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November 12, 2022

New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"

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 (see posts here are here).  I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 USC § 922(g)(1) and the federal drug-user-in-possession statute, 18 USC § 922(g)(3).  Interestingly, as detailed in prior posts here and here, a few district courts have already declared other parts of § 922 unconstitutional.  And this past week a new opinion adds § 922(g)(8) to the post-Bruen carnage.

Title 18 USC § 922(g)(8) makes it a federal crime for any person to possess a firearm while subject to a domstic violence restraining order.  In his opinion in US v. Perez-Gallan, No. PE:22-CR-00427-DC (SD Texas Nov. 10, 2022) (available here), US District Judge David Counts works through Bruen analysis to conclude "that § 922(g)(8) is unconstitutional under Bruen's framework." The opinion is 30+ pages long, and it starts and ends this way:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.  A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.  Firearm regulations are that overgrowth.  Starting with the Federal Firearms Act in 1938, laws were passed with little — if any — consideration given to their constitutionality.  That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool.  But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.  And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw....

How strictly or flexibly a court reads Bruen impacts its conclusion.  Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.  According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge.  Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen.  As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Some prior recent related posts:

November 12, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (6)

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

November 12, 2022 in Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

November 11, 2022

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

November 11, 2022 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

Veterans-original_cropThe question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

November 11, 2022 in Clemency and Pardons, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another important look at the role of prosecutors in second-look sentencing

Many years ago, I had the honor of giving a keynote speech at a conference focused on the work of prosecutors where I suggested they should be much more involved in reviewing past sentences.  That speech, whi got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010), came to mind as I read this new Marshall Project piece headlined "Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do."  I recommend the lengthy and effective piece in full, and here is a brief excerpt:

Louisiana is one of five states that has recently passed prosecutor-initiated resentencing laws, along with California, Washington, Illinois and Oregon.  Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — considered similar bills this year, though none were brought to a vote.

Many incarcerated people view these laws as a way to get fresh eyes on their cases.  Advocates for criminal justice reform say the laws are needed to help reduce mass incarceration.

But their reach so far has been concentrated in the offices of a few district attorneys, mainly in urban areas, according to a review by The Marshall Project.  One reason is the high cost of reviewing old cases, prosecutors say. There are also moral and political issues.  Some prosecutors are philosophically opposed to the notion of overturning sentences handed down by a judge, and others fear pushback from voters.

Some of many recent prior related posts:

A small sampling of my prior writing on this front:

November 11, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 10, 2022

Rounding up a few post-election accountings and commentary on the crime and justice front

I did a number of pre-election posts with a round-up of news and commentary focused on criminal justice policy and politics as the 2022 voting approached (see here and here and here).  It now seems only fitting to do a (first?) post-election round-up of news and commentary as we get closer to all the 2022 mid-term votes being counted:

From The Appeal, "Midterm Elections Deliver Some Good News For Criminal Legal Reform"

From The Crime Report, "Crime and the Midterms"

From Democracy Now!, "Progressive Prosecutors Win Key Races Despite GOP Attacks on Criminal Justice Reform"

From the New York Times, "For Republicans, Crime Pays, No Matter What Else Happens"

From Reason, "The Crime Backlash Mostly Failed To Materialize on Election Night"

From the Washington Post, "How Democrats can win back trust on the issue of crime"

 

UPDATE:  I now have seen some more pieces in this vein since my initial posting:

From The Appeal, "Voters Didn’t Buy The ‘Crime Panic’ Narrative. Democrats Should Take Note."

From BuzzFeed News, "Progressive Prosecutors Won In Midterm Elections Across The US In Spite Of Tough-On-Crime Rhetoric From Republicans"

From Mother Jones, "Republicans Hoped a 'Crime Wave' Was Their Ticket to a Red Wave. It Wasn’t."

From Religion Unplugged, "Recreational Marijuana Use Becomes New Front In The Culture Wars Following Midterms"

From Vera Action, "As Voters Reject Crime Scare Tactics in the 2022 Midterms, Democrats Must Seize the Opportunity for a New Path Forward on Safety and Justice"

From The Watch (Randy Balko), "What the midterms told us about voters and crime"

November 10, 2022 in Elections and sentencing issues in political debates | Permalink | Comments (0)

"Dresser Drawer Pardons: Pardons as Private Acts"

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

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

November 10, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 9, 2022

Texas completes its fouth execution in 2022

As reported in this local artcle, Texas "executed Tracy Beatty on Wednesday evening for murdering his mother in East Texas in 2003."  Here are some of the backstory:

Beatty, 61, was found guilty of fatally strangling Carolyn Click at the end of a violent and tumultuous relationship. Although his attorneys acknowledge Beatty killed his mother, they contended the crime didn’t qualify for the death penalty.

Lethal drugs were injected into Beatty at 6:22 p.m. Wednesday inside the state’s Huntsville Unit, and he was declared dead 17 minutes later, according to the Texas Department of Criminal Justice....

Although Beatty gave several versions of what happened in his 62-year-old mother’s death, according to court records, he ultimately told police that he came home drunk, the pair started fighting and he choked her. He said he didn’t realize Click was dead until the next day.

But Beatty was found guilty of capital murder because prosecutors argued he killed his mother during a home burglary, entering without her consent, even though he lived with Click at the time. A neighbor testified that Click had told her the day she was last seen that she had told her son that day to move out after a fight....

Beatty had been released from prison on parole months before Click’s death. Prosecutors at trial listed a slew of his previous criminal charges, including injuring a prison guard and assaulting an 18-month-old child....

Neither the Supreme Court nor Texas Gov. Greg Abbott intervened in Beatty’s execution. It was the state’s fourth execution of the year. Seven others are scheduled in Texas through September.

November 9, 2022 in Death Penalty Reforms | Permalink | Comments (0)

New DPIC analysis finds "murder rates during the pandemic were highest in states with the death penalty"

2020-Pandemic-Murder-RatesThe Death Penalty Information Center has posted this notable new review of murder data under the heading "DPIC Analysis: Pandemic Murder Rates Highest in Death Penalty States." I recoemmend the full posting, and here are excerpts (with links and the chart from the original, footnotes removed):

A DPIC analysis of 2020 U.S. homicide data has found that murder rates during the pandemic were highest in states with the death penalty and lowest in long-time abolitionist states.

DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem.  Then, taking the analysis out of the realm of politics and into the context of public policy, DPIC compared the data to states’ death-penalty status and historic usage of the death penalty.  That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the states’ general level of death-penalty usage.

The data show that nine of the ten states with the highest pandemic murder rates — ranging from 9.9 to 20.5 murders per 10,000 residents — are death penalty states. On the other hand, eight of the eleven states with the lowest pandemic murder rates — ranging from 0.88 to 3.49 murders per 10,000 residents — had abolished the death penalty. DPIC found that the three death penalty states with the lowest pandemic murder rates — all 2.89 murders per 10,000 residents — have not carried out an execution in more than a decade, and one had a gubernatorial moratorium on executions.

Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.

More than half of all death penalty states (14 of 27) had murder pandemic murder rates of at least 7.00 per 100,000 residents, and 30 percent (8 states) had pandemic murder rates of 10.29 per 100,000 residents or higher. By contrast, nearly two-thirds of the states that had abolished the death penalty (15 of 23) had pandemic murder rates of 5.14 or less per 100,000 residents, more than a third (8 states) had pandemic murder rates below 3.5 murders per 100,000 residents....

DPIC’s review of The Third Way pandemic murder data found that 15 of the 20 states with the highest pandemic murder rates are death penalty states, of which 12 have carried out 20 or more executions each in the past half century. Collectively, these 12 states have accounted for more than three quarters of all executions in the U.S. since the 1970s.

At the other end of the spectrum, none of the 23 states with the lowest pandemic murder rates are historically heavy users of capital punishment. Fifteen had abolished the death penalty, including nine who had not had the death penalty at any time during the 21st century.  The eight death penalty states with the lowest pandemic murder rates include two with moratoria on executions, six who have executed five or fewer people in the past half century, one that has carried out seven executions, and six who have not executed anyone in more than a decade.

Twenty U.S. states have carried out ten or more executions in the past half-century.  All of them, including three who have since abolished the death penalty, are among the 28 states with the highest pandemic murder rates.

November 9, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4)

So, does anyone already have "hot takes" on what election results might mean for criminal justice reforms?

Because votes are still being counted nationwide and especially because control of the US Senate may not be resolved until a Georgia run off in December, it is way too early to make any confident predictions about the national policy landscape for the next few months or the next few years.  But with marijuana reform getting mixed results in five states — winning in the big states of Maryland and Missouri, losing in the smaller states of Arkansas, North Dakota and South Dakota — there is already a basis to make a lot of mixed predictions about the short- and long-term future of marijuana reforms.  Likewise, with crime and punishment being a big part of lots of other candidate campaigns that have been called, maybe it is not too early for folks to have interesting views on what the 2022 election means for crime and punishment issues in 2023 and beyond.

So, dear readers, please feel free to use the comments to flag any especially notable races (or exit polls) that you think are especially important for informed political or policy view on criminal justice issues post-election 2022.  And, as the title of this post suggests, "hot takes" are more than welcome.

November 9, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (9)

"Set up to Fail: Youth Probation Conditions as a Driver of Incarceration"

The title of this post is the title of this new paper authored by Jyoti Nanda now available via SSRN.  Here is its abstract:

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision.  Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions.  The orders rely on standardized terms on youth probation condition forms.  This is the first scholarly Article to excavate original youth probation condition forms.  It relies on data from 17 different urban and rural jurisdictions across the United States, including the five largest, and provides both a descriptive and perscriptive analysis of the problems with the design and execution of probation conditions.

Based on my analysis of hundreds of youth probation conditions in these different jurisdictions, I argue that standard youth probation conditions are part of a youth probation system that is structurally flawed in its design and execution, and that probation conditions that lack an adolescent framework cause real harm to youth and their families — particularly those who are most vulnerable, especially youth of color.  Simultaneously, youth probation systems concentrate power in probation officers, granting them inordinate discretionary power.  Although youth probation is viewed as the ideal alternative to detention, I argue that youth probation in its current structure is a driver of incarceration — that should be viewed as part of a carceral state — in need of thoughtful re-imagination: perhaps even abolition.

November 9, 2022 in Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

November 8, 2022

How many federal LWOP sentences have been reduced via 3582(c)(1)(A) and on what grounds?

The question in the title of this post was prompted by a notable new ruling sent my way, US v. West, No. 06-21185 (E.D. Mich. Nov. 7, 2022), which grants a sentenced reduction motion for a prisoner serving a federal LWOP sentence.  Before discussing that opinion (which can be dowloaded below), I will note that Figure 2 of the USSC's latest Compassionate Release Data Report from September 2022 reports that 27.9% of the over 4000 prisoners who have had their 3582(c)(1)(A) motions granted were serving original sentences of "20 years or more."  In other words, since the First Step Act became law in December 2018, well over 1000 persons serving sentences of 20 or more years have received sentence reductions.  But, to my knowledge, the USSC has not provided further details with any data specifically regarding prisoners serving LWOP securing compassionate release or regarding the reasons judges commonly give when reducing LWOP sentences.

General numbers and broader trends aside, the ruling in West makes for an interesting read because the judge here decides that Apprendi error as well as unwarranted sentencing dispartity provided extraordinary and compelling reasons for a sentence reduction.  Here is how the West opinion gets started:

Roy West is in year 17 of a life without parole sentence.  The indictment and case submitted to the jury should have netted West not more than ten years in prison.

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition of a sentence in violation of the law on West.  Even skilled appellate counsel failed to raise the sentencing error.

West has no way to correct this extraordinary and compelling error — and end his days in prison — but through his now pending motion for sentence reduction (compassionate release).

18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, opens an avenue for this Judge to correct a fundamentally unfair sentence that did not exist before.  Justice and faith in our judicial system demand correction for the benefit of Roy West.

This human error on multiple levels, the resulting sentencing disparity, the absence of any other avenue for relief, and West’s extraordinary rehabilitation constitute extraordinary and compelling reasons for sentence reduction.  The 18 U.S.C. § 3553(a) factors support a sentence reduction as well.

Download West CR opinion

November 8, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

November 8, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (3)

November 7, 2022

Are there going to be five executions in four US states over the next ten days?

The question in the title of this post is prompted by my quick look this morning at the "Upcoming Executions" page over at the Death Penalty Information Center.   That page shows that Texas has two executions scheduled, and Alabama, Arizona and Oklahoma each have one execution scheduled, between November 9 and November 17.  If all five of these executions go forward, it will be the most executions completed in the US within such a short period of time in a decade.  (In 2012, between November 6 and 15, Texas completed three executions and Ohio and Oklahoma also completed one execution.)

So many executions in a short period would be a pretty dramatic break from recent norms throughout the US.  Since roughly the start of the pandemic, the US has averaged only about one execution per month as various states have continued to have various difficulties with converting death sentences into completed executions.  Even before COVID hit, the US averaged only about two executions per month when President Trump was in office and less than four executions per month during President Obama's years in the oval office. (About seven executions per month was the national average during President Clinton's second term, and around five per month was the national norm for most of President Bush's two terms).

With all the recent political discussions about crime and crime policy, I have been a bit surprised that we have not seen a significant uptick in chatter about capital punishment polcies and practices this election season.  But it does seem we may be on the verge of an uptick in the number of executions this November.

UPDATE:  I just saw this notable new Salon commentary by Austin Sarat headlined "Crime is a hot issue, but even Republicans don't talk about the death penalty: That's good news."  I recommend the full extended piece, and here are a few excerpts:

In the past, politicians at every level responded to public concerns about crime with law-and-order campaigns in which promises to bring back or enforce the death penalty featured prominently....

Throughout the late 20th and early 21st centuries, death-penalty ballot measures have been used as tools of partisan and political advantage, largely to increase turnout among a targeted portion of the electorate in order to benefit "law and order" candidates.

But not this year.

Only in Alabama will voters be asked to decide on a death-penalty ballot measure. It would "require the governor to provide notice to the attorney general and make reasonable efforts to notify a designated family member of a victim before granting a commutation (a reduced sentence such as life imprisonment) or reprieve (temporary stay of execution) of a death sentence." ...

But in campaigns up and down the ballot, even as conservative candidates have accused their opponents of being soft on crime and promised robust anti-crime measures, Republican gubernatorial candidates in Arizona, Georgia, New York and Oklahoma have said little or nothing about the death penalty....

Whatever the verdict delivered by voters this week may be, the relative invisibility of the death penalty in this year's political campaigns is a clear sign of the progress abolitionists have made in changing the national temperature on that issue.

November 7, 2022 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Three notable dissents from denials of cert in criminal case on latest SCOTUS order list

The Supreme Court this morning released this 54-page(!) order list, and nearly 50 pages are comprised of dissents from the denial of cert by a handful of justices in five distinct cases. Here is a (too brief) accounting of the three criminal cases in this number:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

November 7, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

November 6, 2022

Recapping last week's SCOTUS arguments in two complicated review procedure cases

Last Tuesday, the Supreme Court hear arguments in two complicated criminal cases: Jones v. Hendrix, which I previewed here last week, and Cruz v. Arizona, a capital case.  These cases have not garnered that much general attention, surely because they both involve complicated procedural issue.  Still, the folks at SCOTUSblog have detailed reviews of the arguments, and I have also seen a few other discussions of the arguments:

Jones:

From SCOTUSblog, "In habeas case, the liberal justices try to untangle a complex statute"

From Law & Crime, "Justice Alito Concerned that Freeing Legally Innocent Man from Prison Would Clog Up the Federal Courts"

 

Cruz:

From SCOTUSblog, "Arizona asks court to approve “Kafkaesque” treatment of due-process claim from man on death row"

From Cronkite News, "Supreme Court presses state on its rejection of Arizona death-row appeal"

From the Arizona Republic, "U.S. Supreme Court hears oral argument of Arizona man on death row"

November 6, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)