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October 9, 2021

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

October 9, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2)

"Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals"

The title of this post is the title of this notable new article authored by Nicole Godfrey available via SSRN.  Here is its abstract:

As the COVID-19 pandemic wreaked havoc on American society in the spring of 2020, advocates for incarcerated people began sounding alarm bells alerting society to the impending devastation for incarcerated people once the coronavirus scaled the prison walls.  For too many incarcerated people, the alarms fell on deaf ears and the COVID-19 pandemic has had life-shattering consequences for thousands of individuals locked inside American prisons.  But to anyone with an understanding of the historical realities of and legal parameters around the American carceral state, the devastation came as no surprise.

Since the 1980s, America has led the world in imprisoning its own citizens, and, to many, American justice means locking human beings in overcrowded cages and throwing away the key.  This Article explores how American criminal “justice” has created a system wherein three interconnected strands of indifference render incarcerated people particularly vulnerable to devastating harms like those associated with the COVID-19 pandemic.  First, the sheer enormity of the American carceral state has led to the creation of prison bureaucracies that operate with institutional indifference to the lives of the incarcerated.  Sympathetic to the complex task of administering enormous prison systems, the federal judiciary has created a doctrine of judicial indifference to harms experienced to incarcerated people.  Finally, the Article explores how a general societal indifference to the lives of incarcerated individuals in particular and marginalized groups in general has allowed the institutional and judicial indifference to develop and proliferate.  The Article posits that the damaging consequences of the COVID-19 pandemic on the incarcerated population are directly tied to these interwoven indifferences and calls on widespread reform and decarceration to avoid future cautionary tales.

October 9, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

October 8, 2021

With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?

As reported in this Bloomberg piece, the first jury trial in the Varsity Blues prosecutions ended this afternoon: "Two parents accused of cheating to get their children into elite U.S. universities were found guilty of all charges, in the first trial stemming from a national college admissions scandal that ensnared dozens of families."  Here is more:

Former Wynn Resorts Ltd. executive Gamal Abdelaziz, 64, was convicted Friday of two counts of conspiracy by a Boston jury after prosecutors alleged he paid $300,000 in bribes to get his daughter into the University of Southern California as a purported basketball player.

Private equity investor John B. Wilson, 62, was convicted of conspiracy, bribery, fraud and filing a false tax return after prosecutors alleged he paid more than $1.2 million in bribes to get his son into the University of Southern California and his twin daughters into Stanford and Harvard as star athletes.

After a three-week trial, the jury deliberated for about 11 hours before rendering the verdict. Abdelaziz and Wilson will be sentenced in mid-February. For both men, the most serious charge carries a maximum prison sentence of 20 years.

The verdict is a victory for prosecutors who charged 57 parents, coaches and others for taking part in the alleged scheme, which involved doctoring entrance exam scores, faking athletic prowess and bribery to gain seats at universities. An FBI sting unveiled in March 2019 swept up several prominent figures, including “Desperate Housewives” star Felicity Huffman and former Pimco chief executive Douglas Hodge. The case unfolded as the nation debated questions of privilege and inequality.

Thirty-three of the parents have pleaded guilty, with prison sentences ranging from two weeks to 9 months. Former U.S. attorney for Massachusetts Andrew Lelling, who oversaw the case, said he hoped the dozens of jail sentences would deter would-be scammers. He acknowledged it wouldn’t change what he said was parents’ unhealthy obsession with colleges as brands.

During the trial, prosecutors alleged that both Abdelaziz and Wilson had worked with college counselor William “Rick” Singer, the admitted mastermind of the scheme. The U.S. said both paid Singer to guarantee a “bulletproof” way of getting their kids into elite colleges. Prosecutors called 14 witnesses and showed jurors scores of emails they said was proof both men knew and understood Singer’s plan....

The government never called Singer, who proved a problematic cooperator. He kept some of the money parents paid him, tipped some off about the investigation and erased about 1,500 text messages from his mobile phone. He made notes saying federal agents wanted him to “bend the truth” when drawing the parents out and “retrieve answers that are not accurate.” Lawyers for both defendants assailed Singer as a con man who duped them into believing their funds were legitimate donations going to schools or sports facilities....

Four more parents are due to go on trial next year. One father was pardoned by former president Donald Trump.

I have done numerous posts about some of the defendants who were among the first to plead guilty and received relatively short sentences in this high-profile college admissions scandal (some of those posts are linked below).  I have not closely followed some of the more recent sentencings, but the question in the title of this post highlights why I will have extra interest in how Abdelaziz and Wilson are treated by both the Justice Department and the sentencing judged.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.  From a quick scan, it does not appear that DOJ has sought a sentence in any of the plea cases of more than 18 months in prison; the longest imposed sentence has been nine months. 

I would guess that the DOJ sentencing recommendations for Abdelaziz and Wilson will longer than 18 months, but how much?  Does the high-profile nature of this case make it a bit less likely that DOJ will seek to go hard after these defendants, who seem like so many others save for their decision to test the government at a trial?  (The amount of money and number of kids involved in the Wilson case may the the reason DOJ will cite for a longer recommended term.)  In addition to wondering about DOJ recommendation, of course, it will be interesting to see how the sentencing judge decides to follow the requirement in 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."   It seems we have to wait until 2022 for final answers to these question, but I welcome speculation in the comments.

A few of many prior posts on other defendants in college admissions scandal:

October 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Council on Criminal Justice presents data on "Homicide Trends: What You Need to Know"

The quoted portion of the title of this post is the title of this helpful new data briefing on modern US homicide trends produced by the Council on Criminal Justice.  Here is how the presentation of data is introduced (with links from the original) along with the key six data observations:

Each fall, the Federal Bureau of Investigation aggregates and distributes annual crime data from law enforcement agencies across the country.  Many agencies now post their own weekly and monthly data online, permitting researchers, including those at the Council on Criminal Justice (CCJ), to analyze and report trends in closer to real time.

On September 27, the FBI released its year-end report for 2020.  The government’s figures largely mirrored what CCJ and Arnold Ventures reported in January based on a sample of 34 cities. Both reports, for instance, indicated that in 2020 homicide increased by nearly 30% over the year before.

This brief summarizes key takeaways based on the newly issued FBI report as well as historical and more recent data....

  1.  Violent crime, particularly homicide, increased in 2020. The increase has slowed in 2021 and levels remain below historical highs.... 
  2.  A greater share of homicides involved firearms in 2020....
  3.  The age of homicide victims and offenders remains relatively stable, although it declined slightly in 2020....
  4.  The percentage of Hispanic victims and offenders has decreased....
  5.  The homicide clearance rate declined significantly in 2020, continuing a downward trend that began in the 1970s....
  6.  The circumstances of homicides have grown increasingly unclear.

October 8, 2021 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Third Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez

As reported in this post, the Supreme Court last month stayed the execution of John Ramirez and granted certiorari to consider Ramirez’s request that his pastor be allowed to physically touch him and pray aloud in the execution chamber while Ramirez is put to death by the state of Texas.  In this follow-up post, titled "A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty?", I wondered if the SCOTUS cert grant in Ramirez could produce a short de facto execution moratorium based on other death row inmates making a religious liberty claim like Ramirez’s request.

Since those posts, as noted here, Texas has been able to complete one execution; but, as noted here, another Texas inmate was able to secure an execution stay based on religion claim SCOTUS is considering in Ramirez.  And, as detailed in this new local article, headlined "Man on death row for killing pregnant Wichita Falls woman gets stay of execution," it appears another scheduled Texas execution was been delayed:

A death row prisoner convicted of murdering a pregnant Wichita Falls woman and her 7-year-old son more than 16 years ago will not be executed next week.

54-year-old Stephen Barbee was set to die next Tuesday, October 12. However, a federal court Thursday, October 7, stayed the execution after Barbee’s request that his pastor be able to touch and pray aloud with him in the death chamber had been rejected by the Texas Department of Criminal Justice.

Barbee is on death row for the suffocation deaths of 34-year-old Lisa Underwood and her son Jayden in their Fort Worth home in February, 2005.... Prosecutors said Barbee killed Underwood because he thought he was the father of Underwood’s unborn son, and he was afraid she would tell his wife.

Prior related posts:

October 8, 2021 in Death Penalty Reforms | Permalink | Comments (1)

October 7, 2021

Still time to register for day two of "Understanding Drug Sentencing" conference

I really enjoyed the first day of the two-day conference being put on by the Drug Enforcement and Policy Center and the Academy for Justice today and tomorrow, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  With a second day still to go, folks can still register for all of of Friday events, on this Agenda page.  Here are times and titles for the three great panels scheduled for Friday, October 8: 

11am – 12:15pm:   Sentencing Criteria as Crazymaker in Drug Cases

12:20pm – 1:35pm:   Reimagining an Antiracist Approach to Drug Sentencing

1:45pm – 3pm:   What Other Alternatives? Thinking Beyond Drug Courts and Sentencing

I thought day one of the symposium was terrific, and it included the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" with former US Attorney General Eric Holder, Jr., author and advocate Piper Kerman, Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon Marbley for the Southern District of Ohio.  I am pretty sure recordings of that great discussion, as well as all the other panels, should be available online before too long.  In the meantime, Kyle Jaeger at Marijuana Moment has this new piece discussing and contextualizing former AG Holder's comments under the headlined "Former U.S. Attorney General Says U.S. Is ‘On The Path’ To Federal Marijuana Decriminalization." 

October 7, 2021 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

New California law to end mandatory minimum terms for many non-violent drug offenses

Ironically, I have been so busy this week with this on-going conference about drug sentencing, I am just now getting a chance to blog about the drug sentencing news from California discussed in this local article headlined "Gov. Newsom Signs Bill Ending Mandatory Minimum Sentences For Many Non-Violent Drug Crimes." Here are details:

Governor Gavin Newsom signed into law a bill that ends mandatory minimum sentences for non-violent drug crimes on Tuesday, giving judges more individual discretion on punishing criminals.

Senate Bill 73, authored by Senator Scott Wiener (D-San Francisco), ends the prohibition against probation and suspended sentencing for drug crimes, including possessing more than 14.25 grams of illegal drugs, agreeing to sell or transport opiates or opium derivatives, planting or cultivating peyote, some forging or altering prescription crimes, and other similar non-violent drug-related crimes.

According to SB 73, the bill would not end the ability of judges to administer mandatory minimum length jail sentences. It would also not end laws that require jail time for many other drug offenses or remove probation ineligibility for those who had previously committed drug felonies.

Senator Wiener wrote the bill earlier this year to better address drug addiction treatment and to stop mass non-violent crime imprisonments. “Our prisons and jails are filled with people, particularly from communities of color, who have committed low-level, nonviolent drug offenses and who would be much better served by non-carceral options like probation, rehabilitation and treatment,” Wiener said in a statement on Tuesday. “It’s an important measure that will help end California’s system of mass incarceration.”...

However, law enforcement groups reiterated on Tuesday and Wednesday that the removal of mandatory minimums would lead to side effects such as an increase of drug use, a rise in drug sales, and a rise in drug-related crimes.  “SB 73 sets a dangerous precedent and would jeopardize the health and safety of the communities we are sworn to protect,” said the California Police Chiefs Association in response to the signing.

October 7, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (0)

"Criminal Justice Secrets"

The title of this post is the title of this notable new paper authored by Meghan Ryan. Here is its abstract:

The American criminal justice system is cloaked in secrecy.  The government employs covert surveillance operations.  Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence.  Juries convict defendants on secret evidence.  Jury deliberations are a black box.  And jails and prisons implement clandestine punishment practices.   Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings.   Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns.  The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

October 7, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (0)

Oregon Supreme Court rules legislative change renders prior death sentence now violates state constitution's proportionality requirements

The Oregon Supreme Court had a notable unanimous ruling today which finds a state death sentence unconstitutional in a way that, according to this press piece, could mean that many or even all those now on the state's death row will be able to get their death sentences overturned.  The ruling in Oregon v. Bartol, 368 Or 598 (Oct. 7, 2021) (available here), substantively concludes this way:

Legislative enactments are strong indicators of those standards, and the enactment of SB 1013 shows that the legislature has determined that, regardless of when it was committed, conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” does not fall within the narrow category of crimes for which the death penalty can be imposed.  Importantly, that moral judgment stands apart from the question of retroactivity.   Although the legislature did not make SB 1013 retroactive as to sentences imposed before its effective date, the enactment of the bill itself reflects a judgment that conduct that was previously classified as “aggravated murder” does not fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences, including life imprisonment.  Consequently, maintaining defendant’s death sentence in this case would violate two special proportionality requirements that, under Article I, section 16, apply to the death penalty: the requirement that the death penalty “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution,’ ” Roper, 543 US at 568 (quoting Atkins, 536 US at 319), and the requirement that there be “a fundamental, moral distinction” between crimes that are punishable by death and those that are not, Kennedy, 554 US at 438.  Maintaining his death sentence would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment, and it would allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that should not result in death.  Therefore, in light of the legislature’s enactment of SB 1013, we conclude that defendant’s sentence violates Article I, section 16.

October 7, 2021 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

October 6, 2021

Still time to register for "Understanding Drug Sentencing" conference former AG Eric Holder and Piper Kerman keynote

I first noted here the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice set for October 7-8, 2021, titled "Understanding Drug Sentencing and its Contributions to Mass Punishment."  On the eve of the event, folks can still register separately for each of the events on Thursday, for all Friday events, on the Agenda page

As the agenda page details, day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  The Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice will feature Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

October 6, 2021 in Drug Offense Sentencing | Permalink | Comments (2)

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

The title of this post is the title of this recent article from Melanie Kalmanson and Nathan Molina available via SSRN.  Here is its abstract:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment.  While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively.  This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively.

Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring?  If so, should it apply retroactively?  (2) What role did the Eighth Amendment play in both Ring and Hurst?  (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?  (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense?  By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

October 6, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

October 5, 2021

Missouri completes execution of inmate who claimed to be intellectually disabled

As reported in this NBC News piece, "Missouri on Tuesday executed Ernest Johnson, despite claims by his attorney and death penalty opponents that he had an intellectual disability and killing him violated the Constitution." Here is more:

Johnson, 61, who was convicted in the murders of three convenience store employees almost three decades ago, was executed by lethal injection at a state prison in Bonne Terre. He was pronounced dead at 6:11 p.m. local time, a spokeswoman for the state department of corrections said.

Pope Francis, two members of Congress and former Democratic governor Bob Holden were among those who spoke out against the execution.

On Monday Gov. Mike Parson, a Republican, denied Johnson clemency and said the state would carry out the execution. The U.S. Supreme Court denied an application for a stay of execution Tuesday.

In a filing to the high court Tuesday, Johnson's legal team reiterated IQ tests have indicated he had the intellectual capacity of a child and wrote that there would be "no tangible harm" if his execution was delayed while questions over whether lower courts had "constitutionally considered" his disability were further explored.

As revealed in this SCOTUS order, no Justices dissented from the denial of a stay and denial of cert before the execution.

October 5, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (7)

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"But What Does It Mean? Defining, Measuring, and Analyzing Desistance From Crime in Criminal Justice"

The title of this post is the title of this new NIJ-published chapter authored by Michael Rocque.  Here is part of its executive summary

Research on crime over the course of an individual’s life has increased in the last 30 years both in scope and specificity.  One focus area that has emerged from this work is what scholars call “desistance from crime.”  Generally, desistance is understood to mean the reduction in criminal behavior that occurs after a person reaches adulthood.

But exactly what desistance is remains unclear, as varying definitions and measurement strategies have evolved over time. Early scholarship tended to view desistance as an event — that is, the termination of offending or end of a criminal career.  More recent definitions suggest that desistance is instead a process by which criminality declines over time.  Because inconsistent definitions lead to varying measurement strategies, it is difficult to come to conclusions about desistance.

The overall goal of this white paper is to provide grounded recommendations for policy and practice.  To do that, the paper reviews definitions of desistance used in the literature and then offers an updated, theoretically grounded definition as a foundation for future work: Desistance is “the process by which criminality, or the individual risk for antisocial conduct, declines over the life-course, generally after adolescence.”

The paper discusses how researchers have measured and modeled desistance and explores the implications of these strategies.  Which ways of measuring desistance get closest to the phenomenon of interest?  Which are most likely to advance our understanding of why people exit a criminal life and how we can facilitate that process?  These guiding questions provide a framework for the paper.

Finally, this white paper provides an overview of unresolved issues — such as the choice between surveys and official records, quantitative and qualitative methods, types of samples, and various modeling techniques — and offers detailed recommendations for policymakers, practitioners, and scholars who are seeking to examine and promote desistance from crime.

October 5, 2021 in Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

October 4, 2021

Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

The AP has effective coverage of the latest sentencings of January 6 rioters, and they highlight how different judges have different takes on how these unique offenders ought to be punished.

From Friday: "Judge questions whether Jan. 6 rioters are treated unfairly." Excerpts:

Rejecting the recommendation of prosecutors, a federal judge sentenced a Jan. 6 rioter to probation on Friday and suggested that the Justice Department was being too hard on those who broke into the Capitol compared to the people arrested during anti-racism protests following George Floyd’s murder.

U.S. District Court Judge Trevor McFadden questioned why federal prosecutors had not brought more cases against those accused in 2020 summertime protests, reading out statistics on riot cases in the nation’s capital that were not prosecuted.  “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said during Danielle Doyle’s sentencing for entering the Capitol on Jan. 6 with a throng of other rioters.  Prosecutors recommended two months of home confinement for Doyle, who is from Oklahoma.

The statements by McFadden, an appointee of former President Donald Trump, were a major departure from the other federal judges overseeing insurrection cases so far, despite other Trump appointees on the court assigned to the hundreds of cases.... 

The Associated Press analyzed more than 300 criminal cases stemming from the protests incited by Floyd’s murder, showing that many leftist rioters had received substantial sentences, rebutting the argument that pro-Trump defendants were treated more harshly than Black Lives Matter protesters....

By contrast, U.S. District Judge James Boasberg on Friday sentenced another rioter, Andrew Ryan Bennett, to three months of home confinement, accepting the request by prosecutors. Bennett was accused of espousing conspiracy theories about the election and used “pugnacious rhetoric” in posting about his plans to be in Washington. 

From Monday: "Judge slams claims that Jan. 6 rioters are treated unfairly." Excerpts:

A Texas man who joined the mob that stormed the U.S. Capitol on Jan 6. was sentenced Monday to 45 days behind bars even though prosecutors weren’t seeking jail time, after the judge blasted comparisons between the riot that day and the Black Lives Matter protests over racial injustice.

U.S. District Judge Tanya Chutkan called it a false equivalence “to compare the actions of people protesting, mostly peacefully, for civil rights” to the mob that “was trying to overthrow the government.”  She said doing so “ignores the very real danger that the Jan. 6 riots pose to the foundation of our democracy.”...

Chutkan, who was appointed by former President Barack Obama, said she “flatly” disagreed with the suggestion raised by “some people” that the Jan. 6 defendants were being treated unfairly.  In fact, she said she believes those who joined the pro-Trump mob were being treated more leniently than many other defendants.

Some of many prior related posts:

October 4, 2021 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (6)

REMINDER: This week for "Understanding Drug Sentencing" conference feature keynote with former AG Eric Holder and Piper Kerman

Understanding-Drug-Sentencing_for-web_update-768x281I flagged here a few weeks ago the conference organized by the Drug Enforcement and Policy Center and the Academy for Justice which is now only days away as it is set for October 7-8, 2021.  This event formally titled "Understanding Drug Sentencing and its Contributions to Mass Punishment," and I will here note again the main event page and this overview:

Join the Drug Enforcement and Policy Center and the Academy for Justice October 7-8, 2021 to explore the myriad issues surrounding drug sentencing and its contribution to mass incarceration and mass punishment during this major symposium.  In addition to academics, researchers, and advocates discussing sound drug sentencing policies, this event also includes judges, current and former prosecutors, defense attorneys, and justice-involved individuals sharing their perspectives on drug sentencing practices.  The symposium will take place virtually.

Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be. Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts. Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.

Registration

Separate registrations are provided for each day’s events.  Attendees may register separately for each of the events on Thursday, for all Friday events, or both.  See the Agenda page for details and registration links.

As the agenda page details, on day one of the symposium includes the "Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice" on Thursday, October 7 from 12:30-2pm EDT.  Here is the summary description of a discussion that I will have the honor of moderating:

The Drug Enforcement and Policy Center is pleased to invite you to the Inaugural 2021 Menard Family Lecture on Drug Policy and Criminal Justice featuring Eric H. Holder, Jr., former Attorney General of the United States, and Piper Kerman, social justice advocate and author of “Orange is the New Black: My Year in a Women’s Prison,” with special guests Ohio Chief Justice Maureen O’Connor and Chief U.S. District Judge Algenon L. Marbley for the Southern District of Ohio.

In addition, an exciting new addition to the event schedule is a screening and discussion of the film Commuted involving the film's director, Nialah Jefferson, and its main protagonist, Danielle Metz.  One can register for this event, taking place Thursday, October 7 at 5pm EDT.  Here is a description of the film from its website:

In 1993, Danielle Metz was a twenty-six year old mother with two small children, who was labeled a drug kingpin by the US Government as a part of her husband’s drug ring.  She was sentenced to triple life plus twenty years for nonviolent drug offenses, and sent more than two thousand miles from her family in New Orleans to serve our the remainder of her life in California at the Dublin Federal Correctional Institute.  After serving twenty-three years in prison, Danielle’s sentence was commuted in 2016 by the Obama Administration as a part of the Clemency Initiative to address historically unfair sentencing practices during the “war on drugs.”  Now back home, Danielle is trying to start life over again in her fifties while working to help other women avoid her fate.  But perhaps Danielle’s toughest challenge of all is living the dream that kept her going while in prison — that of being a united family again with her two children.

October 4, 2021 in Drug Offense Sentencing | Permalink | Comments (0)

Pope Francis among those urging Missou Gov to grant clemency to offender scheduled to be executed tomorrow ... UPDATE: Gov denies clemency

As detailed in this new AP article, "Pope Francis has joined the chorus of people calling on Missouri Gov. Mike Parson to grant clemency to a death row inmate who is set to be executed for killing three people during a 1994 convenience store robbery."  Here is more:

In a letter last week, a representative for Pope Francis wrote that the pope “wishes to place before you the simple fact of Mr. Johnson’s humanity and the sacredness of all human life,” referring to Ernest Johnson, who is scheduled to be executed at 6 p.m. Tuesday at the state prison in Bonne Terre, about 50 miles south of St. Louis.

Parson, a Republican, has been considering whether to reduce the 61-year-old Johnson’s sentence to life in prison without the possibility of parole.  Johnson’s attorney, Jeremy Weis, said executing him would violate the Eighth Amendment to the U.S. Constitution, which prohibits executing intellectually disabled people.  He said multiple IQ tests and other exams have shown that Johnson has the intellectual capacity of a child. He also was born with fetal alcohol syndrome and in 2008, he lost about 20% of his brain tissue to the removal of a benign tumor.

Racial justice activists and two Missouri members of congress — Democratic U.S. Reps. Cori Bush of St. Louis and Emmanuel Cleaver of Kansas City — have also called on Parson to show mercy to Johnson, who is Black.

The Missouri Supreme Court in August refused to halt the execution, and on Friday, it declined to take the case up again. Weis and other attorneys for Johnson on Monday asked the U.S. Supreme Court for a stay of execution.  “This is not a close case — Mr. Johnson is intellectually disabled,” they wrote in their court filing.

Johnson admitted to killing three workers at a Casey’s General Store in Columbia on Feb. 12, 1994 — manager Mary Bratcher, 46, and employees Mabel Scruggs, 57, and Fred Jones, 58.  The victims were shot and attacked with a claw hammer. Bratcher also was stabbed in the hand with a screwdriver....

Johnson was sentenced to death in his first trial and two other times.  The second death sentence, in 2003, came after the U.S. Supreme Court ruled that executing the mentally ill was unconstitutionally cruel.  The Missouri Supreme Court tossed that second death sentence and Johnson was sentenced for a third time in 2006.

If the execution takes place as scheduled, it would be the seventh in the U.S. this year but the first not involving either a federal inmate or a prisoner in Texas.  The peak year for modern executions was 1999, when there were 98 across the U.S.  That number had gradually declined and just 17 people were executed last year — 10 involving federal prisoners, three in Texas and one each in Georgia, Tennessee, Alabama and Missouri, according to a database compiled by the Death Penalty Information Center.

UPDATE: This AP piece reports that the Missouri Gov was unmoved:

Missouri Gov. Mike Parson on Monday declined to grant clemency to death row inmate Ernest Johnson, despite requests for mercy from the pope, two federal lawmakers and thousands of petition signers.

October 4, 2021 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

SCOTUS releases first big order list of October Term 2021 ... with little of particular sentencing note

It is the first Monday in October, which means SCOTUS gets its first big day of the new Term started with this big order list full of a whole lot of denials of certiorari in cases that stacked up through the summer.  As noted in this prior post, the Justices released a short order last week in which it granted cert in a handful of new cases (including a crack resentencing case).  So, the new order list is just a few GVRs, more cert denials than I can count, and also a few statements by Justices Breyer and Sotomayor concerning a few criminal case cert denials.

Notably, especially because SCOTUS is hearing another ACCA case this morning, the case prompting the most GVRs on this new SCOTUS order list is the Borden ACCA case from last term (basics here).  In addition, one of the statements from Justice Sotomayor is in an ACCA case from the Sixth Circuit.  The Armed Career Criminal Act is clearly that confusing federal law that is the ugly jurisprudential gift that keeps on giving.

In this post last week, I flagged some notable sentencing issues on SCOTUSblog's "Petitions to Watch."  It appears that cert was denied in roughly half of the cases listed in that prior post, but the other cases do not appeal to be mentioned on this first order list.  If those other cases have been relisted for more consideration by the Justices, that bodes well for a few more notable sentencing cases being added to the SCOTUS docket this Term.  As always, stay tuned.

UPDATE: Over at Crime & Consequences, Kent Scheidegger has a brief criminal-justice review of the order list today titled "The Long List from the Long Conference"

October 4, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

October 3, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

October 3, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

More great Inquest materials, including critical overview of federal drug control history

I hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so very blogworthy.  Since my last posting, the site has posted these great new reads:

From Sharlyn Grace, "‘Organizers Change What’s Possible’: Before bold, decarceral changes can become a reality, community organizers tirelessly move the policy needle in other ways. Here’s how they did it in Illinois."  

"‘We Are Men’: On the 50th anniversary of a flashpoint of the American penal system, the cries of Attica still resonate today."

From Patricia Richman & Diane Goldstein, "Follow the Science: Federal law enforcement has long called the shots in the field of drug scheduling. But in the case of fentanyl analogues, Congress has a chance to lead — by doing nothing."

The last of these pieces provides an especially effective account of the federal government's "50-year campaign to tilt the balance in drug-control decision making away from science and towards enforcement, criminalization, and incarceration."  Here is a taste (with links from the original):

Since the dawn of modern drug policy, the United States has pretended to hew to a dual approach to illicit drugs, one that emphasizes law enforcement and public health in roughly equal measure.  That duality is a farce: Federal funding for enforcement has historically dwarfed public health and other demand-reduction strategies, and 50 years of the same approach to drug policy have shown that the whole enterprise has been a spectacular failure.

To this day, headlines still abound with reported large-scale drug seizures and ever-present arrests, but none of this has reduced the demand that drives the supply.  The overdose crisis, which has run parallel to the war on drugs for decades, is “the clearest indictment so far of the failure of prohibition to curb drug use,” as experts in drug policy recently put it. Meanwhile, tens of millions of Americans continue to struggle with substance-use disorder and its consequences.  And enforcement policies have come at an unfathomable cost, sending far too many young men of color to crowd our prisons, leaving broken families and communities in their wake.

October 3, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)