beyond those who commit only very low-level offenses.  For example, recognize that even more serious crime is driven by people’s circumstances, including mental illness and trauma, and support treatment rather than jail time for those cases.

Advocate for the reallocation of funds from your office’s budget to social services that keep people out of the criminal legal system entirely, and to the indigent defense system that advocates on behalf of those who are prosecuted.  A first step would be to push for budget increases for the public defenders who represent more than 80 percent of those charged with crimes in criminal courts.  They labor under crushing caseloads that often prevent them from being able to ensure that their clients are not wrongfully convicted or punished overly severely.

Lobby for more external limits on prosecutorial power, such as the elimination of mandatory minimum sentences and other laws that enable coercive plea bargaining.  Advocate for stronger equal-protection rights for defendants of color, including for state courts to recognize greater protections against racist jury selection and pretextual traffic stops, in which police use a minor traffic violation as a pretext to stop and search someone.

June 16, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Massive new RAND report provides "Statistical Analysis of Presidential Pardons"

I received an email yesterday from the Bureau of Justice Statistics with a link to this 220+ page report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  The report is so big and intricate that the introduction runs 40 pages with lots of complicated data.  And, disappointingly, it seems the detailed statistical analysis includes data only running through April 2012 (through most of Prez Obama's first term) and so does not include the flush of pardons and commutations granted over the last decade. Still, the report provides a lot of coverage that should be of great interest to those who follow the use of federal clemency powers and possibilities.  Here is a snippet from Chapter 1 of the report that details its coverage:

Chapter 2 presents a model of the deliberative process employed by OPA in evaluating incoming pardon petitions.  Chapter 3 provides descriptive statistics on measures collected during our abstraction of sample petition files.  Chapter 4 reports on the findings from our statistical analysis intended to identify petitioner and petition characteristics most strongly associated with grants of pardon — with a special emphasis on the effects of race and ethnicity on final actions — and also describes the assumptions and techniques utilized for this work.  In Chapter 5 we discuss what these descriptions and findings may reveal about OPA’s pardon petition processing.

June 16, 2021 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 15, 2021

In memoriam: mourning the passing of Judge Jack Weinstein

24lawyers-superJumboUS District Judge Jack Weinstein was nominated to be a federal judge a year before I was born, but twenty-six years later, the very first case I worked on during my first judicial clerkship involved an appeal of Judge Weinstein's remarkable (and yet-still-run-of-the-mill) sentencing opinion in US v. Ekwunoh, 813 F. Supp. 168 (EDNY 1993).  I am certain that the fortuity of my first real case during my first real job involving the intricacies and injustices of federal sentencing played no small role in how my career thereafter went forward.

This personal story is my preamble to a post meant to honor Judge Weinstein for his contributions to all areas of the law upon news today of his passing at age 99.  I am pleased to see that this New York Times article about his life includes an extended discussion of his sentencing practices:

Judge Weinstein often said that the individual before the courts was their highest responsibility, a concern he made obvious in criminal cases. As a senior judge concerned about wrongful detentions and other abuses of defendants’ rights, he took on nearly 500 backlogged habeas corpus cases, and read them all. When sentencing criminal defendants, he sat at a table with them instead of looking down from a bench.  In court, he almost always wore a business suit instead of robes.

Judge Weinstein viewed federal sentencing guidelines as a betrayal of the moral imperative that the punishment should fit the crime.  When he took senior status and could refuse cases, he stopped hearing minor drug cases. “I have become increasingly despondent over the cruelties and self-defeating character of our war on drugs,” he wrote in a Times opinion essay in 1993, noting that 60 percent of federal prison inmates were drug offenders.

In a 2004 law review article, speaking of “grotesque over-sentencing” required by drug laws, Judge Weinstein wrote that if judges left the bench to avoid enforcing unjust laws, they risked being replaced by “government puppets.”  The legal system, he said, could and should accommodate judicial protest.  He later resisted the federal five-year mandatory minimum sentence for downloading child pornography, throwing out several convictions to avert what he called “an unnecessarily harsh and cruel sentence.”

There is, of course, so much more to be said about Judge Weinstein's contribution to the law and practice of sentencing.  Fortunately, as noted in this prior post, the Federal Sentencing Reporter was able to produce earlier this year an issue entirely devoted to "Weinstein on Sentencing" to celebrate his many contributions to federal sentencing law, policy and practice.

FSR was fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great issue.  They did an extraordinary job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words."

On a day in which tradition dictates saying "May his memory be a blessing," I highly encourage everyone to check out this full FSR issue in order to help burnish great memories of the great sentencing work of this great man.

June 15, 2021 in Who Sentences | Permalink | Comments (1)

National Registry of Exonerations reports on "25,000 Years Lost to Wrongful Convictions"

I saw this notable new report from the folks at the National Registry of Exonerations titled "25,000 Years Lost to Wrongful Convictions."  here is part of the start of the report:

In 2018, the National Registry of Exonerations reported a grim milestone: Exonerated defendants had collectively served 20,000 years in prison for crimes they did not commit. Just three years later, in June 2021, we reached another: Time lost to false convictions exceeded 25,000 years.  The total now stands at 25,004 years, on average more than 8 years and 11 months in prison for each of the 2,795 exonerees in the Registry.  Innocent Black defendants served a majority of that time — a total of 14,525 years lost to unjust imprisonment.

The National Registry of Exonerations reports every known exoneration in the United States since 1989, a total of 2,795 as of June 1, 2021.  Dozens of defendants exonerated since our 2018 report served more than 25 years in prison for crimes they did not commit....  Not all of the exonerees who served many years for crimes they did not commit were convicted of violent crimes like murder or rape. Lawrence Martin spent nearly 19 years in California prisons for possession of a knife with a locking blade....

It is hard to fathom spending decades in prison, knowing all the while that you are innocent.  But even those who served relatively short sentences suffered tremendously.  People often refer to the time we have spent in 2020 and 2021 under COVID-19 restrictions as a “lost year.”  We’ve missed the ability to travel freely, socialize with friends, and see loved ones. For people wrongfully incarcerated, every year is a lost year.  To exonerees who served sentences of a year or two for crimes they did not commit, it must have felt like an eternity.  For those who served decades, the suffering is incomprehensible.

Unfortunately, the 2,795 exonerations we know about only begin to tell the story of wrongful convictions and the toll they take.  Many exonerations remain unknown to us, though we keep looking. The vast majority of false convictions go uncorrected and therefore are never counted.  Our calculation also does not include time lost to the thousands of people cleared in large-scale group exonerations, which arise when groups of defendants are cleared upon the discovery of a common pattern of systemic misconduct by a government official in the investigation and prosecution of their cases.  Finally, our calculations include only time spent in prison after the wrongful conviction and consequently do not capture the significant time lost in custody awaiting trial.  Put simply, while 25,000 years is a staggering number, it is a significant undercount of the true losses these falsely convicted men and women suffered.

June 15, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Justice Department files SCOTUS brief seeking to restore death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

As repoted in this Hill piece, the "Biden administration on Monday urged the Supreme Court to reinstate the death penalty against the Boston Marathon bomber in an apparent break with the president's stated opposition to capital punishment."  Here are the details (with a link to the filing):

In a 48-page brief, the Department of Justice (DOJ) asked the justices to reverse a Boston-based federal appeals court that vacated the death sentence for Dzhokhar Tsarnaev, the lone surviving perpetrator of the 2013 attack.

“The jury carefully considered each of respondent’s crimes and determined that capital punishment was warranted for the horrors that he personally inflicted — setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others to a lifetime of unimaginable suffering,” the DOJ’s brief reads.

Tsarnaev and his since-deceased brother, Tamerlan Tsarnaev, killed three people and injured 260 others in the 2013 bombing attack near the finish line of the annual event in downtown Boston....

The U.S. Court of Appeals for the 1st Circuit last year vacated Tsarnaev’s death sentence. The court ruled that the trial court had failed to adequately gauge potential jury bias and the extent to which Tsarnaev may have been influenced by his brother.

Former President Trump in October appealed that decision to the Supreme Court. The justices agreed in March to take up the dispute and are expected to hear arguments in the case next term.  The case was seen as an early challenge for Biden, the first U.S. president to publicly oppose the death penalty, and his administration’s response had been highly anticipated.

During the 2020 presidential campaign, Biden called for an end to capital punishmentBut on Monday, the DOJ made clear that Biden would maintain his predecessor’s support for reinstating capital punishment against Tsarnaev. “The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history,” the DOJ’s brief reads. “This Court should reverse the decision below and put this case back on track toward a just conclusion.”

The White House and DOJ did not immediately respond when asked by The Hill if Biden had changed his stance on the death penalty.

Tsarnaev, 27, will serve out multiple life sentences in federal prison if his death sentence is not reinstated.  

A few prior recent related posts:

June 15, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum

As reported in this Politico piece, headlined "Virginia couple pleads guilty in Capitol riot," the first set of pleas for low-level participating in the January 6 riots were entered in federal court yesterday.  Here are the details:

A Virginia couple on Monday became the third and fourth defendants to plead guilty in the sprawling investigation stemming from the Capitol riot in January.  However, Jessica and Joshua Bustle of Bristow, Va., became the first to plead guilty in federal court who faced only misdemeanor charges as a result of their actions at the Capitol as lawmakers were attempting to certify President Joe Biden’s electoral college victory.

Under a deal with prosecutors, the Bustles each pleaded guilty to one of the four misdemeanor charges they faced: parading, demonstrating or picketing in a Capitol building. They could get up to six months in jail and a fine of up to $5,000, but will be spared the potential of back-to-back sentences on multiple counts.

The arrangement could serve as a template for hundreds of other misdemeanor-only cases filed related to the Jan. 6 events.  Defense attorneys say it also suggests that prosecutors will not readily agree to more lenient resolutions in Capitol riot cases, such as deferring the case and dismissing it following a period of good behavior.

“There’s no guarantee what the sentence will be in this case,” Judge Thomas Hogan told the Bustles during the afternoon hearing, conducted by videoconference. “I can give a sentence that’s legal up to the maximum in the statute: six months.”

According to a complaint filed by an FBI agent in March, Jessica Bustle posted on her Facebook page on Jan. 6: “Pence is a traitor. We stormed the capital.  An unarmed peaceful woman down the hall from us was shot in the neck by cops.  It’s insane here….Pray for America!!!!”  In another post, Jessica Bustle — who said she’s opposed to taking the coronavirus vaccine — indicated she and her husband were attending a “health freedom” rally separate from then-President Donald Trump’s rally. They later decided to check out what was happening at the Capitol, she wrote.  “My husband and I just WALKED right in with tons of other people.” Bustle also wrote: “We need a Revolution.”...

The Bustles have also agreed to pay $500 apiece in restitution, Hogan said.  Both the Bustles' attorneys and a prosecutor said they were prepared to proceed with sentencing Monday, but the judge declined, saying he would set a sentencing date in 4 to 6 weeks.  “I’m not prepared to do sentencing today. I think we have to look at the case a little bit,” said Hogan, an appointee of former President Ronald Reagan. The judge said he wanted to ensure “consistency and comparability” of sentences among the Capitol riot defendants, none of whom have been sentenced thus far.

Many Capitol riot defendants face the four typical misdemeanor charges the Bustles faced plus a felony charge of obstruction of an official proceeding.  The latter charge carries a potential 20-year prison term. It is not clear how prosecutors have distinguished between nonviolent defendants who face only the misdemeanors and those who had the felony charge added on.

The first guilty pleas in the Capitol riot came in April from Jon Schaffer, a heavy-metal guitarist and self-described lifetime member of the Oath Keepers. He admitted to two felonies: obstruction and entering a Secret Service-restricted area while carrying a dangerous weapon.  Schaffer agreed to cooperate in the government’s ongoing conspiracy case against fellow Oath Keepers.  A total of 16 people are now charged in that case.

The second guilty plea was from a Florida man who went onto the Senate floor during the Jan. 6 unrest, Paul Hodgkins.  At a hearing earlier this month, he pleaded guilty to a felony obstruction charge.  Prosecutors agreed to drop the misdemeanor charges against him, but there was no cooperation element to the deal.  He is tentatively set for sentencing on July 19.

This Reuters piece about these latest pleas details a bit more some of the sentencing specifics around the two earlier pleas:

The first guilty plea came in April, when a founding member of the right-wing Oath Keepers, Jon Schaffer, pleaded guilty to two felony charges of obstructing the certification of the 2020 election and breaching a restricted building. Prosecutors are recommending a sentence of between 3-1/2 and 4-1/2 years of prison time for Schaffer, but his sentence will ultimately be decided by a District of Columbia judge.

A Florida man on June 2 became the second person to plead guilty to storming the Capitol. Paul Allard Hodgkins pleaded guilty to one felony count of obstructing an official proceeding. A judge said federal sentencing guidelines call for Hodgkins to receive sentence in the range of 15 to 21 months.

Prior related posts:

June 15, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

June 14, 2021

More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities

As noted here, last Thursday the US Sentencing Commission released some fascinating (and bare bones) data on compassionate release motions in 2020 in this short data report.  In this post, I flagged coverage by the Marshall Project lamenting that the Bureau of Prisons approved so very few compassionate release applications.  I have since seen three more press piece noting ugly stories in the data:

I am quite pleased to see a a series of articles based on the new USSC data that rightly assail the BOP for being so adverse to supporting sentence reduction 3582(c)(1)(a) motions and that highlights broad variations in how compassionate release is functioning in different federal judicial districts.  But, those persistent problems notwithstanding, I hope nobody loses sight of what the FIRST STEP Act accomplished by allowing federal courts to directly reduce sentences without awaiting a motion by the BOP.  As of this writing, BOP reports on this data page that nearly 3500 federal defendants have now received "Compassionate Releases / Reduction in Sentences" since the FIRST STEP Act became law. (For point of reference, that is more than the total number of prisoners in New Hampshire and Vermont combined.)  

I am eager for more details from the US Sentencing Commission about who is and is not receiving sentence reductions because there are surely some uneven (and likely ugly) patterns to be found in all the data.  But the one pattern that is clear and should be appreciated is that judges are regularly using their new powers to reduce sentences that are excessive.  As I suggested in this recent post, new legal rulings and all sorts of other developments can and should continue to provide sound reasons for federal judges to keep reconsidering extreme past federal sentences.  I hope they continue to do so, and I hope we do not lose sight of a beautiful compassionate release forest even when we notice a some ugly trees.

A few of many prior related posts:

June 14, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Perhaps more guns explains why we have more gun homicides and more gun crimes

In this prior post on recent media coverage and political punditry focused on rising crime rates and their political implications, I noted my frustration that these discussions too often elide important data suggesting that it is primarily gun-related crimes that are on the rise while other crimes may still be on the decline.  Again this backdrop, I found notable this new Vox piece by two data scientists headlined "One possible cause of the 2020 murder increase: More guns."  Here are excerpts:

It’s true that police activity, as measured by stops and arrests, declined significantly in 2020.  Still, despite that drop, and weeks before Floyd’s murder and the ensuing protests, police began finding firearms more often than in previous years.

This pattern does not support the idea that overwhelmed police forces weren’t able to take guns off the streets, leading to a surge in violence. Instead, the spike in firearms as a percentage of stops and arrests provides evidence that there were simply more guns on the streets throughout 2020 than in the past, which may have intensified other sources of violence and contributed to the historic rise in murders.  While there is no standardized, national open data on stops, information on police activity in 10 cities that we compiled points toward the same pattern....

The share of stops or arrests that resulted in a firearm being found increased in every city.  In Washington, DC, the share of all arrests that were weapons violations went from 5 percent in January to March 2020, to 7 percent in April and 9 percent in May.  The share of arrests for weapons possession went from 1 percent between January and March 2020 in Charleston, South Carolina, to 4 percent between April and December.  Almost every city followed the same pattern: a dramatic jump in the share of arrests or stops with a firearm in April and May, a decline in June, and a return to the earlier elevated levels for the remainder of the year.

The implication of this trend is that — assuming police did not suddenly become substantially better at identifying who has an illegal gun — firearm carrying increased at the beginning of the pandemic, well before the protests, and persisted at that level for the remainder of the year.  It is possible that in the midst of the pandemic, police started engaging in better-targeted stops that were more likely to yield arrests.  But finding other kinds of contraband, like drugs, did not become more frequent, only guns....

Police finding more firearms in stops and arrests does not fit with the idea that a decrease in proactive police activity targeting firearms was the major driver for 2020’s historic murder totals, though it certainly cannot be ruled out as a contributing factor....  The data all points to substantially more complex causes behind the rise in murder than the simple narrative of a change in policing as the sole or even main driver.  It is plausible, though, that the summer’s drops in stops and arrests, protests against police violence, and increases in gun violence are all symptoms of the same disease: what criminologists David Pyrooz, Justin Nix, and Scott Wolfe recently called a “legitimacy crisis in the criminal justice system,” the result of intensifying distrust in “the law and its gatekeepers” as a result of injustice....

The trend toward more firearms sales and more guns on the street seems to have continued into 2021.  Background checks accelerated even beyond last year’s peak in the first three months of this year.  And the latest data from these cities’ stops shows that police are finding as many guns as they did in the second half of 2020.

Early figures from many cities show murders have increased from last year’s baseline as well.  If the greater availability of firearms contributed to last year’s violence, the latest arrest data suggests it may contribute even more deaths to 2021’s murder total.

A few of many prior related posts:

June 14, 2021 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

SCOTUS rules in Terry that lowest-level crack offenders cannot secure resentencing based on FIRST STEP Act retroactivity of Fair Sentencing Act

Continuing to make quick work of its criminal docket, the Supreme Court's second criminal ruling today comes in Terry v. US, No. 20– 5904 (S. Ct. June 14, 2021) (available here), and it serves to limit the offenders who can secure resentencing based on crack penalties being lowered by the Fair Sentencing Act and then made retroactive by the FIRST STEP Act. Here is how Justice Thomas's opinion for the Court in Terry gets started:

In 1986, Congress established mandatory-minimum penalties for cocaine offenses.  If the quantity of cocaine involved in an offense exceeded a minimum threshold, then courts were required to impose a heightened sentence.  Congress set the quantity thresholds far lower for crack offenses than for powder offenses.  But it has since narrowed the gap by increasing the thresholds for crack offenses more than fivefold.  The First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, makes those changes retroactive and gives certain crack offenders an opportunity to receive a reduced sentence.  The question here is whether crack offenders who did not trigger a mandatory minimum qualify.  They do not.

Justice Sotomayor has an extended concurring opinion in Terry (it is a bit longer than the majority opinion).  She explains at the start of this opinion that she writes separately "to clarify the consequences of today’s decision.  While the Fair Sentencing Act of 2010 and First Step Act of 2018 brought us a long way toward eradicating the vestiges of the 100-to-1 crack-to-powder disparity, some people have been left behind."

I will likely have a lot more to say about this Terry ruling and its potential echoes once I get a chance to read it more closely.

June 14, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

SCOTUS rules defendants must show plain error (and likely won't) when pressing Rehaif claims on appeal in felon-in-possession cases

The Supreme Court is busy clearing the criminal cases off its docket as the Term winds to a close; today first opinion is unanimously ruling in Greer v. US, No. 19–8709 (S. Ct. June 14, 2021) (available here), holding that "in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon."  Here is a bit more explanatory context from Justice Kavanaugh's opinion for the Court:

Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison.  See 18 U.S.C. §§922(g), 924(a)(2).  In Rehaif v. United States, 588 U.S. ___ (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense.  In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.  See id., at ___ (slip op., at 11)....

In the two cases before us, all agree that Rehaif errors occurred during both defendants’ district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test.  We address the third prong: whether the Rehaif errors affected the defendants’ “substantial rights.”  Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Dominguez Benitez, 542 U.S., at 83.  And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty.

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon.  The reason is simple: If a person is a felon, he ordinarily knows he is a felon.  “Felony status is simply not the kind of thing that one forgets.”  963 F. 3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).  That simple truth is not lost upon juries.  Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.  A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.  In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different.

Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms.  See Fed. Rule App. Proc. 10(e).  Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing.  But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error.

Justice Sotomayor authors the only separate opinion which largely concurs with the majority though calls for one of the cases to be sent back to the lower court.  She also explains that she wants to "highlight two limits on today’s decision":

First, the Court’s analysis in Greer’s case does not extend to the distinct context of harmless-error review, which applies when defendants contemporaneously object at trial. Second, the knowledge-of-status element is an element just like any other.  The Government must prove it beyond a reasonable doubt, and defendants seeking relief based on Rehaif errors bear only the usual burden on plain-error review. 

June 14, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

June 13, 2021

Borden claims and the potential for 3582(c)(1)(a) motions to enable retroactivity

I asked a few days ago, in the wake of the Supreme Court's ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, "How many federal prisoners might now be serving illegal sentences after Borden?".   After a little reflection and added research, I have come to suspect that maybe only a few hundred federal prisoners are now serving ACCA sentences based on a problematic reckless predicate, though surely a larger number may seek relief in federal courts.  So, after flagging the issue of how many federal prisoners might now be serving illegal sentences after Borden, in this post I want to discuss a bit  how current federal prisoners serving ACCA sentences might seek relief.

Notably, some of this ground has been plowed in the wake of the Supreme Court's 2015 ruling in Johnson finding ACCA's residual clause unconstitutionally vague.  An intricate federal habeas jurisprudence has followed as ACCA prisoners looked to bring their Johnson claims into federal court through 2255 and 2241 motions. See generally Prof Leah Litman's writings here and here and here and here and here.

Justice Kavanaugh is clearly concerned about another round of this litigation the aftermath of Borden, as the last footnote in his dissent frets about "the collateral review petitions that will likely inundate courts in the circuits that [had held] ACCA covers reckless offenses."  In that footnote, Justice Kavanaugh seems eager to note that prisoners may not get relief based on Borden because "many petitions may fall outside §2255’s 1-year statute of limitations."  But Justice Kavanaugh perhaps does not realize that, thanks to the FIRST STEP Act, prisoners with viable Borden claims could now bring 3582(c)(1)(a) motions for sentence reductions based on "extraordinary and compelling" circumstances.

Prof Litman had so much to write about after Johnson because the procedural rules and jurisprudence surrounding 2255 and 2241 motions are extraordinarily intricate and often limiting.  And those procedural rules needed to be sorted through for ACCA-sentenced folks making Johnson claims because there was no other means to directly pursue resentencing in court.  But, thank to the provision of the FIRST STEP Act allowing federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons, prisoners now have another distinct means to seek relief through a 3582(c)(1)(a) motion for a sentence reduction.

Critically, because 3582(c)(1)(a) motions have only a minor "exhaustion" procedural requirement, prisoners bringing such motions will have an easier time to getting to court to have their claim considered on the substantive merits.  But the substantive merits of a 3582(c)(1)(a) motion will be different than if a Borden claim is pursued via 2255 and 2241 motions.  A judge will have to find that "extraordinary and compelling reasons warrant" a sentence reduction and then consider 3553(a) factors.  Because those with winning Borden claims have been sentenced to an illegal five years or more, I would think they certainly present an "extraordinary and compelling reasons" for a sentence reduction.  How much the sentence should be reduced should be ten determined by consideration of the 3553(a) factors.

In other words, the FIRST STEP Act's procedural change to so-called "compassionate release" motions via 3582(c)(1)(a) now allows for rulings like Borden to be more efficiently given retroactive effect in federal courts.  Yet another lovely reasons to celebrate that Act. 

Prior related posts:

June 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Unanimous South Carolina Supreme Court decides sex offender registry is "unconstitutional absent any opportunity for judicial review to assess the risk of re-offending"

Last week, the South Carolina Supreme Court issued an interesting opinion about the state's sex offender registry in Powell v. Keel, No. 28033 (S.C. June 9, 2021) (available here), which concludes this way:

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.

June 13, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Youth, gender, mental illness, abuse, co-defendant disparity all part of Tennessee capital case perhaps nearing an execution date

This new lengthy article in the Knoxville News Sentinel, headlined "How young is too young for a death sentence? Christa Pike fights move to set execution date," discusses a remarkable case from the Volunteer State. I could imagine spending an entire semester discussing this case with students because it engages so many sentencing issues, and here are just some of the particulars:

What's the difference between being 17 years old and being 18? In Christa Gail Pike's case, her lawyers say, the difference is a death sentence.

The state wants to set an execution date for Pike, now 45 and the only woman on Tennessee's death row.  She was 18 years old when she and two other participants in a Knoxville job program for troubled teens killed Colleen Slemmer in a remote spot on the University of Tennessee's agriculture campus.

Pike, her boyfriend Tadaryl Shipp and fellow Job Corps student Shadolla Peterson lured Slemmer, 19, to campus the night of Jan. 12, 1995.  Once there, Slemmer was beaten, cut and bludgeoned to death with a rock.  Pike kept a piece of her skull as a souvenir. Investigators identified a love triangle between Pike, Shipp and Slemmer as the motive for the crime.

Only Pike received a death sentence for her role in the killing.  Peterson cooperated with investigators and walked away with probation.  Shipp was 17 — too young to be put to death.  He's serving a life sentence and will be eligible for parole in 2028.

Pike's legal team cites that difference in a new court filing asking the Tennessee Supreme Court to delay her execution — or recommend it be stopped altogether.  "Mr. Shipp was 17 years old at the time of Ms. Slemmer’s death. Christa Pike was 18.  That is the difference between a death sentence and parole eligibility in 2028," reads the filing signed by defense attorneys Stephen Ferrell and Kelly Gleason.  "That difference cannot be equated with increased maturity or brain development. Christa was not more mature or more responsible than Mr. Shipp."

The Tennessee Attorney General's Office is asking the high court to set an execution date for Pike, contending she has exhausted her appeals. But Pike's defense team says it's still too soon.  They've lodged several arguments, including one centered on her mental illness and youth at the time of the crime.

A jury condemned Pike in March 1996.  Nine years later, the U.S. Supreme Court abolished the juvenile death penalty in the landmark case Roper v. Simmons....  The court drew the line at 18, but Pike's attorneys argue its logic should extend beyond that. They point to scientific research that the brain isn't fully developed until after age 20 and that there's no way to differentiate between the brains of young people.

"There is thus no justification for a drastic differentiation in punishment between a 17-year-old offender and an 18-year-old offender," the filing reads. "And the question is an important one, for Christa Pike was eligible for the death penalty in this case and her co-defendant, Tadaryl Shipp, was not."

The lawyers paint Shipp — not Pike — as the ringleader of the group. Shipp was violent and controlling, they write, while Pike was suffering from undiagnosed bipolar disorder and brain damage after a childhood filled with sexual and physical abuse. Her mother drank while she was in the womb, and she was twice raped as a child.

"It is also significant that, in addition to her youth, Christa Pike was also brain damaged and severely mentally ill at the time of her offense," the filing reads.  "Thus, practical effects of the immaturity that would be inherent in the brain of any eighteen-year-old were magnified by other problems that adversely affected Christa’s developing brain."

Courts have shot down similar arguments in Pike's case before....  The U.S. Supreme Court declined to take up the case last year.  Pike's attorneys now are asking the Tennessee Supreme Court to recommend that Gov. Bill Lee commute Pike's sentence to life with or without the possibility of parole.  At the very least, they're asking for more time so a psychologist can examine Pike in prison and so the Inter-American Commission on Human Rights can finish investigating whether Pike's human rights have been violated.

Lee could grant Pike clemency but has not done so for any other death-row inmate since he was inaugurated in January 2019.  The state has executed four men since then, including Nicholas Sutton, a Morristown man who killed four people and turned his life around on death row.

Pike has had additional legal troubles while in prison.  In 2004, she was convicted of attempted murder for nearly strangling a fellow inmate with a shoestring.

Pike would be the first woman Tennessee has executed in over 200 years, her attorneys say, and the first person it's put to death "in the modern era" who was a teenager at the time of the crime.

June 13, 2021 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)