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June 4, 2022

Notable (Pyrrhic?) victory under California Racial Justice Act for double murderer getting LWOP

A couple of years ago in this post, I noted the enactment of the California Racial Justice Act and suggested it could have a significant impact depending upon how it was applied by judges in the state.  I have not followed closely subsequent litigation over the CRJA's application, but this week I did see this local report on a notable ruling under the headline "O.C. district attorney violated Racial Justice Act in double murder case, judge finds."  Here are the basics:

An Orange County Superior Court judge ruled Friday that Dist. Atty. Todd Spitzer violated the Racial Justice Act when he made comments about the dating habits of Black men while discussing a double murder case.

However, Judge Gregg Prickett stopped short of imposing any sanctions that would have reduced Jamon Buggs’ sentence.  The appropriate remedy in the case — seeking life without the possibility of parole rather than the death penalty — had already been applied by the district attorney’s office, Prickett said.

The Racial Justice Act, passed in 2020, prohibits prosecutors from seeking or obtaining a criminal conviction or imposing a sentence based on race, ethnicity or national origin.  “The defendant has received what the statute would say was the appropriate remedy for the violation,” Prickett said.  “The court does not find that it would be in the interest of justice to dismiss enhancements, special circumstances or reduce charges.”

Buggs, who was convicted of murder in May for fatally shooting a man and woman inside a Newport Beach condominium, allegedly in a jealous rage, was sentenced by Prickett to life in prison without the possibility of parole....  During a roughly two-week trial, Buggs’ attorneys argued that he killed Darren Partch, 38, and Wendi Miller, 48, in the heat of passion, fueled by what they described as a toxic relationship between Buggs and his ex-girlfriend, Samantha Brewers....

The case had been mired in controversy since Spitzer made racist comments about the dating habits of Black men during an October staff meeting on whether to pursue the death penalty against Buggs.  At the meeting, Spitzer told prosecutors that he knows “many Black people who get themselves out of their bad circumstances and bad situations by only dating white women,” according to a memo written by then-prosecutor Ebrahim Baytieh, who attended the meeting.

Spitzer has said allegations of “any racial animus or bias against the defendant are baseless and quite frankly offensive.”  Buggs is Black, while Buggs’ ex-girlfriend and Miller are both white. Spitzer has alleged that Baytieh wrote the memo in retaliation because Spitzer had initiated an investigation of him related to another murder case....

Prosecutors argued in court Friday that the defense failed to provide a preponderance of evidence that Spitzer’s comments negatively affected Buggs’ case. Denise Gragg, one of Buggs’ defense attorneys, said Spitzer’s comments were an example of “the oldest bias that exists” regarding Black men and white women. She added that Spitzer has not acknowledged his comments as biased.

“If you can’t even recognize that is a bias, how can you assure yourself or us that there were not decisions made in this case or not made in this case that were influenced by that bias?” she asked. “Justice is not just done from the jury box,” she added. “It’s done from the back halls; it’s done in chambers…. That is the place where this case was damaged.”

A quick Google search did not turn up any reports or data on how the California Racial Justice Act has been applied or adjudicated so far.  I continue to suspect the CJRA could have a variety of notable impacts (especially if it were to ever be made retroactive). But the accurate statement that many criminal justice decisions get made in "back halls," and the broader challenge of identifying and crafting remedies for problematic discretionary decision-making, necessarily means the impact of the CJRA may prove hard to fully gauge or assess.

June 4, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

June 3, 2022

What following the science might mean in when it comes to the actual laboratories of criminal justice

This interesting new Hill commentary, authored by Michael Kusluski and headlined "An easy win for criminal justice reform: Independent crime labs," highlights just one not so sexy, but still very important frontier for criminal justice reform. I recommend the full piece, and here are excerpts:

The 2009 National Academy of Sciences’ report on crime labs identified 13 areas for improvement.  While significant progress has been made, action on one recommendation has languished: to remove all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.

Most crime labs still operate under law enforcement control. Discussions of potential bias, however, distract from the larger problem: that police and prosecutors’ offices are simply not qualified to operate forensic laboratories.

The real issue is not bias but the delivery of good science.  Most publicly funded forensic laboratories (even those with a civilian lab director) ultimately report to individuals with no background in science.  This control may be as simple as setting budgets and priorities, but often involves setting policies and procedures.  In many jurisdictions, reserving crime scene (or even laboratory) positions for police personnel — no science degree required — still exists.  While some critics worry that forensic scientists could have their opinion swayed in one case or another, decisions are being made by nonscientists who influence millions of cases annually....

There is precedent for independent crime labs.  Medical examiners’ laboratories have always operated separately from the police.  The state forensic laboratories in Virginia and Alabama have been independent for decades.  A number of quasi-governmental and private (mostly DNA) forensic labs operate around the country, processing backlogged or specialty evidence.

The independent public crime labs that do exist typically enjoy department-level status rather than the bureau- or division-level status they would have under police departments.  Several jurisdictions (mostly municipalities) have opted to transition their police labs to independent agencies in recent years.  Unfortunately, they have often waited until the crime lab was in trouble or the jurisdiction was strapped for cash.

Because most forensic analyses take place at the state and local level, these changes will largely depend on state legislators, who may be reluctant to appear anti-police.  But the American National Standards Institute-National Accreditation Board (ANAB), which accredits most crime labs in the United States could require labs to move toward independence, forcing legislators to act.  Similarly, the Bureau of Justice Assistance (BJA) could withhold future funding for labs that are not independent.  Since forensic labs have become accustomed to federal funding for overtime and backlog reduction, this would be an effective incentive for change.

June 3, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"'Tough Talking' Sacramento District Attorney Presides Over Homicide And Violence Surge While 'Liberal' San Francisco Enjoys Major Decreases"

Image-fullNext week brings a high-profile recall vote on San Francisco's District Attorney Chesa Boudin, an election that many have come to view as a referendum on the progressive prosecutor movement. Because I consider all "movements" in the criminal justice reform space to be dynamic and erratic, I rarely think any one local vote itself reshapes the reform landscape.  But I still understand why this vote is getting considerable attention, and lots of politicians and pundits will surely see lots of lessons from the outcome of this interesting bit of local criminal justice democracy.  

Against that backdrop comes this notable new report from the Center on Juvenile and Criminal Justice.  Here is the report's introduction:

San Francisco has seen major decreases in crime amid progressive reforms, while nearby Sacramento is seeing a homicide and violence surge under the leadership of a conservative prosecutor whose policies feature high rates of incarceration.  Sacramento District Attorney Anne Marie Schubert has positioned herself as the state’s leading “tough-on-crime” candidate as she criticizes progressive San Francisco DA Chesa Boudin and seeks to unseat California’s reform-minded Attorney General Rob Bonta (Hooks, 2021; Schubert, 2022).  Yet DA Schubert’s tenure has coincided with increased homicide and violent crime, lesser declines in property crime, and above average rates of homicide and violent crime for urban Sacramento than in San Francisco.  Schubert’s “tough on crime” rhetoric and policies have not delivered lower or falling crime rates.

This analysis compares crime trends during Schubert’s conservative prosecutorial term in office (2015- present) with those of San Francisco’s progressive prosecutors (George Gascón and Chesa Boudin) during a key period in California’s criminal justice reform era.  If talking “tough on crime” and incarcerating more people actually reduced crime, we would expect to see a much bigger decline in crime and a lower crime rate in Sacramento than in San Francisco.  In fact, the opposite is the case. San Francisco has sustained larger crime declines and achieved lower rates of violent crime than the City of Sacramento since 2014.

The figure reprinted here is only one of a number of graphics from the report seeking to provide a broad view of crime rates and trends in two nearby (but very different) California cities. According to the report, the data show that "violent crime rates have risen an average of 9% in Sacramento while falling an average of 29% in San Francisco from 2014-2021, a period that spans the tenures of DA Schubert and San Francisco's progressive DA’s."  Here are some more data points from the report as highlighted on this CJCJ webpage:

June 3, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (14)

June 2, 2022

Another federal judge gives Michael Avenatti another below-guideline sentence, as he gets now 48 months for defrauding Stormy Daniels

In what is becoming almost a summer tradition, disgraced lawyer Michael Avenatti was sentenced by a federal judge below the federal sentencing guidelines today.  Sentencing fans may recall that last July Avenetti got a way-below-guideline 30-month sentence for extorting Nike (details here).  Today was judgment day for defrauding Stormy Daniels, as Reuters reports and as excerpted here:

Michael Avenatti, the brash California lawyer who took on then-President Donald Trump, was sentenced on Thursday to four years in prison for defrauding his best-known former client, the porn actress Stormy Daniels.  A federal jury convicted Avenatti in February of wire fraud and aggravated identity theft after a two-week trial, agreeing with prosecutors that he embezzled nearly $300,000 in book proceeds intended for Daniels.

U.S. District Judge Jesse Furman imposed the sentence in federal court in Manhattan, calling Avenatti's conduct "brazen and egregious."  But he said guidelines calling for Avenatti, 51, to serve a sentence of five or six years were "unreasonable," in part due to Avenatti's prior successful legal career.

Avenatti, who appeared in court wearing prison garb and ankle shackles, recounted a string of legal victories he had secured for clients he called "underdogs," and disputed prosecutors' assertion that he took on Daniels as a client to gain a national platform for himself.  "No one else had the guts to take her case," Avenatti said before Furman handed down his sentence, speaking from the courtroom lectern with a U.S. marshal standing beside him.  "I believed we could take down a sitting U.S. president who was the biggest threat to our democracy in modern times."

Daniels, whose given name is Stephanie Clifford, is known for receiving $130,000 from Trump's former lawyer Michael Cohen, in exchange for remaining quiet before the 2016 presidential election about sexual encounters she says she had with Trump, which he has denied.

Avenatti vowed to appeal the guilty verdict in the Daniels case.... He had already been serving a 2-1/2-year sentence stemming from his 2020 federal conviction for trying to extort millions of dollars from Nike Inc. He has appealed that conviction.

Eighteen months of the Daniels sentence will run concurrent with the Nike sentence, meaning Avenatti faces a combined five years in prison. He is still charged in California with stealing millions of dollars from other clients.

Prosecutors had recommended that Avenatti receive a "substantial" prison term in the Daniels case, including a mandatory two-year term for identity theft. Avenatti, who represented himself during the trial, proposed a three-year sentence, with one year running concurrent with his Nike sentence.

June 2, 2022 in Booker in district courts, Celebrity sentencings, White-collar sentencing | Permalink | Comments (1)

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

June 2, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Gentlewomen of the Jury"

The title of this post is the title of this notable paper recently posted to SSRN authored by Vivian Rotenstein and Valerie P. Hans. (The recent verdict in a high-profile state civil trial with a small, mostly male jury perhaps makes this research especially timely.) Here is the paper's abstract:

This Article undertakes a contemporary assessment of the role of women on the jury.  In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.”  Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service.  Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles.  We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases.  We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury.

After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service.  Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

June 2, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

June 1, 2022

John Hinckley, Prez Reagan's would-be assassin in 1981, due to be fully released this month 40 years after being found not guilty by reason of insanity

As reported in this new AP article, "John Hinckley, who shot President Ronald Reagan in 1981, is “no longer a danger to himself or others” and will be freed from all restrictions this month, a federal judge said Wednesday, capping Hinckley’s four-decade journey through the legal and mental health systems."  Here is more:

U.S. District Court Judge Paul L. Friedman said in September that he would free Hinckley from all remaining restrictions on June 15 as long as Hinckley continued to do well living in the community in Virginia as he has for years.  At a hearing Wednesday in Washington which Hinckley did not attend, Friedman noted Hinckley has continued to do well, and the judge made no changes to his plans for full freedom from court oversight.

“He’s been scrutinized.  He’s passed every test. He’s no longer a danger to himself or others,” Friedman said at a hearing that lasted about an hour.  Friedman devoted much of the hearing to talking about the “long road” of the case, which he was randomly assigned two decades ago, the third judge to be involved in the case.  He noted that Hinckley, who turned 67 on Sunday, was profoundly troubled when he shot Reagan but that he had been able to get mental health help.  Hinckley has shown no signs of active mental illness since the mid-1980s, the judge noted Wednesday, and has exhibited no violent behavior or interest in weapons.

Hinckley was confined to a mental hospital in Washington for more than two decades after a jury found him not guilty by reason of insanity in shooting Reagan.  Starting in 2003 Friedman began allowing Hinckley to spend longer and longer stretches in the community with requirements like attending therapy and restrictions on where he can travel.  He’s been living full-time in Virginia since 2016, though still under restrictions.  Some of those include: allowing officials access to his electronic devices, email and online accounts; being barred from traveling to places where he knows there will be someone protected by the Secret Service, and giving three days’ notice if he wants to travel more than 75 miles (120 kilometers) from his home in Virginia.

Prosecutors had previously opposed ending restrictions, but they changed their position last year, saying they would agree to Hinckley’s release from conditions if he continued to show mental stability and follow restrictions.  Prosecutor Kacie Weston said in court Wednesday that the government believes the case “has demonstrated the success that can come from a wraparound mental health system.”  She noted Hinckley has expressed a desire to continue receiving mental health services even after he is no longer required to do so, and said the government wishes “him success for both his sake as well as the safety of the community.”  Hinckley’s longtime lawyer, Barry Levine, said the case had “started with a troubled young man who inflicted great harm” and but that, in the end: “I think we have salvaged a life.”...

Reagan recovered from the March 30, 1981, shooting, but his press secretary, James Brady, who died in 2014, was partially paralyzed as a result.  Secret Service agent Timothy McCarthy and Washington police officer Thomas Delahanty were also wounded.  Reagan died in 2004.

In the 2000s, Hinckley began, with the judge’s approval, making visits to his parents’ home in Williamsburg, Virginia.  His father died in 2008, but in 2016 he was given permission to live with his mother full time.  Still, he was required to attend individual and group therapy sessions, was barred from talking to the media and could only travel within a limited area. Secret Service would also periodically follow him.  Hinckley’s mother died in 2021. He has since moved out of her home. In recent years, Hinckley has made money by selling items at an antique mall and by selling books online.

June 1, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Robina Institute releases big new report on "American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size"

American_prison-release_systems_page_coverThe Robina Institute of Criminal Law and Criminal Justice today released this great big new report titled ""American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size."  Here are excerpts from this important report's introduction:

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant.  The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards.  To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing.  When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases.

From a systemic perspective, indeterminacy can be seen as the field of play in which back-end officials with time-served discretion exercise their powers.  The larger the field — the greater the degree of indeterminacy — the greater the whole-system impact of back-end decisions.  Indeterminacy builds up cumulative effects over hundreds and thousands of cases. In systems with high degrees of indeterminacy, a substantial amount of control over prison population size is located at the back end of the system.  In many states, back-end officials have more to say about prison numbers than sentencing courts.

For those concerned about mass incarceration, serious attention should be paid to the prison-release frameworks at the back ends of America sentencing systems.  These are varied and are often highly complex.  In each state, it is important to consider the institutional structure for release decisions, how and by whom time-served discretion is currently being exercised, and the range of possibilities for future changes in existing decision patterns.  Not all, but a large portion of the nation’s prison policy is implicated. In recent years, much of the mass incarceration debate has been focused on “front-end” decisionmakers such as courts and prosecutors.  For a comprehensive slate of possible reforms, equal attention must be directed to the back end.

This project offers new conceptual tools to better understand and compare the wide range of prison-release systems across America.  We hope this will allow state officials to see their own systems in new perspective, and may shine a spotlight on policy options that would otherwise go unseen.

June 1, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

May 31, 2022

"Sounds of Silence: A Thematic Analysis of Victim Impact Statements"

The title of this post is the title of this new paper now available via SSRN and authored by Tali Gal and Ruthy Lowenstein Lowenstein lazar.  Here is its abstract:

Victim Impact Statement (VIS) is a legal document which crime victims submit to court as part of the sentencing stage, informing the court about the harms they have suffered.  VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing.  At the same time, their use raises concern about defendants’ due process rights. 
The Article argues that VIS make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims.  Using a thematic analysis of 25 VISs which were submitted to Israeli criminal courts by victims of sexual, physical and property offenses as well as by relatives of homicide victims, the Article identifies four types of functions that VISs play for the victims who submit them.  VISs were used to portray the offense as a life-changing event; to describe the hardships of the criminal justice process; to transform the victim into 'more than just a name’; and to deliver a message or request.  By bringing this content to the courtroom, the statements expanded the legal discourse and created an integrated therapeutic-legal discourse, which was accepted and formally acknowledged by the justice system.  The openness of the legal system to accept and acknowledge exogenous content that is not required by law, even if indirectly, suggests a need to rethink the social function of the court for victims and communities.  It is possible that the courts may be more inclusive of and more attentive to non-legal narratives, emotional expression, and interpersonal connectedness than it is generally believed.

May 31, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

May 30, 2022

Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits

In this post from the start of this year, I flagged Walter Pavlo's discussion of nettlesome issues surrounding implementation of various parts of the FIRST STEP Act. Issues raised in that prior piece are reviewed anew in this new Palvo piece in Forbes headlined "First Step Act Inaction Keeps Federal Inmates In Prison." Here is how the piece gets started:

The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.

According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.

May 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

May 29, 2022

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

May 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)