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December 31, 2021

Colorado Gov Polis demonstrates, with high-profile commutation and mass pardons, the many powers of clemency

This press release from yesterday, headlined "Governor Polis Grants Clemency, Including Marijuana Pardons," documents that it is never too late in the year for an executive leader to lead with the clemency pen.  Here are a few highlights from the release:

Governor Jared Polis announced that he has granted three commutations, fifteen individual pardons, and signed an Executive Order granting 1,351 pardons for convictions of possession of two ounces or less of marijuana.... 

The marijuana pardon applies to state-level convictions of possession for two ounces or less of marijuana, as identified by the Colorado Bureau of Investigation (CBI). The individuals who have these convictions did not need to apply for pardons, and the Governor’s Office has not conducted individual assessments of the people who have been pardoned through this process.  Individuals convicted of municipal marijuana crimes, or individuals arrested or issued a summons without a conviction, are not included in the pardon.... 

“Adults can legally possess marijuana in Colorado, just as they can beer or wine. It’s unfair that 1,351 additional Coloradans had permanent blemishes on their record that interfered with employment, credit, and gun ownership, but today we have fixed that by pardoning their possession of small amounts of marijuana that occurred during the failed prohibition era,” said Governor Polis.

The Governor also granted commutations to Ronald Johnson, Nicholas Wells, and Rogel Aguilera-Mederos. Mr. Johnson is granted parole effective January 15, 2022, with terms and conditions of parole to be set by the Parole Board. Mr. Wells is parole eligible on January 15, 2022. Mr. Aguilera-Mederos’ sentence is reduced to 10 years. 

The Governor granted pardons to Travis Cleveland, Anthony Formby, Rudolph Garcia, Stephanie Gssime, Michael Jordan, Timothy Lewis, Reginald McGriff, Henry Moreno, Joseph Murillo, Michael Navarro, Ryan Nguyen, Shawn Phillips, Armando Solano, Mohammed Suleiman, and Theresa Yoder.

The name Rogel Aguilera-Mederos, who had his sentence reduced to 10 years, may sound familiar. He is the trucker whose case was discussed in this post a few week ago originally sentenced to 110 years for a deadly crash due to mandatory minimum sentencing statutes.

Here is some press coverage of Gov Polis' clemency work:

December 31, 2021 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)

December 30, 2021

"How the Economic Loss Guideline Lost its Way, and How to Save It"

I have been overdue in blogging about this recent article which shares the title of this post and was published earlier this year in the Ohio State Journal of Criminal Law.  This piece was authored by Barry Boss and Kara Kapp, and it is still very timely as we think about priority concerns for a new US Sentencing Commission (whenever it gets members).  In addition, the enduring issues discussed in this article could soon become a focal point of a very high-profile sentencing if a jury brings back fraud convictions against Elizabeth Holmes.  Here is this article's introduction:

This Article revisits a stubborn problem that has been explored by commentators repeatedly over the past thirty years, but which remains unresolved to this day.  The economic crimes Guideline, Section 2B1.1 of the United States Sentencing Manual, routinely recommends arbitrary, disproportionate, and often draconian sentences to first-time offenders of economic crimes.  These disproportionate sentences are driven primarily by Section 2B1.1’s current loss table, which has an outsized role in determining the length of an economic crime offender’s sentence.  Moreover, this deep flaw in the Guideline’s design has led many judges to lose confidence entirely in the Guideline’s recommended sentences, leading to a wide disparity of sentences issued to similarly situated economic crime offenders across the country.  Accordingly, this Guideline has failed to address the primary problem it was designed to solve — unwarranted disparities among similarly situated offenders.  Worse still, it not only has failed to prevent such unwarranted disparities, its underlying design actively exacerbates them.  In the wake of the United States Sentencing Commission’s recent launch of its Interactive Data Analyzer in June 2020, the authors have identified new evidence that this pernicious problem continues to persist.

In Part I, we review the history and purposes of the Sentencing Guidelines, generally, and the economic crimes Guideline specifically.  In Part II, we explain how the current version of the economic crimes Guideline operates in practice, the extraordinarily high sentences it recommends in high-loss cases, and the resulting overemphasis on loss that overstates offenders’ culpability.  In Part III, we analyze data made available through the Commission’s Interactive Data Analyzer and discuss our findings.  In Part IV, we offer a series of reforms designed to restore the judiciary’s and practitioners’ respect for this Guideline so that it may serve its animating purpose — to reduce unwarranted sentencing disparities among similarly situated offenders

December 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

December 29, 2021

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

December 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (30)

December 28, 2021

Signing of NDAA into law brings some (low profile) federal sentencing reform to the military justice system

Who says significant federal sentencing reform cannot makes its way though Congress these days?  As this week proved, as long as a reform involves a relatively small and low-profile part of the federal justice system, and especially if it is part of a must-pass/must-sign National Defense Authorization Act (NDAA), federal sentencing reform can become law without even a peep in the press.  Indeed, I would be entirely unaware that Prez Biden's signing of the NDAA was worthy of this blog post, but for a helpful colleague ensuring I did not miss the sentencing piece of the military justice reform story in this year's NDAA.

Of course, as can be found in various press pieces, there was considerable attention given to one high-profile piece of military justice reform in the NDAA: "Democrats applauded provisions in the bill overhauling how the military justice system handles sexual assault and other related crimes, effectively taking prosecutorial jurisdiction over such crimes out of the hands of military commanders."  But, as this Just Security piece laments, the new law only makes "piecemeal changes" in this arena, because "the FY22 NDAA military justice reform provisions transfer only a narrow class of crimes out of the chain of command and into the hands of military lawyers under their respective service secretaries."  Helpfully, in addition to giving extensive critical attention to the high-profile reforms of the NDAA, this Just Security piece also just summarizes the sentencing story:

Revolutionizes military sentencing. The NDAA mandates that sentencing for all non-capital offenses be conducted by military judges instead of the current practice, which allows for panel (jury) sentencing.  It provides for offense-based sentencing, as opposed to the current unitary model (imposing a single sentence for all offenses) and directs that non-binding sentencing guidelines be created. This sentencing reform is a much-needed step forward, though it leaves in place the only criminal justice system in the United States that tolerates non-unanimous votes to convict, a practice the U.S. Supreme Court found unconstitutional for states last year. 

Because I tend to be a fan of jury sentencing, but this press article from a few months ago, headlined "'Crapshoot' Sentencing by Court-Martial Juries Likely to End, Advocates for New Legislation Say," highlights the disparity problems it seemed to produce in the military system:

Court-martial sentencing by juries may go the way of flogging, a change many military justice experts say is long overdue. Military judges instead would hand down sentences based on federal guidelines as part of military justice system reforms proposed in the 2022 National Defense Authorization Act....

Supporters say the revision would make sentences in military trials fairer, as well as more consistent and predictable.  "People convicted of sexual assault, one guy gets five years, the other guy gets no confinement," Don Christensen[, a former Air Force prosecutor and president of Protect Our Defenders,] said. "In drug cases, you'd also see huge disparities with no justification. With shaken baby cases, sentences were all over the place."

Military defendants currently may choose whether a judge or a jury, called a "panel," decides their cases, including sentencing.  Military jurors have little experience, context or guidance when determining sentences, Christensen said.  That is magnified by the fact that under the Uniform Code of Military Justice, jurors' sentences can range from no punishment all the way to lengthy prison terms, he added....

Proposals to end it in the military date to at least 1983. The Pentagon proposed an overhaul in 2016, but the idea was dropped.

Critically, in addition to shifting sentencing from juries to judges, the new NDAA calls for the creation of "sentencing parameters" and "sentencing criteria" to guide military judges with "no fewer than 5 and no more than 12 offense categories."  These new parameters and criteria are to be created by a "Military Sentencing Parameters and Criteria Board" with five members, all judges, within the next two years.  In other words, a brand new set of (more simple) federal sentencing guidelines are due to be created for the military justice system.  All sentencing fans should be sure to keep an eye on this process, and one can hope that it might provide some useful lessons for reform to the civilian federal justice system.

December 28, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Methods of Calculating the Marginal Cost of Incarceration: A Scoping Review"

The title of this post is the title of this notable new paper authored by Stuart John Wilson & Jocelyne Lemoine published in the Criminal Justice Policy Review. Here is its abstract:

Criminal justice reforms and corrections cost forecasts require appropriate estimates of the marginal costs of incarceration to adequately assess cost savings and projections. Average costs are simple to calculate while marginal cost calculations require much more detailed data and advanced methods.  We undertook a scoping review to identify, report, and summarize the existing academic and gray literature covering the different estimation methods of calculating the marginal costs of incarceration, following the Arksey and O’Malley framework.  Eighteen publications met criteria for inclusion in this review, with only one from the peer-reviewed literature.  The three main approaches in the literature and their use are reviewed and illustrated.  We conclude that there is a lack of, and need for, peer-reviewed literature on methods for calculating the marginal cost of incarceration, and marginal cost estimates of incarceration, to assist program evaluation, policy, and cost forecasting in the field of corrections.

December 28, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

December 27, 2021

Early preview of SCOTUS cases considering criminal convictions for doctors opioid prescribing practices

I briefly noted the interesting federal criminal drug cases that the Supreme Court took up in early November in this post.  With the top-side briefs now being submitted to SCOTUS, this local press article, headlined "U.S. Supreme Court will hear case of Alabama doctor who prescribed powerful opioids," provides a somewhat fuller preview. Here are excerpts:

Justices on the U.S. Supreme Court have agreed to hear the appeal of an Alabama pain doctor convicted of running a pill mill, a case that could change how federal prosecutors handle opioid cases.  A federal judge in 2017 sentenced Dr. Xiulu Ruan of Mobile to 21 years in prison for several charges including drug distribution and money laundering related to operations at Physicians Pain Specialists of Alabama.  Ruan appealed his conviction last year to the 11th U.S. Circuit Court of Appeals but lost.  The U.S. Supreme Court agreed earlier this year to hear Ruan’s appeal.

The doctor claims his prescriptions of fentanyl and other opioids were supposed to help patients with severe pain.  In a brief, his lawyers said physicians should not risk arrest and prosecution for unconventional treatments when other approaches have failed.  In Ruan’s case, he prescribed fentanyl approved for patients with cancer pain to people suffering from back, neck and joint pain, according to the U.S. Department of Justice....

Ruan’s appeal has been consolidated with another case, Dr. Shakeel Kahn, who practiced in Arizona and Wyoming.  Both men were found guilty of violating the federal Controlled Substances Act and said juries were not allowed to consider a “good faith” defense, which is aimed at protecting doctors trying to help patients.  The supreme court could uphold his conviction or send his case back to trial.

Ruan’s criminal trial lasted seven weeks in 2017 and featured testimony from patients who supported the doctor and family members who said loved ones received dangerous doses of addictive painkillers.  Prosecutors acknowledged that many patients received good care at the two clinics, but said some prescriptions fell far outside the norm.  Ruan and another practitioner at the clinic, Dr. John Patrick Couch, were among the nation’s top prescribers of fentanyl painkillers.  Couch was also convicted and sentenced to 20 years in prison.  He has also appealed his case.

In its response, attorneys for the U.S. Department of Justice said Ruan prescribed much higher rates of opioids than other doctors and earned more than $4 million as a result. Ruan and his partner issued almost 300,000 prescriptions for controlled substances, they wrote. Prosecutors said Ruan had deep ties to drug companies that created fentanyl medications. After his conviction, they seized assets that included exotic cars, residential and commercial property....

In his brief, Ruan’s attorney wrote that Physicians Pain Specialists of Alabama did not operate as pill mills. The clinics only accepted patients with insurance, refused cash payment and used diagnostic tools to find the sources of patients’ pain.  Only patients with intractable pain received fentanyl, Ruan testified at his trial. “He also testified that the medication was a ‘lifesaver’ for patients who would otherwise ‘have to go to [the] ER’ during such an episode,” the brief said.

Pain patients have criticized crackdowns on pain clinics and doctors.  Compassion & Choices, an organization that advocates for dying patients, submitted a brief in support of Ruan. “Medical practitioners prescribing opioids to such patients in good faith are not drug pushers under the Act,” according to the Compassion & Choices brief.  “Practitioners thus should not have to suffer the specter of criminal liability simply for treating such patients at such a vulnerable, critical, and private time in their lives.”...

Arguments in Ruan’s case are scheduled for March 1, 2022.

The briefing in Ruan v. US, No. 20-1410, is available at this SCOTUSblog link, and the brief from the defense sets up the issue this way in its Introduction:

To ensure that licensed medical professionals do not risk criminal prosecution and felony conviction based on simple malpractice, nearly all courts, construing the CSA and the implementing regulations, require that the government prove that the physician lacked a good faith basis for her prescription.  See Pet. 4-5, 18-27.  But not the Eleventh Circuit. According to the court of appeals, a doctor may be convicted under the CSA if her prescription fell outside of professional norms — without regard to whether she believed in good faith that the prescription served a bona fide medical purpose.  That outlier position, if sustained, would result in the kind of “sweeping expansion of federal criminal jurisdiction” that this Court has repeatedly condemned. Kelly v. United States, 140 S. Ct. 1565, 1574 (2020) (quoting Cleveland v. United States, 531 U.S. 12, 24 (2000)); see also Bond v. United States, 572 U.S. 844, 862-865 (2014). It would also chill medical progress, disrupt the doctor-patient relationship, and criminalize prescriptions whenever a lay jury is persuaded that the physician exceeded the “usual” practice of medicine.

Though these cases are formally about the standards for criminal liability for these doctors, there are sentencing stories lurking here.  First, of course, are the high sentencing stakes for any doctors found guilty of illegal drug distribution.  Decades-long federal sentences are common — but not at all consistent as Prof Adam M. Gershowitz has detailed — and local press indicates federal prosecutors wanted sentences considerably longer than the two decades given to Drs. Ruan and Couch.  But why might such extreme prison terms be needed, given that, once these doctors lose their prescribing licenses, they are functionally unable to repeat their crimes and their risk of recidivism is very low at their age?  Simply put, some vision of retribution must be driving the severity of the sense, especially since deterrence of doctors is likely achieved by any criminal prosecutions and over-deterrence seems like a real risk here.

In the end, the fact that the sentencing stakes are so high likely helps explain why these cases got the Supreme Court's attention.  And the debate over the whether the law requires proving a lack of good faith would, in a sense, get the the heart of the retributivist question of just how blameworthy these doctors really are.  For all those reasons (and others), when oral argument takes place in a couple months, I will be interested to see if any Justices bring up any of the sentencing issues lurking beneath these cases. 

Prior related post:

December 27, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

December 26, 2021

Catching up on some criminal justice holiday commentary

A bit of a holiday blogging slow down, as well as having a pile of exams to grade, means I will need to be content here to catch up for lost time with a round-up post here. So here goes, mostly with commentary pieces along with a few notable news items:

By Carissa Byrne Hessick, "The Constitutional Right We Have Bargained Away: Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right."

By Rory Fleming, "The Lack of Prosecutor Accountability Behind Trucker’s 110-Year Sentence"

By Tony Messinger, "The Conservative Case For Prison Reform"

By Walter Pavlo, "Operation 'Varsity Blues' Goes Out With Perfect Prosecution Record And A Reflection Of How The System Works"

By Austin Sarat, "How 2021 Changed the Death Penalty"

By Kenneth Starr, "To uphold the rule of law, US Supreme Court must act in Texas death penalty case"

 

From The Hill, "Report finds groups working with incarcerated women passed over for funding by feminist organizations"

From The Marshall Project, "Omicron Has Arrived. Many Prisons and Jails Are Not Ready."

From NBC News, "States make headway on criminal justice reform after Congress falls short"

December 26, 2021 in Recommended reading | Permalink | Comments (9)