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June 11, 2022

Oklahoma Attorney General requests execution schedule for 25 death row inmates

Oklahoma, as detailed in this official accounting, has 42 men and one woman on their death row.  And, as reported in this CNN article, the state's Attorney General has now asked for execution dates for more than half of them.  The headline of the CNN piece is "Oklahoma AG requests execution schedule be set for 25 inmates following ruling on lethal injection protocol," and here are excerpts:

Four days after a federal court ruled against death row inmates arguing Oklahoma's lethal injection protocol is cruel and unusual, the state's attorney general asked for more than two dozen executions to be scheduled.

Executions in Oklahoma are scheduled by the state Court of Criminal Appeals.  The motion from Attorney General John O'Connor requests executions take place every four weeks, starting no earlier than late August in order to give the Department of Corrections time to prepare.

Federal judge Stephen P. Friot ruled Monday in a long-running case the state's lethal execution drug combination does not violate the Eighth Amendment guarantee against cruel and unusual punishment.  Attorney Jennifer Moreno told CNN on Tuesday the plaintiffs are considering an appeal, saying the state's protocol "creates an unacceptable risk that prisoners will experience severe pain and suffering."

The attorney general is asking for 25 prisoners to be scheduled for execution.  One prisoner, Wade Greely Lay, is scheduled to have a jury trial next May to determine whether he is competent to be executed, and O'Connor says his execution date should be delayed until after the trial is concluded.

If the Oklahoma Court of Criminal Appeals schedules execution dates along the lines requested by the state AG, there could be executions scheduled in the Sooner State every single month from August 2022 through August 2024. 

Prior recent related post:

June 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics"

The title of this post is the title of this new essay by Thomas Ward Frampton just published in the Harvard Law Review.  Here is its abstract:

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse.  But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a “spectral force haunting abolitionist thought . . . as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.”  This Essay offers two main contributions: it (1) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of “the dangerous few,” highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning “the dangerous few.”

June 11, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

June 10, 2022

Intriguing clemency news emerges from January 6 committee's first public hearing

This Politico piece reports on the intriguing clemency-related news that emerged from last night's January 6 committee public hearing. Here is how the piece starts:

Rep. Scott Perry of Pennsylvania, as well as multiple other Republican lawmakers, contacted the White House in the weeks after Jan. 6, 2021, to seek presidential pardons for their roles in attempting to overturn the presidential election results, the Jan. 6 select committee revealed Thursday in its prime-time hearing on the Capitol attack.

“Rep. Scott Perry … has refused to testify here,” Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said as she opened its case to the American public. “As you will see, Representative Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election”

The new details surfaced during the panel’s first public hearing, as the bipartisan committee launched the unveiling of its findings of a yearlong investigation into the insurrection. It’s the first of a string of hearings scheduled in the coming weeks that are set to paint a picture of a carefully planned and orchestrated attack on American democracy.

This news, in addition to leading to speculation about the other members of Congress who sought a pardon from Prez Trump in January 2021, must prompt questions about what crimes these folks thought they committed and exactly what behavior led then to worry about criminal prosecution by the US Department of Justice.

June 10, 2022 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (10)

June 9, 2022

"The Efficacy of Prosecutor-led, Adult Diversion for Misdemeanor Offenses"

The title of this post is the title of this recent paper authored by Viet Nguyen now available via SSRN. Here is its abstract:

Criminal records can produce collateral consequences that affect access to employment, housing, and other outcomes. Adverse collateral consequences may be particularly acute for adults with limited professional capital and social networks.  In recent years, there has been an expansion of prosecutor-led diversion programs that attempt to curb the effect of collateral consequences.  However, the expansion of diversion programs may lead to net-widening if these programs simply substitute for cases that would have otherwise been dismissed.

This study assesses the impact of an adult, misdemeanor diversion program on long-term recidivism outcomes and the future amount of court-imposed fees and sanctions.  The misdemeanor diversion program reduced reconviction rates but produced a short-term net-widening effect by drawing in defendants whose cases would normally have been dismissed. The net-widening effects were curtailed over the longer term as the program significantly increased expungement rates. The results were driven by younger defendants.  Implications of this study for theories of criminal desistance and policies around expunging criminal records are discussed.

June 9, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Incarcerated LGBTQ+ Adults and Youth"

The title of this post is the title of this new report from The Sentencing Project. Here is how the document starts:

This fact sheet examines the criminalization and over-incarceration of LGBTQ+ adults and youth.  The LGBTQ+ population is comprised of people with non-heterosexual identities — those who are lesbian, gay, bisexual, and others — and people with non-cisgender identities — those who are trans and gender non-conforming.  LGBTQ+ adults are incarcerated at three times the rate of the total adult population.  LGBTQ+ youth’s representation among the incarcerated population is double their share of the general population.

LGBTQ+ people experience high rates of homelessness, poverty, unemployment, discrimination, and violence — factors which drive their overrepresentation in the criminal legal system. In both adult and youth facilities, imprisoned LGBTQ+ people face physical, sexual, and verbal harassment and abuse, as well as a lack of gender-affirming housing, clothing, personal hygiene products, medical care, and mental health treatment.  To help alleviate these harms, states and the federal government should repeal laws that criminalize LGBTQ+ people, limit the use of solitary confinement, mandate access to gender-affirming health care in correctional facilities, and invest in drug and mental health treatment and reentry programs for LGBTQ+ youth and adults

June 9, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Notable coverage of supposed "new breed" of prison consultants

I have been following the federal criminal justice system for the better part of 30 years, and throughout there have always been various types of experts who seek to help defendants with sentence mitigation and preparation for prison (especially in the white-collar universe where greater resources are available to pay for these kinds of services).  Still, every now and again, the press seems eager to make much of the phenomenon of so-called "prison consultants" as, for example, in a 2020 Town & Country  piece, "Inside the World of Prison Consultants Who Prepare White Collar Criminals to Do Time." 

The New York Times has long been keen on the prison consultant beat as evidenced by older articles like a 2009 piece headlined "Consultants Are Providing High-Profile Inmates a Game Plan for Coping" and a 2012 piece headlined "Making Crime Pay."  This week, the Gray Lady has this very long piece in this genre appearing in its magazine under this full headline "Want to Do Less Time? A Prison Consultant Might Be Able to Help. For a price, a new breed of fixer is teaching convicts how to reduce their sentence, get placed in a better facility — and make the most of their months behind bars."  Though I am not sure why prison consultants are now described as a "new breed of fixer," I am sure this lengthy article is still worth a full read.  Here are excerpts: 

After a prominent felon is sentenced, a spate of stories often appear about these backstage fixers for the wealthy, consultants who can help get a client into prisons that one might prefer — say, a prison that has superior schooling or CrossFit-level gyms or lenient furlough policies or better-paying jobs or other refined specialties.  The federal prison in Otisville, N.Y., for example, is also known as “federal Jewish heaven” because of its good kosher food (decent gefilte fish, they say, and the rugelach’s not bad).  When those Varsity Blues parents were busted for paying backdoor operatives to engineer their kids’ college admissions, it was also reported that many hired prison consultants to game out the aftermath.

[Justin] Paperny’s business is a natural market outgrowth of a continuing and profound shift in America’s judicial system.  Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial).  In 2021, 98.3 percent of federal cases ended up as plea bargains.  It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses.  What people like [Hugo] Mejia have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn.  So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame....

On television, the journey to prison is nearly instantaneous: a jump cut to a slamming cell door. But in the real world, it’s a set of steps, routine bureaucratic actions that involve interviews, numerous forms to complete and dates with officials. A lawyer is your legal guide to staying out of prison, but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed....

One of the first things Paperny advises a client like Mejia to do is to stop [minimizing the offense], especially before sentencing.  You pleaded guilty already.  You did it.  Own it — because the vamping will almost certainly annoy any judge or civil servant who hears it, and you’ll wind up with a much longer sentence.  That’s arguably the most crucial piece of advice that Paperny provides to his clients, for the simple reason that when you’re going to prison, you have to formally tell your story to all kinds of people.

The storytelling officially begins a few weeks after a guilty plea (or a conviction by trial) in a sit-down interview with a law-enforcement officer whose specialty is writing up a pre-sentencing report, which will be given to the presiding judge.  The descriptions of the crime come largely from the plea agreement, which is, naturally, centered on the proposition that you are a heinous criminal and a moral fugitive.  Think of a Wikipedia biography that tells the story of the worst moment of your life, with everything else about you salted away in footnotes.  This is what the sentencing judge will read before deciding precisely how long you will be confined — and it’s a story that will follow you throughout your stay with the state.

“They call the pre-sentencing report the Bible in prison, because it is one of the first things a case manager or counselor will rely upon,” Paperny said. “It will influence early release, your half-house time, your bunk, your job and so on.”

June 9, 2022 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

June 8, 2022

Senate conducts hearing for nominees for US Sentencing Commission

Four weeks ago, as discussed here, Prez Biden finally made nominations to the US Sentencing Commission.  Due to a lack of commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for 3.5 years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  But, now moving relatively swiftly, the US Senate Judiciary Committee today held a confirmation hearing for Prez Biden's seven USSC nominees.

Here is a link to the hearing, which runs about two hours and has a number of interesting elements.  Hard-core federal sentencing fans will likely consider the full hearing worth watching.  For a quick review, FAMM's Shanna Rifkin provided this live tweeting of the hearing, which captures some of the highlights.  And here is a round-up of some press coverage:

From Bloomberg Law, "Sentencing Commission Vetting Echoes GOP Grilling of Jackson"

From Law360, "Senate Panel Considers Long-Awaited Sentencing Noms"

From Reuters, "Biden's sentencing panel noms vow to implement criminal justice reform law"

There was some sharp questioning of a few of the nominees, especially from some GOP Senators, and Senator Josh Hawley seemed to indicate that he would not support at least one of the nominees.  But the overall tenor of the hearing suggested that this slate of nominees had considerable support from the Committee and is on a path to eventual confirmation.

Though this hearing means we are one step closer to having a functional US Sentencing Commission, it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees.  I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.

June 8, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Arizona completes its second execution in 2022 for crime committed 35 years prior

As reported in this local article, the "state of Arizona executed Frank Atwood by lethal injection Wednesday at the state prison in Florence. Atwood, 66, was sentenced in 1987 for the kidnapping and murder of an 8-year-old girl in Pima County, Vicki Lynne Hoskinson."  Here is more:

Atwood was the the second man put to death by the state after the botched 2014 execution of Joseph Wood led to court action that resulted in a seven-year moratorium.  “Today marks final justice for our daughter Vicki Lynne.  Our family has waited 37 years, eight months and 22 days for this day to come,” Debbie Carlson, Vicki Lynne's mother, said while choking back tears during the media briefing following the execution. “Vicki was a vibrant little girl with an infectious laugh and a smile that would melt your heart."

Atwood was sedated at 10:10 a.m. and was pronounced dead at 10:16 a.m., media witnesses said....  Approximately 40 people were present during Atwood’s execution — among them Carlson and Rachel Atwood, Frank Atwood’s wife.  According to media witness Bud Foster, Atwood's priest was in the execution room with him — a first for the state. He added that this execution was "probably the most peaceful" he has witnessed.

Clarence Dixon was executed on May 11 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University.

On Wednesday morning, the United States Supreme Court denied Atwood’s request for a stay of execution.  Attorneys for Atwood filed numerous legal challenges alleging both choices for the method of execution — lethal injection or the gas chamber — were unconstitutional, and would cause Atwood an excruciating amount of pain.

Atwood is in a wheelchair and suffered from a spinal condition, and his attorneys said restraining him to a gurney would exacerbate the condition and result in unbearable pain. The state responded to those concerns by agreeing to provide a device that would brace Atwood while on the gurney.

While Atwood proposed the use of nitrogen gas as his preferred method of execution, the courts ruled the Arizona Department of Correction's protocols using cyanide were acceptable, and said Atwood did not have that choice.

Atwood was successful in getting the department to change its policy regarding the presence of spiritual advisers. Atwood converted to become Greek Orthodox while in prison. His spiritual adviser, Father Paisios, told the Arizona Board of Executive Clemency in May that he was certain Atwood had experienced a "complete transformation of life,” and such a conversion cannot be feigned.  Paisios said the authenticity of Atwood's faith was to a degree that he had not seen among hundreds of others who had come to him. He said Atwood “unfailingly followed my instructions" and kept to a daily routine of prayer.

June 8, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

SCOTUS limits reach of Bivens actions against federal government in Egbert v. Boule

Via a vote on usual "partisan" lines, the Supreme Court this morning in Egbert v. Boule, No. 21-147 (S. Ct. June 8, 2022) (available here), reversed a lower court ruling allowing a Bivens suit to move forward against a Border Patrol agent.  Though not exactly about sentencing, I suspect criminal justice fans may be interested in what was the only opinion handed down by SCOTUS today.  Here is how Justice Thomas's opinion for the Court begins:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment.  Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.  See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012); Ziglar v. Abbasi, 582 U.S. ___ (2017); Hernández v. Mesa, 589 U S. ___ (2020).  Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim.  Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.

The rulings comes with an interesting short concurrence that seems to call for overturning Bivens. And Justice Sotomayor, joined by Justices Breyer and Kagan, issues a partial dissent that starts this way:

Respondent Robert Boule alleges that petitioner Erik Egbert, a U. S. Customs and Border Patrol agent, violated the Fourth Amendment by entering Boule’s property without a warrant and assaulting him. Existing precedent permits Boule to seek compensation for his injuries in federal court. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Ziglar v. Abbasi, 582 U.S. 120 (2017).  The Court goes to extraordinary lengths to avoid this result: It rewrites a legal standard it established just five years ago, stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists. T he Court’s innovations, taken together, enable it to close the door to Boule’s claim and, presumably, to others that fall squarely within Bivens’ ambit.

Today’s decision does not overrule Bivens.  It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.  I therefore dissent from the Court’s disposition of Boule’s Fourth Amendment claim.  I concur in the Court’s judgment that Boule’s First Amendment retaliation claim may not proceed under Bivens, but for reasons grounded in precedent rather than this Court’s newly announced test.

June 8, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

San Francisco voters recall progressive prosecutor Chesa Boudin by a large margin

As polls had suggested they would, voters in a supposedly progressive city yesterday voted overwhelmingly to recall a high-profile progressive prosecutor. This local piece, headlined "Voters oust Chesa Boudin as San Francisco district attorney," provides the details and some context:

Voters recalled District Attorney Chesa Boudin on Tuesday, ending a brief and tumultuous experiment with embedding San Francisco’s staunch progressive values in The City’s top law enforcement position.  Initial results showed 60% of ballots cast in favor of recalling Boudin, with 40% opposed.

The effort to recall Boudin catalyzed voter frustration over property crime and what proponents alleged was leniency in the way serious crimes are prosecuted.  "This is not a message to the rest of the country, but to take care of our community ... it's really making sure you have balance around the idea of progressive reform and safety.  They are one in the same, and we got off track,” recall organizer Andrea Shorter said.

Boudin’s defenders framed the recall as an effort backed by Republicans that misled voters about the realities of crime rates in San Francisco. Addressing supporters on Tuesday, Boudin provided his theory for the crushing defeat at the polls. "The right wing billionaires outspent us three to one. They exploited an environment in which people are appropriately upset and they created an electoral dynamic where we were literally shadowboxing," Boudin said.  "Voters were not asked to choose between criminal justice reform and something else. They were given the opportunity to voice their frustration and their outrage and they took that opportunity.”

The recall movement rode a wave of broader discontent among city voters. Although Boudin became the face of San Franciscans' anger, public polling has shown voters disapprove of the jobs done by the Board of Supervisors, Mayor London Breed and the Police Department.  Less than four months ago, voters recalled three school board members.

It might take another election to discern whether voters rejected Boudin’s guiding principles or Boudin himself, who was elected in 2019 with less of a mandate than a modest margin in another low-turnout contest.  Boudin defeated establishment-favorite Suzy Loftus with 50.8% of the vote in the final round of ranked-choice voting. Though Tuesday’s election saw no shortage of think pieces written by out-of-town media outlets in recent days, it’s unclear what lessons to take from a low-turnout election.

Though Boudin’s approval rating proved abysmal in a recent poll commissioned by The Examiner, his broader philosophies — including sending low-level offenders to diversion programs instead of jail — still scored highly among San Franciscans....  In an effort to upend and rebuild the criminal justice system, Boudin increasingly relied on diversion programs to resolve criminal cases instead of lengthy jail sentences.  The son of left-wing radical parents who served long jail sentences for their role in a botched fatal robbery, Boudin spoke often about the negative consequences of incarceration.

With the exception of homicides, violent crime has remained near historic lows.  Property crime has been mixed under his tenure — larcenies and robberies are down since 2018 while motor vehicle thefts and burglaries are up — but Boudin has abdicated responsibility for that fact, arguing that much of what has happened in the last two years is a result not of his office’s work but of the pandemic.

Boudin’s opponents, who coalesced around his recall shortly after his election, argued his policies have made San Francisco less safe, his office is rife with turnover and that the interests of crime victims had been pushed aside in the name of his cause.  Rather than jump to cite crime data, proponents of the recall leaned heavily on individual stories. There was 6-year-old Jace Young, whose 17-year-old killer was convicted of murder in juvenile court.  Critics of Boudin, including Jace’s father, wanted the juvenile tried as an adult to secure a longer jail sentence, but Boudin refused.  There was 84-year-old Vicha Ratanapkadee, who was pushed to his death by a man Boudin later described as having a “temper tantrum,” enraging the DA’s critics.

More broadly, recall proponents tapped into frustrations felt by San Franciscans tired of smash-and-grab robberies and a sense of lawlessness in The City.  “The condition of the streets are getting intolerable. I know it’s not all his fault because of the pandemic, but it’s because he refuses prosecution that crime has been further encouraged,” Kevin Wakelin, who lives near City Hall, told The Examiner. “There are so many car break-ins, house break-ins and stolen bicycles.  No one can afford a brand new bicycle every other week but that truly happens to some of us, and it’s terrible.  He (Boudin) needs to take responsibility for that.”...

Boudin’s recall leaves a vacancy that will be up to the mayor to fill. Crucial to her decision is the fate of Proposition C, which failed.  Prop. C would have, among other reforms to the recall process, prohibited a person appointed to a vacancy created by a recall from seeking election to the same post in the upcoming election. Put more clearly, Prop. C would have prevented whomever Breed appoints from seeking election to a full term in the following election.  Had Prop. C passed, it would have effectively limited the potential pool of candidates to those who have no interest in seeking the job long-term.

Supervisor Catherine Stefani, an ally of Breed’s and former deputy district attorney in Contra Costa County, has been floated as a potential candidate to replace Boudin. Brooke Jenkins, a former prosecutor who quit under Boudin’s tenure, has been a leading face of the recall movement.  She, too, could be under consideration for the post. Breed will be responsible for making the appointment after the election results are certified.

A lot can be said, and a lot surely will be written, about this outcome and what it may mean for the progressive prosecutor movement and criminal justice reform more generally.  For now, I will be content to just note that, when it comes to elected politics, perception can often matter a whole lot more than policy.  This may be a trite and obvious point, but it surely helps explain why "individual stories" may resonate with voters in San Fran and elsewhere a lot more than data runs or policy statements.

June 8, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (21)

June 7, 2022

Split Ohio Supreme Court rules defendant's profane outburst after getting 22 year sentence could not justify increase to 28 years

This local press report, headlined "Judge can’t increase sentence for defendant who cussed him out, Ohio Supreme Court says," reports on a notable ruling today from the Ohio Supreme Court. Here are the highlights from the article:

A Lake County judge was wrong to tack six years onto the prison sentence he gave defendant after the man called the judge a “racist a-s b----h” in court, the Ohio Supreme Court ruled Tuesday.

Lake County Common Pleas Court Judge Eugene Lucci initially sentenced Manson Bryant to 22 years in prison in March 2019 after a jury convicted him of aggravated burglary and aggravated robbery.  But after Bryant, whose attorneys asked for a sentence similar to a co-defendant’s 12-year sentence, launched into a profanity-laden tirade against Lucci, the judge said that Bryant lacked remorse for his crimes and imposed the maximum sentence of 28 years.

The Ohio Supreme Court in a 4-3 decision held that Byrant’s statements were not related to the crimes for which he was being sentenced and therefore could not legally factor into Lucci’s sentencing decision.  The state’s high court overturned a unanimous 11th District Court of Appeals decision upholding the 28-year sentence and reinstated the original 22-year sentence.  “If a defendant’s outburst or other courtroom misbehavior causes a significant disruption that obstructs the administration of justice, that behavior may be punishable as contempt of court,” Justice Melody Stewart wrote in the majority opinion....

Justices Patrick Fischer and Patrick DeWine signed onto Justice Sharon Kennedy’s dissenting opinion that said that a judge’s determination as to whether a defendant shows remorse is not an appealable issue.

The full opinion in State v. Bryant, No. 2020-0599, 2022-Ohio-1878 (Ohio June 7, 2022), is available at this link and is worth a full read.  Here is how the opinion of the court gets started:

In this discretionary appeal from a judgment of the Eleventh District Court of Appeals, we consider whether the appellate court erred by affirming the trial court’s judgment increasing appellant Manson Bryant’s prison sentence by six years in response to Bryant’s reaction to the length of a previously imposed prison sentence. We hold that the Eleventh District erred, and we reverse the judgment affirming the trial court’s judgment increasing Bryant’s sentence. If a defendant’s outburst or other courtroom misbehavior causes a significant disruption that obstructs the administration of justice, that behavior may be punishable as contempt of court. See R.C. 2705.01. The behavior, however, may not result in an increased sentence for the underlying crime.

And here is how the dissent gets started:

This case is not about vindictive sentencing. While it may be about that issue in the minds of the majority, that is not the issue this court accepted. The only question this court accepted is whether a defendant’s in-court outburst “is punishable as contempt of court, but does not provide a lawful basis for increasing the defendant’s sentence.” Majority opinion, ¶ 16.

The correct answer to that question is: it depends. It depends on the in-court outburst.

When a defendant has an in-court outburst during a sentencing proceeding, and the defendant’s statements not only relate directly to a sentencing finding that the trial court made pursuant to R.C. 2929.12 but also negate support for that finding, the trial court is not limited to simply holding that defendant in contempt of court. The trial court is permitted to consider that in-court outburst in sentencing: here, the in-court outburst directly related to whether appellant, Manson Bryant, had displayed genuine remorse for committing various crimes or whether he was just pretending to have remorse with the hope of receiving a more lenient sentence. See R.C. 2929.12(D)(5). And under this court’s holding in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, neither this court nor the court of appeals has the authority to review Bryant’s increased sentence. Because the majority holds differently, I dissent.

June 7, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Some headlines and discussions of crime research catching my eye

Thanks to a number of forces, perhaps most notably rising homicide rates and recent salient mass shootings, crime is getting a lot of attention from media outlets big and small.  Valuably, some of this attention include reviews of research, and these piece in that vein recently caught my attention:

From Bloomberg by Justin Fox, "New York City Is a Lot Safer Than Small-Town America: Rising homicide rates don’t tell the whole story. When you dig deeper into data on deaths, you'll find the more urban your surroundings, the less danger you face."

From Phys.org by Oxford University Press, "New study shows welfare prevents crime, quite dramatically"

From Vital City by Jennifer Doleac & Anna Harvey, "Stemming Violence by Investing in Civic Goods: Evidence suggests that investments in summer jobs, neighborhood improvements and services can reduce crime."

From Vox by Miranda Dixon-Luinenburg, "How to prevent gun deaths without gun control: Can summer jobs and mental health care save lives?"

June 7, 2022 in National and State Crime Data | Permalink | Comments (3)

Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol

As reported in this AP article, a "federal judge in Oklahoma on Monday ruled the state’s three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case."  Here is more from the press report:

Judge Stephen Friot’s ruling followed a six-day federal trial earlier this year in which attorneys for 28 death row inmates argued the first of the three drugs, the sedative midazolam, is not adequate to render an inmate unable to feel pain and creates a risk of severe pain and suffering that violates the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

“The prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court,” Friot wrote, citing three earlier rulings on the death penalty. He continued: “The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court.”

Jennifer Moreno, one of the attorneys for the death row inmates, said they are still assessing their options for an appeal to the 10th U.S. Circuit Court of Appeals in Denver. “The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” Moreno said in a statement.

Oklahoma Attorney General John O’Connor said in a statement that the state effectively proved that both the lethal injection drugs and the state’s execution protocols are constitutional. “The Court’s ruling is definitive: The plaintiffs in this case ‘have fallen well short’ of making their case, and midazolam, as the State has repeatedly shown, ‘can be relied upon … to render the inmate insensate to pain,’” O’Connor said. “My team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.”...

The state has carried out four lethal injections since October that Oklahoma’s former Solicitor General Mithun Mansinghani said during closing arguments “are definitive proof that the protocol works as intended.” Oklahoma resumed lethal injections in October with the execution of John Grant, who convulsed on the gurney and vomited before being declared dead. Since then, three more executions were carried out without noticeable complications.

The 45-page ruling of the federal district court is available at this link.  This ruling serves as yet another example of the extra difficulties that death row prisoners have in prevailing on execution protocol challenges since the Supreme Court's April 2019 ruling in Bucklew v. Precythe,139 S. Ct. 1112 (2019).  And yet, no doubt in part because of the COVID pandemic, there have still been fewer annual average state executions in the three years since Bucklew than in any other period in the last forty years.

June 7, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

June 6, 2022

"'How Much Time Am I Looking At?': Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts"

The title of this post is the title of this recent article authored by Walter Gonçalves and available via SSRN. Here is its abstract:

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing.  The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions.  Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread.  Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers — the most prevalent defendants in federal court.

This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs.  The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible.  This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case.  It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

June 6, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Noting the notable modern shift away from prosecuting (and thus sentencing) juveniles as adults

This new AP article, headlined "In historic shift, far fewer teens face adult US courts," highlights a modern criminal procedure trend that is fundamentally a sentencing story.  Here are some details:

David Harrington spent a tense eight months in a Philadelphia jail when he was a teenager — the result of a robbery charge in 2014 that automatically sent his case to the adult court system under state law.  Only 16 at the time, he said he got into fights and spent time in isolation.  He missed his sophomore year in high school and the birth of his child.  He was facing five to 10 years in prison.  He was on a path, he said, toward more trouble with the law.

“I think if I would have stayed in the adult system, I would have came home probably a little worse,” said Harrington, now 24, who works as an advocate for young offenders.  “I would have came home (after) listening to the ways on how to get better at ... certain illegal things, and I would have came home and been doing nonsense.”  Instead, he was able to convince a judge to send his case down to juvenile court.  He spent a month in a juvenile detention center before a judge found he did take part in the robbery and sent him home under house arrest, probation and a $3,000 restitution order.  He was allowed to see his family and friends and finish high school.

Harrington’s case from 2015 is indicative of a significant shift away from the “get tough” philosophy of the 1980s and ’90s for youth offenders, which has resulted in far fewer children being prosecuted in U.S. adult courts. That has meant second chances for untold thousands of youths.  Data reported to the FBI each year by thousands of police departments across the country shows the percentage of youths taken into custody who were referred to adult courts dropped from 8% in 2010 to 2% in 2019.  The percentage dropped to 1% in 2020, although that year’s data is considered unusual because of the coronavirus pandemic, which closed many courts.

Instead, more teenagers are being sent to juvenile courts or community programs that steer them to counseling, peer mediation and other services aimed at keeping them out of trouble. The shift has been mostly supported by law enforcement officials around the country.  But some worry that leniency has emboldened a small number of young criminals, including in Connecticut, where state lawmakers passed legislation to clamp down on youth crime.

States around the country have been raising the age of adult criminal responsibility to 18 for most crimes. Only three states — Georgia, Texas and Wisconsin — continue to prosecute every 17-year-old in adult courts, according to The Sentencing Project, a Washington-based group that advocates for minimal imprisonment of youth and adults.  The “raise the age” movement has been spurred by research showing teens’ brains haven’t yet fully developed key decision-making functions.  Other studies show locking young people up in adult systems can be harmful — physically and psychologically — in addition to putting them at more risk to commit more crimes....

In a country where an estimated 250,000 minors were charged as adults each year in the early 2000s, the number dropped in 2019 to about 53,000, according to the nonprofit National Center for Juvenile Justice in Pittsburgh.  That corresponds with a general decrease in crime across the country, including a 58% drop in youth arrests between 2010 and 2019, according to Justice Department estimates.  In 2019, an estimated 696,620 youths were arrested....

Harrington works for the Youth Art & Self-Empowerment Project, a Philadelphia group that provides art, music and other programs in jail for teenagers charged as adults and advocates against prosecuting them in adult court.  He is involved in efforts to repeal the law that automatically sent him to adult jail.  “You’d rather be at a juvenile facility getting the proper care and treatment there,” he said. “The juvenile system ... it’s better because you’re able to go home and be with your family.”

Some officials, however, including lawmakers and police chiefs, argue aspects of the reform have gone too far.  In Connecticut, the death of a pedestrian who was struck and killed in New Britain last year by a stolen car driven by a repeat teenage offender sparked calls by police officials and Republican state lawmakers to pass tougher youth crime laws — including more detention for repeat offenders.

I describe these developments as fundamentally a sentencing story because the decision to prosecute a young offender in adult or juvenile court is ultimately a decision over whether to subject that offender to the more rehabilitative-oriented sentencing philosophy and processes of juvenile courts or to the more punitive realities of adult court systems and sentencing structures.

June 6, 2022 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term

Entering the current Supreme Court Term last fall (the term known as October Term 2021), the sentencing case that garnered the most attention was US v. TsarnaevNo. 20-443, concerning the lawfulness of the Boston Marathon Bomber's death sentence.  And, at that time, the sentencing case that I thought could be most impactful was Wooden v. US, No. 20-5279, concerning application of the Armed Career Criminal Act.  The Term also started with arguments scheduled on two potential landmark cases significantly implicating a range of criminal justice issues: New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, concerning the reach and application of the Second Amendment, and Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning when and how abortions may be criminalized.

Fast forward eight months and SCOTUS activity and jurisprudence appears ever more uncertain, in part because we now know that soon-to-be-Justice Ketanji Brown Jackson will be replacing soon-to-retire Justice Stephen Breyer and in part because we still do not know who leaked a draft majority opinion in Dobbs and how that might be impacting the Court's work.  We did get (predictable?) opinions in Tsarnaev (a win for the government) and Wooden (a win for the defendant), and a few more notable criminal justice issues were added to the SCOTUS docket. 

As we head now into the traditional finishing month of the SCOTUS Term, and especially because the Justices handed down only three civil opinions this morning, I figured it would be useful to review the considerable number of criminal cases still pending at the Supreme Court.  Here, with help from SCOTUSblog, are the big undecided criminal cases in my sights:

From the November sitting

Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

From the December sitting

Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
U.S. v. TaylorNo. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

From the January sitting

Concepcion v. U.S.No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

From the February sitting

Ruan v. U.S.No. 20-1410 [Arg: 03.1.2022]
Issue(s): Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

From the April sitting

Nance v. WardNo. 21-439 [Arg: 04.25.2022]
Issue(s): (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

This list of a half-dozen cases I am eagerly awaiting does not provide a complete accounting of all the criminal-law-relevant matters still on the SCOTUS docket from this Term.  But it does comprise those cases that I think should likely be of greatest interest to sentencing fans.  (And, with roughly 30 cases left to be decided, this list comprises about 20% of what's now left for the Court to resolve.) 

Since the start of the Term, I figured we should not expect to see Bruen or Dobbs decided before the very last week of the Term.  But the fact that cases like Taylor and Conception are still pending strikes me as an interesting signal that something consequential (and divided) may be afoot in these cases.  But SCOTUS tea-leaf reading is always fraught, and perhaps this year it would be wise to just predict that everything is unpredictable.

June 6, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

June 5, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)