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October 29, 2021

Will "outcry" over ugly details of latest Oklahoma execution impact its plans to have six more in coming months?

The question in the title of this post is prompted by the first word of the headline, and then the last sentence of the body, of this new Guardian piece: "Outcry after Oklahoma prisoner vomits and convulses during execution."  Here are the basics:

Oklahoma is coming under sharp criticism after witnesses to the state’s first judicial killing for six years described gruesome scenes of the dying prisoner convulsing and vomiting as he was administered the lethal injections.

John Grant, 60, was pronounced dead at 4.21pm on Thursday at McAlester state penitentiary after he was injected with a triple cocktail of midazolam, vecuronium bromide and potassium chloride. Later, the department of corrections said the killing had gone “in accordance with protocols and without complication”.

But eyewitness accounts from reporters at McAlester’s supposedly state-of-the-art death chamber gave a very different account.  Dan Snyder, an anchor at the Oklahoma TV channel Fox 25, said that events went drastically off course the instant the first drug, the sedative midazolam, was injected into the prisoner.  “Almost immediately after the drug was administered, Grant began convulsing, so much so that his entire upper back repeatedly lifted off the gurney,” Snyder reported. “As the convulsions continued, Grant then began to vomit.  Multiple times over the course of the next few minutes medical staff entered the death chamber to wipe away and remove vomit from the still-breathing Grant.”

It took 15 minutes for Grant to be declared unconscious by medical staff, after which the vecuronium bromide, which paralyses the body, and potassium chloride, which stops the heart, were given. On Twitter, Snyder gave his response to the state’s official claim that all had gone according to plan. “As a witness to the execution who was in the room, I’ll say this: repeated convulsions and extensive vomiting for nearly 15 minutes would not seem to be ‘without complication’.”

Accounts of the botched execution of Grant, who was being put to death for the murder in 1998 of a prison cafeteria worker while he was already serving a sentence for armed robberies, will come as a deep embarrassment for Oklahoma. No judicial killings have taken place in the state since 2015 after a spate of botched procedures caused widespread alarm and forced the authorities to review their use of lethal injection drugs.

In 2018, officials in the state went as far as to announce they would abandon lethal injections entirely, due to the protocol’s lack of transparency and to the inhumane executions that had taken place. But in August the state reversed that decision, saying it would resume executions without giving an explanation for the U-turn or revealing critical details about how it intended to carry out the killings.

The state’s six-year hiatus was prompted in part by the execution in 2014 of Clayton Lockett, who writhed and groaned on the gurney for 43 minutes before he was declared dead after the intravenous line through which the lethal drugs were delivered was inserted improperly. The gruesome descriptions of his death by eyewitnesses in the Guardian and elsewhere caused nationwide revulsion. The following year the state used the wrong drug to kill Charles Warner. In the wake of these botched procedures a bipartisan commission reviewed the state’s death penalty system and issued a highly critical report that called for the moratorium on capital punishment to be extended....

Grant’s execution was allowed to proceed on Thursday after the US supreme court voted five to three, with the three liberal justices dissenting, to allow the judicial killing to go ahead. It is unclear whether the descriptions of his death will affect future planned executions in the state.

Oklahoma has an aggressive calendar of executions scheduled, with six set to take place by the end of March.

I put the word "outcry" in quotes because, so far, I have mostly seen opponents of the death penalty comment and assail the latest ugly Oklahoma execution.  If only the "usual subjects" are complaining about the execution, I doubt that will slow the state's current plan to execute another half-dozen people in the coming month. But it also seems possible, especially if more evidence of problems with the execution process emerges, that some death penalty supporters in Oklahoma or elsewhere will express concern and be in a position to slow future trips to the death chamber.

Prior recent related posts:

UPDATE: This local article suggests that Oklahoma officials are not troubled by the execution of John Grant. Here is how it stars:

Oklahoma Department of Corrections Director Scott Crow said Friday the agency has no plans to change its execution protocol after a witness said John Marion Grant had about two dozen full body convulsions and vomited during his lethal injection on Thursday.  “Some of the information is either embellished or is not exactly on point,” the DOC director said during a virtual press conference to “clarify” issues.

Crow, who witnessed the execution, said he saw Grant dry heave fewer than 10 times, not convulse. He said Grant did vomit.  “As he started that process, I conferred with the physician we had on site monitoring the process and he advised me that regurgitation is not a completely uncommon instance or occurrence with someone that is undergoing sedation,” Crow said.

October 29, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

October 28, 2021

USSC releases "new" guideline manual as Acting Chair describes recent Commission activities

The US Sentencing Commission today published on its site this two-page letter by Acting Chair Charles R. Breyer (which is dated September 15, 2021). The letter discusses the release of a "new" Guideline Manual as well as recent work by the Commission. All federal sentencing fans will want to check out the whole letter, and here are just some of the interesting excerpts:

As many of you know, since early 2019, the United States Sentencing Commission has been operating without the quorum of four voting members required by statute to promulgate amendments to the sentencing guidelines, policy statements, and commentary. Thus, the 2018 edition of the Guidelines Manual, which incorporated amendments effective November 1, 2018, was the last version of the Guidelines Manual released.

The Commission has received feedback indicating that hard copies of the 2018 Guidelines Manual are significantly worn and that there is a limited supply of new copies available.  In addition, the Commission has identified the need to update Appendix B, the accompanying volume to the Guidelines Manual that compiles the principal statutory provisions governing sentencing, the Commission, and the drafting of sentencing guidelines.  Congress has amended several of the statutory provisions contained in Appendix B since the Commission released the 2018 Guidelines Manual.

As acting chair of the Commission, I am pleased to transmit this edition of the Guidelines Manual, which is a reprint without changes of the guidelines, policy statements, and commentary contained in the 2018 Guidelines Manual featuring a new cover in Berkeley blue....

Although lacking the quorum necessary to promulgate guideline amendments, the Commission has introduced several interactive tools and other resources to assist with guideline application over the past few years....

The Commission continues to perform other statutory duties while it awaits the appointment of new voting commissioners.  Over the past few years, the Commission has met the growing demand for the Commission’s work products, resources, and services, as evidenced by an impressive increase in the Commission’s website traffic. The Commission continues to release new and informative sentencing data, research, and training materials....

The Commission also continues to work on several important policy priorities, including examining the implementation of the First Step Act of 2018.  To inform a newly constituted Commission and to provide Congress and others a timely assessment of the First Step Act’s impact, the Commission has been collecting, analyzing, and reporting data on the five sentencing provisions contained in the Act.  In 2020, the Commission released The First Step Act of 2018: One Year of Implementation, a comprehensive report comparing data from the first full year following the enactment of the Act with data from fiscal year 2018, the last full fiscal year prior to its enactment.  More recently, the Commission published a report analyzing how courts are ruling on compassionate release motions after the First Step Act and during the COVID-19 pandemic.  The Commission is currently collecting further data on compassionate release motions, including the reasons courts are asserting for granting and denying such motions, to inform Congress and the public, as well as its own policymaking.  

October 28, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.

October 28, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

"Limiting the Pardon Power"

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

Although our government is said to be one of checks and balances, the president’s power “to grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited.  In granting this power, the Framers deliberately cast structural safeguards aside.  Nevertheless, the presidency of Donald Trump prompted a search for limits.  This Article examines: (1) whether a president may pardon crimes that have not yet happened (or announce his intention to do so); (2) whether he may pardon himself; (3) whether he may use pardons to obstruct justice or commit other crimes; (4) whether criminal statutes should be construed not to apply to the president when they arguably limit the pardon power; (5) whether the Take Care Clause limits the pardon power; (6) whether pardons can deprive victims of due process; (7) whether pardons ever violate the separation of powers by limiting the authority of courts; (8) whether the exception to the pardon power for impeachment cases does more than prevent the president from blocking the impeachment of federal officeholders; (9) whether pardons must specifically identify the crimes pardoned; and (10) whether pardons are invalid when issued as the result of fraud, bribery, or other unlawful conduct.  Applying common-law principles that have limited the pardon power from the start, the Article explains why the pardons President Trump granted Roger Stone and Paul Manafort are invalid and why the Justice Department could seek a declaratory judgment saying so.

October 28, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Federal Offenders Who Served in the Armed Forces"

Cover_armed-forcesThe title of this post is the title of this fascinating new report from the US Sentencing Commission released today.  This USSC webpage provides this overview and key findings:

The Department of Veterans Affairs estimates that there are more than 19 million Americans who are veterans. Over 10,000 veteran offenders were in the custody of the Federal Bureau of Prisons at the end of 2019, accounting for almost six percent of all BOP inmates.

This report provides an analysis of the relatively small number of veterans each year who are sentenced for a federal felony or Class A misdemeanor offense, most often committed well after they left military service.  In particular, the report examines federal offenders with prior military service who were sentenced in fiscal year 2019, the crimes they committed, and an assessment of whether that prior service was given special consideration at sentencing.

Key Findings

  • In fiscal year 2019, 4.4 percent of all U.S. citizens sentenced in the Federal courts for a felony or Class A misdemeanor had served in the military.  For these offenders, the average length of time between separation from the military and the sentence for the federal offense was 23 years.

  • The most common crime type committed by both veteran offenders and citizen offenders overall was drug trafficking (25.0% and 37.6%, respectively).  Veteran offenders, however, committed child pornography offenses more than four times as often as citizen offenders overall, 11.6 percent compared to 2.7 percent, and sex abuse offenses more than twice as often, 6.7 percent compared to 2.4 percent.

  • The sentences imposed on veteran offenders and citizen offenders overall were similar in terms of type of sentence imposed and average sentence imposed.  For veteran offenders, 79.2 percent received a sentence of imprisonment compared to 83.9 percent of all citizen offenders, and the average sentence for veteran offenders was 64 months compared to 62 months for all citizen offenders.

  • Although veteran offenders were more likely to be sentenced below the applicable guideline range (38.9% received a downward variance compared to 31.8% of all citizen offenders), military service does not appear to have a significant influence on the sentences imposed.  The court specifically cited an offender’s military service as a reason for the sentence imposed in only 15.0 percent of cases involving veteran offenders.

  • When the court did cite an offender’s military service as a reason for the sentence, it was almost always for service that the military had characterized as honorable.

  • Only two other offender characteristics were correlated with sentences where a court cited the offender’s military service as a reason.  Two-thirds (66.9%) of the offenders whose military service was cited by the court indicated that they had some history of mental health problems, compared to 51.1 percent for veteran offenders generally.  Also, more than half (54.8%) of the offenders whose service was cited by the court had served in a combat zone, compared to 22.6 percent for all veteran offenders.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

  • investigations by U.S. attorneys
  • prosecutions and declinations
  • convictions and acquittals
  • sentencing
  • pretrial release
  • detention
  • appeals
  • probation and parole
  • prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

October 27, 2021

Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity?

My twitter feed this morning was full with folks noting that today marks officially a full 35 years(!) since Congress enacted the notorious 100-1 crack/powder cocaine ratio disparity.  The full story of 35 years of federal crack sentencing injustice and dysfunction cannot be recounted in a blog post.  But a few highlights document that a complete fix is long in the making, long overdue, and cannot come to soon. 

The US Sentencing Commission sent a report to Congress in 1995  — 26 years ago! —  highlight the myriad flaws with the crack-powder sentence scheme and proposed guidelines changes to partially fix the 100:1 crack/powder disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact only a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a new 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the 2018 FIRST STEP Act.

Excitingly, as noted here, the US House voted 361-66 last month to pass the EQUAL Act to end, finally and completely, the statutory disparity between powder and crack cocaine sentences.  In this new Hill commentary, Aamra Ahmad And Jeremiah Mosteller make the case that Congress should finally get this long overdue reform to the finish line.  Here is the start and end of their piece:

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias — a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose — Congress passed and President Reagan signed into law the Anti-Drug Abuse Act.  Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses.  It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine.  Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law.

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system....

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66.  It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act.  It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President Biden’s desk for his signature.  Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress.  The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

A few prior recent related posts:

October 27, 2021 in Drug Offense Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

"Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge"

The title of this post is the title of this interesting new research brief from Arnold Ventures and the CUNY Institute for State & Local Governance which is part of the Reducing Revocations Challenge, a national initiative on probation supervision seeking to reduce its impact on mass incarceration. Here is part of the research brief's introduction:

There has been growing agreement among practitioners, policymakers, and the general public that there are far too many people under probation supervision in the United States.  Since 1980, the number of people on probation has increased more than 215 percent, from 1.2 million to 3.5 million in 2018.  Today, approximately one in 57 adults (roughly two percent of the U.S. adult population) is under community supervision on any given day, and unnecessarily long probation terms are required by law in many states around the country.  Indeed, together with parole, probation supervision accounts for the large majority of individuals under correctional control in this country....

Probation was designed to be an alternative to incarceration, yet for many people under supervision it turns out to be a pathway that inevitably leads them there.  Although research has highlighted a range of evidence-based strategies over the years, from graduated responses to risk-needs-responsivity supervision models to reporting kiosks for low-risk individuals, success rates have not improved over time.  We still know very little about how to most effectively manage and support people on probation in a manner that reduces revocations, maximizes success, and works to achieve community safety and well-being.  This is in part because our understanding about the factors, circumstances, and behaviors that drive probation revocations to jail or prison — including the role of technical violations and new criminal activity and what is considered in decisions to violate and/or revoke — remains limited.  We also know very little about how to respond to people on probation in ways that prevent new criminal activity without over-punishing less harmful behaviors or exacerbating racial and ethnic disparities....

With this in mind, in 2019 the CUNY Institute for State & Local Governance (ISLG) launched the Reducing Revocations Challenge (Challenge), a national initiative that aims to increase the success of those on probation by identifying, piloting, and testing promising strategies grounded in a robust analysis and understanding of why revocations occur. With the support of Arnold Ventures, over the past two years, the Challenge has supported research in 10 jurisdictions around the country to explore three key questions about local probation practices:

  1. Who is most likely to have a violation of their probation filed or have their probation revoked?
  2. Which types of noncompliance most often lead to probation revocation?
  3. What factors are driving these outcomes and what are the potential solutions? In each jurisdiction, the work was carried out by an action research team composed of a probation agency and a local research partner.
This brief summarizes the findings from the research work across jurisdictions. It begins with an overview of the Challenge and participating sites.  From there, we present key themes that emerged from the research in two subsections.  The first discusses trends that reaffirm prior learnings or assumptions about supervision revocations, especially with respect to factors and circumstances that influence who has probation violations filed and/or is revoked.  The second highlights new insights that emerged in key areas that have been more difficult to explore in the past despite being critical for enhancing success on supervision.  The brief ends with a discussion of policy and practice implications.

October 27, 2021 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

October 26, 2021

More executions postponed in Texas as SCOTUS considers religious liberty in death chamber

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 a number of others have been postponed.  And this new AP report, headlined "Texas executions delayed over religious rights claims," details that the last two executions scheduled in Texas have now been postponed.  Here are the details:

The unresolved legal debate over whether spiritual advisers can touch inmates and pray aloud as condemned individuals are being put to death has delayed the final two executions scheduled this year in Texas. The delays come as the U.S. Supreme Court is expected to hear arguments next month in the case of another Texas death row inmate on the role of spiritual advisers in the death chamber.

Judges last week rescheduled the executions of Kosoul Chanthakoummane, who was set to die Nov. 10, and Ramiro Gonzales, who was set for Nov. 17. Gonzales’ new execution date is July 13 while Chanthakoummane’s new date is Aug. 17. Both inmates claimed that Texas was violating their religious freedom by not allowing their spiritual advisers to pray aloud and place a hand on their bodies at the time of their deaths.

“Litigation pending in the United States Supreme Court regarding the defendant’s right to the free exercise of religion warrants the withdrawal of the present date of execution and the setting of a new date of execution,” Medina County prosecutor Edward Shaughnessy wrote in a motion asking a judge to reschedule Gonzales’ execution.

In all, six executions that were scheduled this year in Texas were delayed or rescheduled due to religious freedom claims related to spiritual advisers.

Executions in Texas have been sporadic in the last two years, largely due to the COVID-19 pandemic, with just three lethal injections carried out last year, and three executions so far this year. In comparison, Texas carried out 13 executions in 2018 and nine in 2019.

Prior related posts:

October 26, 2021 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (5)

"How to be a Better Plea Bargainer"

The title of this post is the title of this new article authored by Cynthia Alkon and Andrea Kupfer Schneider recently posted to SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. 

The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.  The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

October 26, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Two states restarting their death machinery with Fall 2021 lethal injections scheduled for long-dormant execution chambers

In this post last month, I noted that the Oklahoma Court of Criminal Appeals had set execution dates for seven persons.  Long-time readers may recall that Oklahoma last decade had two problematic executions, of Clayton Lockett in 2014 and Charles Warner in 2015, and the state has not had an execution for nearly seven years.  A new Oklahoman piece provides details and background regarding the Sooner machinery of death getting restarted under the headline "What we know about Oklahoma resuming executions for the first time since 2015":

Starting Thursday, the state of Oklahoma has scheduled seven execution dates for inmates on death row.  It would be the state's first execution in more than six years.  In 1977, Oklahoma was the first state to adopt lethal injection, through which an inmate is injected with a fatal mixture of drugs as its primary method for carrying out executions....

The case of Julius Jones has attracted nationwide interest in recent years.  No legal defense has disputed the guilt of the other six inmates, but Jones has long maintained his innocence....

The last time Oklahoma executed a death row inmate was Charles Warner in January 2015.  Warner and Clayton Lockett, executed in 2014, both died by what were widely criticized as "botched" lethal injections, in which the inmates were not administered the correct mixture of drugs to bring about a quick and humane death.

After Warner's execution, investigators discovered Warner had not been administered the proper drugs.  The state's supplier of lethal injection drugs had replaced the heart-stopping drug potassium chloride with potassium acetate, the wrong chemical.  Upon this discovery, the state halted all scheduled lethal injections, including that of death row inmate Richard Glossip, who received a stay of his execution from then-Gov. Mary Fallin hours before he was scheduled to die.

The controversy worked its way to the U.S. Supreme Court after Glossip and 20 other death row inmates sued in federal court, arguing against the constitutionality of the sedative midazolam.  A divided Supreme Court ruled that the state's drug mixture for lethal injections did not violate the "cruel and unusual punishment" amendment to the U.S. Constitution.  Glossip, who also has long maintained his innocence for the murder that placed him on death row, has exhausted his appeals but has gained support from bipartisan lawmakers for an independent reinvestigation into his case....

Since the hiatus in 2015, Oklahoma has explored alternative methods of administering the death penalty.  Fallin signed legislation allowing nitrogen gas to be used, if lethal injection is rendered unfeasible.  After struggling for years to design a proper device and protocol for the use of nitrogen gas, Oklahoma abandoned the idea in 2020 and reverted back to lethal injection, once another supplier for the drugs had been reportedly secured.  Oklahoma is one of only three states (the others being Mississippi and Utah) that allow for firing squads to be used as an alternative method, although this has not been done in the state for any of its executions since 1915.

Notably, recent news stories report now on another state gearing up to restarted its execution chamber after nearly a decade.  From the AP, "Mississippi prepares for first execution since 2012, corrections commissioner says":

Mississippi prison employees will conduct once-a-week rehearsals as the state prepares for its first execution since 2012, Corrections Commissioner Burl Cain says.  Cain told The Associated Press on Friday that the rehearsals for a lethal injection are usually done once a month at the Mississippi State Penitentiary at Parchman, following a protocol that's about 20 pages long.

The Mississippi Supreme on Thursday set a Nov. 17 execution date for David Neal Cox, who pleaded guilty in 2012 to killing his wife, Kim, in 2010 in the northern Mississippi town of Shannon.  Cox withdrew his appeals and once filed court papers calling himself "worthy of death.”  Mississippi has not had an execution since 2012, and it had six that year.

Cain confirmed Mississippi has obtained lethal injection drugs, but he declined to say how.  “I’m not supposed to talk about the drugs too much,” Cain said.  Mississippi is still facing a lawsuit filed in 2015 by the Roderick & Solange MacArthur Justice Center on behalf of two inmates.  The suit argues Mississippi’s lethal injection protocol is inhumane.

October 26, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

October 25, 2021

"A crisis of undertesting: how inadequate COVID-19 detection skews the data and costs lives"

The title of this post is the title of this new report authored by Erika Tyagi, Neal Marquez, and Joshua Manson of the UCLA Law COVID Behind Bars Data Project. Here is part of the report's introduction:

Earlier this month, our team co-authored an article in the Journal of the American Medical Association on our findings that, during the first year of the pandemic, the COVID-19 infection rate for people incarcerated in state and federal prisons was 3.3 times higher than the rate for the U.S. population as a whole, and the COVID-19 death rate was 2.5 times higher.

These disparities are stark but not surprising — in an earlier study, we found that, in the first months of the pandemic, incarcerated people faced even more disproportionate infection and death rates.

There is reason to believe, however, that actual outcomes have been far worse than these data reveal.  That is because calculating infection rates that reflect the true prevalence of COVID-19 requires adequate testing.  If tests are not widely administered in prisons and jails, and, by many accounts, they have not been, then infections will go undetected.  As a result, infection and death rates will appear lower than they actually are....

The Centers for Disease Control and Prevention has issued guidance recommending testing “at least weekly” of unvaccinated, asymptomatic employees of all workplaces, even those without known or suspected exposures.  Even before vaccines became available, many schools, universities, nursing homes, and other workplaces mandated weekly — or even daily — testing.

In nearly all jails and prisons, however, officials have been conducting orders of magnitude fewer tests than congregate settings with much lower risks of transmission. This provides strong evidence that more testing behind bars would reveal many more infections.

Similarly, COVID-19 deaths are often only recorded as such if individuals test positive before dying.  Because undertesting for COVID-19 results in many infections going undetected, it also increases the likelihood that individuals in prison may have died of COVID-19 without the cause of death being accurately recorded.  As a result, the true number of people who died from COVID-19 behind bars may be higher than the figures officially reported.

In the following pages, we break down three important public health metrics — testing rates, test positivity rates, and case fatality rates — that provide critical context to officially reported infection and death data and reveal just how unreliable reported infection and death data may be.  These three metrics suggest that, in many places, true infection and death numbers may be much higher than those officially reported.

October 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Notable survey results about violent crime perceptions and partisanship

This new release discusses the interesting (but not all that surprisng) results from an Axios/Ipsos poll conducted last week with a series of questions about perceptions of violent crime. Here are some of the details:

A new Axios-Ipsos poll finds that Americans’ concern about crime is high, but for most it is a more abstract than immediate concern.  For instance, three-quarters of Americans say they feel mostly or very safe when out in their communities, and among that one-quarter who report feeling less safe, only half cite crime as a major reason why (or about one in eight Americans).  However, a majority of Americans feel violent crime is on the rise since last year — which is broadly accurate — but also feel it is higher than observed 30 years ago — which is incorrect.  Potentially because concerns about crime are more abstract for most people, opinions about what to do about crime tend to fall along lines of national politics.  Democrats broadly support gun control and investment in social services while Republicans support a more armed populace and more spending on police....

There is some consensus on what steps could reduce gun violence and violent crime in the U.S. Just over six in ten (61%) Americans believe tighter gun laws would have an impact.

A large majority believe increased funding to police (70%) would curb gun violence and violent crime, while nearly as many (63%) also believe diverting police budget to community policing and social services would do this.

Over two thirds (68%) believe increased funding to social safety net programs would have an impact on combatting violent crime.

However, partisanship is central to what and who Americans believe is the cause of increased violent crime and which solutions would be most impactful.  Majorities of Republicans say Democrats in Congress (59%), reduced police funding (58%), and President Joe Biden (54%) are most responsible for increases in violent crime. Meanwhile, majorities of Democrats blame loose gun laws (54%) and rising gun sales (52%). 

When it comes to solutions, a majority of Republicans believe increased police funding (59%) would have a major impact on reducing violent crime compared to roughly a third of Democrats (31%).  Conversely, a majority of Democrats (63%) think tighter gun control regulations and increased funding to social programs that combat poverty (54%) would have a major impact on reducing violent crime — compared to 16% and 18% of Republicans, respectively.

The full poll is available at this link.

October 25, 2021 in Elections and sentencing issues in political debates, National and State Crime Data | Permalink | Comments (0)

"Open Prosecution"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon L. Garrett, William Crozier, Elizabeth Gifford, Catherine Grodensky, Adele Quigley-McBride and Jennifer Teitcher. Here is its abstract:

The U.S. Supreme Court has recognized, where the vast majority of criminal cases are resolved without a trial, that: “criminal justice today is for the most part a system of pleas, not a system of trials.”  While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated; or discriminatory, self-interested, and arbitrary, with very little oversight or sunlight.

For years, academics and policymakers have called for meaningful plea-bargaining data to fill this crucial void.  In this Article, we describe opening the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining.  This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team.  We began collecting systematic data in two prosecutor’s offices, with a third to follow shortly.  We describe how the data collection system was designed, piloted, and implemented, and what insights it has generated.  The system developed can readily be adapted to other offices and jurisdictions.  We conclude by developing implications for prosecutors’ practices, defense lawyering, judicial oversight, and public policy.  Open prosecution has further constitutional and ethical implications, as well as still broader implications for democratic legitimacy.  An open prosecution approach is feasible, and, for the first time in the United States, it is in operation.

October 25, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

October 24, 2021

"Staying Off the Sidelines: Judges as Agents for Justice System Reform"

The title of this post is the title of this notable new Yale Law Journal Forum piece authored by Michigan Supreme Court Chief Justice Bridget McCormack. I recommend the full piece and here is an excerpt from its introduction:

For two years, I co-chaired Michigan Governor Gretchen Whitmer’s Jail and Pretrial Taskforce, which collected data, research, best practices, and public comments to make recommendations to reduce Michigan’s county jail populations. The legislature acted on many of these proposals, and the Governor signed nineteen bills in January 2021 that will decriminalize many low-level offenses and divert people from the criminal-justice system.  I am hardly alone.  I have lots of company in states across the country.

These developments present an important question: what is a judge’s ethical obligation to address inequities in the system over which she presides?  From one view, the answer is little or nothing.  This view holds that the judge has a limited role in the justice system.  Her job is to interpret and apply the law, not to create it, change it, or work toward its improvement.  To the contrary, the argument goes, a judge who engages in such activities is overreaching and involved in ethically questionable behavior.

In this Essay, I maintain that this line of thinking is wrong on every count.  In Part I, I argue that judges are uniquely valuable contributors to reform efforts precisely because they are exposed to the day-to-day workings of the justice system and the flaws within it.  In Part II, I contend that there is no formal ethical obstacle to judges working toward the improvement of the law and the justice system.  Although there are some ethical constraints on how judges may do so, a wide range of plainly permissible activities remain.  And in Part III, I make the case that judges are not only permitted to engage in reform efforts, but also have an ethical obligation to do so.  That is, a judge cannot ignore inequities once she becomes aware of them.  To borrow Brendan Sullivan’s phrase, in the dynamics of reforming and improving the justice system, a judge should not be a potted plant.

October 24, 2021 in Who Sentences | Permalink | Comments (2)

Should I give up hoping Prez Biden will soon make long needed nominations to US Sentencing Commission?

As we reach a full nine months into the Biden Administration, I must yet again express my frustration that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for most of the last five years, and the USSC has not had complete set of commissioners in place now for the better part of a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now nearly three years since that law's enactment.

In this post months ago, I highlighted that all the openings on the USSC provide the Biden Administration with an opportunity to appoint transformative commissioners who could make the US Sentencing Commission a potent criminal justice reform leader.  Especially at a time when there is broad bipartisan interest in continued federal sentencing reforms, but Congress is consumed with a number of other concerns, there are an array of large and small improvements to the federal sentencing system that the USSC could and should be able to advance.  Effective appointments to the US Sentencing Commission could provide the foundation for advancing badly needed structural and institutional federal sentencing reforms for years and even decades to come.

During the 2020 presidential race, Biden’s campaign included a commitment that "Biden will take bold action to reduce our prison population."  To date, Prez Biden has not taken any tangible action to reduce prison populations.  Indeed, after a number of years of decline, official data show that the federal prison population is growing again.  Though a properly staffed US Sentencing Commission could not immediately ensure reductions in the federal prison population, the USSC can be an effective agent of decarceral reforms. As I have stressed before, shrewd and bold nominations to the US Sentencing Commission could and would serve as an effective way for Prez Biden to signal a real commitment to criminal justice reform while also reviving an agency with a long history of impactful work on the federal sentencing system.  

A few of many prior recent related posts:

October 24, 2021 in Who Sentences | Permalink | Comments (17)