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September 24, 2022

"Are progressive chief prosecutors effective in reducing prison use and cumulative racial/ethnic disadvantage? Evidence from Florida"

The title of this post is the title of this new article recently published in the journal Criminology & Public Policy and authored by Ojmarrh Mitchell, Daniela Oramas Mora, Tracey L. Sticco and Lyndsay N. Boggess. Here is its abstract:

Research Summary

Progressive chief prosecutors, campaigning on platforms calling for reducing prison populations and racial/ethnic disparities, have been elected in numerous jurisdictions across the United States in recent years.  Yet, there is no empirical research that compares case outcomes between jurisdictions headed by progressive and traditional chief prosecutors.  In this research, we utilize a cumulative case outcome approach that tracks cases from arrest to disposition to examine whether cases prosecuted under progressive chief prosecutors receive less punitive sanctions and exhibit smaller racial/ethnic disparities.  We find that cases adjudicated in progressive jurisdictions are more likely to end without a felony conviction and less likely to result in a prison sentence.  Racial but not generally ethnic disadvantage is evident in case outcomes, and racial disparities are smaller in jurisdictions led by progressive chief prosecutors.

Policy Implications

The election of progressive prosecutors is a radical departure from earlier approaches aimed at controlling prison populations and mitigating racial disparities.  Instead of restricting the discretion of criminal justice actors, voters are relying on progressive, reformist prosecutors to use their enormous discretion in less punitive and more egalitarian fashions.  This research indicates that progressive chief prosecutors do, in fact, reduce prison use and racial disparities.

September 24, 2022 in Race, Class, and Gender, Who Sentences | Permalink | Comments (19)

September 23, 2022

Brennan Center publishes new report on "The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward"

I was alerted via email this morning about this notable new Brennan Center report titled “The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward.”  I recommend the report in full, but the email I received usefully summarized the reports "recommendations to Congress and to the Department of Justice and its Bureau of Prisons to fulfill the First Step Act’s potential":

September 23, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Noticing notable aspect of SCOTUS vote on Alabama execution stay

The story of Alabama botched execution last night has many interesting elements, but this new Washington Examiner piece flags one (small) part of the story that ought not be overlooked.  The article, headlined "Barrett sides with liberal justices in opposition to halted Alabama execution," merits a full read for SCOTUS fans.  Here are excerpts:

Supreme Court Justice Amy Coney Barrett sided with the high court's three liberal justices on Thursday in dissenting a decision to allow the execution of an Alabama inmate, but the state called off the execution at the last minute....

In a 5-4 vote prior to the halted procedure, the Supreme Court ruled that the execution of Miller could move forward, lifting a lower court's injunction that had blocked his death by lethal injection. Barrett joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent....

Barrett has sided with the liberal justices in other death penalty cases.

In February 2021, Barrett sided with Sotomayor, Kagan, former Justice Stephen Breyer, and a justice who did not disclose his vote in a "shadow docket" case that blocked the execution of Alabama inmate Willie Smith....

In January 2022, Barrett once again sided with Sotomayor, Kagan, and Breyer in voting to block the execution of Alabama inmate Matthew Reeves, who was convicted of robbing and killing a tow truck driver in 1998.

However, Barrett has not exclusively voted against the death penalty in Supreme Court cases. She went against liberal justices in the March 2022 case that reinstated the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Though it may be pure coincidence, it seems Justice Barrett often has particular concerns with how Alabama is seeking to move forward with executions.  In almost all other capital cases, Justice Barrett seems to be a fairly predictable vote for the state. Indeed, Justice Barrett's first official SCOTUS vote in November 2020, as detailed here, had her joining with her five more conservative colleagues to lift a stay on a federal execution.

A range of distinct and complicated procedural issues attended the stay in this latest Alabama execution effort, and the SCOTUS order lifting the stay only notes the dissent without any explanation for any of the votes.  It will be interesting to see if this case or other capital cases will give us further clues on what issues are driving various votes in these kinds of matters.

September 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

September 23, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

September 22, 2022

Council on Criminal Justice releases "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020"

Three years ago, as flagged in this post, the Council on Criminal Justice (CCJ) released a notable report detailing notable modern changes in the modern demographics of prison, jail, probation, and parole populations titled "Trends in Correctional Control by Race and Sex."  Today, CCJ has released another important data report looking a racial disparity data under the title "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020."  The full report is available at this link, and here is what's listed as "key findings" in the first few pages of the full report:

September 22, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

September 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

September 21, 2022

House Judiciary Committee advances a number of federal criminal justice bills

As well reported in this lengthy new Marijuana Moment piece, "Congressional Lawmakers Approve Marijuana Record Sealing And Other Drug Policy Bills In Key Committee," today brought some notable action in the US House of Representatives on some criminal justice matters.  I recommend the full piece, and here are excerpts :

A key House committee has approved a series of criminal justice reform bills—including bipartisan proposals to clear records for prior federal marijuana convictions, provide funding for states that implement systems of automatic expungements and codify retroactive relief for people incarcerated due to on crack-cocaine sentencing disparities.

The House Judiciary Committee, chaired by Rep. Jerrold Nadler (D-NY), advanced the measures, as well as other bills unrelated to drug policy, during a hearing on Wednesday.... Nadler, speaking about a bill to provide funding to states for expungement purposes, stressed that “even just an arrest can present lifetime barriers to obtaining jobs, housing, education and put other opportunities out of reach.”

“Criminal record expungement and sealing is a pathway to employment opportunities for individuals with a criminal record and enable them to participate fully in their communities at a time when many industries continue to face labor shortages,” the chairman said. “These pathways that desperately needed.”

The congressman also voiced support for the federal cannabis record sealing bill, saying it is “critical in helping those with non-violent criminal records to rebuild their lives.” He added that the public is on board with the reform, as well as major employers who’ve endorsed the legislation such as J.P. Morgan Chase and Walmart.

Here’s a rundown of what the committee-approved bills would accomplish:

HR 2864: The “Clean Slate Act” from Rep. Lisa Blunt Rochester (D-DE) would mandate the automatic sealing of criminal records for certain non-violent, federal marijuana convictions. It would also provide relief to people who have been arrested for other offenses that did not result in a conviction....

HR 5651: The “Fresh Start Act” sponsored by Rep. David Trone (D-MD) would provide federal funding to states that create their own systems of automated expungements.  Though it does not specify the types of crimes that would warrant relief, a growing number of states are taking steps to implement systems of automatic expungement for marijuana convictions, and those states would benefit from the new funding....

HR 5455: The “Terry Technical Correction Act” from Rep. Sheila Jackson Lee (D-TX) is responsive to a 2021 U.S. Supreme Court ruling that held that a law reducing the federal crack-cocaine sentencing disparity did not apply retroactively in cases that did not trigger a mandatory minimum sentence.

It would amend the law by clarifying that the 2010 Fair Sentencing Act was intended to provide individuals in those cases with relief, and so any motion that was denied on the basis of a court’s interpretation of eligibility under the statute “shall not be considered a denial after a complete review of the motion on the merits within the meaning of this section.”...

The crack-cocaine sentencing bill from Jackson Lee enjoyed some bipartisan support in the committee, with Ranking Member Jim Jordan (R-OH) speaking in favor of the legislation ahead of the vote. He stressed that it was a necessary reform to align the law with congressional intent.

Republican members generally balked at the state expungements and federal record sealing proposals, however, arguing that they amount to “soft on crime” policies.

September 21, 2022 in Collateral consequences, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

"Is Criminal Law Unlawful?"

The title of this post is the title of this notable new article authored by Paul Gowder and available via SSRN. Here is its abstract:

A legal theorist reading contemporary criminal justice scholarship is confronted with a troubling sense of dissonance. Foundational to modern accounts of the concept of law are rules, and the chief modality of law’s operation in ordinary peoples’ lives is said to be in enforcing those (primary) rules.  Normative theories by philosophers of law typically deploy this rule- oriented character as a key virtue of legal systems, whether in Fullerian theories of the moral value of law itself in terms of their facilitation of autonomous self-application of rules, or in theories of the rule of law according to which one of the key criteria of good legal systems is that they only coerce individuals pursuant to rules.

Yet criminal justice scholars have known for decades that rule-enforcement is at best incidental to vast swathes of criminal justice.  Even before the advent of “broken windows” policing, a large portion of police work was focused on coercively organizing public space, with minimal regard to the rules of substantive law.  Scholars of misdemeanor adjudication — the judicial destination of the arrests that result from this mode of policing — have described a process in which the ultimate disposition of defendants is unconnected to any serious effort to determine whether some law has been violated.  This lawlessness of criminal justice is exacerbated by, and itself exacerbates, America’s underlying system of race and class hierarchy.  In short, instead of a system of law enforcement, American criminal justice is a key exemplar of what critical race scholars have called “structural racism,” in which individual and organizational incentives reproduce racially unjust outcomes even in the absence of individual racial malice.

Legal philosophers must reconcile their theories with reality by confronting the fact that a sector of American “law” with immense practical significance does not, in fact, constitute an application of law (for conceptual theorists) or the rule of law (for normative theorists) at all.

In this context, some lessons may be drawn from an analogous juridical context.  A handful of scholars have suggested that the system of criminal justice is more administrative than legal.  Moreover, advocates and scholars have long articulated severe critiques of the federal administrative state on rule of law grounds.  Thus, the discourse around the administrative state can serve as a model for how legal theorists should confront the criminal justice state.

While some scholars appear to have supposed that the notion of legality simply does not apply to the administrative state, others have propounded radical challenges to that state which have reflected a willingness to sacrifice other important interests in the pursuit of legal fidelity.  Results such as the recent Supreme Court decision in West Virginia v. E.P.A. have suggested that even the pursuit of existential policy goals like combatting climate change must give way to the concept of legality underneath challenges to the administrative state.  If such challenges are any model to follow, then rule of law advocates and scholars must at least consider similar radical challenges to the criminal justice system, such as police abolition, to be on the table.

September 21, 2022 in Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

September 20, 2022

District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges.  Specifically, I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the federal drug-user-in-possession statute, 18 U.S.C. § 922(g)(3) (see posts linked below).  Interestingly, I did not even think about how Bruen might impact another federal firearm prohibition provision, 18 U.S.C. § 922(n), which criminalizes a person under indictment from receiving a firearm. Yesterday, as detailed in this AP article, a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional:

A U.S. law banning those under felony indictments from buying guns is unconstitutional, a federal judge in West Texas ruled Monday.  U.S. District Judge David Counts, whom then-President Donald Trump appointed to the federal bench, dismissed a federal indictment against Jose Gomez Quiroz that had charged him under the federal ban....

In a 25-page opinion filed in Pecos, Texas, Counts acknowledged “this case’s real-world consequences — certainly valid public policy and safety concerns exist.”  However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association “framed those concerns solely as a historical analysis.”

“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.”

Hence, he ruled the ban unconstitutional as the “Second Amendment is not a ’second class right,” as noted in a 2008 Supreme Court ruling.  ”No longer can courts balance away a constitutional right,” Counts wrote.  After the New York case, “the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.  The Government does not meet that burden.”

The full 25-page ruling in US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022), is available at this link.  The full opinion is worth a full read, in part for a bits of west Texas flair such as this line: "Some feel that a grand jury could indict a [burrito] if asked to do so." 

Some prior related posts:

September 20, 2022 in Collateral consequences, Gun policy and sentencing, Scope of Imprisonment | Permalink | Comments (15)

Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty"

Chris Geidner has this new Substack posting, titled "The Biden administration supports the death penalty," that effectively flags a notable new capital case filing by the Biden Administration's Department of Justice.  The subheadline of the piece summarizes the key points:  "Although Biden's campaign promised to 'eliminate the death penalty,' his administration told a court in a case last week that AG Merrick Garland 'has decided to continue to seek the death penalty'."  I recommend the full piece, and here are excerpts:

On Friday, Sept. 16, the US Attorney for the Southern District of New York filed a one-page notice in a pending capital case for Sayfullo Saipov, the man accused in the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. In its key sentence, the DOJ notice stated: “We were notified today that the Attorney General has decided to continue to seek the death penalty.”...

[I]n July 2021, Attorney General Merrick Garland announced a moratorium on executions pending a review of execution procedures — echoing a DOJ policy during then-President Barrack Obama’s administration. The administration has done little since to “eliminate the death penalty,” and Garland’s decision in Saipov’s case does the opposite....

One of the people who most closely tracks the death penalty across the country, Robert Dunham, the executive director of the Death Penalty Information Center, told Law Dork that this news shows — at the least — a disconnect between the White House and Justice Department. “The Department of Justice’s pursuit of the death penalty in this case — along with the its continued defense of the death penalty in other cases on appeal — indicates that, if the White House has a policy of working to end the federal death penalty, the Department of Justice certainly isn’t acting on it,” Dunham told Law Dork.

Garland — in cases involving Dzhokhar Tsarnaev’s 2013 Boston Marathon bombing death sentence and Dylann Roof’s death sentence for 2015 murder of nine Black people at a Charleston church — has supported previously issued death sentences in court, but Saipov’s case would be the first trial of the Biden administration where the federal government is seeking to impose a new death sentence.

To be clear, Garland did not initially make the decision to seek death in this case. That was done in the Trump administration, under then-Attorney General Jeff Sessions. But, in the aftermath of Biden’s election and Garland’s execution moratorium, there was a request from Saipov that DOJ withdraw its intent to seek the death penalty in his case.

September 20, 2022 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

September 19, 2022

"What’s Dangerous Is America’s Lack of Crime Data"

The title of this post is the headline of this new opinion piece by Matthew Yglesias.  I recommend the full piece and here are excerpts:

Crime is on the political agenda in a big way this year, with Republicans zeroing in on it as their favorite topic now that gasoline prices are moderating.  Which naturally raises the question: Is crime rising?  To which the shocking answer is — nobody knows.  Not because anything unusual is happening, but simply because the usual state of America’s information on crime and policing is incredibly poor.

Contrast this state of affairs with the amount of data available on the US economy.  There are monthly updates on job creation, the unemployment rate and multiple indexes of inflation.  Commodity prices are publicized on a daily basis. Reports on gross national product come out quarterly, with timely revisions as more data comes in.  Policymakers benefit from a deeply informed debate, enriched by commentary from academics and other observers.

But on crime the US is, to a shocking extent, flying blind.  As a July report from the Brennan Center for Justice noted: “More than six months into 2022, national-level data on crime in 2021 remains unavailable.”...

The dearth of information is a problem not only for rigor-minded policymakers.  It also leaves the political arena open for manipulation by demagogues.  Since nobody actually knows in real time what’s happening, anecdotes can just stand in for made-up fears.  Since the very real murder surge of 2020 now has people primed to believe “crime is out of control” narratives, any particular instance of violence can be used to support that story....

By the same token, when murder really was soaring in 2020, it was easy for progressives to stay in ideologically convenient denial for far too long, since it was genuinely impossible to actually prove that it was happening until much later.  The people who dismissed the anecdotal evidence of rising crime were, in that case, mistaken. But the Republicans who are stoking fears of rising crime right now also appear to be mistaken.  And the lack of information about geographical patterns in murder trends means no one has much ability to assess what social or policy factors may be in play.

What makes this all especially maddening is that collecting this information in a timely manner shouldn’t be that difficult. Police departments know how many murders are committed in their jurisdiction. That information is stored on computers. It doesn’t need to be delivered to the Department of Justice via carrier pigeon. The DOJ should be given some money to create a system that can be easily updated by law enforcement agencies, and actually filing that information in a timely way should be a condition of receiving federal police grants.  A small team at the Bureau of Justice Statistics could have the job of phoning up departments who haven’t done it and “reminding” them to update the numbers.  And then the data could be released on a regular basis in a machine-readable form — the same way numbers for jobs, inflation, and other major economic statistics are.

Knowing what’s actually happening would not, by itself, solve America’s crime problems.  But successful efforts to reduce violence, such as the one in New York City in the 1990s, were driven by a commitment to rigorous measurement.  A serious federal investment in crime data collection is no panacea, and it’s not exactly a winning political slogan.  But it would be a huge boost to all kinds of crime-control efforts.

September 19, 2022 in Data on sentencing, National and State Crime Data, Who Sentences | Permalink | Comments (0)

Interesting report on the echoes of the Supreme Court's recent Ruan decision

As noted in this post last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law has this great panel discussion scheduled for tomorrow to discuss various aspects of the Supreme Court's work last term in Ruan v. United States.  (Folks can and should register here for this event.)  Coincidently, CBS News has this lengthy new piece discussing the case's impact under the headline "Doctors rush to use Supreme Court ruling to escape opioid charges."  Here are excerpts:

Dr. Nelson Onaro conceded last summer that he'd written illegal prescriptions, although he said he was thinking only of his patients. From a tiny, brick clinic in Oklahoma, he doled out hundreds of opioid pills and dozens of fentanyl patches with no legitimate medical purpose. "Those medications were prescribed to help my patients, from my own point of view," Onaro said in court, as he reluctantly pleaded guilty to six counts of drug dealing. Because he confessed, the doctor was likely to get a reduced sentence of three years or less in prison.

But Onaro changed his mind in July. In the days before his sentencing, he asked a federal judge to throw out his plea deal, sending his case toward a trial. For a chance at exoneration, he'd face four times the charges and the possibility of a harsher sentence.

Why take the risk? A Supreme Court ruling has raised the bar to convict in a case like Onaro's. In a June decision, the court said prosecutors must not only prove a prescription was not medically justified ― possibly because it was too large or dangerous, or simply unnecessary ― but also that the prescriber knew as much. Suddenly, Onaro's state of mind carries more weight in court. Prosecutors have not opposed the doctor withdrawing his plea to most of his charges, conceding in a court filing that he faces "a different legal calculus" after the Supreme Court decision.

The court's unanimous ruling complicates the Department of Justice's ongoing efforts to hold irresponsible prescribers criminally liable for fueling the opioid crisis. Previously, lower courts had not considered a prescriber's intention. Until now, doctors on trial largely could not defend themselves by arguing they were acting in good faith when they wrote bad prescriptions. Now they can, attorneys say, although it is not necessarily a get-out-of-jail-free card. "Essentially, the doctors were handcuffed," said Zach Enlow, Onaro's attorney. "Now they can take off their handcuffs. But it doesn't mean they are going to win the fight."

The Supreme Court's decision in Ruan v. United States, issued June 27, was overshadowed by the nation-shaking controversy ignited three days earlier, when the court erased federal abortion rights. But the lesser-known ruling is now quietly percolating through federal courthouses, where it has emboldened defendants in overprescribing cases and may have a chilling effect on future prosecutions of doctors under the Controlled Substances Act.

In the three months since it was issued, the Ruan decision has been invoked in at least 15 ongoing prosecutions across 10 states, according to a KHN review of federal court records. Doctors cited the decision in post-conviction appeals, motions for acquittals, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, arguing their opinion was now irrelevant. Other defendants have successfully petitioned to delay their cases so the Ruan decision could be folded into their arguments at upcoming trials or sentencing hearings.

David Rivera, a former Obama-era U.S. attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a "great chance" of overturning convictions if they were prohibited from arguing a good faith defense or a jury was instructed to ignore one. Rivera said defendants who ran true pill mills would still be convicted, even if a second trial was ultimately required. But the Supreme Court has extended a "lifeline" to a narrow group of defendants who "dispensed with their heart, not their mind," he said.

"What the Supreme Court is trying to do is divide between a bad doctor and a person who might have a license to practice medicine but is not acting as a doctor at all and is a drug dealer," Rivera said. "A doctor who is acting under a sincerely held belief that he is doing the right thing, even if he may be horrible at his job and should not be trusted with human lives ― that's still not criminal."...

To defense attorneys, the unanimous ruling sent an unambiguous message. "This is a hyperpolarized time in America, and particularly on the court," Enlow said. "And yet this was a 9-0 ruling saying that the mens rea ― or the mental state of the doctor ― it matters."

Some prior related posts:

September 19, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

September 18, 2022

Notable developments as defense rests in capital trial of Parkland school shooter

I have been following the capital sentencing trial of Parkland school shooter Nikolas Cruz somewhat more closely than I follow other capital trials in part because the case involves such competing extremes.  This case is the deadliest U.S. mass shooting to ever reach trial, involves no question about guilt and the 17 victims were mostly students with many as young as 14.  And yet Nikolas Cruz's defense team has presented a considerable mitigation case highlighting his damaged upbringing and considerable mental health issues.

The Cruz defense team rested its case in mitigation last week sooner than had been expected, and that led to a reaction by the presiding trial judge which has now produced a defense motion to remove the judge.   Here are some headlines and ledes from a few stories covering these latest developments:

"Parkland school shooter's defense team demands judge be removed after heated exchange"

The attorneys representing the Parkland school shooter filed a motion Friday asking for the judge overseeing his sentencing trial to be replaced.  The motion comes after the judge and the defense attorneys had an unusually heated exchange on Wednesday, in which the judge accused the attorneys of a lack of professionalism.

The motion alleges that Circuit Judge Elizabeth Scherer's conduct during the Wednesday exchange revealed "long-held" animosity toward the defense counsel that has "infected" the proceedings and will prevent their client from getting a fair trial.

"Parkland defense has convinced some that killer deserves mercy"

The sudden end of the defense case in the Parkland mass shooting trial this week drew criticism of and from the presiding judge, temporarily overshadowing the biggest question at issue — was enough evidence presented to convince a jury to spare the defendant’s life?

It’s impossible to say for sure — juries are notoriously unpredictable.  But at least one expert, and some trial observers, say they would not be surprised if the jury in the Marjory Stoneman Douglas mass shooting case were to show mercy toward confessed gunman Nikolas Cruz.

Some prior related posts:

September 18, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)