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August 27, 2022

"The Injustice of Under-Policing in America"

The title of this post is the title of this new paper authored by Christopher Lewis and Adaner Usmani and published in the American Journal of Law and Equality. Here is part of its introduction:

Since 2014, viral images of Black people being killed at the hands of the police — Michael Brown, Eric Garner, Breonna Taylor, and many, many others  — have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.  Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. And others have called for abolishing the police altogether.  It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans — especially poor, Black people.  This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.

The American criminal legal system is unjust and inefficient.  But, as we argue in this essay, over-policing is not the problem.  In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations . In this country, roughly three people are incarcerated per police officer employed.  The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate.  We argue that the United States has it backward.  Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world.  We call this the “First World Balance.”

We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration.  This essay offers a preliminary sketch of some of the arguments in the book.  In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor.  One of us is a social scientist, and the other is a philosopher and legal scholar.  Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct — but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.  Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound.  In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.

August 27, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

August 26, 2022

Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells"

Solitary_report_cover_front_only_2021This Guardian article, headlined "Nearly 50,000 people held in solitary confinement in US, report says," reports on the latest version of the important work done by Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School to estimate the number of people held in solitary confinement in the United States.  Here is part of the press reporting:

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.“In the 1980s people promoted solitary confinement as a way to deal with violence in prisons,” said Judith Resnik, Yale’s Arthur Liman professor of law. “It is now seen as a problem itself that needs to be solved.”

California, a state with a dark history of abusive solitary confinement, is currently debating new legislation. The California Mandela Act would require every custodial institution in the state to impose strict rules and reporting, and would ban solitary for pregnant women, people under 26 or over 59, and those with mental or physical disabilities.

Last year New York state passed similar legislation, joining a growing list. The Yale study finds that three states – Delaware, North Dakota and Vermont – reported having no inmates in such confinement in 2021, and two other states said they had fewer than 10 people.

Despite such optimistic signs, restrictive housing continues to inflict untold suffering on thousands of men and women. 

This press release about the report provides some more details and context:

Time-In-Cell: A 2021 Snapshot of Restrictive Housing estimates that, as of July 2021, between 41,000 and 48,000 people were held in isolation in U.S. prison cells. The report defines solitary confinement as 22 hours or more on average a day for 15 days or more. 

The report’s co-authors have worked together for a decade to generate this data, producing the only longitudinal, nationwide database documenting the reported use of solitary confinement in prisons in the United States. 

According to the most recent study, three states reported holding no one in isolation in July 2021, two other states reported fewer than 10 people in solitary, and 10 states reported not using solitary in any of their women’s prisons. In contrast, in 2014, every jurisdiction reported using solitary confinement. That year, an estimated 80,000 to 100,000 people were in solitary in prisons throughout the United States.....

Time-in-Cell also examined the demographics of people held in isolation. The report found that solitary confinement continues to be used for people whom reporting jurisdictions define as having serious mental illness. Moreover, the report found that the number of Black women held in solitary was higher than the number of white women.

The full report includes the numbers, duration, and conditions of people in solitary confinement and the changes underway.

August 26, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

More notable details on the remarkable success of those released from federal prison under CARES Act

In this post on Monday, I flagged the NPR article which reported the remarkable fact that "only 17 people out of more than 11,000 who were released [early from federal prison under the CARES Act] committed new crimes, mostly drug related ones, while they were out."  Marshall Project reporter Keri Blakinger followed up this piece, as she explained on Twitter, by asking the federal Bureau of Prisons what those crimes exactly were.  BOP reported that 10 of the 17 were "drug related" and that only one of the 17 involved a violent offense ("aggravated assault"). 

In other words, depending on just how one wants to account for these data, it could be fair to say those released early from federal prison early under the  CARES Act had a better than 99.9% or even better than a 99.99% recidivism (or lack of recidivism) success rate.  Within a criminal justice system that often has all sort of folks lamenting all sorts of failures from all sorts of perspectives, I am so very eager to really lean into celebrating this extraordinary success.    

Prior related posts:

August 26, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

August 25, 2022

Bureau of Justice Statistics releases big report on COVID's impact on prisons during pandemic's first year

As detailed on this BJS webpage, this morning the Bureau of Justice Statistics released this 45-page "Special Report" titled "Impact of COVID-19 on State and Federal Prisons, March 2020–February 2021."  The BJS webpage has a press release, a summary and this overview:

Description

This report provides details on the effects of COVID-19 on state and federal prisons from March 2020 to February 2021. The report presents data related to COVID-19 tests, infections, deaths, and vaccinations.  It also provides statistics on admissions to and releases, including expedited releases, from state and federal prisons during the first year of the COVID-19 pandemic.

Highlights

  • BJS’s survey to measure the impact of COVID-19 on U.S. prisons from the end of February 2020 to the end of February 2021 found that the number of persons in the custody of state, federal, or privately operated prisons under state or federal contract decreased more than 16%.
  • The prison population declined by 157,500 persons during the first 6 months of the COVID-19 study period through the end of August 2020, and by 58,300 in the 6 months through the end of February 2021.
  • Twenty-four states released a total of 37,700 persons from prison on an expedited basis (earlier than scheduled) during the COVID-19 study period.
  • State and federal prisons had a crude mortality rate (unadjusted for sex, race or ethnicity, or age) of 1.5 COVID-19-related deaths per 1,000 prisoners from the end of February 2020 to the end of February 2021.
  • From the end of February 2020 to the end of February 2021, a total of 196 correctional staff in state and federal prisons died as a result of COVID-19.

August 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"Defeating De Facto Disenfranchisement of Criminal Defendants"

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

In a democracy, voting is not only an important civic duty but a right owed to its citizens.  However, by operation of law, forty-eight states deny voting rights to individuals based on a criminal conviction.  This de jure disenfranchisement has been under attack by activists and scholars as an improper collateral consequence that disproportionately impacts people of color.  Although recent years have seen substantial reforms to re-enfranchise defendants, an estimated 5.17 million defendants were still ineligible to vote in 2020.

While efforts to address de jure disenfranchisement continue to be necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants, who have the legal right to vote but are prevented from exercising it.  De facto disenfranchisement applies to defendants who have regained their voting as well as defendants who never lost their rights.  Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting.  For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their rights.  Moreover, distrust of the political system and fear of arrest for voting exacerbate the issue.  As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color.

As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive in practice.  As a result, more progress is necessary to go beyond merely providing criminal defendants the right to vote to actually empowering them with the ability to vote.  This Article addresses the problems associated with de facto disenfranchisement.  It suggests and analyzes national, state, and local reforms and practices to ensure that defendants with voting rights have meaningful notice and access to voting.

August 25, 2022 in Collateral consequences, Who Sentences | Permalink | Comments (0)

August 24, 2022

Oklahoma Gov reject's state board's clemency recommendation for first of many scheduled to be executed in coming months

As reported in this CNN piece, "Oklahoma's governor has declined to grant clemency to death row inmate James Coddington, whose scheduled execution Thursday is set to be the first of 25 the state plans to carry out through 2024."  Here is more:

Coddington, 50, was sentenced to death for the 1997 murder of Albert Hale -- a man he considered his friend -- while struggling with a crack cocaine addiction. His attorneys and advocates had called for his sentence to be commuted to life in prison, pointing to his case as one of redemption.  Coddington long has expressed sincere remorse for killing Hale, they say, and has worked to transform his life while on death row.

Coddington's remorse, an "exemplary" prison record and his traumatic childhood were among the mitigating factors his supporters highlighted before the Oklahoma Board of Pardons and Parole this month recommended clemency in his case, leaving the final decision up to GOP Gov. Kevin Stitt.  "After thoroughly reviewing arguments and evidence presented by all sides of the case, Governor Kevin Stitt has denied the Pardon and Parole Board's clemency recommendation for James Allen Coddington," a brief statement from the governor's office said.

Emma Rolls, one of Coddington's attorneys, said the inmate and his legal team were "profoundly disheartened" by the governor's decision, but thanked the parole board for its "careful consideration" of Coddington's case.  Its clemency recommendation "acknowledged James's sincere remorse and meaningful transformation during his years on death row," she said. "James is loved by many people," Rolls said in a statement to CNN, "and he has touched the hearts of many. He is a good man."

Coddington, whose execution by lethal injection is scheduled for Thursday at 10 a.m. CT, will be the first of more than two dozen inmates to be put to death in a controversial series of executions Oklahoma officials plan to carry out between now and December 2024 -- at a pace of about one man a month. Opponents and experts have been critical of the plan, pointing to outstanding questions of some inmates' potential innocence or mental fitness, as well as the state's recent history of botched lethal injections....

"Oklahomans overwhelmingly voted in 2016 to preserve the death penalty as a consequence for the most heinous murders," Oklahoma Attorney General John O'Connor said in a July 1 statement as the execution dates were set. "I'm certain that justice and safety for all of us drove that vote."...

Hale's family did not support clemency -- though his son said at Coddington's clemency hearing he had forgiven the man who murdered his father. "I am here to say that I forgive James Coddington," Mitch Hale said during Coddington's clemency hearing, according to CNN affiliate KOCO. "But my forgiveness does not release him from the consequence of his actions." O'Connor was "disappointed" by the board's ruling, he said in a statement at the time.

Prior recent related posts:

August 24, 2022 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Fallacy of Systemic Racism in the American Criminal Justice System"

The title of this post is the title of this new paper authored by Paul Larkin and GianCarlo Canaparo now available via SSRN. Here is its abstract:

Critics of the criminal justice system have repeatedly charged it with systemic racism.  It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called progressive prosecutors to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement.  Yet, few people have defined what they mean by that term.  This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition.  None stands up to scrutiny.

One argument is that the American citizens who run our many institutions are motivated by racial animus.  But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it.  Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence.  Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus.  That research, however, has been debunked.  Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims.

Proponents of the systemic racism theory often proffer “solutions” to it.  This Article, and its companion, which will be published in the same Volume, examines those too and finds that many would, in fact, harm the very people they aim to help.

This Article is part one of two and focuses on the claim of systemic racism in criminal justice system generally.  The second Article focuses on the War on Drugs in particular.  The bottom line of both is this: the claim of systemic racism in the criminal justice system and in the War on Drugs is unjustified and should be rejected.

August 24, 2022 in Race, Class, and Gender | Permalink | Comments (5)

August 23, 2022

New Sentencing Project fact sheet on "Private Prisons in the United States"

The folks at The Sentencing Project have this notable new fact sheet titled simply "Private Prisons in the United States." Here is part of the text of the short document:

Private prisons incarcerated 100,151 American residents in 2020, representing 8% of the total state and federal prison population. Since 2000, the number of people housed in private prisons has increased 15%.

Harmful crime policies of the 1980s and beyond fueled a rapid expansion in the nation’s prison population. The resulting burden on the public sector led to the modern emergence of for-profit prisons in many states and the federal system. Of the 1.2 million people in federal and state prisons, 8%, or 100,151 people, were in private prisons as of yearend 2020.

States show significant variation in the use of private prisons. At one end of the spectrum, Montana incarcerates half of its prison population in privately run facilities, but in another 19 states, private prisons are not used at all. A total of 31 states use private corporations like GEO Group, Core Civic,1 LaSalle Corrections, and Management and Training Corporation to run some of their corrections facilities.

Montana is not alone in its reliance on private prisons. Arizona, Hawaii, New Mexico, Mississippi, and Florida rely considerably on private prisons for housing imprisoned people. In these states, between 13% and 45% of the prison population resides in a for-profit prison.

August 23, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (2)

New CCJ commission to examine factors driving veterans' involvement in criminal justice system

As detailed via this press release, the folks at the Council for Criminal Justice today announced its latest impressive initiative focused on better serving those who have served.  Here are the basics: 

The Council on Criminal Justice (CCJ) today announced the launch of a national commission to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice.

Chaired by former U.S. Defense Secretary and U.S. Senator Chuck Hagel, the nonpartisan Veterans Justice Commission also includes former defense secretary and White House Chief of Staff Leon Panetta, a former Sergeant Major of the Marine Corps, the chief justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.  Over the next two years, the 15-member Commission will conduct research and gather testimony to assess:

  • the extent and nature of veterans’ involvement in the criminal justice system, and  risk factors that drive it;
  • the adequacy of transitional assistance for veterans as they reenter civilian life, and what strategies could better prevent justice-system involvement; and
  • the nature and effectiveness of the justice system response when veterans break the law, and what other interventions could, or should, occur.

“Criminal justice reform has received significant bipartisan attention in recent years, but the issue of how the system manages the men and women who have served our country has been almost totally absent from the national conversation,” said Hagel, a decorated Vietnam veteran and former U.S. senator from Nebraska who served as defense secretary in the Obama Administration. “Service-related trauma and other legacies of deployment push too many veterans on a path toward incarceration. We can and must do more to understand and interrupt that trajectory.”

Roughly 200,000 active-duty service members leave the armed forces each year.  Most transition successfully, demonstrating resilience amid a wide range of risk factors and obstacles.  Others, however, struggle with mental health challenges, substance abuse, homelessness, and criminality.

Roughly one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans.  According to the most recent national survey, a total of 181,500 veterans were in U.S. prisons and jails.

The reasons underlying veterans’ justice-system involvement are complex, ranging from combat-related risk factors to “bad-paper” discharges that bar VA benefits such as access to mental health and substance abuse treatment, ineffective procedures to identify veterans upon arrest, and inconsistent diversion mechanisms. Once in the system, many veterans do not receive targeted support to address their conditions, reducing the likelihood of successful reentry.

These and other challenges are summarized in an initial assessment report to the Commission and a video, both of which were also released today.

Kudos to CCJ for putting together an amazing team to critically examine the critical questions surrounding just why our veterans tend to be underserved by, and overrepresented in, our criminal justice systems.

August 23, 2022 in Offender Characteristics | Permalink | Comments (1)

August 22, 2022

"Legal Fiction: Reading Lolita as a Sentencing Memorandum"

The title of this post is the title of this intriguing new article authored by Christina Frohock now available via SSRN. Here is its abstract:

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief.  The story emerges from the law.  This Article proposes inverting that focus so that we identify the law within a narrative.  Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum.  That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se.

In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative.  The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant.  This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy.  The notion of law without sympathy thus rings hollow.  Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice.  Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

August 22, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Another encouraging report on those released under federal CARES Act

NPR has this notable new piece, headlined "Released during COVID, some people are sent back to prison with little or no warning," with a kind of good news/bad news reporting on persons released from federal prison during the pandemic under the CARES Act.  Here are extended excerpts: 

More than 11,000 people [under the bipartisan pandemic legislation called the CARES Act] have been released from federal prison in the last couple of years, to ride out the pandemic at home, often with their families and loved ones.  But that situation can be precarious.

In June 2021, [Eric] Alvarez and [his finance Eva] Cardoza took a 90-minute cab ride into the Bronx, so she could meet with staffers in charge of her supervision.  Cardoza, who had tested positive for marijuana, never came out of the building....  Cardoza's return to prison turned the family upside down.  She's now been back at Danbury for 14 months. Alvarez said she never got the chance to explain herself or challenge that single positive drug test.  "That's just mind boggling to me," Alvarez said.  "Where is the judicial system? Where is the fairness? Where is the 50-50? I don't see it."

Less than 0.2% of the people released committed new crimes while they were out

This week, the Bureau of Prisons told NPR that 442 people who were released during the pandemic have now returned to prison.  Only 17 people out of more than 11,000 who were released committed new crimes, mostly drug related ones, while they were out.  More than half, some 230 people including Eva Cardoza, got sent back for alleged alcohol or drug use.  Other cases involved technical violations.

Sakira Cook of the racial justice group Color of Change explained what that means.  "It could be as simple as failing to answer the phone when your probation officer calls you. It could be as simple as the ankle monitor giving an incorrect signal about your location," Cook said....

Most of the monitoring of people on home confinement is being done by private contractors, said Quinnipiac University School of Law professor Sarah Russell.  "There can be a lot of room for miscommunications and misunderstandings," Russell said.  Russell said that's all the more reason to ensure due process rights for people at risk of being sent back: the opportunity to see the evidence against them and to have a hearing before a neutral arbiter.

Last week, one of Russell's clients won those rights in court.  The decision by Judge Omar Williams is the first in the nation to hold that the current process for returning people to federal prison after home confinement is unconstitutional.

Russell said her other clients — moms with young children — are still nervous about having to leave their lives behind unexpectedly.  "My real hope is that this gets addressed at the national level through the Bureau of Prisons and through the Department of Justice," Russell said.  "They have a real opportunity to set clear procedures and criteria."

More lawsuits from people returned to prison are under way. The Bureau of Prisons said it can't talk about that pending litigation. But it is considering a new federal rule to make the process more clear.

Though I understand why the focus of this piece is on the opaque and seemingly unfair processes often adopted by BOP when returning people to custody, I am eager to highlight and stress the extraordinarily low recidivism rate being reported for those released under federal CARES Act.   FBI arrest data suggest (very very, roughly) that up to 1 in every 50 adults get arrested for a crime in the US each year.  That just over 1 in every 1000 persons released under federal CARES Act have been found to commit new crimes over the last 2+ years is truly remarkable.  (Or course, persons released under the CARES Act have been screened for riskiness and have very strong incentives to stay crime-free with a prison return looming.  Still, the same can arguably said for a large portion of persons released from prison, and yet usual recidivism rates are depressingly high for many other cohorts of former prisoners.)

I sense a lot of different groups and researchers are busy trying to better understand what factors contribute to desistance from crime these days.  The CARES Act data suggest this is a cohort that ought to be examined closely as we seek to engineer improved prison release mechanism.

UPDATE: I wrote to Professor Sarah Russell about the ruling from Judge Williams, which she was able to provide his 35-page opinion for posting here.  Folks will want to read the full 35-page opinion if working in this area, but this one line provides the main part of the holding: "this court finds that Respondents violated Petitioner’s due process rights in revoking her home confinement without a proper revocation hearing as described in Morrissey."

Download Tompkins Order on CARES Act return procedures

August 22, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz

Apart from this post last month, I have not been following closely or blogging at all about the ongoing the state capital trial in Florida of Parkland mass murderer Nikolas Cruz.  But this AP article, headlined "Defense in school shooter’s trial set to present its case," suggests it is now a sensible time to check in.  Here are excerpts from the AP report:

The prosecution spent three weeks telling jurors how Nikolas Cruz murdered 14 students and three staff members at a Florida high school four years ago. Now his attorneys will get their chance to present why they believe he did it, hoping to get him sentenced to life without parole instead of death. Melisa McNeill, Cruz’s lead public defender, is expected to give her opening statement Monday, having deferred its presentation from the start of the trial a month ago.

She and her team will then begin laying out their 23-year-old client’s life history: his birth mother’s abuse of alcohol and cocaine during her pregnancy, leading to possible fetal alcohol syndrome; his severe mental and emotional problems; his alleged sexual abuse by a “trusted peer;” the bullying he endured; and his adoptive father’s death when he was 5 and his adoptive mother’s four months before his Feb. 14, 2018, attack at Parkland’s Marjory Stoneman Douglas High School.

McNeill’s decision to delay her opening statement appeared part of a broader strategy to not deny or lessen anything prosecutors told jurors about Cruz’s massacre — he pleaded guilty in October to 17 counts of first-degree murder. This trial is only to decide his sentence; the seven-man, five woman jury will consider whether the prosecution’s aggravating circumstances “outweigh” the defense’s mitigating factors....

This is the deadliest U.S. mass shooting to ever reach trial. Nine other gunmen who killed at least 17 people died during or immediately after their shootings, either by suicide or police gunfire. The suspect in the 2019 slaying of 23 people at a Walmart in El Paso, Texas, is awaiting trial. During the prosecution’s case, McNeill’s team never cross-examined any teacher or student who witnessed the slayings and only had brief, mild exchanges with a few other witnesses....

To get Cruz a life sentence, the defense will only have to persuade one of the 12 jurors, but they will have to do it on all 17 counts, one for each victim. It is possible, for example, a reluctant juror might be pushed to vote for death on victims who surveillance video showed Cruz shot multiple times as they lay wounded and helpless.

The defense will be trying to overcome the horrendous evidence that was laid out by the prosecution, capped by the jurors’ Aug. 4 visit to the fenced-off building that Cruz stalked for seven minutes, firing about 150 shots down halls and into classrooms. The jurors saw dried blood on floors and walls, bullet holes in doors and windows and remnants of Valentine’s Day balloons, flowers and cards.

Some prior related posts:

August 22, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

August 21, 2022

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

MaxresdefaultThe question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

August 21, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)