Sentencing Law and Policy

Supreme Court of Canada declares all LWOP sentences unconstitutional as "degrading in nature and thus intrinsically incompatible with human dignity"

As this press article details, "Canada’s supreme court has ruled that life sentences without the chance of parole are both “cruel” and unconstitutional, in a landmark decision that could give more than dozen mass killers who committed “inherently despicable acts” the faint hope of release in the future." Here is more from the press piece about Friday's ruling:

The court unanimously determined on Friday that sentencing killers to lengthy prison terms with little hope of freedom risked bringing the “administration of justice into disrepute”.

The closely watched case centred on the fate of Alexandre Bissonnette, the gunman who killed six worshippers at a mosque in Québec City in 2017, but the court’s decision will possibly have consequences for at least 18 others who are serving multiple life sentences.

In Canada, those serving a life sentence for first-degree murder are eligible to apply for parole at 25 years. But in 2011, the Conservative government gave justices the ability to hand out consecutive sentences, rather than concurrent blocks of 25 years.

In the case of Bissonnette, the 27-year-old pleaded guilty to six counts of first-degree murder and six counts of attempted murder in 2018, after he entered the Islamic Cultural Centre in Québec City with a semi-automatic rifle and pistol, opening fire on worshippers. The prime minister, Justin Trudeau, called the act a “terrorist attack”.

Drawing on the 2011 provision, Crown prosecutors asked a judge to impose a parole ineligibility period of 150 years, the harshest sentence ever handed down in Canada since the abolition of the death penalty. Prosecutors said Bissonnette should serve 25 consecutive years for each of the six people he murdered.

The sentencing judge instead ruled Bissonnette would have the chance of parole at 40 years. That decision was overturned in 2020 by Quebec’s court of appeal, which ruled unanimously that Bissonnette should have a chance of parole at 25 years. Bissonnette, now 32, will be eligible to apply for parole in his 50s.

The ruling of the court applies retroactively to 2011 and could affect at least 18 others whose parole eligibility exceeds 25 years, even those who have exhausted their appeals. In some cases, people have been handed a 75-year wait period before being able to apply for parole....

Acknowledging the heinous crimes of those serving multiple life sentences, Chief Justice Richard Wagner wrote that the ruling “must not be seen as devaluing the life” of innocent victims. “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”

The full ruling in R. v. Bissonnette, 2022 SCC 23 (Canada May 27, 2022), is available here.  Here is just one of many notable passages: 

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.  The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system.  A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity.  Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them.  Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

To review, then, in Canada it is unconstitutional to impose functional life without parole sentences on even mass murderers, wheres in the United States many thousands of persons (and mostly persons of color) have been sentenced in recent decades to LWOP terms for federal drug offenses.

Helping to spread a federal sentencing "message" for a "corruption superspreader"

I always find it is interesting when judges in relatively low-profile cases talk about "sending a message" at sentencing, and I suppose I should try to make a habit of helping judges spread the messages they hope to be sending.  To that end, here I will flag this recent sentencing story out of Chicago headlined "‘You were a corruption superspreader’: Judge sentences ex-state Rep. Luis Arroyo to 57 months in prison in bribery case involving sweepstakes machine bill."  Here are excerpts:

Saying he needed to send a message on the cost of public corruption, a federal judge on Wednesday sentenced former state Rep. Luis Arroyo to nearly five years in federal prison for trying to bribe a state senator to help with legislation expanding the shadowy world of sweepstakes gambling machines.

Rejecting a defense plea for probation, U.S. District Judge Steven Seeger railed against Arroyo’s “dirty” conduct, saying in a lengthy speech that he sold out an already corruption-weary public and committed a “frontal assault on the very idea of representative government.”

“You were a corruption superspreader,” Seeger said near the end of a nearly four-hour hearing at the Dirksen U.S. Courthouse.  “The public did not get what they deserved.  They voted for an honest representative, and what they got was a corrupt politician.”

Arroyo’s lawyers had maintained that a prison sentence for the longtime Chicago Democrat would do nothing to stop the state’s seemingly intractable corruption problem and would be akin to “draining Lake Michigan with a spoon.”

But the judge took particular umbrage with attempts to downplay what Arroyo did, and at one point asked defense attorney Michael Gillespie specifically about the spoon comment.  “What does that mean?” the judge asked.  ”What am I supposed to do with that?”  As Gillespie fumbled for an answer, Seeger interrupted in a stern voice: “Maybe judges need a bigger spoon.”

Arroyo, 67, entered a blind guilty plea in November to one count of honest services fraud, a move that came without an agreement with prosecutors on what sentencing recommendations should be made to the judge.  The 57-month term imposed by Seeger was above the four years in prison recommended by prosecutors on Wednesday....

Arroyo resigned his seat shortly after he was arrested in 2019 on the bribery charges. A superseding indictment later added new wire and mail fraud charges against Arroyo and also charged James T. Weiss with bribery, wire fraud, mail fraud and lying to the FBI....

The case centers on the largely uncharted world of sweepstakes machines, sometimes called “gray machines,” for which Arroyo was moonlighting as a lobbyist.  The machines allow customers to put in money, receive a coupon to redeem for merchandise online and then play electronic games like slot machines.... According to the 15-page indictment, Weiss paid bribes to Arroyo beginning in November 2018 in exchange for Arroyo’s promotion of legislation beneficial to Weiss’ company, Collage LLC, which specialized in the sweepstakes machines....

In his remarks, Seeger said it was clear that Arroyo was a devoted family man and “a pillar of his community,” but chastised him repeatedly for trying to downplay the severity of his corrupt acts. The judge also noted that while there was no evidence of any other crimes committed in the wiretapped conversations, Arroyo certainly knew the language of corruption and seemed to be “in familiar territory.”

“I need to make sure that the message gets out that public corruption isn’t worth it,” Seeger said. “For whatever reason, that message isn’t getting through.”

Air Force Court of Criminal Appeals decides court martialed prisoner cannot seek compassionate release in military courts

A helpful reader altered me to an interesting ruling this week from the US Air Force Court of Criminal Appeals in In re Kawai, Misc. Dkt. No. 2022-02 (AFCCA May 25, 2022) (available here). Here is how the opinion gets started:

On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).  This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response.  We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.

Here is a key portion of the ruling:

The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022).  Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004).  Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.).  Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

Spotlighting the messiness of AEDPA more than a quarter century later

The Supreme Court's ruling earlier this week on the limits of federal habeas review (basic here, commentary here) has folks talking a bit more about the legal mess that is AEDPA.  The folks at The Marshall Project now have this new review under this full headline: "The 1990s Law That Keeps People in Prison on Technicalities: How the Supreme Court expanded the most important law you’ve never heard of."  Here are some excerpts (with links from original):

Earlier this week, the Supreme Court told Arizona prisoner Barry Jones that even though four federal judges agreed he may well be innocent of the 1994 murder that sent him to death row, the high court couldn’t overturn his conviction or stop Arizona from executing him. (Jones had argued he was hindered by poor lawyering at multiple stages of his case.)

In a 6-3 decision on Monday, in a case titled Shinn v. Martinez Ramirez, the conservative justices said they couldn’t do anything about it, because of one wonky law passed by Congress in 1996 and signed by then-President Bill Clinton. Misleadingly called the Antiterrorism and Effective Death Penalty Act, the law was created during the tough-on-crime ‘90s, to keep violent prisoners from getting released on what politicians called technicalities. But now, experts say the law actually keeps innocent people in prison on technicalities — and most of the cases it affects have nothing to do with terrorism or capital punishment.

In these cases, the importance of finality outweighs any claims the prisoners might make, the court’s conservative majority said. “Serial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law,’” Justice Clarence Thomas wrote.

While many judges and prosecutors complain about the length of the appeals process, these days there are few defenders of the 1996 law — other than state attorneys general who prosecute appeals in federal courts. “Lots of people are stuck,” said Christina Mathieson, director of the National Habeas Institute, which advocates for prisoners in these cases. “The gates to the federal courts are closed.”

Here are five things you should know about the law known as AEDPA (“ed-puh”):

1. It was created after the Oklahoma City bombing....

2. The law makes it harder for many prisoners to win appeals....

3. The law was intended to speed up death row appeals, but failed....

4. It doesn’t just affect terrorism and death penalty cases....

5. It makes federal courts less powerful....

Former reality star Josh Duggar sentencing to just over 12.5 years in federal prison for child pornography offense

In this post last week, I spotlighted the sentencing submission of the parties in a high-profile federal sentencing and asked "what federal sentence for former reality star Josh Duggar after child pornography convictions?".  I noted that the prosecution was asking for the statutory max of 20 years (and they said the guideline range was 30 to life), while Duggar asked for a sentence of five years.  The post generated a lot of thoughtful comments, and atomicfrog predicted "a sentence in the 10-12 year range."  That was pretty close, as this new BuzzFeed News piece explains in its headline: "Josh Duggar Has Been Sentenced To 12.5 Years In Prison Over Child Sexual Abuse Materials."

Though not discussed at length in the BuzzFeed piece, I surmise from this People article that the sentencing judge here may not have adopted all of the guideline enhancements pursued by the Government.  Here is a snippet:

Prosecutors had asked that he serve the maximum sentence of 20 years in prison, while Duggar’s defense team had asked for five. “Duggar has a deep-seated, pervasive, and violent sexual interest in children,” Assistant US Attorney Dustin Roberts wrote in a sentencing memo.

Both Duggar's wife, Anna, and father, Jim Bob, were in court in Fayetteville on Wednesday for the sentencing.

On Tuesday, District Judge Timothy Brooks issued a 29-page opinion rejecting Duggar's plea for a new trial. "There is no merit to Mr. Duggar’s argument in favor of acquittal," the judge wrote....

After a lengthy hearing Wednesday in which he heard a number of objections from the defense, the judge sentenced Duggar to 151 months in prison.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

Prior related posts:

• How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?
• You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

Some sharp headlines in response to sharp SCOTUS habeas limits

The US Supreme Court's ruling earlier this week in Shinn v. Martinez Ramirez, No. 20-1009 (S. Ct. May 23, 2022) (available here), provides still further evidence that a significant majority of Justices are quite eager to limit and cut back on federal habeas review of state convictions.  That reality surely helps explain why some of the early commentary about the ruling, at least as judged by headlines, is notably sharp.  Here are just some examples: 

From The Daily Beast, "The Supreme Court Just Said That Evidence of Innocence Is Not Enough"

From HuffPost, "The Supreme Court Just Made It More Likely Innocent People Will Be Executed"

From The New Republic, "The Supreme Court Decides Death Row Prisoners Don’t Deserve Competent Lawyers"

From Salon, "Legal experts: Clarence Thomas’ “radical” ruling forces innocent people to stay in prison"

From Vox, "The Supreme Court just condemned a man to die despite strong evidence he’s innocent"

Though I am troubled by where the Supreme Court seems to be heading with its recent habeas jurisprudence, some of these headlines strike me as a bit too sharp.  For somewhat more measured accounts, here are two other notable blog perspectives on Martinez Ramirez:

From Crime & Consequences, "Taking Statutes Seriously"

From SCOTUSblog, "Conservative majority hollows out precedent on ineffective-counsel claims in federal court"

So many depressing stories in a country awash with so many guns

Another week brings news of another horrific mass shooting in the USA, this one ever so depressing because its victims were so many young children murdered at an elementary school.  And, sadly, mass shootings are only one component of modern depressing gun realities in the United States: recent years have brought increases in gun homicides as gun sales have continued to spike.  While recent homicide numbers would seem to undercut narratives that more guns mean more safety, I have come to doubt that any horrible mass shooting or any detailed data are likely to alter our nation's current gun policies or politics.

That said, particularly with a major Supreme Court Second Amendment ruling likely in the works, I still find data about how existing gun laws are criminally enforced to be noteworthy.  And this data can also be quite depressing, as evidenced by this new lengthy local article headlined "There’s a large racial disparity in federal gun prosecutions in Missouri, data shows."  Here are excerpts:

[Darrell] Hargraves [in 2018] became one of more than 3,600 people convicted between 2015 and 2021 for federal firearm possession in Missouri, which outranks the rest of the nation for its rate of prosecution of such crimes.

In an analysis of federal sentencing and crime data, The Kansas City Star found Black people were disproportionately convicted for illegally carrying firearms compared to white people.  They were also sentenced more harshly.

In the Eastern District, a federal court jurisdiction that includes St. Louis, 81% of those convicted of illegal firearm possession in the past seven years were Black. In the Western District, which includes Kansas City, 54% were Black. Together the two districts cover the entire state of Missouri.  The state’s population is 12% Black.

In the Western District in 2020, Black people were also more than twice as likely to receive sentences above the recommended guidelines for firearm possession compared to white people, according to data from the United States Sentencing Commission.

Don Ledford, a spokesman for the U.S. Attorney’s Office in the Western District, said the office did not have demographic information on gun possession convictions.  “Race is not a factor in prosecutorial decision making or sentencing recommendations,” Ledford said.  “Therefore, we don’t track defendants or cases on that criteria.”

But researchers, advocates and community members say when it comes to carrying guns, Black people are treated differently as a result of the structure of the state’s gun policies and uneven enforcement.  “There was certainly a racial politics on who got to carry a gun ... There were African American men who tried to open carry and would get attacked or shot,” said Dr. Jonathan Metzl, author of “Dying of Whiteness” and director of the Center for Medicine, Health, and Society at Vanderbilt University.  “They’re seen as criminals.”...

Hargraves said he wants to see the community be safer. “I do understand there are individuals that regardless of race are harming people,” he said. “My problem lies … in unfairness, the unfairness in sentencing, the unfairness in prison, the unfairness in not assessing the overall situation.”

The Eastern and Western districts of Missouri ranked first and sixth, respectively, for the number of people incarcerated for illegal firearm possession in any federal district in 2021.  The year before, they ranked first and third.

The rate of firearm possession began to noticeably increase in Missouri’s federal districts in the early days of Project Safe Neighborhood, a U.S. Department of Justice program that began in 2001, said Ken Novak, a criminal justice professor at the University of Missouri-Kansas City.  It brought together federal, state and local law enforcement officials, prosecutors, community leaders, and other stakeholders to identify the most serious violent crime problems in each region. In Missouri’s federal districts, that was gun violence and homicides, said Novak.  That led to more federal prosecutions for gun violations....

However there is little evidence to suggest incarcerating people for firearm possession helps curb violent crime or targets those who perpetrate gun violence in their communities, according to research by legal experts and federal defenders.  In Missouri, the majority of violent crimes are committed by people under the age of 30, according to data from the FBI’s Uniform Crime Reporting program.  Meanwhile, 63% of those convicted for federal firearm possession in the state are 30 or older.

"A Catholic Perspective on Prison Conditions and Human Dignity"

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

Criminal offenders in the United States are often reviled. Instead of viewing them as individuals who need help, many view them as “irredeemable,” “dirt,” “slime,” “scum,” “animal[s],” “sewer rats.”  As Catholics, though, we are taught to resist such impulses.  We are called to put aside our overwhelming grief and fear when facing offenders and resist seeking revenge.  We are instead asked to reach out our hands to sinners and offer them our forgiveness.  This may be difficult to do, but walking in the steps of Christ requires just that.

In following Jesus’ path not only are we working against our natural instincts of fear and revenge, but we are also working against the mass machinery of the American criminal justice system.  Today, in the United States, there is often the mentality of locking up an offender and throwing away the key.  Out of sight, out of mind.  We generally keep offenders behind closed doors and, as measured against the practices in other countries, we keep them there for very long periods of time.  Indeed, with nearly two million people, or approximately 0.6% of our population, behind bars, we incarcerate more individuals per capita than any other country in the world.  Further, prisons are often located out of town, in remote locations; prison visits are relatively rare, and there is often little mainstream reporting of what goes on behind prison walls; and some incarceration facilities have even claimed trade-secret protection over their policies.  Once an individual has been accused, convicted, and sentenced, he is often erased from most of society’s consciousness.

Behind the tall prison walls topped with razor wire, there is much that Catholics should be concerned about.  Some prisons lack air conditioning and adequate plumbing, leaving inmates suffering in blistering conditions and wading through sewage.  Many prisons suffer from severe overcrowding, contributing to unlivable conditions where vulnerable inmates are neglected and left in unsanitary conditions.  Most prisons offer insufficient healthy food and inadequate medical care.  Prison violence, including sexual assault, is a frequent occurrence. And prisons regularly place inmates in solitary confinement even though the practice is known to cause severe and permanent physical and mental health problems.

In his recent encyclical letter Fratelli Tutti, Pope Francis suggested that Catholics should work to traverse the wall of secrecy surrounding prison conditions and push to improve them: "All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom." Today’s prison conditions are often abhorrent, and we have much work to do.

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong? 
• Shouldn't federal prosecutors already be doing what they can to minimize the unjust crack-powder sentencing disparity? 
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• How about passing the EQUAL Act so we can be "free at last" from the crack/powder sentencing disparity?
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• Is Congress finally on the verge of equalizing crack and powder cocaine sentences?
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Notable (pandemic-impacted) justice data in "Federal Justice Statistics, 2020"

The Bureau of Justice Statistics has this new publication full of notable federal statistics under the title ""Federal Justice Statistics, 2020."  Here is how the 30-page document is briefly introduced:

Federal arrests declined 42% from fiscal year (FY) 2019 to FY 2020, reaching their lowest level since FY 2001. Of the 346,681 persons under federal correctional control at fiscal year-end 2020, about 56% were in secure confinement and 44% were on community supervision. This was a decline from fiscal year-end 2010, when 401,198 persons were under federal correctional control.

This report describes cases processed by the federal criminal justice system. Data are from the Federal Justice Statistics Program, which collects, standardizes, and reports on administrative data received from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts (AOUSC), Executive Office for U.S. Attorneys, Federal Bureau of Prisons (BOP), and U.S. Sentencing Commission.

There is way too much data in this document to summarize, though the impact of the pandemic is clear in a lot of the 2020 data points. Here are some sentencing/prison passages of note concerning fiscal year 2020 data:

Convicted males (69%) were sentenced to prison more often than convicted females (58%). Twenty-one percent of convicted females received a probation-only sentence, compared to 6% of convicted males. Convicted black defendants (85%) were the most likely to receive a prison sentence, followed by convicted American Indian or Alaska Native (79%); white (76%); Asian, Native Hawaiian, or Other Pacific Islander (67%); and Hispanic (60%) defendants.  Among those sentenced to prison, white and black defendants were both sentenced to a median of 60 months....

In FY 2020, a total of 36,914 federally sentenced persons were admitted to federal prison. Of these, 28,747 persons entered federal prison on U.S. district court commitments.  Another 8,167 persons were returned to federal prison for violating conditions of probation, parole, or supervised release or were admitted to federal prison for any reason other than a U.S. district court commitment.  Thirty-seven percent (21,972) fewer admissions occurred in FY 2020 than in FY 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  In FY 2020, a total of 13,619 persons entered federal prison for a drug offense, most of whom (10,415 or 76%) had been sentenced to more than 1 year.

A total of 59,044 persons were released from federal prison in FY 2020.  Most (45,694) were being released for the first time since their U.S. district court commitment.  Ten percent (6,537) fewer releases occurred in 2020 than in 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  There were 22,130 fewer persons in federal prison at the end of FY 2020 (September 30, 2020) than at the start of FY 2020 (October 1, 2019), a much larger drop than in previous years due in part to the federal response to the coronavirus pandemic.  The last time the year-end federal prison population was this low (132,291) was in 2000 (129,329).  From the start to the end of FY 2020, 8,039 fewer persons were in prison for a drug offense and 5,492 fewer were in prison for an immigration offense.

Supreme Court decides, via usual 6-3 vote, to read AEDPA restrictively to limit federal habeas efforts

The Supreme Court this morning released two opinion, one of which dealt with federal habeas process in a capital case.  The ruling was the product of a 6-3 vote in Shinn v. Martinez Ramirez, No. 20-1009 (S. Ct. May 23, 2022) (available here), with the opinion for the Court authored by Justice Thomas and the dissent authored by Justice Sotomayor.  Here is how the opinion for the Court gets started:

A federal habeas court generally may consider a state prisoner’s federal claim only if he has first presented that claim to the state court in accordance with state procedures.  When the prisoner has failed to do so, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.”  To overcome procedural default, the prisoner must demonstrate “cause” to excuse the procedural defect and “actual prejudice” if the federal court were to decline to hear his claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez v. Ryan, 566 U.S. 1 (2012), this Court explained that ineffective assistance of postconviction counsel is “cause” to forgive procedural default of an ineffective-assistance-of-trial-counsel claim, but only if the State required the prisoner to raise that claim for the first time during state postconviction proceedings.

Often, a prisoner with a defaulted claim will ask a federal habeas court not only to consider his claim but also to permit him to introduce new evidence to support it.  Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the standard to expand the state-court record is a stringent one.  If a prisoner has “failed to develop the factual basis of a claim in State court proceedings,” a federal court “shall not hold an evidentiary hearing on the claim” unless the prisoner satisfies one of two narrow exceptions, see 28 U.S.C. §2254(e)(2)(A), and demonstrates that the new evidence will establish his innocence “by clear and convincing evidence,” §2254(e)(2)(B).  In all but these extraordinary cases, AEDPA “bars evidentiary hearings in federal habeas proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013).

The question presented is whether the equitable rule announced in Martinez permits a federal court to dispense with §2254(e)(2)’s narrow limits because a prisoner’s state postconviction counsel negligently failed to develop the state-court record.  We conclude that it does not.

Here is how the dissent gets started:

The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial.  This Court has recognized that right as “a bedrock principle” that constitutes the very “foundation for our adversary system” of criminal justice.  Martinez v. Ryan, 566 U.S. 1, 12 (2012).  Today, however, the Court hamstrings the federal courts’ authority to safeguard that right. The Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.

In reaching its decision, the Court all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court. Just 10 years ago, the Court held that a federal court may consider a habeas petitioner’s substantial claim of ineffective assistance of trial counsel (a “trial-ineffectiveness” claim), even if not presented in state court, if the State barred the petitioner from asserting that claim until state postconviction proceedings, and the petitioner’s counsel in those proceedings was also ineffective. See id., at 17; see also Trevino v. Thaler, 569 U.S. 413, 429 (2013).  Martinez and Trevino establish that such a petitioner is not at fault for any failure to bring a trial-ineffectiveness claim in state court. Despite these precedents, the Court today holds that such a petitioner is nonetheless at fault for the ineffective assistance of postconviction counsel in developing the evidence of trial ineffectiveness in state court.  The Court instead holds that a petitioner in these circumstances, having received ineffective assistance of trial and postconviction counsel, is barred from developing such evidence in federal court.

This decision is perverse. It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings, as Martinez and Trevino did, but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez’s and Trevino’s core reasoning.  The Court also arrogates power from Congress: The Court’s analysis improperly reconfigures the balance Congress struck in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) between state interests and individual constitutional rights.

By the Court’s telling, its holding (however implausible) is compelled by statute.  Make no mistake.  Neither AEDPA nor this Court’s precedents require this result.  I respectfully dissent.

Justice Breyer pens solo cert denial statement to again express concern with long death row stays

At the end of this short new SCOTUS order list, which is otherwise uneventful, Justice Stephen Breyer has a four-paragraph statement respecting the denial of certiorari in Smith v. Shinn.  In the statement, Justice Breyer continues his (generally solo) lament of long stays on death row.  Here are excerpts:

Joe Clarence Smith was first sentenced to death in 1977, more than 44 years ago....  In 2007, 30 years after Smith was first sentenced to death, he petitioned this Court to review the constitutionality of his death sentence.  He argued that it would be cruel and unusual to execute him after such a lengthy delay.  The Court denied certiorari, and I dissented because I believed that Smith could “reasonably claim that his execution at this late date would be ‘unusual’ . . . particularly when much of the delay at issue seems due to constitutionally defective sentencing proceedings.” Smith v. Arizona, 552 U.S. 985, 986 (2007)....

Smith’s case is now before us for the third time. By now, more than 44 years have passed since his first death sentence. Pet. for Cert. 2.  And he “has spent almost all of [that] time” in solitary confinement, “alone in a cell that . . . measures 86.4 square feet, or roughly the size of a compact parking space.” Id., at 3–4 (footnote omitted).  Smith tells us that only four other prisoners in all of the United States have been on death row longer than he has. Id., at 4–5, and n. 2.

We have said that the uncertainty of waiting in prison under threat of execution for just four weeks is “one of the most horrible feelings to which [a person] can be subjected.” In re Medley, 134 U.S. 160, 172 (1890).  On top of that, “[y]ears on end of near-total isolation exact a terrible price.” Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring). Smith has been subjected to those conditions, not for four weeks, but for four decades.  While I recognize, as I did in 2017, that procedural obstacles make it difficult for us to grant certiorari here, I continue to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered.

"Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts"

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

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release.  A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief.  Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law.  This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court.  Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?