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April 15, 2022

Condemned due to be executed in South Carolina in two weeks opts for firing squad over electric chair

As detailed in this AP article, a "South Carolina prisoner scheduled to be the first man executed in the state in more than a decade has decided to die by firing squad rather than in the electric chair later this month, according to court documents filed Friday."  Here is more:

Richard Bernard Moore, 57, is the also first state prisoner to face the choice of execution methods after a law went into effect last year making electrocution the default and giving inmates the option to face three prison workers with rifles instead.

Moore has spent more than two decades on death row after being convicted of the 1999 killing of convenience store clerk James Mahoney in Spartanburg. If executed as scheduled on April 29, he would be the first person put to death in the state since 2011 and the fourth in the country to die by firing squad in nearly half a century. The new law was prompted by the decade-long break, which corrections officials attribute to an inability to procure the drugs needed to carry out lethal injections.

In a written statement, Moore said he didn’t concede that either method was legal or constitutional, but that he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice. “I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election,” Moore said in the statement.

Moore’s attorneys have asked the state Supreme Court to delay his death while another court determines if either available method is cruel and unusual punishment. The attorneys argue prisons officials aren’t trying hard enough to get the lethal injection drugs, instead forcing prisoners to choose between two more barbaric methods. His lawyers are also asking the state Supreme Court to delay the execution so the U.S. Supreme Court can review whether his death sentence was a disproportionate punishment compared with similar crimes. The state justices denied a similar appeal last week.

South Carolina is one of eight states to still use the electric chair and one of four to allow a firing squad, according to the Washington-based nonprofit Death Penalty Information Center. Only three executions in the United States have been carried out by firing squad since 1976, according to the nonprofit. Moore’s would mark the first since Ronnie Lee Gardner’s 2010 execution by a five-person firing squad in Utah....

Moore is one of 35 men on South Carolina’s death row. The state last scheduled an execution for Moore in 2020, which was then delayed after prison officials said they couldn’t obtain lethal injection drugs. During Moore’s 2001 trial, prosecutors said Moore entered the store looking for money to support his cocaine habit and got into a dispute with Mahoney, who drew a pistol that Moore wrestled away from him. Mahoney pulled a second gun, and a gunfight ensued. Mahoney shot Moore in the arm, and Moore shot Mahoney in the chest. Prosecutors said Moore left a trail of blood through the store as he looked for cash, stepping twice over Mahoney.

April 15, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Split Iowa Supreme Court finds Sixth Amendment jury trial rights apply to (unique?) state law restitution provision

A helpful reader made sure I saw the interesting ruling today from the Iowa Supreme Court in Iowa v. Davison, No. 20–0950 (Iowa Apr. 15, 2022) (available here).  The start of the majority opinion should highlight why all Apprendi fans will want to check out this notable new decision:

A jury found the defendant guilty of assault causing serious injury and conspiracy to commit murder in connection with a shooting death.  The district court later awarded restitution against the defendant under Iowa Code section 910.3B (2017).  That law mandates an award of at least $150,000 restitution when “the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person.” Id. § 910.3B(1).  The defendant now argues that the restitution was statutorily and constitutionally impermissible because the offenses of which he was convicted did not include, as an element, causing the death of another person.

We conclude that Iowa Code section 910.3B does not require a jury finding that the defendant caused the death of another person.  But the Sixth Amendment to the United States Constitution is a different matter.  The United States Supreme Court has repeatedly held that the Sixth Amendment requires facts that increase the defendant’s minimum or maximum punishment to be determined by a jury.  Because the $150,000 restitution is punitive in part, awards of such restitution must be based on jury findings.  No jury found that the defendant caused the death of the victim of the shooting.  Therefore, we reverse the award of restitution in this case and remand for further proceedings.

Here is part of the substantive discussion from the majority in Davison:

Courts have generally declined to apply Apprendi to restitution because restitution is usually compensatory and indeterminate. At first glance, Davison’s argument faces a steep climb. Courts considering the matter have ruled overwhelmingly that Apprendi and Southern Union do not apply to criminal restitution. See, e.g., State v. Leon, 381 P.3d 286, 289 (Ariz. Ct. App. 2016) (“Leon acknowledges that no court has applied Apprendi to restitution awards.”); State v. Arnett, 496 P.3d 928, 933 (Kan. 2021) (“[A]t least 11 of 13 federal United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution, not to mention the many state courts which have followed suit.”)...

Restitution under Iowa Code section 910.3B is punitive and determinate. By contrast, Iowa Code section 910.3B establishes a mandatory minimum of $150,000 awardable only if the defendant’s felonious acts caused the death of another person. It may be a low number for the nonmonetary loss attributable to a death of a human being, but it is a floor—and it is awarded only if certain facts are found to exist.  Under normal circumstances, a victim of crime in Iowa is limited to recovery of “pecuniary damages,” which exclude “damages for pain, suffering, mental anguish, and loss of consortium.” Iowa Code §§ 910.1(6), .2(1)(a).  Only when the defendant is convicted of a felony in which their acts caused the death of another person may the minimum amount of $150,000 be recovered in additionSee id. § 910.3B(1).

Like other forms of restitution, the restitution authorized by Iowa Code section 910.3B provides compensation. “It serves a remedial purpose in compensating the victim’s estate.” Klawonn, 609 N.W.2d at 520.

But section 910.3B restitution is also punitive. In our 2000 decision, Izzolena, we detected “several punitive elements” in the statute. 609 N.W.2d at 548.  Restitution under section 910.3B “is awarded in addition to separate restitution for pecuniary damages.” Id. Also, the statute “establishes a minimum threshold amount of $150,000 for all cases, with no required proof of evidence to support damages excluded from the definition of pecuniary damages.” Id. at 548–49. For this reason, we found that the $150,000 restitution was subject to the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution. Id. at 549.

One concurring opinion frames the ruling in a notable way that seems worth highlighting (and which might entail that the Supreme Court would be disinclined to take this case up if there were a future cert petition):

The opinion concurring in part and dissenting in part argues that Apprendi should not be extended to restitution awards, but this merely begs the question. It is not disputed that courts almost uniformly have held that Apprendi does not apply to restitution awards....  And the court’s opinion in this case says nothing different. The question in this case is not, as the dissenting opinion frames it, whether Apprendi should be extended to restitution awards.  Instead, the question is whether section 910.3B is merely a restitution award or whether it also amounts to criminal punishment.  The dissent assumes the former, but our precedents dictate the latter.

And here is the start of the partial dissent:

I join the court’s opinion except for part III.B. I respectfully dissent from the court’s holding extending Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny to victim restitution awards.  Our court is the first appellate court in the nation to do so.  Only two justices of the United States Supreme Court have concluded that Apprendi should be applied to require a jury to find all the facts needed to justify a restitution order.  Hester v. United States, 139 S. Ct. 509, 509–11 (2019) (Gorsuch, J., joined by Sotomayor, J., dissenting from the denial of certiorari).  Seven justices declined to take the bait. See id. at 509 (mem.).  Every federal circuit court of appeals to reach the issue has refused to extend Apprendi to victim restitution awards.  So too has every state appellate court to reach the issue.  I would follow the wisdom of that crowd.

It is not a given that Iowa would seek SCOTUS review of this ruling, and the distinctiveness of Iowa law here might make the SCOTUS Justices disinclined to take up this case even if Iowa does seek cert. That said, it seems worth noting that any forthcoming cert petition on this issue could possible engage some of the Justices who were not on Court back in 2019 when cert was denied in the Hester case.  Back then, Justice Ginsburg and Breyer were apparently disinclined to take up this issue.  But I suspect the new Justice Jackson might be much more interested in expanding Apprendi rights than her former boss has been.  And, as I suggested in this post about Hester, if Justice Barrett is really the originalist that she claims to be, she too might be inclined to join Justice Gorsuch's call to consider this important Sixth Amendment procedural matter.

Though there is much to say about restitution and procedural rights in general (e.g., there is not discussion of burdens of proof or other due process issues in Davison), this cases has me inclined to talk up the broader question of whether the "new" Supreme Court might be somewhat more eager consider and question a lot of pro-state/pro-prosecution doctrines that seem inconsistent with the text and original public meaning of the Bill of Rights.  The Apprendi line of cases helped me to understand that lots of established sentencing doctrines and precedents ought to make real textualists and originalists blush.  If lots of precedents are going to start to be reexamined on textualist and originalist grounds, those ought also to include an array of (mostly pro-state/pro-prosecution) criminal law and procedure precedents.

April 15, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Justice Department has new Pardon Attorney who is a former public defender ... which means ...?

I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney.  As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:

We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.

However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....

There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration).  It's a mess.  We just know what kind of mess, or where the mess is located.  The whole thing needs reform.

For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority.  But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role.   As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways.  I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.

in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority.  Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes."  But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation.  With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month.  Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way.  As of now, though, it does not appear that Prez. Biden really has much of a clemency will. 

A few on many prior recent related posts:

April 15, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

April 14, 2022

"An Algorithmic Assessment of Parole Decisions"

The title of this post is the title of this new paper now on SSRN authored by Hannah Laqueur and Ryan Copus. Here is its abstract:

Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration.  Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison.  We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015.  We quantify the social welfare loss of the Board’s suboptimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions.  We also estimate the release rates that could be achieved holding arrest rates constant.  We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making.  Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform.

April 14, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Discouraging update on various sentencing and prison reform bills from inside the Beltway

This new Politico article, "Criminal justice reform faces political buzzsaw as GOP hones its midterm message," provides an unsurprising, but still disappointing, update on the current political realities facing a set of small but important sentencing and prison reform bills pending in Congress. I recommend the whole piece, and here are excerpts:

The Senate delivered former President Donald Trump a bipartisan criminal justice reform deal shortly after the last midterm election.  Staging a sequel for President Joe Biden this year won’t be so easy.

Dick Durbin and Chuck Grassley, the top Democrat and Republican on the Senate Judiciary Committee, are still in talks over finalizing a package that would serve as a more narrow follow-up to the 2018 prison and sentencing reform bill known as the First Step Act.  But both senior senators acknowledge it’s not a glide path forward, particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.

“That’s dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley (R-Iowa) said in a brief interview.  He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”  Durbin (D-Ill.), meanwhile, said he’s concerned about the bill’s prospects, particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime.  The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

While both Durbin and Grassley say the sequel legislation is necessary to fully implement and expand on the sentencing updates in the First Step law, the campaign-season politics surrounding criminal justice reform threaten broader GOP support. Though 38 Republican senators backed the 2018 bill, it took Trump’s personal appeals to get many on board. And with Democrats in full control of Washington, Republicans’ emerging midterm message — that liberals are to blame for rising violent crime — could make sentencing changes that much harder.

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee and a close adviser to Minority Leader Mitch McConnell, has yet to review the proposal but predicted a tough road ahead. “Particularly given the spike in violence in the inner cities, it would probably be controversial depending on what the specific proposal was,” Cornyn said. “The timing is not great given the closeness of the midterms and the primaries that still remain to be run.”

The Judiciary panel already passed the foundation for Durbin and Grassley’s potential criminal justice reform package last year. It would give inmates who were sentenced prior to the First Step law’s passage the ability to petition for its reduced sentencing guidelines, applying them retroactively if approved. Another bill included in it would increase eligibility for a program that allows certain elderly prisoners to serve the rest of their sentences at home. There’s also discussion around expanding the scope of a federal carjacking statute, according to a GOP Judiciary Committee aide....

A separate but related criminal justice push in the upper chamber, however, illustrates that reform advocates aren’t exactly pinning their hopes on a broader agreement this year. Supporters of eliminating the long-standing federal sentencing disparity between crack and powder cocaine offenses originally discussed including that provision in the committee’s bigger proposal.

Now advocates for change want the Senate to move a standalone bill on the crack-cocaine disparity, citing its support from 11 Senate Republicans — enough to overcome a filibuster. “They have been working on that package for the better part of a year now, and the [standalone bill] is ready right now,” said Holly Harris, executive director of the Justice Action Network, who is urging the Senate to act shortly after the Easter recess. “My hope is obviously that we can see the [standalone bill] through to fruition here. I mean, it’s literally on the goal line.”... Backers of the legislation eliminating the crack-cocaine disparity, which passed the House overwhelmingly in September, range from conservative Sen. Cynthia Lummis (R-Wyo.) to Senate Majority Leader Chuck Schumer. It’s backed by law enforcement groups, including the Major Cities Chiefs Association and the National District Attorneys Association.

While Schumer hasn’t yet laid out a timeline for when he’d bring the crack-cocaine disparity bill to the floor, members of the Congressional Black Caucus earlier this month wrote to him and Durbin urging the Senate to consider the bill “without delay.” The legislation is a top priority for the caucus, which has already faced setbacks on police reform and voting rights bills. And proponents of the reform are framing it as legislation about “fairness” instead of crime, highlighting support from Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Texas).

But Senate aides on both sides of the aisle warn that despite the disparity-closing bill’s bipartisan support, it could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Grassley, who is not a co-sponsor, has also outlined concerns about whether there would be enough Republican support in the Senate to get the legislation over the finish line. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

Meanwhile, Durbin isn’t giving up on his broader criminal justice reform package. At least not yet. While the Jackson hearings highlighted the “extremes” of GOP opposition, he said he remains hopeful that “there are fair-minded Republicans and Democrats who can form the basis of an agreement.”

Sigh. From the very start of this Congress, many folks have been stressing (see here and here) that the criminal justice arena as presenting opportunities for bipartisan reforms.  And nearly a year ago, as noted here, the Senate Judiciary Committee advanced the COVID-19 Safer Detention Act of 2021, the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021.  Since then, the House in September 2021 passed, as detailed here, the EQUAL Act by a margin of 361-66 and last month passed, as detailed here, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a margin of 405-12.  Not sure we can expect more bipartisan agreement than these votes reflect, and so I continue to believe the relatively modest reforms in all of these bills could have and should have been low-hanging fruit for bipartisan legislative achievements in this Congress.  Instead, it now appears that none of these bills may get to the finish line in this Congress. 

I understand fully the challenging politics presented by rising homicide rates and other crime challenges now facing the nation.  But these reforms are all sound tweaks to a federal sentencing and prison system that have rightly garnered strong bipartisan support because they are modest and sensible reforms that are long-overdue and have very little to do with violent offenders.  The apparent failure of this Congress to get any of these bills enacted so far strikes me as much more a story of problematic policy priorities than of modern crime politics.  Sigh.

April 14, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"New Originalism: Arizona's Founding Progressives on Extreme Punishment"

The title of this post is the title of this interesting new article now available via SSRN authored by John Mills and Aliya Sternstein. Here is its abstract:

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike.  Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions.  Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds.  Arizona was founded in 1912 as a progressive project and the founding generation — from the convenors of the 1910 constitutional convention and the courts to the people themselves — held and acted on progressive views of punishment.  They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime.  Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

April 14, 2022 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

April 13, 2022

Notable example of federal prosecutors and crime victims advocating for sentences way below applicable mandatory minimums

This lengthy local press piece, headlined "After pleas for leniency, mosque bombers receive 16-, 14-year sentences: Prosecution, defense agreed the two were manipulated by militia ringleader," reports on an interesting federal sentencing that took place yesterday in Minnesota.  Here are some of the details:

Following a rare display of both victims and prosecutors advocating mercy, U.S. District Judge Donovan Frank sentenced two Illinois men Tuesday to 14 and 16 years in federal prison for bombing Bloomington's Dar al-Farooq Islamic Center in 2017.

Frank said the "substantial assistance" of Michael McWhorter, 33, and Joe Morris, 26 — including testifying against Emily Claire Hari, their "White Rabbits" militia leader — permitted him to render penalties that each amounted to less than half of the 35-year statutory minimums in the domestic terror case.

Prosecutors and defense attorneys described McWhorter and Morris as patsies in Hari's terror plot, manipulated to participate in a string of violent crimes that included robbing a Walmart with airsoft guns, a home invasion, attempting to extort the Canadian railroad and an unsuccessful attempt to bomb a women's health clinic.

Acknowledging that they were under Hari's influence, Frank also condemned McWhorter's and Morris' seventh-month crime spree as "contrary to everything America stands for," rejecting the 10-year sentences requested by their defense attorneys. "When all is said and done," Frank said, lesser sentences would not "promote respect for the law."

Frank sentenced Hari to 53 years in prison last year, higher than the mandatory minimum but lower than prosecutors' request for life, for civil rights and hate crime convictions.

The sentencings brought to a close a saga that began four-and-a-half years ago, when a black-powder bomb exploded in Imam Mohamed Omar's office early on Aug. 5, 2017, while several mosque members gathered for morning prayer. Throughout the trial, Dar al-Farooq leaders testified to the horror they continued to feel after that day, worried another attack could be imminent.

Still, in court Tuesday, Muslim, Jewish and Christian faith leaders asked Frank for mercy. Omar, who in Hari's trial described feeling he was in a "nightmare" when the bomb went off, told Frank he'd come with "a message of peace" in the name of "solidarity as a human family" on behalf of Dar al-Farooq. Omar said McWhorter sent him a seven-page letter from jail expressing remorse and explaining how he'd fallen into the "dark web of Hari's manipulation" and described Hari as a "cultish" figure....

McWhorter and Morris pleaded guilty in 2019 to their role in the group known as the "White Rabbits 3 Percent Illinois Patriot Freedom Fighters."  In the trial for Hari — then known as Michael Hari — the two men testified that he took advantage of their financial desperation to recruit them for the attacks. Morris, who described Hari as a father figure, said Hari told him they were taking orders from Steve Bannon and a CIA agent called "Congo Joe" to harass "untouchables."...

The day of the bombing, Hari waited until they'd driven through the night and were an hour away from Bloomington to reveal the plot to bomb the mosque. Neither McWhorter nor Morris knew what a mosque was, according to their lawyers. McWhorter said he feared Hari and Morris would kill him if he didn't go through with the plan. "I bombed a mosque. But it was not by choice," he said. "I feared for my life when I bombed the mosque. I didn't do it out of just pure hatred. I don't have any hate" for Muslims.

For their roles in helping convict Hari, Assistant U.S. Attorney Allison Ethen asked Frank for a 50% reduction from the mandatory minimum sentences for McWhorter and Morris — a request both Ethen and Frank remarked was rare. While they were not the masterminds, Ethen said, the two men still committed grave crimes that cannot be "uncommitted" and a light penalty could send the wrong message.  "We need to make sure this sentence also reaches the Haris of the world," she said. Ethen also said she was representing victims from Illinois who couldn't appear in court to speak for themselves, including "countless women" whose doctor's office became the target of a hate crime.

Frank said he calculated the sentence while balancing the need for deterrence of similar crimes, noting the men participated in "very serious premeditated behavior."

April 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

  • Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

  • Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

  • The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

  • Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

April 13, 2022 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Why Should Guilty Pleas Matter?"

The title of this post is the title of this forthcoming book chapter authored by Thom Brooks now available via SSRN.  Here is its abstract:

Most offenders plead guilty without a trial.  Their guilty plea typically earns a reduced punishment. It raises the issue of why should guilty pleas matter.  This chapter considers the use of plea bargaining in the United States and guilty plea discounts in England and Wales.  While the former is found deeply problematic, a limited defence of the latter is made. Offenders should normally receive discounted punishment and for more than instrumental reasons.  However, there must be more robust safeguards in place to ensure greater consistency and fairness for the use of guilty plea reductions to be justified more substantially.

April 13, 2022 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

April 12, 2022

Could a shortage of state prosecutors put a further dent in mass incarceration?

Professor John Pfaff effectively documented the important insights, discussed in this article about his 2017 book Locked In, that more prosecutors filing more felony charges was an important contributor to modern mass incarceration.  Against that backdrop, this new Reuters article has me wondering if fewer prosecutors filling fewer charges might further contribute now to declining incarceration.  The article is headlined "Prosecutors wanted: District attorneys struggle to recruit and retain lawyers," and here are excerpts:

District attorneys’ offices across the U.S. are struggling to recruit and retain lawyers, with some experiencing vacancies of up to 16% and a dearth of applicants for open jobs, according to interviews with more than a dozen top prosecutors and five state and national prosecutors’ associations.

The district attorneys said the effects of the COVID-19 pandemic and increasing concern about racial inequities in the criminal justice system — compounded by long-standing issues with relatively low pay and burnout — have made a career as a state prosecutor a tougher sell in the past several years.

“We're seeing a prosecutor shortage throughout the country; it's not limited to large jurisdictions versus small jurisdictions,” said Nelson Bunn, executive director of the National District Attorneys Association, a trade group with 5,000 members....

Staffing shortages are affecting prosecutors’ decisions about whether to bring certain criminal cases to trial, according to Anthony Jordan, president of the District Attorneys Association of the State of New York. "We don’t get to choose the crimes that come in," said Jordan, who is the district attorney in Washington County, New York. "But if you don’t have enough people to prosecute them then you have to let certain ones go.”

Data from the Maricopa County Attorney's Office in Phoenix, Arizona illustrate that challenge.  The number of cases the office prosecuted dropped from nearly two-thirds of felonies referred by law enforcement in 2018 to under half in 2020. And the number of vacancies in the office of 338 attorneys continues to rise — increasing nearly 53% between July 2020 and April 2022.

Recent BJS data, flagged here, indicate that the national prison population has declined nearly 25% from 2010 to 2020, although a good portion (but not all) of this prison population decline has been a consequence of COVID pandemic dynamics.  Ultimately, a number of legal and extra-legal forces have been contributing to a decline in incarceration in recent years.  And Pfaff's work suggests that, if there is a sustained period of fewer prosecutors filling fewer charges nationwide, we should expect some continued declines (or at least reduced likelihood of US prison populations growing significantly in coming years).

April 12, 2022 in Data on sentencing, Who Sentences | Permalink | Comments (5)

"Trauma and Blameworthiness in the Criminal Legal System"

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

Violence can result in trauma, but so too can trauma lead to violence.  Neuroscience offers an increasingly sophisticated understanding of the biology of behavior, including the nexus between trauma and criminal behavior.  Yet the criminal legal system consistently fails to account for the traumatic backgrounds of many people charged with crimes. Instead, people who experience trauma as a result of community violence, along with so many others, are ignored or ridiculed when they argue that their traumatic experiences should mitigate their blameworthiness.  Military veterans, on the other hand, provide a unique example of a class of people for whom judges, prosecutors, and other actors in the criminal legal system recognize that context and circumstances matter — that even when someone is criminally responsible for a wrongdoing, their traumatic experiences may mitigate their blameworthiness.

In this article, I explore why we treat trauma as a reason for leniency for some people but not for others, and whether it is morally justifiable for us to approach criminal behavior as situational (a result of environmental circumstances) for certain groups, while insisting that it is characterological (the result of individual character traits) for others. Offering a novel perspective on the issue, I contend that what distinguishes military veterans from defendants for whom trauma and other environmental factors are routinely disregarded is not a difference in the kind or degree of the impact of their circumstances, but rather cognitive assumptions about who is and is not a criminal.  These assumptions in turn lead to a false dichotomy between people whose criminal behavior we deem characterological, and therefore fully morally blameworthy, and people whose criminal behavior we accept as situational, and therefore less blameworthy. I situate the roots of these categorizations in structural racism and show how this dichotomous thinking perpetuates racial injustice.

April 12, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Reviewing the application of Miller and juvenile LWOP in the federal system

This AP story, headlined "Juvenile lifer seeks reprieve amid broader push for leniency," focuses on one high-profile juvenile lifer case while also discussing some of the other realities of juve LWOP in the federal system since the Supreme Court's major Eighth Amendment ruling in Miller v. Alabama a decade ago.  Here are some excerpts from a lengthy piece worth reading in full:

Shortly after Riley Briones Jr. arrived in federal prison, he cut his long, braided hair in a symbolic death of his old self. As a leader of a violent gang and just shy of 18, Briones drove the getaway car in a robbery turned deadly on the Salt River-Pima Maricopa Indian Community outside Phoenix in 1994. He was convicted of murder and given a mandatory sentence of life without parole.

In prison, he has been baptized a Christian, ministers to other inmates who call him Brother Briones, got his GED and has a spotless disciplinary record, his attorneys say in their latest bid to get the now 45-year-old’s sentence cut short. “He’s clearly on the side of the line where he should be walking free,” said his attorney, Easha Anand.

The U.S. Supreme Court opened the door for that possibility with a 2012 ruling that said only the rare, irredeemable juvenile offender should serve life in prison. Over the past decade, most of the 39 defendants in federal cases who received that sentence have gotten a reprieve and are serving far fewer years behind bars. Meanwhile, more than 60 legal experts and scholars have asked the federal government to cap sentences for juvenile offenders at 30 years, create a committee to review life sentences in the future and reconsider its stance in Briones’ case.

But the move toward greater leniency has been gradual and not without resistance. Briones is among those whose life sentences have been upheld in recent years, though he still has another chance. Prosecutors in his case have opposed a reduced term. They argue despite Briones’ improvements, he minimized his role in the gang and its crimes that terrorized Salt River amid an explosion of gang violence on Native American reservations in the 1990s....

Briones’ case became eligible for resentencing after the Supreme Court’s 2012 decision in Miller v. Alabama.  It was part of a series of cases in which the court found minors should be treated differently from adults, partly because of a lack of maturity.  The court previously eliminated the death penalty for juveniles and barred life-without-parole sentences for juveniles except in cases of murder.  A handful of the defendants in the 39 federal cases — most of whom are minorities — have been released from prison.

The Feb. 17 letter seeking reform from the Justice Department pointed to statistics that show the median sentence for adults convicted of murder in the federal system is 20 years — nearly half the median for the juvenile offenders.  “Taking a life is really, really serious, and I don’t belittle that at all,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, one of the signatories.  “But a full life in prison when you’re a juvenile and you’re talking about 40, 50, 60 years in prison is exceedingly excessive probably in almost every case and not consistent with typical sentences for homicides, even adults.”...

The California-based Criminal Justice Legal Foundation, a victims rights group, said changes in the law that continually allow juvenile offenders to get another shot at freedom are damaging for the families, communities and the criminal justice system. “Some of these crimes are just very horrible, and the impacts on the families are substantial, and they never go away,” said the group’s president, Michael Rushford.

The Campaign for the Fair Sentencing of Youth has long argued the changes a person makes once they’ve entered prison should matter, and juveniles offenders should be able to live as adults outside prison walls.  “If the facts of the crime are always going to be the overpowering force, then Miller isn’t going to be meaningfully interpreted to outweigh all this positive growth,” said Rebecca Turner, who tracks the federal cases for the group.

The federal court in Arizona has resentenced more of the juvenile offenders to life in prison than any other state. Texas has two juvenile offenders who are serving life but weren’t able to be resentenced because of how courts interpreted Miller v. Alabama. South Carolina resentenced one inmate to life.  All three federal cases in Arizona were from Native American reservations, where the federal government has jurisdiction when the suspect, victim or both are Native American for a set of major crimes, including homicide. The penalties, in general, are stricter than if the crimes happened off the reservation and the cases ended up in state court.

April 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

April 11, 2022

"The Return of the Firing Squad?"

The question in the title of this post is the headline of this notable new Marshall Project piece, which gets started this way:

Six years ago, a man on death row in Nevada named Scott Dozier said he wanted to give up his legal fight and be executed, but there was a problem.  Prison officials couldn’t find lethal injection drugs.  Amid the ensuing legal turmoil, Dozier tossed off his own solution, telling me during an interview, “I’d have been just as happy if they took me out back and shot me.”

Dozier’s death, in 2019, was ruled a suicide, but now his words seem prescient. On Thursday, South Carolina scheduled the execution of Richard Moore — convicted of murder in a 2001 convenience story robbery — for April 29. Because state officials say they can’t secure lethal injection drugs, they will give him the choice between the electric chair and the firing squad.  Officials have spent $53,000, by their own estimate, to renovate part of a prison to allow a three-person firing squad to carry out executions, including adding bulletproof glass to protect witnesses.

South Carolina’s not alone: Oklahoma and Mississippi have also formally adopted the firing squad, though Utah remains the only state that has actually used the method in the last century. The U.S. Supreme Court has told death row prisoners that if they want to fight lethal injection in court, they need to propose an alternative. Following dozens of botched, evidently painful lethal injections in recent years, prisoners in at least 10 states have been making a surreal argument: They would prefer the firing squad.

So, are we really about to start shooting prisoners?  Although the method strikes many as cruel and archaic, conversations with scholars and a review of history suggest we should also ask why we have so consistently avoided the firing squad. The answers suggest that this is about more than just another execution method.  The firing squad dredges up some of the core contradictions at the heart of American capital punishment.

“It’s an almost instantaneous death, it’s the cheapest, it’s the simplest, it has the lowest ‘botch’ rate,” said Corinna Lain, a law professor at the University of Richmond.  (Federal judges have made similar points.)  At the same time, it’s “more honest,” she said.  Lain and other scholars have argued that Americans have long wanted — not always consciously — to disguise the violence of capital punishment.  “We don’t want a mess,” wrote Douglas B. Kamerow, a former assistant surgeon general, in The BMJ, a medical journal published by the British Medical Association.  “We want these evil people to disappear, to be dead, but most of us don’t want to feel bad about how they died.”

April 11, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Considering sentencing echoes of SCOTUS confirmation hearings' sentencing attacks

This lengthy new CNN article, headlined "Ambitious trial judges could be wary after GOP attacks on Judge Jackson's sentencing record," provides an effective review of how last month's SCOTUS spectacle could impact the work of federal sentencing judges.  I recommend the full piece, and here are excerpts (with some commentary added in spots):

The Senate Republicans who led the attacks on Judge Ketanji Brown Jackson's sentencing record say they hoped to send a message to other trial judges who might seek appointments to higher courts.

While some veteran judges see it as a tactic of intimidation, it hits on a longstanding tension between the lifetime tenure granted to judges to in theory shield them from politics and lawmakers' frustration that they're using that discretion to supposedly stretch beyond the instructions they've received from Congress. J

One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations, who are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes," Sen. Ted Cruz, a Texas Republican, told CNN.

Of course, as I highlighted in this prior post, Judge Jackson was "following the law" in all of her sentencing decisions; and the cases that were the focal point for attacks by GOP Senators did not generally involve "violent criminals," but on computer criminals who downloaded child pornography.  Sigh.  Now, more from the CNN article:

"It is in part meant to intimidate judges," said Ret. Judge Shira Scheindlin, who joined several other retired judges in a letter last month defending Jackson's approach to the child pornography cases that had been singled out by GOP lawmakers. "They are kind of on notice that, if that's their ambition, they better think hard about their sentencing practices," Scheindlin, a Bill Clinton appointee, told CNN. "That's a bad thing."...

"I think it's terrible for public perception for the senators to be suggesting that there are judges around the country who favor child pornography," said Ret. Judge John Martin, who served as a US Attorney under Presidents Jimmy Carter and Ronald Reagan before his appointment by President George H.W. Bush to Manhattan's federal court....

Whether judges will change their approach out of fear they too may someday face the hostility Jackson was subjected to remains to be seen. "People in the legal profession saw it for what it was, and it wasn't a real argument based in fact," said Lisa Cylar Barrett, the director of policy at the NAACP Legal Defense & Educational Fund.

Judges take it seriously, Ret. Clinton-appointed Judge Faith Hochberg told CNN, that their job requires them "to set politics aside and apply the facts and the law to every single case that comes before them, without any overlay of what may be made of the decision politically by someone else who wasn't privy to the facts and the law that the judge was presented."

Still other former judges acknowledged it could have a conscious or subconscious effect. "I don't think judges are going to be too intimidated, but for those few who have the ambition to go to a higher court, they may think twice about leniency," Scheindlin said. "That's unfortunate. They should only be thinking about the defendant in front of them."

April 11, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

April 10, 2022

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

April 10, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (2)