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November 19, 2022

Lots and lots more terrific new Inquest essays

Amid a very busy semester, I have not been able to keep up with the steady stream of great pieces regularly posted at Inquest.  Inquest, "a decarceral brainstorm," keeps churning out lots and lots of must-read essays, and I am hoping the coming holiday season provides me more time to read (or re-read) all the great content.  Here are just some of the recent pieces sentencing fans may want to check out:

By Cecilia Bruni & Destiny Fullwood-Singh, "Serial Injustices: Millions rallied behind Adnan Syed, whom the system gave a second look. Many others serving extreme sentences deserve a second look, too."

By Abraham Santiago & Norman Gaines, "A Passport to the Future: Restoring Pell grants for incarcerated students is long overdue. But without meaningful infrastructure, true freedom will remain elusive."

By Cristian Farias, "Revoking Probation: After years of working in the system, a reformer and believer in government gives up on probation and parole."

By J.D. King & Andrea Roth, "Anything But Petty: Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system."

By Ashley Kilmer & Sami Abdel-Salam, "Pretty and Punitive: For all its aesthetically pleasing attributes, Norway’s Halden Prison is still a prison for the men who must endure it."

By Tomas Keen & Atif Rafay, "Decarcerating from Within: A path for imprisoned writers to offer reasoned analysis on policies affecting the carceral state."

November 19, 2022 in Recommended reading | Permalink | Comments (0)

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

November 19, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

November 18, 2022

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentevce: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

November 18, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (8)

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

November 18, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (5)

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

November 18, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

November 17, 2022

Oklahoma completes execution for man who killed three-year-old child nearly 30 years ago

As reported in this AP article, "Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993."  Here is more:

Richard Stephen Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Broomhall's family. “Today's a day for Adam, justice for Adam," Fairchild said....

Michael Hurst, the slain child's uncle, said the boy would have been 34. “Our long journey for justice has finally arrived," Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn't said that in 30 years.”

Prosecutors from the Oklahoma attorney general's office had described the boy's killing as torture when they wrote to the state's Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Fairchild's execution was the seventh since Oklahoma resumed carrying out the death penalty in October 2021 and one of four scheduled nationwide over a two-day stretch. It was the 16th execution in the U.S. this year, including one in Texas and one in Arizona on Wednesday, up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama. Oklahoma's attorney general this summer asked the state's top criminal appeals court to set more than two dozen execution dates.

November 17, 2022 in Death Penalty Reforms | Permalink | Comments (0)

"Assessing the Status of Minors in Possession: Marijuana Versus Alcohol"

The title of this post is the title of this new article available via SSRN authored by Mitchell F. Crusto, Jillian Morrison and Laurel C. Taylor.  (Disclosure: this paper was supported by a grant from the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.)  Here is its abstract:

The legalization and decriminalization of marijuana at state level has an impact on adult use, as well as on use by minors. In many jurisdictions, minor use and possession of marijuana is regulated much like that of alcohol.  This paper examines the statutory language of laws regulating possession of marijuana by minors across states in which marijuana is legalized, decriminalized, and illegal.  From there, data was collected to look at the arrest rates for minors in three case study jurisdictions.  The purpose of this comparison was to reveal how laws criminalizing minors in possession of marijuana are carried out as reflected in the arrest rates of reporting jurisdictions. 

Overall marijuana arrests for minors in possession decreased from 2018 to 2020 across every state case example provided.  Additionally, based on the case examples provided in those states that decriminalized marijuana, arrests for juveniles were lower overall than those with legalized or illegal status.  While further analysis is needed, the study found positive results, noting that states across the board appear to be decreasing arrest rates for marijuana possession, and more and more states are looking to alcohol violation statutes to craft their marijuana violation statutes for minors.  Accordingly, the public shift in thinking about marijuana appears to be impacting the practicalities of drafting statutes and mandating arrests for the better: to create a less hostile approach with less punitive impact on minors.

November 17, 2022 in Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

November 16, 2022

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

November 16, 2022 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (13)

Texas stuggles a bit as it completes its fifth and final execution in 2022

As reported in this local article, headlined "Texas’ execution of Stephen Barbee was prolonged while officials searched for a vein," an execution in Texas tonight was a bit more of a struggle than usual. Here are the details:

Texas’ execution of Stephen Barbee Wednesday evening was prolonged while prison officials searched for a vein in the disabled man’s body, according to a prison spokesperson.

Barbee, convicted in the 2005 murders of his pregnant ex-girlfriend and her child, had severe joint deterioration which prohibited him from straightening his arms or laying them flat, according to court records. His attorney had recently tried to halt his execution because he feared the process with Barbee’s disability would result in “torture.”

But courts rejected the appeals, noting that prison officials had vowed to make special adjustments to the death chamber’s gurney to accommodate Barbee. Still, it took much more time to carry out the execution than is typical in Texas. Reporters walked into the prison around 6 p.m., signaling the execution was about to begin. But for an hour and 40 minutes, no one came back out, causing anti-death-penalty protesters outside to grow worried that something had gone wrong. It is uncommon for executions to last more than an hour. “Due to his inability to extend his arms, it took longer to ensure he had functional IV lines,” prison spokesperson Amanda Hernandez said in an email Wednesday night.

Barbee was pronounced dead at 7:35 p.m., nearly an hour and a half after he was strapped into the death chamber’s gurney, according to the prison’s execution record. Within minutes of being strapped on the gurney, an IV was inserted into his right hand, at 6:14 p.m., but it took another 35 minutes for an additional line to begin flowing in the left side of his neck. All the while, his friends watched through a glass pane adjacent to the chamber, according to a prison witness list. So did the friends of the murder victims — Lisa Underwood and her 7-year-old son Jayden — as well as Underwood’s mother....

Hours before the prisoner’s scheduled death, Barbee’s execution was paused as courts battled once again over the state’s handling of the prisoner’s religious rights in the death chamber. Federal courts this month went back and forth over Texas’ execution policy and the findings of multiple U.S. Supreme Court rulings largely requiring the state to allow prisoners’ religious advisers to audibly pray and touch them in their final moments. On Tuesday, a district judge essentially halted Barbee’s pending execution, stating Texas’ prison system can only kill the death row prisoner after creating and adopting a new execution policy that clearly lays out his final religious rights. But after the federal appellate court and the U.S. Supreme Court both ruled in favor of the state early Wednesday afternoon, Barbee’s execution was put back on track.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (4)

Arizona completes execution of man convited of committing a double murder 42 years ago

As report in this AP piece, an "Arizona man convicted of murdering two people in 1980 was put to death Wednesday in the state's third execution since officials started carrying out the death penalty in May after a nearly eight-year hiatus." Here is more:

Murray Hooper, 76, died by lethal injection at the state prison in Florence for his murder convictions in the killings of William "Pat" Redmond and his mother-in-law, Helen Phelps, at Redmond's home in Phoenix.  Redmond's wife, Marilyn, also was shot in the head during the attack but survived and testified against Hooper at his trial....

Hooper was executed within a couple hours of the U.S. Supreme Court rejecting his last-minute appeal.  Hooper's lawyers had asked the Supreme Court to review his claim that that authorities had until recently withheld that Marilyn Redmond had failed to identify him in a photo lineup.  The high court made no comment in the rejection. His appeal was brought to the high court after the Arizona Supreme Court ruled to allow Hooper's execution to proceed in October.

Authorities say the killings were carried out at the behest of a man who wanted to take over Redmond's printing business. Hooper has maintained that he is innocent for four decades and suggested he was framed for the crimes.  Kelly Culshaw, an assistant federal public defender representing Hooper, said in a statement last month that he was sentenced and convicted "based on corrupt police practices and unreliable witness testimony."...

The courts rebuffed attempts by Hooper's lawyers to postpone the execution and order fingerprint and DNA testing on evidence from the killings. But his lawyers said Hooper is innocent, that no physical evidence ties him to the killings and that testing could lead to identifying those responsible.  They say Hooper was convicted before computerized fingerprint systems and DNA testing were available in criminal cases....

Authorities say Hooper and two other men forced their way into the Redmond home on Dec. 31, 1980.  The three victims were bound, gagged, robbed and shot in the head.  Two other men, William Bracy and Edward McCall, were convicted in the killings but died before their death sentences could be carried out....

Arizona did not carry out the death penalty for nearly eight years after criticism that a 2014 execution was botched and because it encountered difficulty obtaining lethal injection drugs.  No other executions are currently scheduled in the state.  Arizona now has 110 people on death row, 22 of whom have exhausted their appeals, according to the state attorney general's office.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (1)

Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

In this post from a couple of months ago, I noted the notable 25-page ruling in US v. Quiroz, No. PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022) (available here), in which a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional.  As of earlier this week, another federal district court, this one in Oklahoma, formally agreed.  Here is the start and conclusion of the 12-page opinion in US v. Stambaugh, No. CR-22-00218-PRW-2 (W.D. Ok. Nov. 14, 2022) (available here):

Before the Court is Defendant Stolynn Shane Stambaugh’s Motion to Dismiss Count 3 of the Indictment as Unconstitutional (Dkt. 31) and the United States’ Response in Opposition (Dkt. 38). Stambaugh seeks to dismiss Count 3 — Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. § 922(n) — on grounds that § 922(n), as applied to him, violates the Second Amendment to the United States Constitution.  The motion has been briefed and heard. For the reasons explained below, the Court GRANTS Stambaugh’s motion (Dkt. 31)....

A historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it.  And because it is the United States’ burden to demonstrate that laws like § 922(n) are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” that failure is fatal.  While the United States needed not find a “historical twin,” surety laws and § 922(n) are simply not “analogous enough to pass constitutional muster,” particularly not in a case like this, where there is nothing in the record to support the United States’ contention that Stambaugh is categorically a “dangerous person” merely because he was indicted for larceny. Accordingly, the Court finds that § 922(n) is unconstitutional as applied to Stambaugh and therefore GRANTS his motion to dismiss Count 3 of the Indictment.

Some prior recent related posts:

November 16, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Prison Policy Initiative reports on "Winnable criminal justice reforms in 2023"

Via email, I learned that the Prison Policy Initiative already has produced its "guide to winnable criminal justice reforms" for 2023.  As explained over at the PPI site, "this briefing is not intended to be a comprehensive platform," but the list is intended "to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system."   Via the email sent my way, here links to part of the guide and additional context:

The reforms focus on nine areas:

Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states.  While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  We made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.

November 16, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"Sentencing Commissions and Guidelines: A Case Study in Policy Transfer"

The title of this post is the title of this notable new article authored by Arie Freiberg and Julian V. Roberts now available via SSRN. Here is its abstract:

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils.  Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.  This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978.

The article explores the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions.  This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. 

November 16, 2022 in Sentencing around the world, Who Sentences | Permalink | Comments (0)

Latest Gallup polling highlights "Steady 55% of Americans Support Death Penalty for Murderers"

Republicans-remain-most-supportive-of-death-penaltyThe quoted portion of the title of this post is the title of this recent Gallup report on its latest polling on opinions regarding the death penalty.  Here are excerpts:

The majority of Americans, 55%, are in favor of the death penalty for convicted murderers in the U.S. While this marks the sixth consecutive year that support for capital punishment is between 54% and 56%, it is below the 60% to 80% readings recorded in the four prior decades between 1976 and 2016.

When Gallup initiated this measure in 1936, 59% of U.S. adults favored the death penalty for convicted murderers -- and majorities have supported it since then, with the exception of several readings taken between 1957 and March 1972, including the record-low 42% in 1966.

After the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it. When it was reinstated in 1976, public support for it grew until it peaked at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped to the lowest point since 1972, and today it remains at that level.

The latest findings are from an Oct. 3-20 Gallup poll that was conducted during the trial of the gunman who murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018.  On Oct. 13, the jury in the highly publicized trial spared him the death penalty and instead sentenced him to prison for the rest of his life. The decision was met with disappointment from many of the victims' families, who thought the gunman should be put to death.

Partisans' views of the death penalty differ sharply, with majorities of Republicans (77%) and independents (54%) favoring it but a majority of Democrats opposed (63%) and 35% in favor.

Since 2000, when Gallup began tracking the measure annually in its Crime survey, Republicans' support has been the most consistent. No less than 72% of Republicans have been in favor of the death penalty, and the latest reading is not statistically different from the 2000 reading of 80%.

Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000.

Democrats' support for capital punishment has not been at the majority level since 2012 and has varied the most of the three party groups, ranging from 34% to 65% since 2000. Democrats' latest reading is essentially unchanged from last year's record low for them and is 21 points lower than the 2000 reading.

November 16, 2022 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

November 15, 2022

Another round up of post-election criminal justice analysis

As noted before, 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).  In turn, late last week, I did a first post-election round-up (and update) with news and commentary as all the 2022 mid-term votes were being counted.  With counting now almost complete, here are another set of new pieces in this space:

From the ACLU, "Three Key Criminal Legal Reform Takeaways from the 2022 Midterms"

From Colorado Public Radio "For losing Republicans, a silver lining: They pushed the conversation on crime and public safety during the election"

From The Crime Report, "Reform – Not Crime – Was the Winning Message in 2022"

From Filter, "Midwest Offers Only Real Reform Highlights in 2022 Prosecutor Elections"

From The Marshall Project, "7 Key Criminal Justice Takeaways From the Midterms"

From The Washington Post, "How Democrats can win voters’ trust on crime"

November 15, 2022 in Elections and sentencing issues in political debates | Permalink | Comments (0)

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

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November 15, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

November 14, 2022

"The Inherent Problem with Mass Incarceration"

The title of this post is the title of this new essay authored by Raff Donelson now available via SSRN.  Here is its abstract:

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration.  This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs.  Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically.  This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes.  On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

November 14, 2022 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3)

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3The title of this post is the title of this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

More details and a simple registation form can be found at this link

November 14, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

November 14, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

November 13, 2022

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

November 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (9)