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September 17, 2022

"The Prison Pleading Trap"

The title of this post is the title of this new paper on SSRN authored by Tiffany Yang.  Here is its abstract:

The prison is an epicenter of dominance — it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls.  But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act to obstruct their pathways to judicial relief.  A centerpiece of this effort is the Act’s exhaustion provision, which mandates proper completion of the prison grievance process before challenging any condition of prison life in federal court.

Prisons design demanding grievance pleading standards to make exhaustion more difficult for the people they confine. When a federal court disagrees with the prison’s interpretation of a pleading rule and permits an incarcerated plaintiff’s claim to move forward, the decision is seen as a victory that safeguards incarcerated people’s right to judicial redress.  It is tempting to perceive the plaintiff’s success as the prison’s defeat.  But when we peer behind the curtain and interrogate what follows, a dangerous manipulation of power emerges.  Prisons have responded to litigation “defeats” by amending their grievance rules to impose a more onerous pleading standard that forecloses the short-lived victory.  What appears at first glance to be a welcome exercise of judicial intervention functionally becomes an invitation — indeed, a blueprint — for the prison to raise its grievance pleading bar and immunize itself from liability.

This reactive process — what I call the “prison pleading trap” — creates an untenable and perilous regime.  And its harms are heightened for people of color, who are disproportionately incarcerated and, while confined, disproportionately subject to prison abuses requiring redress.  This article investigates the trap’s operations and impacts, and upon considering a range of potential solutions, it ends by recognizing the merits of transformative change.  Congress created PLRA exhaustion to reduce the quantity of prison litigation, but this reform addressed a symptom (the volume of litigation) while ignoring the disease (growing prison populations and persisting abuses). Discrete procedural solutions to prison grievance pleading will have meaningful impacts, but they are ultimately incomplete without a concurrent commitment to decarceration.

September 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

September 16, 2022

Federal judge orders Philly prosecutors to send written apologies to victim family members for poor behavior in capital habeas case

This ABA Journal article, headlined "Federal judge orders district attorney to write apology letters to families of murder victims," reports on a notable federal court order from earlier this week. Here are the highlights:

A federal judge has ordered Philadelphia District Attorney Larry Krasner to write apology letters to the families of the victims of a double murder after concluding that supervisors in his office made misleading statements to the court.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania scolded prosecutors for being “vague” and “unclear” about whether they consulted with victims’ families before supporting efforts to overturn the death penalty in the case against Robert Wharton.  In reality, prosecutors communicated with just one person — the family member who survived the attack, Lisa Hart-Newman.  The district attorney’s office had written in a court notice that it decided to concede an ineffective counsel claim following a review by its capital case review committee and “communication with the victims’ family,” wrote Goldberg in a Sept. 12 opinion.

Wharton was convicted for killing Bradley and Ferne Hart in 1984 in retaliation for failure to pay for construction work.  Working with an accomplice, he then shut off the heat to the couple’s home, leaving their 7-month-old daughter, Lisa, “to fend for herself,” according to a 2018 opinion by the 3rd U.S. Circuit Court of Appeals at Philadelphia.  A relative found the baby still alive three days later.

The 3rd Circuit ordered the death penalty review to determine whether Wharton’s trial lawyer was ineffective by failing to present evidence about the defendant’s positive adjustment to prison.  The district attorney’s office agreed that Wharton’s Sixth Amendment rights had been violated and asserted that a full review by the judge was unnecessary, according to Goldberg’s opinion.  But precedent “plainly holds that a jury’s death sentence verdict cannot be undone until all facts are placed on the table so that a fully informed judge, not the district attorney, can make the decision as to whether a decades-old verdict should be set aside,” Goldberg said.

Although the 3rd Circuit required a review of evidence in favor and in opposition to the death penalty, the district attorney’s office failed to advise the court about Wharton’s “violent escape from a city hall courtroom” and subsequent escape conviction, Goldberg said.  That’s “possibly the worst type of prison adjustment,” he observed.

Department supervisors on the capital case review committee said they recommended conceding Wharton’s habeas petition without knowing about the escape attempt. But that admission “was curiously contrary” to an assistant supervisor’s assertion in court that the office was aware of Wharton’s escape conviction, Goldberg said.... Goldberg said the district attorney’s office “continues to misunderstand its role” in collateral review proceedings in death penalty cases.  “If the district attorney’s office files its concession on a misleading presentation of the facts, it attempts to misuse the court’s power,” Goldberg said.

Goldberg directed Krasner to send separate written apologies to Hart-Newman and three family members for representing that the office had communicated with the victims’ family.

The full and interesting 28-page ruling in Wharton v. Vaughn is available at this link.

September 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

September 15, 2022

"Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence"

The title of this post is the title of this recent article authored by Daniel Harawa available via SSRN. Here is its abstract:

The saying goes, when life gives you lemons, make lemonade.  When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana.  On their face, the cases teach that history matters. Government actors who discriminate must be held to account.  Accepted institutional practices can no longer perpetuate racism. And courts must assume an active role in addressing the racism endemic to the criminal legal system.  At least tonally, these cases are a marked shift for the notoriously post-racial Roberts Court

But if you dig a little deeper, it is clear that the cases have severe shortcomings.  The cases reflect that the Court acknowledges only the most egregious examples of racism, and it fails to see the invidious ways race taints the criminal legal system.  The cases also demonstrate the Court’s failure to connect past racial practices with present racial disparities, a failure that in turn paints a false picture of discontinuity of the past from the present.  When viewed critically, these seemingly race-aware cases fall neatly in line with the post-racial critiques of the Roberts Court. From a racial justice perspective, the cases could be viewed as lemons.

Even so, this Article attempts to make lemonade. The Article shifts the narrative about the Court’s criminal jurisprudence by arguing that these recent cases can be helpful tools in the fight for racial justice.  This Article asserts that the cases can be deployed not only to make specific antiracist legal arguments, but also to push for policy changes and to encourage more open discussions about racism in the criminal legal system.  In the end, the Article urges a reclaiming of the case law to help unwind the corrosive relationship between race, crime, and punishment in America.  This intervention is necessary now, for the millions of Black and Brown people shuffled through the system each year. 

September 15, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

US organizations file complaint at United Nations stating LWOP and other extreme prison terms "are cruel in violation of the international prohibition on torture"

As reported in this new Guardian piece, headlined "US civil rights groups file complaint against ‘death by incarceration’ to UN," a coalition of organizations today filed a notable broadside against all extreme prison terms in the US.  Here are the basics:

A coalition of civil and human rights organizations on Thursday filed a complaint urging United Nations special rapporteurs to declare the United States’ longstanding practice of subjecting people to life sentences, including without possible release, “cruel, racially discriminatory” and “an arbitrary deprivation of liberty” that violates incarcerated people’s rights.

They argued that “death by incarceration”— a term describing life sentences without parole coined by [Terrell] Carter and other members of the Right to Redemption Committee, a group of incarcerated people seeking the abolition of the practice — amounted to torture.  In their complaint, the civil rights organizations asked the international watchdogs to pressure the United States, who leads the world in sentencing people to life imprisonment, to abolish the extreme practice altogether.  They proposed instead to impose maximum sentencing laws that would eliminate the practice of “virtual life” sentences — those longer than a person’s remaining years of life expectancy, often more than 50 years....

Dozens of testimonies from incarcerated people sentenced to life detail the horrific toll so-called “death by incarceration” has not just on their physical, mental and emotional wellbeing but also the lasting impact separation has on their family members.  Carlos Ruiz Paz, who is serving a life sentence in California, wrote in a testimonial that a life sentence without parole signaled a person was “irreparably damaged without hope of redemption”, adding: “Extreme sentences affect the kids who grow up without us and the parents that will die without us at their side.”

The complaint noted that the United States’ use of virtual life sentences increased exponentially since the 1970s, particularly after the supreme court abolished the death penalty in 1972, prompting states to strengthen life sentencing laws for offenders.  Even after the supreme court reversed course in 1976, extreme sentencing practices continued.  By the 1980s and 90s, as the federal government incentivized states to impose harsher sentencing practices in an effort to curtail perceived rises in crime, more and more people were imprisoned for longer.

The toll of that suffering has disproportionately upended the lives of Black and brown people who have been subjected to over-policing throughout time, exposing them to the US carceral system and led to escalating mass incarceration.  Organizers argue that that violates international human rights law prohibiting racial discrimination. “This systemic deprivation of resources, including education, healthcare and other social support and services, is coupled with the entry of more police and prisons in these communities and exposure to the criminal legal system,” the complaint noted.

The US is the only country that sentences children under 18 to life without parole, a practice that the United Nations has already singled out. And the US accounted for more than 80% of people worldwide serving life sentences without parole.

The full complaint is available at this link, and it runs 160 pages in total (though 3/4 of the document is comprised of an Appendix with testimonials from persons serving extreme sentences). Here is a paragraph from the complaint's introduction:

The United States’ use of DBI sentences violates a range of international human rights.  First, the disproportionate imposition of DBI sentences on racial minorities, in particular Black and Latinx people, violates the prohibition against racial discrimination.  Second, by arbitrarily and permanently sentencing individuals to prison terms that result in their premature death, DBI sentences violate individuals’ right to life.  Third, as recognized by numerous international human rights bodies, by depriving individuals of their right to hope and to rehabilitation, DBI sentences violate the international prohibition against torture and cruel, inhuman, and degrading treatment.  The devastating consequences on an individual’s right to family life further exacerbate the cruelty of DBI sentences.  Finally, the failure of DBI sentences to serve any legitimate purpose further demonstrates that such sentences are an impermissibly arbitrary deprivation of liberty.  To comply with international human rights standards, the United States must abolish DBI and restore incarcerated individuals’ right to hope.

September 15, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (2)

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

September 15, 2022 in Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender | Permalink | Comments (0)

September 14, 2022

Ninth Circuit panel holds non-retroactive sentencing changes can be considered in compassionate release motions

Weighing in on an issue that has split circuits, a Ninth Circuit panel today in US v. Chen, No. 20-50333 (9th Cir. Sept. 14, 2022) (available here), held that "a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  The Chen opinion explains how "other circuits are split concerning this issue," but ultimately decides to "join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A)."  Here is a portion of the panel's explanation for its ruling:

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that “[r]ehabilitation . . . alone” is not extraordinary and compelling.... To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98225, 55–56, 121 (1983)....

The Supreme Court’s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.” 142 S. Ct. at 2396.  Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now....

Through § 3582(c)(1)(A) and § 994(t), Congress has demonstrated that it can, and will, directly limit what constitutes extraordinary and compelling reasons.  It is therefore hard to reconcile the argument that we should infer a categorical bar on extraordinary and compelling reasons with Congress’s prior decisions not to create such stark limitations on a district court’s discretion.

September 14, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Rounding up lots of notable headlines and stories

Busy times means I sometimes need to cover a lot of stories of interest through a round-up post.  This is one of those posts:

From AL.com, "‘We have to do something’: Alabama lawmaker pitches increased penalties for fentanyl traffickers as overdoses mount"

From Bloomberg Law, "Ninth Circuit Standard Sentencing Terms Ruling Highlights Split"

From CBS News, "Minnesota man sentenced to life in prison for selling fentanyl in 11 fatal overdoses: 'Your disregard for human life is terrifying'"

From the Chicago Tribune, "An Illinois man is serving a life sentence for 6 grams of cocaine. He is fighting to be freed."

From Florida Politics, "Not so deadly DeSantis — law and order Governor has signed fewer death warrants than predecessors"

From The Guardian, "‘My emancipation proclamation’: the man fighting to free millions from their criminal records"

From NPR, "110 people once sentenced to life in prison as juveniles convene for 'freedom party'"

From Politico, "Arrests in New Jersey for small-time cannabis dealing plummet post-legalization"

From Time, "People Age Out of Crime. Prison Sentences Should Reflect That"

From WGHP, "Why do some of NC’s convicted killers get parole and others don’t?"

From WHYY, "Sentencing reform, or getting tough on crime? Oz and Fetterman on criminal justice"

September 14, 2022 in Who Sentences | Permalink | Comments (1)

Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentences 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.

Excitingly, Michael Pepson and Jeremiah Mosteller have this new Bloomberg Law commentary, headlined "US Supreme Court Should Tackle Acquitted Conduct Sentencing," which focuses on the McClinton cert petition and makes this notable assertion: "Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum."  Here is more from the piece that I recommend in full (with links from the original):

This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime.  This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion.

At least three current justices have questioned or called for an end to this unjust practice. And they do not stand alone, as other recent members of the court have also noted this issue demands action, including former justices Antonin ScaliaRuth Bader Ginsburg, and Anthony Kennedy.

There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.

The justices are not alone.  For years, many lower federal court judges have also forcefully argued that acquitted conduct sentencing is unconstitutional.  And a growing number of state courts have also broken ranks with the federal courts, calling this sentencing practice what it is: unconstitutional.

This broad criticism underscores the appalling nature of this practice.  It is not only unjust to defendants but also undermines the legitimacy of our criminal justice system and eviscerates the role of juries as a check on government abuse and overreach.

We both frequently have conversations with friends, advocates, and partners who have no idea this practice occurs.  The response is always shock and confusion about how such a practice can exist in America.  This horrified reaction mirrors our own, which is why we continue to advocate for the end of this practice.

The Supreme Court has a perfect opportunity to reconsider this practice by accepting a case called McClinton v. United States

A few recent of many, many prior related posts:

September 14, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System"

The title of this post is the title of this new article authored by Michael Perlin and Heather Cucolo now available via SSRN. Here is its abstract:

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty.  Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system.  We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel.  Next, we will discuss how the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty.  We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law.

Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence, and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation.

This article strikes me as especially timely given that the capital defense of Nikolas Cruz, the Parkland school shooter, has been particularly focused on FASD.  This new article, headlined "Nikolas Cruz trial: FASD expert has ‘never seen’ pregnant woman abuse alcohol as much as shooter’s mother," provides a partial account of the evidence being developed during his on-going capital sentencing proceeding.

September 14, 2022 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (2)

September 13, 2022

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

September 13, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion Requirement"

The title of post is the title of this new paper authored by Margo Schlanger and Betsy Ginsberg now available via SSRN. Here is its abstract:

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people.  For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win — regardless of merit.  We have seen the result in the wave of litigation relating to the COVID-19 pandemic.  Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them.  Time and again, courts have thrown cases out based on the PLRA —especially, on the PLRA’s instruction to dismiss civil rights cases unless “such administrative remedies as are available are exhausted” (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison’s or jail’s grievance system).

The pandemic has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems’ systemic inability to address emergency situations. Here, we propose three solutions.  First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison’s or jail’s grievance system “unavailable” because it is unable to process their complaint quickly enough to offer any relief.  As we describe below, this is already the right answer under existing case law — but so far, many district courts have declined to follow this path.  The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation.  Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems.  We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief.  The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the “availability” inquiry by eliminating the statutory exhaustion requirement in emergency situations.  We offer suggested legislative text to accomplish this end.

September 13, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

September 12, 2022

US Sentencing Commission releases latest "Compassionate Release Data Report" with detailed data through March 2022

I just noticed that the US Sentencing Commission late last week published this updated compassionate release data report, which includes data on all "motions decided by the courts during fiscal years 2020, 2021, and the first half of 2022 (October 1, 2019 – March 31, 2022)."   As I have noted with prior data runs, there are lots and lots of interesting data points throughout this report covering the period just before, during and after the heights of the COVID pandemic.  

As I also have noted before, perhaps most striking data points are the dramatic variations in grant rates from various districts.  As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.  And the District of Maryland — with a total of 244 sentencing reduction motions granted (though "only" a grant rate of 33%) — granted more of these motions than all the courts of five different circuits (and circuit grant rates ranged from a low of 9.8% in the Fifth Circuit to a high of 29.6% in the First Circuit).

I expect the newly confirmed Sentencing Commission will be giving these data a good luck as the consider revisions to the out-of-data guideline that is supposed to help courts considering sentencing revision motions brought under 18 U.S.C. § 3582(c)(1)(A).  

September 12, 2022 in Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Ruan v. United States: Implications for Criminal Law, Health Care, and Beyond"

606e9d1f-2ef6-49f0-bbd7-fcb1b4ce9f73The title of this post is the title of this great panel discussion hosted by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law which is scheduled for midday on Tuesday, September 20.  Folks can and should register here for this event, which is described this way on this event page:

What must prosecutors prove about a defendant’s mental state in order to convict them of unauthorized distribution of controlled substances under federal drug laws?  In the case of Ruan v. United States, the Supreme Court ruled that the Government must prove the defendant knowingly or intentionally acted in an unauthorized manner.  But because the defendants in this case were medical doctors involved in questionable opioid prescribing practices, the case has generated an array of public policy questions.  The Government, stressing opioid overdose deaths and the broad harms of the opioid epidemic, argued the law should be interpreted to apply an objective standard for criminal liability.  The doctors, and many amici briefs, argued that an objective standard could criminalize merely careless prescribing and could deter responsible doctors from trying any novel medical therapies that had not yet been accepted by traditional medical practice.

Join the Drug Enforcement and Policy Center and our panel of experts as they discuss the doctrines and broader policies involved in the Ruan case and the implications for criminal law and beyond.

Panelists:

  • Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
  • Kelly Dineen, Associate Professor of Law, Director of the Health Law Program, Creighton University School of Law
  • Martin Fried, Clinical Assistant Professor of Internal Medicine, Wexner Medical Center, The Ohio State University
  • Jennifer Oliva, Professor of Law, UC Hastings Law

Moderator:

Patricia Zettler, Associate Professor of Law, Ohio State University Moritz College of Law

September 12, 2022 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Noting opaque SCOTUS rulings, split Ninth Circuit panel rejects habeas Eighth Amendment claim against 292-year prison term

Being sentenced to serve in 292 years in prison for a bunch of non-violent offenses certainly seems pretty "cruel."  And such an extreme prison term is still somewhat "unusual" in modern times, and surely would have been entirely unknown to the Founders. (Remarkably, were someone sentenced to 292 years in prison in 1790, he would still have 60 years left to serve circa 2022.)  But, despite textualist and originalist turns in other areas, modern Eighth Amendment jurisprudence does not (yet?) focus on the text and original understanding of this provision.  Indeed, because there have been so few modern cases about application of the Eighth Amendment to extreme adult prison sentences, it remains unclear just whether and how the Eighth Amendment still serves to limit extreme adult prison terms at all.

I flag these issues in the wake of a notable recent split Ninth Circuit panel decision in Patsalis v. Shinn, No. 20-16800 (9th Cir. Sept. 6, 2022) (available here), in which the very opaqueness of Eighth Amendment jurisprudence provided the basis for rejecting a habeas challenge to a 292-year state prison term. Here is the start of the majority opinion in Patsalis providing context as well as passages from the discussion:

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis’s constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis’s individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm....

There is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.... Lockyer is instructive....  The Court noted that its sentence-proportionality precedents “have not been a model of clarity.” Id. at 72. It further recognized that it has “not established a clear or consistent path for courts to follow” in analyzing proportionality of a sentence to a term of years. Id. Nor has it been clear about “what factors may indicate gross disproportionality” or provided “clear objective standards to distinguish between sentences for different terms of years.” Id. (cleaned up). Other than the basic principle of proportionality, the only thing that the Court has established is that the rule against grossly disproportionate sentences is violated “only in the exceedingly rare and extreme case.” Id. at 73 (cleaned up)....

To grant Patsalis’s habeas petition, we must conclude that “there is no possibility fairminded jurists could disagree” that the Arizona Court of Appeals’ decision conflicts with the Supreme Court’s clearly established precedents. Harrington, 562 U.S. at 102.  This we cannot do given the limited Supreme Court precedent regarding the prohibition against disproportionality of a sentence to a term of years.

Judge Christen penned a lengthy dissent, and here are parts of its opening and analysis:

Atdom Patsalis was convicted of various non-violent theft-related crimes committed over a three-month period when he was twenty-one years old. The total value of the property was about $5,000. Pre-trial, the State of Arizona made two plea offers of twenty years or less. Patsalis rejected both offers and was convicted of the charged offenses after a jury trial. The longest sentence imposed for any of his crimes was 15 years, but the court specified that his multiple sentences would run consecutively. The net result was a cumulative sentence of 292 years....

On appeal, my colleagues agree that AEDPA deference applies and they affirm on that basis. The majority acknowledges that the state court did not address Patsalis’s cumulative sentence — yet it asserts that the state court rejected Patsalis’s federal claim on the merits. The state court’s opinion is clear: it affirmed Patsalis’s individual sentences while expressly declining to consider whether his 292-year sentence was grossly disproportionate. Because the state court did not reach the merits of the claim Patsalis actually presented, there is no state-court decision to which we can defer and de novo review is the proper standard. Reviewing Patsalis’s claim de novo, I conclude that his cumulative sentence violates the Eighth Amendment. Accordingly, I respectfully dissent....

The facts and circumstances in the Supreme Court’s Solem and Graham opinions inescapably point to the conclusion that Patsalis’s 292-year sentence is one of the extremely rare cases that gives rise to an inference of disproportionality at the first step of the Eighth Amendment analysis. Patsalis was just 21 years old when he committed his offenses so he did not have a track record that had accumulated over the course of even the eleven years at issue in Solem. (Indeed, he had only been an adult for three years.) His offenses were non-violent and theft-related, and he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000. While four of his offenses involved entering private residences — admittedly serious conduct — eighteen of the twenty-two burglaries for which Patsalis received consecutive sentences did not involve entry into a home, but into a garage, a vehicle, and a detached shed. All of them were deemed “non-dangerous” by the trial court. As was the case in Graham, the sentence Patsalis received was multiples of the sentences imposed for murderers or rapists, yet Patsalis did not injure anyone and there is no indication that any violence or weapons were involved in any of his offenses.

Remarkably, in an era in which life sentences and lengthy term-of-years sentences keep reaching historic new levels (see reports discussed here and here), it has now been nearly two full decades since the Supreme Court has addressed an Eighth Amendment challenge to an adult term of years sentences.  Lockyer and Andrade were decided way back in 2003, and Justice Thomas is now the only member of SCOTUS who remains on the Court since those rulings were handed down. 

With SCOTUS transitions and the recent textualist and originalist turns in other jurisprudence, I would like to imagine Patsalis as the kind of case in which certorari might be granted and the Justices might look to finally clean up precedents that have not been a "model of clarity" and that seem quite inconsistent with the text and original understanding of the Eighth Amendment.  But, I should probably know better than to hope and expect that people sentenced to live in a cage for nearly three centuries will garner the kind of constitutional attention as praying football coaches and college admissions officers.

September 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

September 11, 2022

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

September 11, 2022 in Clemency and Pardons, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Making the case for jury nullification in response to criminalization of abortion

LawProfs Peter Sali and Guha Krishnamurthi have this notable new Inquest piece talking up jury nullification as having "a role to play in securing reproductive rights" in the wake of the Supreme Court reversal of Roe.  The piece is fully titled "Nullifying Dobbs: Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands." (The Inquest piece is a shorter exposition of this essay on SSRN titled "Nullification in Abortion Prosecutions: An Equilibrium Theory.")  Here is an excerpt:

[W]e expect the effect of nullification on abortion prosecutions to be twofold.  First, it will reduce the range of cases that will be brought.  Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges.  Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases.  This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification.  Marijuana prosecutions are a relevant precedent.  In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half.  Today, only about a third of Americans approve of such laws.  Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%.  We think that this was not a coincidence.  As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular.  Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself....

Nullification cannot and will not fix everything.  Nullification itself comes at the end of the criminal process.  The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating.  Nullification cannot directly alleviate those harms.  Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process.  But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment....

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment.  The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans.  Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

I have flagged the passage here discussing declining federal marijuana prosecutions in part because I co-wrote an article last year on this topic, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."   As explained in that article, a sharp decline in marijuana seizures at the southern US border (as states have legalized local grows) likely most directly explains the sharp decline of federal marijuana prosecutions.  Still, the disinclination of federal prosecutors to go after state-legalized marijuana activities — especially during the Trump Administration when many DOJ officials were clearly not so keen on marijuana reform — likely has reflected the reality that more and more citizens may be less and less likely to support using criminal laws to punish "responsible" marijuana activity.

A few prior related posts:

September 11, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)