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June 26, 2021

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

The title of this post is the title of this notable paper authored by Margaret Colgate Love and David Schlussel now available via SSRN.  Here is its abstract:

This report from the Collateral Consequences Resource Center summarizes legislative efforts and executive orders in 2020 to reduce barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.  In 2020, 32 states, D.C., and the federal government enacted 106 bills, approved five ballot initiatives, and issued four executive orders to restore rights and opportunities to people with a record.  While states enacted fewer laws 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. The report provides topical discussions of the reforms, a legislative report card of the most and least productive states, and an appendix documenting the laws by jurisdiction.

June 26, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Noting efforts to limit LWOP for young adults older than 18

This recent AP piece, headlined "Cases challenge no-parole terms for young adult killers," reports on various efforts in various jurisdictions to extend limits on LWOP sentences for young persons older than 18.  Here are excerpts:

U.S. Supreme Court rulings and state laws in recent years have limited or banned the use of life sentences without the possibility of parole for people who commit crimes as juveniles because of the potential for change.  Now, research showing that the brain continues to develop after 18 is prompting some states to examine whether to extend such protections to young adults...

Washington state’s high court earlier this year abolished automatic life without parole sentences given to people for murders committed as 18- to 20-year-olds.  Courts in Washington can still sentence young adult offenders to life with no chance at parole, but only after first considering whether their youth justifies a lesser punishment.

A new Washington, D.C., law allows those under the age of 25 at the time of their crime to apply for a new sentence after 15 years, said Josh Rovner, who works on juvenile justice issues for The Sentencing Project.  And bills introduced in Connecticut and Illinois would get rid of life without parole sentences for people who commit crimes as young adults, Rovner said....

Boston’s progressive top prosecutor, Suffolk County District Attorney Rachael Rollins, agrees there needs to be a change — though not as drastic as defense attorneys would like. Even so, Rollins took the unusual step this year of signing a brief in the case against Robinson to push for an end to mandatory life without parole for those who committed killings between 18 and 20.

She argues in court documents that the studies the defense points to are flawed, and that while it is “undisputed” that the brain continues to develop into early adulthood, “there is an absence of direct evidence linking these anatomical changes to specific behaviors.”  Rollins said she will urge the Supreme Judicial Court to follow Washington State and rule that those young adults must get a special sentencing hearing to consider their youth before punishments can be handed down. She said they should be ordered to die in prison in only “extremely egregious” circumstances — if the judge finds them to be “irretrievably depraved.”

June 26, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

June 25, 2021

Derek Chauvin gets 22.5 years for killing George Floyd

I am on the road, so will not have a chance to comment until probably tomorrow.  Readers should feel free to share their reactions and thoughts.

UPDATE:  Here are links to a few press pieces regarding the Chauvin sentencing:

From Law360, "Chauvin Sentenced To 22.5 Years In Prison For Floyd Murder"

From the Minneapolis Star Tribune, "Derek Chauvin's sentencing sparks relief but also resolve to keep fighting injustice"

From NBC News, "Chauvin sentence wasn't the max, but it provided some closure"

From NPR, "George Floyd's Family Says Chauvin's Sentencing Is One Step Closer To Healing"

ANOTHER UPDATE I just recently saw this reprinted version of the full sentencing order from Hennepin County District Judge Peter Cahill when he sentenced Derek Chauvin. Here is the short conclusion to the lengthy discussion:

Part of the mission of the Minneapolis Police Department is to give citizens “voice and respect.”  Here, Mr. Chauvin, rather than pursuing the MPD mission, treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor.  In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.

June 25, 2021 in Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines | Permalink | Comments (5)

"Prosecution in Public, Prosecution in Private"

The title of this post is the title of this new article authored by Lauren Ouziel now available via SSRN.  Here is its abstract:

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret.  The allocation of public and private is, at heart, an allocation of power — and the current allocation is a relic.  When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them.  But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges.

This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs under-noticed.  The public/private boundary has served to skew enforcers’ incentives; impoverish insight into enforcement patterns and their causes; weaken traditional channels of accountability (judicial, electoral and internal); and erode public trust.  The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes.  More fundamentally, the Article is a call to center the public/private boundary in accounts of power in the criminal process.

June 25, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

June 24, 2021

Will Derek Chauvin get more or less than 20 years for killing George Floyd?

The question in the title of this post reflects my view that 20 years seems like a reasonable "over/under" estimate for the sentence to be imposed by Minnesota Judge Peter Cahill on Derek Chauvin for murdering George Floyd.  I set this estimate influenced by some of the analysis and punditry from various sources in these preview pieces:

From the AP, "Derek Chauvin faces sentencing tomorrow in George Floyd’s murder — here’s what you need to know"

From CBS News, "Derek Chauvin will be sentenced Friday for the murder of George Floyd. Here's what to expect."

From NBC News, "Police who kill often receive lenient or no punishments. Derek Chauvin could be the exception."

From USA Today, "Derek Chauvin faces up to 30 years in prison in Friday sentencing for murder of George Floyd"

I believe that the sentencing is scheduled for Friday afternoon.  And I sincerely hope that there is general respect for the sentence imposed, whatever it proves to be.    

Prior related posts:

June 24, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Terrific CCRC review of new RAND report on presidential pardons

In this post last week, I flagged this massive report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  Helpfully, Margaret Love over at the Collateral Consequence Resource Center has completed this terrific overview of the reports, and here are excerpts from her posting:

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”  The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both....

Finally, in what may be the most disturbing finding for the Biden Administration, the RAND report observes that OPA appears to be struggling to manage a growing case backlog despite having had its attorney staff augmented during the Obama years....

Since June 2018, in part because of President Trump’s deliberate neglect of the regular pardon process, the backlog of pending pardon petitions has grown to more than 3,000 cases, some of which have been pending for more than a decade, while the commutation caseload now exceeds 12,000 cases.  The RAND report expresses concern that this overwhelming caseload may increase the time it takes to process a pardon application, which it characterizes as already “long and drawn-out.”  Indeed, it suggests that an intractable backlog could continue to grow given the hundreds of thousands of individuals who are eligible to apply for pardon, particularly if they are “motivated to apply under the belief that a more receptive ear currently resides in the White House.”  The report does not suggest alternative ways of dealing with the caseload, such as shortcutting the investigative process or increasing administrative case closures, as much as conceding that such efficiency measures would have racially skewed results.

June 24, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

First person taken of Ohio death row based on new statute precluding capital punishment for those with "serious mentally illness"

In this post back in January, I reported on the new Ohio statute precluding the death penalty for those with "serious mentally illness."  Today I can report, with the help of this local article, that this law has now moved one person off Ohio's death row: "A Columbus man sentenced to death in 1999 for the murder of his ex-girlfriend and her father has become the first inmate in Ohio removed from death row under a new state law that bans the execution of the seriously mentally ill."  Here are more interesting details:

The death sentence of David L. Braden, 61, was vacated last week by a Franklin County judge, who resentenced him to life without parole.

The county prosecutor's office and the state public defender's office agreed that Braden, at the time of his crime, met the criteria for serious mental illness under the new Ohio law, which went into effect April 12.  Both sides prepared an order that was signed by Common Pleas Judge Colleen O'Donnell.

Ohio was the first state to create such a law, thus Braden is also the first death-row inmate in the nation "to be removed from death row because of a statutory prohibition against executing people with a serious mental illness," said Robert Dunham, executive director of the Death Penalty Information Center.

The Virginia legislature was close to approving a similar law late last year, Dunham said, but instead banned the death penalty in March, becoming the 23rd state to do so.

The Ohio law, House Bill 136, was overwhelmingly approved by the state House in June of last year and by the state Senate in December.  Gov. Mike DeWine signed the measure in January and it became law 90 days later.

The law designates certain mental illnesses, including schizophrenia and bipolar disorder, as qualifying disorders if the condition "significantly impaired the person's capacity to exercise rational judgment in relation to his or her conduct" or "to appreciate the nature, consequences or wrongfulness" of the conduct.  The law applies not only to current and future capital cases, but provides the possibility of postconviction relief for those already on death row who can establish that they qualified as seriously mentally ill at the time of their offense.

While prosecutors have the option to oppose such petitions and request a hearing before a judge, Janet Grubb, Franklin County first assistant prosecuting attorney, said a careful review of information from Braden's appellate attorneys made such a challenge unnecessary.  "We saw enough during the exchange of information to conclude that a reasonable fact-finder in our court would determine that this individual qualified under the statute," said Grubb, who signed the order on behalf of Prosecutor Gary Tyack's office.

Tyack, who was elected in November, had no involvement in the decision, Grubb said.  Because Tyack served on the 10th District Court of Appeals for one of Braden's appeals, he had a conflict of interest that required Grubb to serve as prosecutor on the matter.  "Gary was completely walled off" from discussions about Braden's petition, Grubb said.

Braden was 39 when he was convicted by a Franklin County jury in May 1999 of fatally shooting Denise Roberts, 44, and Ralph "Bud" Heimlich, 83, at the home they shared on Barthel Avenue on the East Side on Aug. 3, 1998.  Testimony established that Braden and Roberts were seen arguing in a parking lot outside her workplace earlier in the day.  A man matching his description was seen fleeing the victims' home after neighbors heard gunshots.

All of Braden's appeals over the years, including one heard by the Ohio Supreme Court, have been rejected, although a case in federal court was still pending. Kathryn Sandford, an assistant state public defender who has handled Braden's appeals since his conviction, said the federal case will be dismissed as a result of the agreed order signed by O'Donnell.

Sandford and Steve Brown, a fellow assistant state public defender, filed the petition outlining Braden's qualifications for the serious-mental-illness designation. They included the findings of a psychologist who determined that Braden suffered from "paranoid schizophrenia with delusions" before committing the murders.

Since the early to mid-1990s, they wrote, a brother and sister-in-law testified that Braden had made statements about being a prophet of God, while friends attested to his paranoia and alarming personality changes. Since the beginning of his incarceration, Braden has been treated with anti-psychotic medication to control his psychotic symptoms, according to his attorneys.

A psychologist testified during the sentencing phase of Braden's trial that he was mentally ill, but the jury recommended a death sentence, which was imposed by then-Common Pleas Judge Michael H. Watson....

As part of the prosecutor's office review of Braden's petition, it was required by a separate state law to contact the family of the victims to inform them of the request, Grubb said. "The survivor we met with understood the position we were in," she said. "I think she reluctantly accepted that this was something that made sense on multiple levels."

June 24, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Lovely lengthy account of "Restoring Justice"

The latest issue of Harvard Magazine has this lengthy feature article on restorative justice titled "Restoring Justice:Exploring an alternative to crime and punishment." The piece is worth making time to read in full, and here are some excerpts:

To date, 45 states have passed laws permitting the use of restorative justice in at least some criminal cases.  Programs typically function in one of three ways: as a form of diversion from the criminal process, allowing offenders — especially young or first-time offenders — to avoid charges and a conviction; as a form of alternative sentencing; or, in more serious cases, as a way to reduce a criminal sentence.  The program [Armand] Coleman and [Emmanual] Williams took part in was a fourth kind: initiated years after their convictions, it did not influence the men’s sentences or release dates, but its deeper purpose was the same — to help participants take responsibility for their wrongdoing and understand themselves better, and, to the extent possible, “make things right,” as Coleman put it....

In recent decades, numerous restorative-justice programs have sprung into existence.  A few operate entirely outside the legal system, without ever involving any authorities; others work with local police departments and district attorneys’ offices. Methodologies vary from place to place, too — making it more difficult to assess the effectiveness of the underlying concept: most analyses have focused on juvenile and first-time offenders.  But recent rigorous, randomized studies find that restorative justice typically does a modestly better job at reducing recidivism than the court system — resulting in anywhere from 7 percent to 45 percent fewer repeat arrests or convictions, depending on the study parameters. One 2015 analysis found that this effect was actually most pronounced for violent offenses and adult offenders.

Crime victims also consistently appear to be more satisfied after a restorative-justice process than after a traditional criminal one — sometimes dramatically so (in a 2017 study of its own work, Impact Justice found that 91 percent of victims said they’d recommend the process to a friend and 88 percent said the repair plan adopted by the group addressed their needs).  Surveys show that while people who have survived a crime want to feel safe, many of them also prefer rehabilitation for the perpetrators, rather than long periods of incarceration.  Researchers find that victims often perceive restorative dialogues to be fairer and more responsive to their needs and wishes.  One 2013 study of face-to-face meetings between victims and offenders found a marked decrease in victims’ post-traumatic stress symptoms and in their desire for revenge.  A multiyear randomized study in Australia found that victims of violent crime who went to court were five times more likely to believe they would be re-victimized by the offender, while those who went through a restorative process felt more secure and achieved a greater sense of closure.

Adriaan Lanni points to such findings in her argument in favor of restorative justice, but says even they fall short of the full picture. For several years, she has volunteered as a case coordinator for a Concord-based program, and has seen firsthand what happens in those conversations.  “I think you lose a lot if you just look at the quantitative analysis, like, ‘Give me the recidivism number,’” she says.  “It’s sort of a magical experience. I was skeptical about restorative justice until I started sitting in circles. But it’s really transformative, in a way that’s hard to measure.”

June 24, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

June 23, 2021

Biden Administration stresses reentry in its new public safety efforts

I was intrigued to see that the new "strategy" to combat gun violence announced today by the White House includes significant discussion of reentry issues.  This fact sheet, titled "Biden-Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety," includes a bunch of items under the heading "Help formerly incarcerated individuals successfully reenter their communities."  Here are the headings of items discussed thereunder:

Investments to help formerly incarcerated individuals find quality jobs. 

Expanding Federal Hiring of Formerly Incarcerated Persons.

Implementing “ban the box” policy.

Hiring Second Chance Act Fellow.

Leveraging tax credits to incentivize hiring of formerly incarcerated individuals. 

Addressing the housing needs of returning citizens. 

This extended CNN piece discusses the initiative more generally, providing this summary:

The crime prevention strategy institutes a number of measures among federal agencies and it also relies on allowing states to use American Rescue Plan dollars for more flexible applications, including hiring law enforcement above pre-pandemic levels or using the funds toward community violence intervention programs.

According to the White House, Biden's "Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety" will focus on five main pillars: stem the flow of firearms used to commit violence, including by holding rogue firearms dealers accountable for violating federal laws; support local law enforcement with federal tools and resources to help address summer violent crime; invest in evidence-based community violence interventions; expanding summer programming, employment opportunities, and other services and supports for teenagers and young adults; and help formerly incarcerated individuals successfully reenter their communities.

June 23, 2021 in Criminal justice in the Biden Administration, Reentry and community supervision | Permalink | Comments (0)

"The Impact of COVID-19 on Crime, Arrests, and Jail Populations - An Expansion on the Preliminary Assessment"

The title of this post is the title of this new expanded report on COVID impacts on some critical criminal justice metrics.  Here is the 20+ page report's executive summary:

Beginning in March 2020, local and state criminal agencies took several actions to mitigate the rising number of people being infected with the COVID-19 virus.  To address these concerns, a variety of policies were enacted to reduce the number of persons held in jails.  These polices were designed to 1) mitigate the number of people being arrested and booked into local jails and 2) reduce the length of stay (LOS) for those admitted to jail.  Concurrently, public safety concerns were raised that by lowering the jail populations, crime in the community would increase.

To address these concerns, the JFA Institute (JFA), through resources provided by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC) program, began tracking and analyzing six cities and counties participating in SJC (jurisdictions) and their jail and crime data in real time to monitor the impact of these mitigation activities.  In October 2020, JFA expanded the study to eleven jurisdictions and collected the data through December 2020 to examine longer term trends and a potential rebound.

Analysis of the eleven jurisdictions:

  • Analysis of the eleven jurisdictions studied revealed jail populations declined, yet crime and arrests declined as well, giving indication that declining jail populations did not compromise public safety.

  • Overall, total reported crime was 22% lower in December 2020 when compared to December 2019 and 14% lower for the total number of reported crimes for CY 2020 versus CY 2019.

  • When combining all jurisdictions, there was an average 39% decrease in jail bookings, which equates to over 130,000 fewer jail bookings in a one-year time frame.  Jail booking decreases were fueled by the decrease in property crime and arrests, primarily for misdemeanor and lower-level felony charges.

  • As a result of the change in jail bookings, the composition of the jail populations changed postCOVID-19, with a higher proportion being male and charged with violent felony and non-drug felony crimes.

  • The LOS for people in jail has increased due to the changing make-up of the jail populations and a slowdown in court case processing.

  • After the historic initial decrease, jail populations rebounded somewhat but stabilized in October 2020. During this time, there was no substantial increase in overall crime.

There are challenges ahead in keeping jail populations low, namely maintaining lower arrests, jail bookings, and reducing the length of stay by expediting the disposition of criminal cases.  The response to COVID-19 has shown that such reforms are possible and can safely reduce the number of persons held in jail but sustaining lower jail populations will require maintaining these reforms in some manner.

June 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

SCOTUS completes OT20 criminal docket with "it depends" Fourth Amendment ruling on misdemeanors and exigent circumstances

Astute law students often learn pretty quickly that "it depends" is often a pretty good answer to hard legal questions.  Consequently, I am not too surprised that the Supreme Court this morning, in deciding the last significant criminal case on its docket this Term, embraced its usual "it depends" approach — more formally a "case-by-case" analysis — to what can constitute exigent circumstances when police pursue a person suspect of a misdemeanor.  The Court's opinion in Lange v. California, No. 20–18 (S. Ct. June 23, 2021) (available here), starts this way:

The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need.  Kentucky v. King, 563 U.S. 452, 460 (2011).  The question presented here is whether the pursuit of a fleeing misdemeanor suspect always — or more legally put, categorically — qualifies as an exigent circumstance.  We hold it does not.  A great many misdemeanor pursuits involve exigencies allowing warrantless entry.  But whether a given one does so turns on the particular facts of the case.

I will leave it to Fourth Amendment experts to parse this opinion, but I thought it notable (and useful to highlight) how the Court's majority opinion by Justice Kagan stresses the wide variety of crimes we label misdemeanors:

Key to resolving [this case] are two facts about misdemeanors: They vary widely, but they may be (in a word) “minor.” Welsh, 466 U.S., at 750.  In California and elsewhere, misdemeanors run the gamut of seriousness.  As the amicus notes, some involve violence.  California, for example, classifies as misdemeanors various forms of assault. See Cal. Penal Code Ann. §241 (West Cum. Supp. 2021); Brief for Amicus Curiae 15a–16a.  And across the country, “many perpetrators of domestic violence are charged with misdemeanors,” despite “the harmfulness of their conduct.” Voisine v. United States, 579 U.S. 686, ___ (2016) (slip op., at 1).  So “a ‘felon’ is” not always “more dangerous than a misdemeanant.” Tennessee v. Garner, 471 U.S. 1, 14 (1985).  But calling an offense a misdemeanor usually limits prison time to one year. See 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §1.8(c) (4th ed. Supp. 2020).  States thus tend to apply that label to less violent and less dangerous crimes.  In California, it is a misdemeanor to litter on a public beach. See Cal. Penal Code Ann. §374.7(a) (2020).  And to “negligently cut” a plant “growing upon public land.” §384a(a)(2), (f ). And to “willfully disturb[] another person by loud and unreasonable noise.” §415(2).  And (last one) to “artificially color[] any live chicks [or] rabbits.” §599(b). In forbidding such conduct, California is no outlier.  Most States count as misdemeanors such offenses as traffic violations, public intoxication, and disorderly conduct.  See, e.g., Tex. Transp. Code Ann. §545.413(a), (d) (West 2011) (driving without a seatbelt); Ill. Comp. Stat., ch. 610, §90/1 (West 2018) (drinking alcohol in a railroad car); Ark. Code Ann. §5–71–207(a)(3), (b) (2016) (using obscene language likely to promote disorder). So the amicus’s (and concurrence’s) rule would cover lawbreakers of every type, including quite a few hard to think alarming.

June 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)

This local article, headlined "Indiana woman to plead guilty in Capitol riot wrote reports on 'Schindler's List,' more," provides the interesting backstory leading up the scheduled sentencing of one person prosecuted for involvement in the Capitol riot on January 6. Here are some details:

A Bloomfield woman will plead guilty this week for her role in the U.S. Capitol riot after appealing to the court that she has learned from her participation from movies and books such as "Schindler's List" and "Just Mercy."  Anna Morgan-Lloyd has agreed to plead guilty to one of her pending federal charges in the Jan. 6 insurrection in exchange for three years probation, $500 in restitution and community service.

The 49-year-old attended what initially began as a rally with her friend Dona Sue Bissey — also federally charged in the riot.  Bissey, whose case is still pending, is scheduled to appear in court July 19.

In a letter to the judge, Morgan-Lloyd apologized for entering the U.S. Capitol and said she feels “ashamed” about how the march that day turned violent.  She attached movie and book reports to her letter, summarizing “Schindler’s List” and “Just Mercy.” Her attorney recommended them, she said, to learn “what life is like for others in our country.”...

Bissey and Morgan-Lloyd referred to Jan. 6 as the “most exciting day” of their lives in Facebook posts, tagging one photo inside the Capitol building.  The FBI arrested the two women in late February, making them among six Hoosiers criminally charged in the aftermath of the insurrection.

Court records show the Acting U.S. Attorney has agreed to the plea, calling Morgan-Lloyd’s participation a serious violation of the law, but noted she did not engage in physical violence or destroy government property.  “To be clear, what the Defendant initially described as “the most exciting day of (her) life” was, in fact, a tragic day for our nation — a day of riotous violence, collective destruction, and criminal conduct by a frenzied and lawless mob,” Acting U.S. Attorney Channing Phillips wrote in court records.

The U.S. listed Morgan-Lloyd’s apparent remorse, no prior criminal history and cooperation with law enforcement after her arrest as some of the reasons for the government’s acceptance of the plea agreement.

This extended HuffPost piece, headlined "A Lawyer For Jan. 6 Defendants Is Giving Her Clients Remedial Lessons In American History," provides additional details on this defendant and the valuable efforts of her defense attorney to turn her prosecution into a "teachable moment."  I recommend this piece in full, and here is an excerpt: 

This week, Morgan-Lloyd will become the first of nearly 500 defendants arrested in connection with the Jan. 6 attack on the U.S. Capitol to face sentencing. She wants a judge to know she’s changed, and her book report-style filings are meant to illustrate that growth. “I’ve lived a sheltered life and truly haven’t experienced life the way many have,” Morgan-Lloyd wrote to the judge. “I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.”

The remedial social studies program that Morgan-Lloyd is following was created by her D.C.-based lawyer, H. Heather Shaner....  Shaner is one of many D.C. lawyers assigned to represent Capitol defendants who can’t afford their own attorneys, as guaranteed by the U.S. Constitution and as laid out in the Criminal Justice Act.

In addition to representing her clients in court, Shaner has seized an opportunity to try and educate them on the history their teachers glossed over.  Shaner regularly sends her clients who are incarcerated pretrial books to read: “They’re a captured audience, and it’s life-changing for a lot of them.”  But she decided to take an even more intensive approach with her Capitol clients, who were part of another ugly, historical event in American history.

“Reading books and then watching these shows is like a revelation,” Shaner told HuffPost. “I think that education is a very powerful tool ... So I gave them book lists and shows that they should watch.” In addition to Morgan-Lloyd, Shaner represents Capitol defendants Annie Howell, Jack Jesse Griffith (aka Juan Bibiano), Israel Tutrow and Landon Kenneth Copeland, a veteran with post-traumatic stress disorder who had a major episode during a virtual hearing in his case and cursed out everyone on the call. (Copeland, who was filmed assaulting officers at the Capitol on Jan. 6 and is facing the most serious accusations of any of Shaner’s Capitol clients, was ordered to undergo a competency evaluation and remains in custody.)

Shaner said her clients had poor educations and knew very little about the country.  Her two female clients took to the task with zeal, Shaner said, and got library cards for the first time in their lives.  “Both my women are like, ‘I never learned this in school. Why don’t I know about this?’” Shaner said.  (A couple of the male clients weren’t quite as eager students, she said. “The men are very much like ‘Oh, I’ll get to it.’”  But she said some of her male clients have been doing some self-education.)

Here are some links to some of the court filings discussed above:

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

June 22, 2021

Will any new sentencing issues be central to the new "comprehensive crime reduction strategy" soon to come from Prez Biden?

The question in the title of this post is prompted by this new lengthy CNN piece headlined "Concerns rising inside White House over surge in violent crime."  Here are excerpts:

A nationwide surge in violent crime has emerged as a growing area of concern inside the White House, where President Joe Biden and his aides have listened with alarm as local authorities warn a brutal summer of killing lies ahead.

Biden plans to address the spike in shootings, armed robberies and vicious assaults on Wednesday afternoon following a meeting with state and local officials, law enforcement representatives and others involved in combating the trend.  He hopes to dampen what has already become a cudgel for Republicans eager to run a "law and order" campaign in next year's midterm elections.

The President is poised to announce a comprehensive crime reduction strategy on Wednesday, officials said, in hopes of reducing gun violence and addressing the root causes of the spike.  He plans to sign executive actions with a particular focus on tamping down gun crimes, according to officials, while again calling on Congress to take steps to enact new gun control laws. He is also set to press Congress to confirm David Chipman as his nominee to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Across the country, the easing of pandemic restrictions paired with the onset of warmer weather has led to a troubling increase in crime, much of it involving guns.  After years of decreasing crime statistics, the homicide rate surged in major cities in 2020 and that trend appears poised to continue this year....

Already, the uptick is becoming a potent political issue for a President who worked over the past two years to carefully calibrate his approach to criminal justice, resisting pressure from the left to support defunding the police while justifying his role in writing major anti-crime bills from the 1990s.  Biden entered office with a mandate to his team on reducing gun violence, according to officials, and has been acutely aware that crime rates have been spiking over the past year.  The politics of the moment are further complicated by the prospect of bipartisan police reform legislation, which is slowly moving its way through Congress. 

The decision by the White House to devote an afternoon of the President's time to focus on the nation's rising crime rate underscores how serious the matter is being taken inside the West Wing.  The wave of violent crime is not only seen as an impediment to the economic recovery from the pandemic, but also as a potential political threat that could give Republicans an opening in their midterm election fight against Democrats.

Biden's aides have sought to put the numbers in context, noting the current upswing in crime began before he entered office. "There's been, actually, a rise in crime over the last five years, but really the last 18 months," White House press secretary Jen Psaki said Monday....

White House officials hope to take steps that will better link federal law enforcement resources with state and local governments, according to people familiar with the matter. Biden's Justice Department has laid out a strategy for combating violent crime that includes embedding federal agents with local homicide teams and nationwide sweeps for wanted fugitives involved in violence.

That plan sought to de-emphasize the number of arrests and prosecutions, instead focusing on overall reductions in violent crime as a metric of success.  It also sought to improve community engagement and violence intervention programs in the hopes of preventing violence from taking root.  Biden's sweeping $2 trillion jobs and infrastructure proposal includes $5 billion to support community-based violence prevention programs, though the future of that proposal remains uncertain....

In the 1990s, the tough-on-crime stance was viewed as a prized accomplishment for Biden, who warned of "predators on our streets" who were "beyond the pale."  Yet a quarter-century later, his warm embrace of Clinton during a Rose Garden signing ceremony for the 1994 crime bill stirred controversy during his 2020 presidential primary.  Several candidates, including then-opponent Kamala Harris, criticized Biden for his role in the legislation, which she and other critics said led to an era of mass incarceration....

Today, the politics of crime legislation are less certain. A movement to "Defund the Police" has lost considerable steam inside the Democratic Party, amid rising crime rates across the country.  Biden has consistently been opposed to any such measures -- and avoided such language -- by refusing to accept the criticism from progressives during his presidential race.  Meanwhile, local law enforcement officials have begun placing greater emphasis on community intervention programs to prevent violence, a shift away from the style of policing embedded in the laws Biden helped pass.

This new press release from the Department of Justice, titled "Department of Justice Announces Formation of Firearms Trafficking Strike Forces to Crack Down on Sources of Crime Guns," starts this way:

Today, the Department of Justice announced it will launch five cross-jurisdictional firearms trafficking strike forces within the next 30 days to help reduce violent crime by addressing illegal gun trafficking in significant firearms trafficking corridors.  Tomorrow, the Attorney General will discuss with the President, law enforcement officials, and local and community leaders, this initiative, which, along with other measures, the Department of Justice is undertaking as part of the administration-wide comprehensive strategy to combat the rise in violent crime.

June 22, 2021 in National and State Crime Data, Who Sentences | Permalink | Comments (0)

Depressing (and abridged) FSR reminder of just how long we have known crack sentences are especially whack

While awaiting the start of this morning's US Senate Judiciary Committee hearing ,"Examining Federal Sentencing for Crack and Powder Cocaine," at which it seems there will be considerable advocacy for lowering crack cocaine sentences to finally be in parity with powder cocaine sentence (basics here), I thought to look through some of the archives of the Federal Sentencing Reporter to see how many articles have have had folks discussing (and often sharply criticizing) crack sentences. 

Because crack sentencing rules have been subject to so much justified criticism and seen modest reform in recent years, the number of FSR articles on this topic feels more than a bit overwhelming.  Here is an abridged list of articles that caught my eye to show the varied list of authors and laments through the years:

From 1990 by Deborah Young, "Rethinking the Commission's Drug Guidelines: Courier Cases Where Quantity Overstates Culpability

From 1992 by Catharine M. Goodwin, "Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability"

From 1992 by Robert S. Mueller, "Mandatory Minimum Sentencing"

From 1993 by Ronald F. Wright, "Drug Sentences as a Reform Priority"

From 1993 by Richard Berk, "Preliminary Data on Race and Crack Charging Practices in Los Angeles"

From 1994 by Marc Miller and Daniel J. Freed, "The Disproportionate Imprisonment of Low-Level Drug Offenders"

From 1995 by David Yellen, "Reforming Cocaine Sentencing: The New Commission Speaks"

From 1998 by Carol A. Bergman, "The Politics of Federal Sentencing on Cocaine"

From 1999 by Kyle O'Dowd, "The Need to Re-Assess Quantity-Based Drug Sentences"

From 2001 by Paula Kautt, "Differential Usage of Guideline Standards by Defendant Race and Gender in Federal Drug Sentences: Fact or Fiction?"

From 2003 by Alfred Blumstein, "The Notorious 100:1 Crack: Powder Disparity--The Data Tell Us that It Is Time to Restore the Balance"

From 2005 by Ryan S. King and Marc Mauer, "Sentencing with Discretion: Crack Cocaine Sentencing After Booker"

From 2007 by Steven L. Chanenson and Douglas A. Berman, "Federal Cocaine Sentencing in Transition"

From 2007 by Mark Osler, "More than Numbers: A Proposal For Rational Drug Sentences"

I will stop with these links to these 15 FSR articles because I am already overwhelmed and there were dozens more articles I could have highlighted just from the period before recentfederal  crack sentencing reforms. Notably, in 2007, the US Sentencing Commission finally did a first round of (modest) crack guideline reductions, then in 2010 we got the Fair Sentencing Act and it echoed through another round of guideline reductions.  And yet, as witnesses are noting in today's Senate hearing, we still have a disparate and unjustified disparity in our cocaine sentencing laws.  Moreover, as many of the articles above highlight, our enduring commitment to a quantity-based federal drug sentencing structure is a deep problem at the root of our so many of our federal sentencing woes.

June 22, 2021 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Dead Man Waiting: A brief profile of deaths in Texas prisons among people approved for parole release"

The title of this post is the title of this remarkable new report that provides a critical reminder the "being paroled" is a nuanced (and not-always-life -saving) reality in Texas.  Here is the report's abstract which also discusses its origin and authors:

A troubling number of people in Texas prisons and jails who have been approved for release on parole are dying in custody before they ever step foot outside prison gates, according to a new report from the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin. In a first-of-its-kind analysis, “Dead Man Waiting,” shows that while deaths among parole-approved people increased during the COVID period, this population was already dying in large numbers from other chronic health issues while awaiting release.  The findings in this report raise serious questions about the state’s parole system and why people who met the Texas Board of Pardons and Parole (BPP)’s stringent approval guidelines could end up dead before their release.  Researchers offer recommendations for safely releasing this population immediately after parole approval. This report was produced as part of the COVID, Corrections, and Oversight Project at the Lyndon B. Johnson School of Public Affairs, with support from Arnold Ventures. The COVID, Corrections, and Oversight Project is led by Michele Deitch, Project Director, and Alycia Welch, Associate Director.

Here are just a few paragraphs from the first part of the short report:

There are more than 10,700 people in Texas prisons who have been approved for release on parole but remain in custody.  This number represents nearly one-tenth of the entire Texas prison population. Despite being approved for parole, some of these people will never walk out the prison gates because they die while waiting for release....

In any given month before COVID, people remained in Texas prisons for an average of 3 to 4 months after their parole approval before they were released.  During the COVID pandemic, the typical delay in release ranged from 5 to 11 months; the overall average was 6 months.

Between March 2020, when TDCJ locked down its facilities due to COVID, and March 2021, at least 42 people who were approved for release on parole died in Texas prisons. These are people who BPP determined are safe enough to be released by a certain date or pending the completion of a required program.  They met some of the nation’s most burdensome standards for parole approval and yet they still died behind bars while awaiting their release.

June 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Strong extended coverage of modern drug war dynamics from NPR

As noted in this prior post, a number of media outlets ran a number of solid articles about the purported 50th anniversary of the start of the modern "war on drugs."  Valuably, NPR has gone deeper into this multifaceted topic through an extended series of effective pieces.  I have already flagged a few of these segments in prior posts, but I thought it useful to round-up and recommend all that I have now seen here:

June 22, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

June 21, 2021

US Senate Judiciary Committee hearing set for "Examining Federal Sentencing for Crack and Powder Cocaine"

On the morning of Tuesday, June 22, 2021, the US Senate Judiciary Committee has a hearing set for 10am titled "Examining Federal Sentencing for Crack and Powder Cocaine." The hearing should be available to watch at this link, where this list of witnesses are set out:

Ms. Regina LaBelle, Acting Director, Office of National Drug Control Policy

The Honorable Asa Hutchinson, Governor, State of Arkansas

Mr. Matthew Charles, Justice Reform Fellow, FAMM

The Honorable Russell Coleman, Member, Frost Brown Todd

Mr. Antonio Garcia, Executive Director, South Texas High Intensity Drug Trafficking Area

Mr. Steven Wasserman, Vice President for Policy, National Association of Assistant U.S. Attorneys

Notably, the Washington Post here reports on what Ms. Regina LaBelle will be saying in her testimony as well as some of the political context around this hearing.  Here is part of the story:

The Biden administration plans to endorse legislation that would end the disparity in sentences between crack and powder cocaine offenses that President Biden helped create decades ago, according to people with knowledge of the situation — a step that highlights how Biden’s attitudes on drug laws have shifted over his long tenure in elected office.

At a Senate Judiciary Committee hearing Tuesday, Regina LaBelle, the acting director of the White House Office of National Drug Control Policy, plans to express the administration's support for the Eliminating a Quantifiably Unjust Application of the Law Act, or Equal Act. The legislation, which sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.) and Sens. Cory Booker (D-N.J.) and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing.

“The current disparity is not based on evidence yet has caused significant harm for decades, particularly to individuals, families, and communities of color,” LaBelle says in prepared written testimony obtained by The Washington Post in advance of the hearing. “The continuation of this sentencing disparity is a significant injustice in our legal system, and it is past time for it to end. Therefore, the administration urges the swift passage of the ‘Eliminating a Quantifiably Unjust Application of the Law Act.’ ”...

Outside coalitions backing Durbin and Booker’s bill have focused particularly on shoring up conservative support as part of their larger criminal justice overhaul agenda. To that end, one of the witnesses testifying in favor of the bill Tuesday is Gov. Asa Hutchinson of Arkansas, a Republican who led the Drug Enforcement Administration under President George W. Bush.

“Although Congress has taken steps to reduce the disparity and provide some retroactive relief, any sentencing disparity between two substances that are chemically the same weakens the foundation of our system of justice,” Hutchinson says in his prepared remarks, also obtained by The Post.  “Congress now has the opportunity to build on the bipartisan successes of the Fair Sentencing Act and the First Step Act by eliminating the sentencing disparity between crack cocaine and powder cocaine once and for all.  The strength of our justice system is dependent on the perception of fundamental fairness.”

Russell Coleman, a former counsel to now-Senate Minority Leader Mitch McConnell (R-Ky.) and former U. S. attorney for the Western District of Kentucky, will also promote the legislation at the hearing Tuesday morning.

A few prior related posts:

June 21, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Can Criminal Justice Reform Survive a Wave of Violent Crime?"

The question in the title of this post is the headline of this notable new commentary by John Pfaff in The New Republic.  The subheadline of the piece highlights its data-crunching themes: "An uptick in homicides across the country is getting blamed on reforms. That argument gets the data all wrong."  I recommend everything Pfaff writes in full, and here are excerpts from this very lengthy piece:

Even as the pandemic lockdown helped push down many crimes, last year saw an unprecedented spike in homicides nationwide, likely more than twice the largest previous one-year rise.  And given the retaliatory nature of lethal violence and the ongoing disruption from the pandemic, we should expect homicides to remain high in 2021 as well.  One study in Chicago, for example, found evidence that cycles of retaliation and counterretaliation meant that a single shooting was often the root cause of three, or sometimes 60, or once almost 500 subsequent shootings over the next few years.

How to stop this wave of violence is thus one of the most important policy questions for 2021, but asking it has rarely felt more fraught.  The surge in homicide comes at a moment when conventional responses to crime face more intense criticism than any time since the civil rights movements of the 1960s.  Reformers and activists across the country have spent the past decade campaigning to reduce our reliance on prisons, jail, probation, and even the police.  The changes we’ve seen may be less dramatic than what many advocates have hoped for, and certainly less dramatic than how many of their detractors describe them, but they both reflect and have nurtured a growing shift in popular views on crime control....

Perhaps the most important feature of last year’s rise in homicides is just how uniform it appears to be.  In 2020, homicides rose in 60 of the 69 major police departments noted above, and in almost all cases at a rate more or less proportional to homicides in 2019.  Any one city’s share of homicides was roughly the same as its share in 2019, just appreciably higher.  Unlike many previous periods, the spike was not the product of a few cities experiencing an especially bad year (in 2016, around 20 percent of the national increase in homicides was just due to Chicago), but of almost every city suffering in something close to unison.

One important upshot of this uniformity is that there is no evidence that cities with more progressive prosecutors experienced relatively worse outcomes than those with more conventional district attorneys.  In fact, two of the eight departments that reported declines in homicides — Baltimore City, Maryland, and St. Louis County, Missouri — are home to two of the country’s most high-profile “progressive prosecutors,” Marilyn Mosby and Wesley Bell.  Opponents of progressive prosecution are already invoking the homicide spike to push back against the movement, but the data simply do not back them up....

It is also important to note the inaccuracy of trying to pin rising homicides on efforts to “defund” the police.  In a December 2020 press conference, for example, Gregg Sofer, at the time the U.S. attorney for the Western District of Texas, tried to blame Austin’s rise in homicides on the city’s recent decision to cut police funding.  The problem?  Homicides had started to rise well before the cuts, in no small part because the budget in question did not go into effect until October 2020, so almost none of the proposed cuts would have occurred until 2021 at the earliest — and most of the 2021 cuts involve simply shifting which agencies are responsible for certain tasks....

If not progressive prosecution or defunding, what caused the surge in homicides?  It will be years before we have a clear answer, but the two leading explanations are the chaos wrought by the Covid pandemic and some product of the protests that have taken place against police violence.  (Other factors surely mattered, too, such as an unprecedented uptick in gun purchases.) Both theories are valid, but in complicated ways....

It is nearly impossible to understate the chaos of the past year and a half: not just an epochal pandemic that has caused mass death and brought once-in-a-generation economic devastation in its wake, but the fearmongering rhetoric of Donald Trump, the unsettling and still-unresolved insurrection of January 6, and widespread protests of the sort that risk scaring and unnerving white voters.  These are conditions that would push much of the public in a more punitive direction even absent any change in crime rates; add in the unprecedented spike in homicides, and demands for severity will grow even stronger, politically speaking.

The signs of that growing severity are widespread.  Even though prisons and jails have been leading hot spots for spreading the coronavirus — not just to the poor communities of color overrepresented in the prisons’ populations, but also to the more rural and white working-class communities where correctional officers tend to live — state prison populations barely budged, and early declines in county jail populations have been mostly undone.  Democrats and Republicans, governors and legislators and mayors: Almost no one was willing to reduce prison or jail populations.  The pandemic provided compelling political cover for releasing large numbers of people from prison; that so few took advantage is telling evidence of a deeper reticence toward real change....

Reform efforts will inarguably face tougher opposition in the years ahead.  The social and economic upheavals of Covid, like the emotional shock of 9/11, would likely have been enough on their own to shift many people’s attitudes on crime policy in a more punitive direction; the homicide spike of 2020, and its continuing fallout through 2021, all but guarantee such a move — especially for issues like police funding.  Conservative state legislatures show increasing interest in limiting the cuts that can be made by bluer cities, where support for reform may remain high.  But all these transformations do not mean that the defenders of the status quo are guaranteed a victory.  They are using the current atmosphere of fear to push hard against reforms, but they are also facing more effective and motivated opposition than at any other time recently, and support for reform still seems high in the communities that are most directly affected.  Meanwhile, there is little to no evidence linking the rise in homicides to the reforms that have actually been implemented, many of the reforms being fought for are designed to reduce violence immediately, and many may do so both more effectively and at a lower social and human cost than the status quo.  The politics may be turning toward the status quo, but the data are not.

These excerpts only capture a small slice of Pfaff's interesting discussion in this new piece.  But I find problematic and discouraging that he fails to note the latest encouraging data from the Vera Institute concerning declines in US prison populations.  Pfaff states here that "state prison populations barely budged" during the COVID pandemic, but this Vera report finds that the US prison population dropped by over 240,000 persons (17%) from 2019 to spring 2021.  This is much more than "barely budging," though I know many advocates were hoping to see even broader decarceration efforts during the pandemic.  Still, Figure 5 of the Vera report shows that nearly every state experienced at least 10% decline in its prison population during the pandemic and many states saw declines of 25% or more. 

As I noted when the Vera data was released earlier this month, the national prison populations according to this data is now the lowest it has been in over 25 years and the lowest per capital  rate in more than three decades.  Pfaff is right to wonder and worry about how increases in violent crime might impact recent reductions in mass incarceration, but I fear he tends to too often see the criminal justice reform story through the lens of violent crimes when it has so many other notable dimensions.  I believe many states (and the federal system) did a reasonable job reducing the number of less serious offenders subject to incarceration.  If we can continue to do that and only use incarceration for the most serious, violent offenders (and also allow persons subject to long terms to get sentencing second looks) we might have reason to be optimistic that the US will soon no longer be the world's leader in locking its people in cages.

June 21, 2021 in National and State Crime Data, Scope of Imprisonment, Who Sentences | Permalink | Comments (4)

"Truth, Lies and The Paradox of Plea Bargaining"

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

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system . The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process.  The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining.

Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants.  If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences.  These defendants would lose their ability to avoid the injustices of the system.  And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed.  Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice.  To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform.

Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction.  Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

June 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Lots of GVRs (especially to Fifth Circuit) on latest SCOTUS order list

In this prior post following the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, I asked "How many federal prisoners might now be serving illegal sentences after Borden?".  Though that question may never get a precise answer, today's Supreme Court order list has a bunch of Borden GVRs which showcases which circuits will be most busy with the Borden fallout.

Specifically, by my count, the Borden GVRs come from the Fifth Circuit (16 of them!), the Sixth Circuit (two), the Tenth Circuit (two), and the Eleventh Circuit (one).  There is also a very long list of cert denials in the order list, so I would guess that not everyone pressing an ACCA claim secured a GVR.  (And, of course, there are surely many folks serving Borden-iffy ACCA sentences who did not have pending cert petitions.)

As always, I welcome input on whether any of these GVRs or denials are surprising or noteworthy (or other Borden application news).  

Prior related posts:

June 21, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 20, 2021

Scouting the state judge who will sentence Derek Chauvin for murdering George Floyd

This new NBC News article, headlined "Derek Chauvin sentencing thrusts Minnesota Judge Peter Cahill back into spotlight," provides something of a scouting report on the judge who is scheduled to  sentence Derek Chauvin later this week.  Here are excerpts:

A Minnesota judge who, former colleagues and friends say, has no penchant for publicity will again find himself in the media spotlight this week when he sentences the former Minneapolis police officer convicted of murder in the death of George Floyd.

Judge Peter Cahill, who has served on the bench in Hennepin County for 14 years, could sentence Derek Chauvin to as little as probation, an outcome requested by his attorney, or more than the 30-year punishment favored by prosecutors.

In interviews, people who know Cahill and cases he has overseen say he is likely to land somewhere in the middle.  They said he is a fair judge, though there is no guarantee he will mete out a punishment that will make either side entirely happy.  "He's been both a prosecutor and a defense attorney," said Craig Cascarano, 72, a Minneapolis lawyer in private practice who met Cahill at the Hennepin County Public Defender's Office when Cahill was a law clerk.  "So he understands what it's like to do both jobs. And he tries very hard to do the right thing."...

Cahill will sentence Chauvin on Friday, about two months after he oversaw the trial that ended in his conviction on charges of second- and third-degree murder, as well as second-degree manslaughter.  Cahill has paved the way for Chauvin's punishment to be up to double the 15 years at the top of the range recommended under state guidelines, having ruled in May that there were four aggravating factors in Floyd's death....

From 2008, the year he was elected to the bench, through January, Cahill has sentenced six people convicted of second-degree murder to prison.  They received terms ranging from 12.5 years to 40 years.

In Cahill's most recent case of sentencing on unintentional second-degree murder — the most serious charge on which Chauvin was convicted — he handed down a punishment of 15 years.  In that case, Matthew Witt pleaded guilty in January 2020 to unintentional second-degree murder for beating his mother to death and to first-degree assault for violently attacking his father July 24, 2019, authorities said.  He received an additional seven years for the latter charge.

Prior related posts:

June 20, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The President’s Conditional Pardon Power"

The title of this post is the title of this new Note in the latest issue of the Harvard Law Review.  Here is the end of the Note's introduction:

This Note concludes that the President’s pardons may not include conditions that deprive an individual of rights not already deprived by that individual’s conviction (or, in the case of preemptive pardons, rights that would have been deprived by a guilty plea).  This internal limitation is externally reinforced by the Due Process Clause.  This Note’s historical and constitutional arguments should inform judges faced with conditional pardon cases.  Whatever disagreements may arise over this Note’s descriptive account of the conditional pardon power’s limits, the examination of risks from unfettered conditional pardons commends to future administrations the wisdom of prudential limits.

Part I introduces the conditional pardon power jurisprudence.  It begins by examining three cases showing that (1) English common law informs the President’s pardon power and (2) American courts oscillate between two distinct theories of the President’s pardon power.  The first theory, which this Note dubs the “merciful-contract” theory of pardons, envisions pardons as a private act between President and pardon recipient.  By contrast, the “public-welfare” theory understands pardons as an instrument of the general welfare.  This Part next describes two conceptions of the conditional pardon power: a “Broad Position” that would impose no limits on the conditional pardon power and a “Narrow Position” that insists on limits but fails to precisely define them.

Part II argues that the Broad Position cannot be correct.  After establishing that the conditional pardon power poses unique danger to constitutional rights, it concludes that the English common law, the Framing, and structural inference from our constitutional system all suggest a conditional pardon power that is far from plenary.

Part III identifies this limit: pardon conditions may only divest rights already forfeited by dint of conviction.  It explains the limit using examples before fitting it into the theoretical framework of the pardon power.  Finally, this Part compares the identified limit with other proposals and situates it within constitutional theory generally. Part IV concludes.

June 20, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)