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April 23, 2022

"The End of Liberty"

The title of this post is the title of this recent piece authored by Adam Kolber and just posted to SSRN.  Here is its abstract:

Theorists treat liberty as a great equalizer.  We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal.  To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment.  Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness.  In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time.  Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for.  Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal.

April 23, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

April 21, 2022

Texas completes execution of its oldest death row inmate, while elderly condemned in Tennessee gets temporary reprieve

As detailed in this AP story, "Texas’ oldest death row inmate was executed Thursday for killing a Houston police officer during a traffic stop nearly 32 years ago." Here is more:

Carl Wayne Buntion, 78, was executed at the state penitentiary in Huntsville. He was condemned for the June 1990 fatal shooting of Houston police officer James Irby, a nearly 20-year member of the force. The U.S. Supreme Court had declined a request by Buntion’s attorneys to stop his execution.

Buntion had been on parole for just six weeks when he shot the 37-year-old Irby. Buntion, who had an extensive criminal record, was a passenger in the car that Irby pulled over. In 2009, an appeals court vacated Buntion’s sentence, but another jury resentenced him to death three years later....

With his execution, Buntion became the oldest person Texas has put to death since the Supreme Court lifted its ban on capital punishment in 1976. The oldest inmate executed in the U.S. in modern times was Walter Moody Jr., who was 83 years old when he was put to death in Alabama in 2018.

Buntion was also the first inmate executed in Texas in 2022. Although Texas has been the nation’s busiest capital punishment state, it had been nearly seven months since it carried out an execution. There have been only three executions in each of the last two years, due in part to the coronavirus pandemic and delays over legal questions about Texas’ refusal to allow spiritual advisers to touch inmates and pray aloud in the death chamber.

In March, the U.S. Supreme Court said states must accommodate requests to have faith leaders pray and touch inmates during executions. Texas prison officials agreed to Buntion’s request to allow his spiritual adviser to pray aloud and touch him while he was put to death.

Meanwhile, as discussed in this other AP piece, a much different outcome transpired in a nearby state with similar execution plans:

Tennessee’s governor on Thursday called off what was to have been the state’s first execution since the start of the pandemic, granting a temporary reprieve to the oldest inmate on death row for what was called an “oversight” in preparations for the lethal injection.

Republican Gov. Bill Lee didn’t elaborate on what exactly forced the surprise 11th-hour stop to the planned execution of 72-year-old Oscar Smith. The inmate was to have received a three-drug injection only a short while later in the evening at a Nashville maximum security prison.

“Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a temporary reprieve while we address Tennessee Department of Correction protocol,” Lee said in a statement. “Further details will be released when they are available.”

Kelley Henry, an attorney with the federal public defender’s office representing Smith, called for an independent entity to investigate, saying no execution should happen until questions are answered about what had occurred. Henry said the governor did the “right thing” by stopping the execution which would “certainly have been torturous to Mr. Smith.”

Smith was convicted of the 1989 killings of his estranged wife and her two teenage sons. Shortly before the governor intervened, the U.S. Supreme Court had denied a last-hour bid by Smith’s attorneys to block the execution plan.

Dorinda Carter, a Department of Correction spokesperson, said the state Supreme Court would need to reschedule the execution. She said Smith would be removed from death watch and returned to his cell on death row. She declined to provide additional information and referred questions to the governor’s office.

It was to have been Tennessee’s first execution since the start of the pandemic. Hours earlier, Smith had been served what was supposed to be his last meal, including a double bacon cheeseburger and apple pie, and was notified his spiritual adviser could be present in the execution chamber.

April 21, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Interesting example of federal judge rejecting white-collar plea deal as too lenient

A story this week out of Utah provides a reminder that federal judges can still have control over sentencing outcomes even in our plea bbargained justice system of pleas.  The headline of this local article captures the essence of the story: "Judge demands harsh sentence for ex-attorney accused of embezzling millions from Utah clients: Former Salt Lake City attorney Calvin Curtis faced about six years in prison as part of a plea agreement. The judge insisted on more prison time."  Here are some of the details:

A federal judge in Utah tossed out a sentencing proposal Tuesday for former Salt Lake City estate attorney Calvin Curtis, demanding that the man accused of defrauding his clients out of millions receive a harsher prison sentence.

The proposal of about six years in prison had been agreed upon by federal prosecutors and Curtis’ defense attorney ahead of the hearing. U.S. District Judge David Barlow was expected to take it into consideration before imposing a sentence.

Instead, rejecting the proposal altogether, Barlow said that as Curtis allegedly stole $12.7 million from 26 of his clients — all elderly, disabled or incapacitated — over about 13 years, the suspected fraud was “cold-blooded, premeditated and repeated.” Curtis “perverted” the law, Barlow continued, and “enriched himself on the backs of those who needed his help.”

Prosecutors have argued Curtis used that money to fund a “lavish lifestyle,” which included frequent travel, expensive gifts, tickets to basketball and football games, and pricey renovations and mortgage payments on his former mansion home and office on South Temple.  Assistant U.S. attorney Ruth Hackford-Peer said in Tuesday’s hearing that the proposed sentence of 73 months in prison was not a perfect resolution, “but it’s a good one.”

Several of Curtis’ victims attended the hearing, filling the courtroom along with family members and caregivers.... As the victims shared their stories of how devastating it has been to lose money that they would have used for various needs such as food, clothing, medicine and health care, a common refrain was for Barlow to impose the maximum sentence. “I don’t think Calvin is human,” one woman said quietly. “I feel that he’s the devil.”...

When it came time for Barlow to announce a decision, he said the proposed prison sentence — plus a restitution judgment of $12.7 million and supervised release for three years as part of Curtis’ plea agreement — was not harsh enough.  Since Curtis’ crimes were “so heinous,” Barlow said, he should receive a prison sentence at the higher end of the range that is customary in such a case, which is 10 years. The judge added that he is “not convinced” that Curtis — who is charged with wire fraud and money laundering — takes responsibility for his actions or feels remorse.

Barlow asked the attorneys for both sides to negotiate again and come up with a new sentencing proposal. A new hearing date was not immediately set....

Laura Milliken Gray, an attorney for a woman with Alzheimer’s disease from whom Curtis has admitted to embezzling more than $9 million, called Barlow’s decision a “surprise.”  Her client’s daughter-in-law, Sherry McConkey, said she is “excited” at the prospect of Curtis getting more time in prison than expected. But she added that it’s “hard” the case will go on longer, “because I just want it to be over and done with.”

April 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (44)

Ruling 6-3, SCOTUS sets out added requirements for federal habeas petitioners

The Supreme Court this morning handed down an opinion in Brown v. Davenport, No. 20–826 (S. Ct. April 21, 2022) (available here), that perhaps only a fed courts junkie could love. The opinion produced a familiar ideological split and here is how Justice Gorsuch's opinion for the Court starts:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U.S. 619 (1993)?  Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)? The Sixth Circuit ruled that an individual who satisfies Brecht alone is entitled to habeas relief.  This was mistaken.  When a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.

Justice Kagan authored the dissent, which starts this way:

Twice in recent years, this Court has addressed how a federal habeas court is to evaluate whether a state trial error was harmless.  See Fry v. Pliler, 551 U.S. 112, 119–120 (2007); Davis v. Ayala, 576 U.S. 257, 267–270 (2015).  And twice, we have made clear that the habeas court need apply only the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993); it need not also run through the test set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is because, we have both times explained, the Brecht standard “obviously subsumes” the “more liberal” AEDPA one: If a defendant meets the former, he will “necessarily” meet the latter too.  Fry, 551 U.S., at 120; Ayala, 576 U.S., at 270.

Today, the Court discards those crystal-clear statements, subscribed to on each occasion by every Justice.  The majority reverses the Court of Appeals for following our prior guidance, allowing the use of the Brecht test alone.  And in declaring Brecht insufficient, the majority consigns future habeas courts to a regimen of make-work.  Now those courts will have to jump through AEDPA’s hoops as well, even though that extra analysis will never lead to a different result.  I respectfully dissent from that pointless demand.

April 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Firing squad execution stayed, while another execution date set, by South Carolina Supreme Court

Notable capital developments in South Carolina are covered in the CNN piece, which starts this way: "South Carolina's Supreme Court issued a temporary stay of execution Wednesday for Richard Bernard Moore, who was scheduled to be the first person executed by firing squad in the state." Here is more:

Lindsey Vann, one of Moore's attorneys, told CNN last week that they asked the state's highest court to put the execution on hold in order to give them time to appeal his conviction to the US Supreme Court.

Moore, who was sentenced to death for the 1999 murder of a convenience store clerk, was scheduled to be executed April 29. In a court filing last week, he chose firing squad over the electric chair.. He did not have the option of choosing lethal injection, as South Carolina does not have the necessary drugs, according to the filing. The state Department of Corrections previously told CNN it has not been in possession of a usable dose of lethal injection drugs since 2013.

Moore chose to die by firing squad but added in a statement he will not lose hope in two pending court challenges to the constitutionality of the state's death penalty method. "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," he said in the statement.

He chose firing squad, as required 14 days before the date of his execution, because "I more strongly oppose death by electrocution," he wrote. Moore, 57, would be the first person executed in South Carolina in more than a decade.

Last year, the state Legislature passed a law that made electrocution the state's primary execution method, though death row prisoners have the option to choose a firing squad or lethal injection instead if the options are available....

Also Wednesday, the state set an execution date for Brad Keith Sigmon, who was sentenced in 2002 for two murders. Sigmon, who had a stay of execution last year, is scheduled to die May 13.

As I understand matters, Sigmon will now need to select between electrocution and a firing squad as his method of execution by the end of next week.  So it may still only be a matter of weeks before South Carolina conducts an "old school" execution.

April 21, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

April 20, 2022

Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"

CJHDI keep hoping and hoping that we will be getting nominations from Prez Biden to the US Sentencing Commission just about any day now. Excitingly, even while being kept waiting for long-overdue USSC nominations, I can now look forward to a weekly panel series dedicated to examining thoroughly and thoughtfully what new nominees should be doing.  Specifically, the Center for Justice and Human Dignity (CJHD) is presenting a series of panels on the "Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond," which will run Tuesdays at 12noon ET from May 3 through May 24.

CJHD is a nonprofit organization whose mission is explained here in terms of seeking "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside.  We promote values of human dignity and shared safety while keeping in mind the needs of survivors, directly impacted people, and society at large. Alongside diverse partners, we collaborate with judges on alternative sentencing, correctional leaders on the conditions of confinement, and policymakers on early release strategies."

This events page provides this account of this panel series:

While the President considers the U.S. Sentencing Commission appointments, judges and judicial-focused organizations are examining how the agency might better address the myriad ways its guidelines impact mass incarceration.  The nation has an opportunity to reimagine how the Commission might use its authority to further decarceration efforts and address other system disparities through its guidelines and policy statements.

During this symposium, judges, scholars and practitioners will share their thoughts on these topics and reflect on how legislation like the First Step Act has expanded the use of compassionate release and other opportunities for decarceration.

Over the course of four weeks in May, this virtual symposium will offer weekly panels addressing how the U.S. Sentencing Commission can be supportive of federal alternative to incarceration programming, sentencing review mechanisms, promising practices from state sentencing commissions, and changes to the guidelines practitioners and other leaders in the field are interested in seeing once commissioners are appointed.

The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond. A weekly panel discussion, Tuesdays at 12pm ET, May 3-24, 2022 Click here to register online

I had the pleasure of helping just a bit in planning some of the topics for these panels, as well as the great honor of moderating one part of this important discussion. The speakers involved are really great, and I am looking forward to the whole series (and I sure hope we finally have some Commissions nominees from Prez Biden before the series concludes).

April 20, 2022 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Rounding up some criminal justice postings from Marijuana Law, Policy & Reform

I suppose I would come off as a bit of a sativa Scrooge if I did not post something about marijuana on 4/20.  Because I have not done a round-up of posts from my blogging over at Marijuana Law, Policy & Reform in quite some time, I will use this very unofficial holiday as an excuse to round up some criminal justice postings from there.  A number of these posts involve terrific work by students in my seminar collecting readings on the topics of their research, so be sure to check them all out:

April 20, 2022 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"Punitive Restoration"

The title of this post is the title of this new book chapter authored by Thom Brooks.  Here is its abstract:

Restorative justice is highly promising as an effective approach to better support victims, reduce reoffending, and lower costs.  The challenge it faces is a dual hurdle of limited applicability and lack of public confidence.  The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence.  This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive element.  Its goal is to win support for greater use of restorative practices and a less punitive criminal justice system overall.

April 20, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

April 19, 2022

Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants?

The question in the title of this post is prompted by this lengthy New York Post article headlined "Ahead of 4/20, pot prisoners push Biden to honor campaign pledge to free them." I recommend the piece in full, and here are excerpts:

On the eve of the 4/20 cannabis holiday, federal inmates again are wondering if and when President Biden will make good on his 2020 campaign pledge to free “everyone” locked up on marijuana charges.  About 2,700 inmates are behind federal bars on pot-related charges — even though 18 states and DC now allow recreational use of the drug and two-thirds of Americans support legalization.

They include Pedro Moreno, 62, who is serving a life sentence after pleading guilty to distributing weed imported from Mexico from 1986 to 1996. “I will die in prison for marijuana unless I receive executive clemency,” Moreno told The Post....

Clemency advocates recently met with White House staff and believe Biden may eventually intervene.  But that it may not happen anytime soon as other initiatives take priority, such as commuting the sentences of people released temporarily from prison due to the COVID-19 pandemic....

Luke Scarmazzo, 41, has served 14 years of a 22-year sentence for running a medical marijuana operation in California and told The Post that he’s also struggling to maintain hope.  “When President Biden made those statements on the campaign trail, my family and I were very hopeful that our nightmare was finally coming to an end,” Scarmazzo said. “We are now nearly two years into President Biden’s term and we’re wondering when he will make good on his promise.”

Donald Fugitt, 37, noted how the country has changed in the decade since he was arrested in 2013.  “Another 4/20 and everybody is smoking and making money, but I’m still in a COVID-19-infested prison,” said Fugitt, a North Texas native who gets out in 2024 unless Biden reduces his sentence.  “I’ve accepted responsibility for my participation in a marijuana conspiracy. Everyone on my case is home except me. This was my first offense.”

Federal pot inmates include Lance Gloor, 43, who has two years left of a 10-year sentence for running dispensaries in Washington that he says sold state-legal medical marijuana, though federal prosecutors disagreed.  Gloor’s mother, Tracie Gloor Pike, says he had a severe case of COVID-19 last year and suffers rare complications....

Biden said on a debate stage in 2019: “I think we should decriminalize marijuana, period.  And I think everyone — anyone who has a record — should be let out of jail, their records expunged, be completely zeroed out.” But Biden hasn’t yet used his clemency powers to release anyone from prison....

Weldon Angelos, a former federal marijuana inmate and co-founder of the group Mission Green, helped craft a rubric that would ensure only non-violent prisoners are released and told The Post he has been involved in talks with the White House. “Candidate Biden promised to use his pardon power to free those still incarcerated federally for cannabis offenses, which gave a lot of hope to many,” Angelos said. “We have had a number of conversations with the White House of this topic and believe that Biden will keep his campaign promise. When that happens is another matter entirely, but we are encouraged.”...

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m not sure why we are still waiting for President Biden to free all the pot prisoners.” Povah said, however, that “I’m encouraged to see there is a new pardon attorney,” Elizabeth Oyer, who will vet clemency paperwork.  “[Oyer is] a former public defender. She is a refreshing choice since previous pardon attorneys have typically been prosecutors who often have a punitive mindset toward applicants,” Povah said....

In January 2021, then-President Donald Trump commuted the sentences of seven people serving life terms for marijuana — including two men who were given life without parole under the three-strikes provision of the Biden-authored 1994 crime law.

Michael Pelletier, a 65-year-old wheelchair-bound paraplegic, was among those released by Trump. He had a life sentence for smuggling Canadian pot into Maine before both legalized recreational markets.

“I thank President Trump every day that I wake up in a comfortable bed in a beautiful home in Florida surrounded by loving family, rather than the screeching sound of the PA system announcing another lock down due to violence,” Pelletier said. “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

A few on many prior recent related posts:

April 19, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Highlighting just some of the notable US executions scheduled for the next few weeks

This Upcoming Executions page at the Death Penalty Information Center has listed six executions scheduled to be carried out by five states over the next three weeks.  Given that there have only been three executions nationwide so far in 2022 and that there were only eight state executions in all of 2021, the fact that six executions might be completed in the span of a few weeks is itself noteworthy.  But, as this Voice of America article details, there are some particularly notable aspects of some of these scheduled executions.  Here is excerpts from the VOA piece:

Capital punishment has been on the wane in the United States but an upcoming slate of executions has refocused attention on the use of the death penalty.

Richard Moore, a 57-year-old African-American man, is to be executed in South Carolina on April 29 for the 1999 murder of a convenience store clerk during a robbery. It would be the first execution in the southern state in over a decade.

Recent US executions have been carried out by lethal injection but South Carolina has been forced to abandon that method because drug manufacturers are refusing to supply the necessary ingredients. So Moore had the choice between the electric chair and a firing squad made up of three rifle-toting volunteers from the Corrections Department. He chose the firing squad....

There have been three executions in the United States this year. There were 11 in 2021, down from 17 in 2020. Only one of the executions in 2021 was of a woman and of the more than 1,540 people executed in the United States since 1976, only 17 have been women. Melissa Lucio, 53, could be the 18th.

Lucio, a Mexican-American mother of 14, is scheduled to be executed by lethal injection in Texas on April 27 for the 2007 death of her two-year-old daughter, Mariah. Lucio claims a confession was coerced by police during a five-hour interrogation and that the toddler's death was actually caused by an accidental fall down a staircase.

Her case has been championed by the Innocence Project, which fights for the wrongly convicted, and reality TV star Kim Kardashian, who has urged Texas Governor Greg Abbott to grant clemency for Lucio.....

Also scheduled to be executed in Texas in coming days is Carl Wayne Buntion, who was sentenced to death in 1991 for the murder of a Houston police officer. Buntion, who does not dispute his guilt, is scheduled to die by lethal injection on April 21.

At 78, he is the oldest man on Death Row in Texas and his lawyers have argued that executing him now - more than 30 years after the crime - would constitute "cruel and unusual punishment." Texas law also requires it be established that Buntion would "likely harm others if he is not executed," his lawyers said.

Buntion, they said, poses no danger to anyone and suffers from multiple ailments including arthritis, vertigo, hepatitis, sciatic nerve pain, and cirrhosis. "Mr. Buntion is a frail, elderly man," his lawyers said in a petition to the Texas Board of Pardons and Parole, "and will not be a threat to anyone in prison if his sentence is reduced to a lesser penalty."

Buntion also has been in solitary confinement for the past 20 years, restricted to his cell for 23 hours a day.

April 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

April 18, 2022

"A Welfare Analysis of Medicaid and Crime"

The title of this post is the title of this notable new empirical paper now on SSRN and authored by Erkmen Giray Aslim, Murat Mungan and Han Yu.  Here is its abstract:

We calculate conservative estimates for the marginal value of public funds (MVPF) associated with providing Medicaid to inmates exiting prison.  Our MVPF estimates, which measure the ratio between the benefits associated with the policy (measured in terms of willingness to pay) and its costs net of fiscal externalities, range between 3.44 and 10.61.  A large proportion of the benefits that we account for are related to the reduced future criminal involvement of exiting inmates who receive Medicaid.  Using a difference-in-differences approach, we find that Medicaid expansions reduce the average number of times a released inmate is reimprisoned within a year by about 11.5%.

We use this estimate along with key values reported elsewhere (e.g., victimization costs, data on victimization and incarceration) to calculate specific benefits from the policy. These include reduced criminal harm due to reductions in reoffenses; direct benefits to former inmates from receiving Medicaid; increased employment; and reduced loss of liberty due to fewer future reimprisonments.  Net-costs consist of the cost of providing Medicaid net of changes in the governmental cost of imprisonment; changes in the tax revenue due to increased employment; and changes in spending on other public assistance programs. We interpret our estimates as being conservative, because we err on the side of under-estimating benefits and over-estimating costs when data on specific items are imprecise or incomplete.

Our findings are largely consistent with others in the sparse literature investigating the crime-related welfare impacts of Medicaid access, and suggest that public health insurance programs can deliver sizeable indirect benefits from reduced crime in addition to their direct health-related benefits.

April 18, 2022 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (0)

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

April 18, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

April 17, 2022

"Entitlement to Punishment"

The title of this post is the title of this paper recently posted to SSRN and authored by Kyron Huigens. Here is its abstract:

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification.  It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism.  The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights.  It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation.  We impose punishment when an offender initiates an ordered sequence of rights- power, claim, duty, power, liability-by means of committing a crime.  This sequence ends with the offender's holding both a claim to be punished and a liability for punishment.  This pair of legal relations is not a right to punishment, because it is more than a claim with a corresponding duty.  To hold this claim and this liability to punishment in tandem, as cognate legal relations, is better described by the more comprehensive term "entitlement." Neither desert nor good consequences is part of this account of how and why we punish.  It is enough to say that an offender is entitled to punishment.

Entitlement to punishment is a more accurate and honest description of the reason we punish than either desert or good consequences is.  The belief that legal punishment is imposed because and only when it is deserved obscures the extent to which legal punishment is a consequence of moral luck.  The word "entitlement" better describes the situation of a person who has entangled himself in criminal law's stringent rules as a consequence of his limited power to overcome unpredictable outcomes, his circumstances, the influences on his character, or his personal history.

Finally, entitlement to punishment reflects the moral salience of criminal law.  Entitlement to punishment conveys respect for the rationality of criminal offenders and their capacity for self-determination-particularly when criminal law is cast as a choosing system and as part of a conception of positive liberty centered in autonomy.

April 17, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)