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July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Another REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

With the topic so timely at a time of year when so much can get forgotten, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 14, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"What Do Federal Firearms Offenses Really Look Like?"

Cover_2022-firearmsThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

July 14, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing | Permalink | Comments (0)

July 13, 2022

Some more coverage and commentary on what criminalization of abortion can and will mean 

In a few posts here and here not long after the Dobbs decision, I flagged some news pieces and some commentaries discussing how the overruling of Roe and the criminalization of abortion in some states might echo through our criminal justice system.  In recent days, have now seen a few more notable pieces further exploring what abortion criminalization could and will mean:

From The 19th, "Prosecutor explains what preparing for a future of post-Roe abortion cases might look like"

From Bloomberg Law, "Progressives Look to Pardon Power as Abortion Access Fix"

From CNN, "Michigan governor signs executive order to protect abortion providers and patients from extradition"

From Mother Jones, "Why Progressive Prosecutors Won’t Save Us in a Post-Roe World"

From Slate, "Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail"

From The Texan, "Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs"

From the Texas Observer, "Abortion Is (Again) A Criminal-Justice Issue

A few prior related posts:

July 13, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Some news and notes regarding new director of the federal Bureau of Prisons

As first noted in this prior post, Colette Peters, who has served as Director of the Oregon Department of Corrections for more than a decade, this week was selected to lead the federal Bureau of Prisons by Attorney General Merrick Garland.  The official announcement from DOJ is at this link, and it reports that she "will assume her duties on Tuesday, August 2."  The announcement prompted some notable press releases and coverage.  For example:

From a press release from Senate Dick Durbin's office, this quote from Senator Durbin:

It’s no secret that BOP has been plagued by misconduct.  One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels.  In light of those reports, I called for former BOP Director Michael Carvajal’s resignation last November.  So it was welcome news when six weeks later, he announced his resignation.  I am hopeful that with Colette Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the bureaucratic rot and reform BOP.  It is a tall order, and I look forward to working with Ms. Peters to help her succeed in this new role.

From a press release from FAMM, this quote from FAMM President Kevin Ring:

Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change. During Caravajal’s tenure, the BOP has been a black box. When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.

The most thorough reporting I have seen regarding Peters' professional track record comes from this entry at Chris Geidner's substack LawDork.  I recommend the full entry, and here is a portion (with links from the original):

DOJ pointed to ODOC’s development of the “Oregon Way” under her leadership.  As ODOC describes it, the goal of the “Oregon Way” is to “improve employee health and wellness, and reduce the use of segregation, by transforming environments inside correctional facilities to be more normal and humane.”

Bobbin Singh, the executive director of the Oregon Justice Resource Center, however, expressed significant concerns about the appointment given his experience with her work in Oregon — including in ongoing litigation.

“This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told Law Dork on Tuesday.

Less than a month ago, his organization sent a new report to state lawmakers, detailing ongoing problems in the department. In the letter to lawmakers accompanying the report, which was provided to Law Dork, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

July 13, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (3)

July 12, 2022

Amnesty International releases "The Power of Example: Whither the Biden Death Penalty Promise?"

Via this Death Penalty Information Center posting, I just saw that a few weeks ago Amnesty International issued this big new report, titled The Power of Example: Whither the Biden Death Penalty Promise?," which advocates for Prez Biden to fulfil his campaign pledge to work to "eliminate the death penalty."   Here are a few passages from the start of this 100+ page report:

Amnesty International opposes the death penalty in all cases without exception regardless of the nature or circumstances of the crime; questions of guilt, innocence, or other aspects of the case; or the method used by the state to carry out the execution....

Amnesty International submits that the 50th anniversary of Furman is an opportune moment for the US administration and members of Congress to be reminded that the world is waiting for the USA to do what almost 100 countries have achieved during this past half century — total abolition of the death penalty.  Abolition of the federal death penalty would be consistent with US obligations under international human rights law.  It would bolster the position of those states in the USA that have already got rid of the death penalty or are moving towards doing so.  It would set a positive example to individual state governments that continue to use this cruel, unnecessary, and flawed policy, as well as to the diminishing list of retentionist countries....

This report, then, stems from Amnesty International's concern that the clock is running on the Biden pledge with little to show for it.  It is not a study of the federal death penalty as such or an examination of the cases of the more than 40 individuals currently on federal death row, or of those federal defendants facing death penalty trials.  The report revisits the six-month federal execution spree in a bid to jog the collective governmental memory of that shameful episode and to reboot the political commitment to abolition.  It also seeks to remind the US authorities of their general and specific obligations under international human rights law in relation to the death penalty, including as provided in the International Covenant on Civil and Political Rights (ICCPR).

July 12, 2022 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (2)

July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

Prior recent related posts:

July 11, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Colette Peters selected to lead federal Bureau of Prisons

Government officials who run prison and jail systems at the local, state and federal level will often have a huge impact not only on the lives of incarcerated persons, but also on broader criminal justice realities. In the federal system, thanks especially to the FIRST STEP Act's emphasis on an array of new prison-focused reforms, the head of the Bureau of Prisons is now an especially important position. As this new New York Times article details, the BOP is about to have a new leader:

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead the chronically mismanaged and understaffed federal Bureau of Prisons, according to two people familiar with the decision.

The Justice Department, which oversees the bureau, is expected to announce her appointment this week, perhaps as early as Tuesday.  The bureau, a sprawling network of 122 facilities with an annual budget of around $10 billion, houses about 158,000 inmates.

The appointment comes after a long search to replace the current director, Michael Carvajal, who announced his intention to retire in January, under pressure from Senate Democrats who questioned his management.

Ms. Peters, who began her career as an administrator in Oregon’s juvenile justice system, rose to national prominence after instituting changes in the state’s 14-facility system to improve the health and treatment of its 15,000 inmates. She was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.

The federal prisons bureau has long been plagued by health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks.  Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an investigation by The Associated Press last year, which uncovered a wide array of other shortcomings....

Under the Trump administration, the bureau was the subject of turf battles and ideological disagreements, even as the White House negotiated the bipartisan criminal justice legislation known as the First Step Act.  The measure was devised to reduce the size of the federal prison system and to provide lower-level offenders with greater access to alternatives to incarceration.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Furman at 50: some recent notable coverage

As noted in this recent post, the US Supreme Court's remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of "Furman at 50" posts.  Unsurprisingly, I am not the only one to note the Furman milestone, and here is a round-up of some recent coverage and commentary I have seen from various sources:

From the Dalton Daily Citizen, "50 years after SCOTUS ruled death penalty cruel and unusual, race factors heavily in executions"

From the Death Penalty Information Center, "DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations"

From The Marshall Project, "The Supreme Court Let The Death Penalty Flourish.  Now Americans are Ending It Themselves."

From Slate, "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?"

From UPI, "50 years after Furman ruling, death penalty may come down to states, experts say"

From The Washington Post, "Death penalty’s 50-year rise and fall since Supreme Court struck it down"

Related prior posts:

July 11, 2022 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (5)

"FAMM challenges policymakers nationwide to #VisitAPrison"

FAMM, an advocacy organization which describes itself as promoting "fair and effective criminal justice policies that safely reduce incarceration, save taxpayer dollars, and keep families together," has launched today what is now an annual campaign that encourages local, state, and national policymakers to visit a prison or jail in their states or districts.  The title of this post is the subject line of an email I just received from the FAMM folks, and here is more its text:

“Laws are written for prisons and jails across the country and voted on by people who’ve never set foot inside them,” Ring said.  “This is such a simple step for policymakers to take, and anyone who visits will learn something by talking to the people who live and work in these facilities.  Our message is simple: You don’t know if you don’t go.”

Our nation’s prisons and jails are in crisis.  Staff shortages, poor healthcare, crumbling infrastructure, and other chronic problems have resulted in prisons that are unsafe to live and work in for prisoners and correctional officers alike. 

To assist in the effort, FAMM has mobilized families, advocates, allies, and public figures to share their stories via video using the #VisitAPrison hashtag and to challenge policymakers to educate themselves about the conditions of confinement in federal and state prisons and jails.

For more information, including a tracker of lawmakers who have visited a prison, visit FAMM.org/visitaprison.

I robustly endorse this effort to encourage lawmakers and other public officials.  Especially amid considerable political discourse about crime and punishment, I hope political candidates and voters will, in this significant election year, make efforts to advance and inform discussions regarding the goals and the realities of incarceration in America circa 2022.

UPDATE: The organization Fair and Just Prosecution today released this notable letter in support of the FAMM campaign which starts this way:

Today, 65 elected prosecutors pledged to personally visit the correctional facilities in which individuals prosecuted by their offices are placed and to require all prosecutors in their offices to do the same.  The signatories — who represent over 50 million people across 28 states and territories and the District of Columbia — emphasize that “it is vital for prosecutors to understand the true impact of their decisions and to see firsthand the jails, prisons, and juvenile facilities in their jurisdiction.”  The pledge is part of FAMM’s #VisitAPrison challenge, which encourages all state and federal policymakers to visit a prison or jail.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (5)

July 10, 2022

Some initial thoughts on some SCOTUS criminal justice work with OT21 now complete

The Supreme Court recently completed a truly historic Term, though the blockbuster cases were not on the criminal side of the docket. (That said, as noted in prior posts, the big rulings in Dobbs (reversing Roe) and Bruen (expanding the Second Amendment) will have many criminal justice echoes.)  Still, based on this helpful list from Crime & Consequences, about a third of the OT21 SCOTUS docket dealt with criminal justice issues, with many interesting and important stories to be found within these nearly two dozen cases.  Here are some initial thoughts on the criminal justice Term that was (with an eye on Terms to come):

1. Federal defendants who were not the Boston Marathon Bomber did quite well.  All the talk about SCOTUS being now so conservative does not reflect this Term's outcomes in federal statutory criminal cases.  Though Dzhokhar Tsarnaev had his federal death sentence reinstated and a few other federal defendants lost on procedural issues, a number of federal defendants prevailed on an array of statutory issues (see Concepcion, Ruan, Taylor, Wooden).  The considerable success of these federal defendants on various statutory claims is surely a function of selective certiorari grants, but it is still notable and a trend to watch.

2. State defendants pursuing federal habeas actions have real reason for real pessimism.  There were significant losses for state defendants as federal habeas petitioners in Davenport and Shinn and Twyford.  These rulings all included an unmistakable tone and notable dicta signaling that a super-majority of the Justices are quite eager to restrain the authority of federal courts to review and reverse state convictions via habeas.  We shall see if the conservative block of Justices will continue to look for opportunities to rein in lower federal courts seeking to give state prisoners habeas relief.  

3. Murderers, deference/comity, bites at the apple, and a coming test case.  Tsarnaev and Davenport and Shinn and Twyford all involved defendants convicted of serious murders (all but Davenport were capital cases).  A few capital defendants did prevail on distinctive issues: Ramirez provided clergy access at execution; Nance preserved 1983 as a robust mean to contest execution protocols.  A possible through-line here is that the Court is particularly troubled when federal courts fail to show deference or comity to give serious criminals multiple "bites at the apple," but they still will protect an initial "bite."  These themes add intrigue to the collateral review case already on the SCOTUS docket for next Term, Jones v. HendrixNo. 21-857, which involve statutory avenues for federal defendants to raise issues that were previously legally unavailable.

4.  A dynamic conservative block in criminal cases (with KavaRob as the new Kennedy?).  Among the conservative Justices, one can usually expect in criminal cases that Justice Alito will be the most likely to vote for the government and Justice Gorsuch will be the most likely to vote for the defendant.  But, in capital cases, Justice Gorsuch is a consistent vote against defendants while CJ Roberts and Justice Kavanaugh seem a bit more "defense friendly."  Interestingly, in two notable 5-4 rulings this Term, it was Justices Gorsuch and Thomas providing the key votes for a federal defendant in Concepcion and it was CJ Roberts and Justice Kavanaugh providing the key votes for a state capital defendant in Nance.

Before Justice Barrett replaced Justice Ginsburg, Justice Gorsuch alone could be a swing vote joining the liberal block to give a criminal defendant a win in closely divided cases (McGirt from 2020 is a notable example).  But now Justice Gorsuch's vote for a defendant may just be a fourth vote in dissent (as in Castro-Huerta and Twyford this Term).  Consequently, CJ Roberts and Justice Kavanaugh, who voted together this Term in 100% of cases, may now need to be the focal point for advocates in closely divided criminal cases.  (I call this pair "KavaRob" because I sense Justice Kavanaugh may care a bit more about the criminal side of the docket than does the Chief; I call them the "new Kennedy" because for many years criminal litigants knew that Justice Kennedy was the key swing vote they needed to target.) 

5. Justices Barrett seems mostly in line, so far, with Justice Alito in criminal cases.  I had been hoping that Justice Barrett might prove likely to vote with Justice Gorsuch on various criminal justice issues.  But this Term, Justice Barrett was more likely to vote with Justice Alito than even other conservative Justices, and that seemed particularly true in criminal cases (see Ruan), even though they were not always in sync (see Taylor).  I gave a talk not long after Justice Barrett joined the Court where I suggested she might follow Justice Gorsuch's path; some Seventh Circuit practitioners responded that I should not count on it.  The practitioners' perspective seems to have been more astute than my view from the ivory tower.

6. Might new Justice Jackson created a whole new Court in criminal cases?  One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned.

July 10, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Couple of choice Concepcion commentaries

The Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), is an important sentencing precedent that is sure to be overshadowed by this Term's higher profile cases.  But I have been pleased to see  a couple new notable commentaries on Concepcion.  Here are links and excerpts from two pieces worth reading in full:

From CNN by Van Jones and Nisha Anand, "A rare Supreme Court ruling this term where conservative and liberals joined forces"

The Supreme Court's ruling in Concepcion could mean reduced sentences for thousands of people.  It also means that the Court just made it easier to reward those who take steps to better themselves.  And allowing judges to take new information into account will help ensure that rehabilitation becomes the main point of our criminal justice system.

Helping people transform their lives reduces crime.  It keeps us all much safer than simply locking people behind bars with no hope for the future. If members of a deeply divided Supreme Court can recognize this, then surely the rest of us can as well.

From Law360 by Mark Osler, "Justices' Resentencing Ruling Boosts Judicial Discretion"

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law.  However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities.  After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing....

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant.  While this decision, in isolation, may bring mixed results, that trend is a good one.

Prior related posts:

July 10, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11)