Sentencing Law and Policy

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

"It is Time to Reform Federal Supervised Release"

The title of this post is the title of this notable new commentary at the ACS Expert Forum authored by Aliza Hochman and Jacob Schuman. I recommend the piece in full, and here are excerpts (with links from the original):

This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive.  As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole.  Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment.  If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years.  Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment.  The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive.  Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s....  In approximately one-third of cases, the government ultimately revokes the defendant’s supervised release, sending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.”  Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration.  We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment.  These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release.  First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant....  Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety....  Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests....

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services....

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release.  The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization.  The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress.  We commend this bipartisan political effort to make federal community supervision more effective and more just.

BOP reports that all federal inmates have been moved out of private prisons

As this ABC News piece reports, all "federal inmates housed in private prisons have been moved to Bureau of Prisons facilities and the agency has ended all contracts with private facilities, officials said." Here is more:

Last year, in one of his first actions in office, President Joe Biden signed an executive order directing BOP to move all inmates to federal facilities, rather than have them housed in private facilities.  "We have never fully lived up to the founding principles of this nation, to state the obvious, that all people are created equal and have a right to be treated equally throughout their lives," Biden said just before signing the actions in January 2021.  "And it's time to act now, not only because it’s the right thing to do. Because if we do, we'll all be better off."...

Advocates, including the ACLU, have said that private prisons reap lucrative financial rewards while taking advantage of people who are behind bars.

On Nov. 30, the McRae Correctional Facility in McRae, Georgia, was closed, making it the final facility to shutter its doors. Biden signed an order directing the attorney general to not renew contracts the Department of Justice has with privately-operated criminal detention facilities.  As expected it took about a year to complete the transition.

"BOP and privately managed facilities remained positive, while maintaining transparency and accountability," a release from BOP said.  "BOP inmates housed in these private prisons have been transferred to BOP facilities.  In the mid-1980s, the BOP began designating low security inmates with specialized needs, such as sentenced criminal aliens, to privately managed facilities to better manage the increasing population.  Over time, the BOP maintained contracts for 15 facilities, housing approximately 29,164 inmates. The overall BOP population peaked in 2013, with over 219,000 inmates."

The head of the Bureau of Prisons union told ABC News that the prison population has declined to a point where private prisons aren't needed, and has said previously the agency supports the president's decision to shutter private prisons.  "The fact remains that our population has declined to the point where we can safely return offenders who were temporarily housed in private prisons to vacant BOP facilities," Shane Fausey, president of the Council of Prison told ABC News through a text message. "The reality is additional beds are no longer needed and the most cost effective measure is not to renew or further private prison contracts at this time."

"The Progressive Case for Ankle Bracelets"

The title of this post is the headline of this notable new Newsweek opinion piece authored by Barry Latzer.  I recommend the piece in full, and here are excerpts:

Many of the most progressive countries in the world are making use of technology to promote rehabilitation and reduce incarceration.  Yet blue states like Massachusetts and left-leaning advocacy organizations remain hostile to use of electronic monitoring (EM) methods.  They are overlooking the benefits of EM — even from a progressive standpoint.

Progressives' typically formulated criminal justice goal is laudatory: to minimize incarceration consistent with public safety, and to maximize the rehabilitation of offenders. But achieving these ends has been, to say the least, problematic.

Progressives commonly urge more addiction treatment and mental health services as steps toward rehabilitation. These treatments might be beneficial for many ex-offenders, but by themselves they are unlikely to sharply curtail recidivism.  Vocational training is also useful, but success measured by societal reintegration of ex-offenders is unproven.  Despite all that we've learned about rehabilitation over the last five decades, the inescapable fact is that over 80% of all prisoners are rearrested for new crimes at some point after they are released.

Virtually all prisoners return to free society — and more quickly than most people realize.  Only 20% of prisoners complete full sentences, and the median time actually served is a mere one year and four months.  Released offenders are then monitored by parole or probation officers, who are supposed to encourage constructive behavior.  But as we all know, these officers have enormous caseloads and cannot effectively supervise the volume of people they are assigned.  Under the current parole and probation system, there are, as a practical matter, few disincentives to crime, which is why so many released offenders are repeaters.

Each year, tens of thousands of probationers and parolees fail to comply with the terms of their release and are sent back to jail or prison.  In 2019, before COVID produced its own distinct brand of decarceration, 334,000 probation and parole failures were (re)incarcerated, which constituted 29% of all prison admissions that year.

Given these discouraging realities, the benefits of EM from a progressive standpoint surely are worth reconsidering.

1. EM helps ex-offenders avoid incarceration and reintegrate into free society....

2. EM can effectively replace incarceration....

3. EM protects crime victims, especially the most vulnerable....

Before we reject this useful tool to help ex-offenders turn their lives around and avoid wasted years behind bars, we should ask ourselves this question: Is there a better way to achieve reintegration into law-abiding society, while also taking public protection into account?  I submit there is not.

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

• Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques" 
• Missouri completes execution after SCOTUS rejects final stay appeal 

Third Circuit panel rules federal fraud guideline enhancements for "loss" do not properly include "intended loss"

I am grateful to a whole bunch of folks who made sure I did not miss the notable ruling by a Third Circuit panel today in US v. Banks, No. 21-5762 (3d Cir. Nov. 30, 2022) (available here).  Banks is yet another case involving another circuit finding notable guideline commentary problematic and inapplicable in the wake of recent Supreme Court administrative law rulings.  Here is how the Banks opinion starts and some key passages within (footnotes omitted):

A jury convicted Frederick Banks of wire fraud, and the District Court sentenced him to 104 months’ imprisonment and three years’ supervised release. On appeal, Banks argues that the District Court erred in three ways, by (1) denying his constitutionally protected right to self-representation, (2) applying the loss enhancement to the fraud guideline in the United States Sentencing Guidelines because there was no “actual loss,” and (3) imposing certain special conditions of supervised release.  We conclude that the loss enhancement in the Guideline’s application notes impermissibly expands the word “loss” to include both intended loss and actual loss. Thus, the District Court erred when it applied the loss enhancement because Banks’s crimes caused no actual loss. We will, therefore, affirm the judgment of the District Court except on the issue of loss enhancement; we will remand this case to the District Court for it to determine loss and to resentence Banks....

Next, we turn to Banks’s argument that the District Court erroneously applied the intended-loss enhancement to his sentence when the victim suffered $0 in actual losses. The application of the intended-loss enhancement hinges on the meaning of the term “loss” as used in Guideline § 2B1.1. Because the United States Sentencing Commission has interpreted “loss” in its commentary, the weight afforded to that commentary may affect the meaning of “loss.”...

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.”  To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss.55 We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word.  Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered.  We conclude it is.

Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1. 

Missouri completes execution after SCOTUS rejects final stay appeal

As reported in this NBC News piece, a "Missouri inmate convicted of ambushing and killing a St. Louis-area police officer he blamed for the death of his younger brother was executed Tuesday, officials said." Here is more:

Kevin Johnson, 37, was put to death by lethal injection at the state prison in Bonne Terre. The execution began at 7:29 p.m., and Johnson was pronounced dead at 7:40 p.m., said Karen Pojmann, a spokesperson for the Missouri Department of Corrections....

Johnson had admitted to shooting and killing Kirkwood Police Sgt. William McEntee in 2005. Johnson was 19 at the time.

Edward Keenan, a court-appointed special prosecutor, had sought to vacate his death sentence. Keenan argued in an appeal to the Missouri Supreme Court that Johnson's trial was "infected" with racist prosecution techniques and that racial discrimination played a part in his receiving the death penalty. One of Johnson’s attorneys, Shawn Nolan, said, “Make no mistake about it, Missouri capitally prosecuted, sentenced to death, and killed Kevin because he is Black.”

Johnson was executed after the U.S. Supreme Court denied a request for a stay Tuesday evening. Justices Sonia Sotomayor and Ketanji Brown Jackson would have granted it, court records show....

Mary McEntee, the slain officer’s widow, said Tuesday that her husband was executed on July 5, 2005, when he was “ambushed and shot five times in his police car.” He was then shot twice more, she said. “During this process, many have forgot Bill was the victim,” Mary McEntee said Tuesday night. “We miss Bill every day of our lives.”...

On July 5, 2005, police were searching for Johnson, who was on probation for assaulting his girlfriend. Police believed he had violated probation. McEntee was among the officers sent to Johnson's home. Johnson's 12-year-old brother, who had a congenital heart defect, ran next door to his grandmother's house, where he suffered a seizure. He died at the hospital. Johnson testified at trial that McEntee kept his mother from entering the house to aid his brother. According to Johnson, that same evening he encountered McEntee when he returned to his neighborhood for an unrelated call about a fireworks disturbance. Johnson shot McEntee several times and fled, according to prosecutors. He turned himself in three days later....

Johnson's daughter, Khorry Ramey, 19, had sought to witness the execution, but a state law prohibits anyone younger than 21 from observing the process. The American Civil Liberties Union filed a lawsuit last week asking a federal court to allow her to attend her father's execution, but a judge ruled Friday that a state law barring her from being present because of her age was constitutional....

McEntee had three children, ages 7, 10 and 13, when he was killed, his widow said Tuesday night after the execution. “They didn’t have a chance to say goodbye,” Mary McEntee said. “It took 17 years of grieving and pushing forward to get to this point today. This is something I hope no other family has to go through.”

This SCOTUSblog post,  titled "Court green-lights execution of Missouri man who presented evidence of racist prosecutor," discusses a bit more fully the issues that were brought to and rejected by SCOTUS prior to the execution.  And this execution marked the fifth execution carried out by state officials in the United States in November.  According to Death Penalty Information Center data, this is the most executions carried out by state official in one month in the US since January 2015.

Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.

"Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency"

The title of this post is the title of this new article authored by Edward Rubin and Malcolm Feeley and available via SSRN. Here is its abstract:

Our so-called criminal justice system is in fact a disorganized mélange of poorly supervised police departments, over-aggressive prosecutors, under-funded public defenders, chaotic criminal courts and overcrowded, under-controlled prisons and jails.  Many valid criticisms have been levelled against its particular components and the racist, classist and vindictive attitudes that motivate it.  This article identifies a more basic cause of the system’s failure and recommends a more comprehensive solution.  The various institutions that we use to deal with the problem of criminal activity are atavisms, holdovers from the pre-modern era when crime control was the defining feature of government (together with foreign affairs) rather than one element of a wide-ranging system of public administration. As a result, these institutions are frozen into outdated, balkanized and reactive formats that fail to achieve the system’s basic goal of crime prevention.

For considerably more than a century, our society has addressed other social issues such as education, public health, employment conditions, consumer safety and environmental degradation by creating administrative agencies with comprehensive responsibility and at least an expectation that they will develop a coherent strategy.  The same should be the case in criminal justice.  An integrated, hierarchically organized agency in each state would be able to plan general approaches, manage resources and coordinate functions, all essential tasks that are currently ignored or underdeveloped.  In addition, it would have the capacity to train staff, supervise their performance, punish misconduct, and develop new patterns of behavior that would detach criminal justice institutions from their pre-modern, militaristic origins.  An orderly administrative system of this sort is almost certainly the only way to alter the deeply ingrained patterns of behavior that continue to produce so much abuse and oppression in all our criminal justice institutions.  While constitutional law protections should not be diminished, the criminal trial, now utilized by only a few percent of all defendants, should not serve as the organizing principle of the system, but rather as a means for dealing with the most recalcitrant individuals, as it does in other areas of administration such as securities law and environmental protection.

Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms

In this post last month following up Prez Biden's major (but still minor) marijuana pardons, I lamented that Prez Biden missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope a presidental pardon can help undo the considerable collateral consequences of even the most minor of federal convictions. 

That prior post came to mind as I saw these two recent New York Times piece highlighting these different federal and state record realities realities.  Here are brief excerpts from the pieces:

"Marijuana Pardons Affect Just a Sliver of Those Swept Up in the War on Drugs":

But people like Ms. [Valerie] Schultz, whose lone conviction has hounded her for more than a decade, represent just a sliver of those swept up in the decades-long war on drugs. A majority of marijuana convictions have been state crimes, which Mr. Biden does not have the authority to pardon; he can only hope that governors will follow suit.

And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.

"California Will Soon Have the Nation’s Most Expansive Record-Clearing Law":

California lawmakers approved one of the most far-reaching criminal justice reform measures in the nation this year, a bill that drew relatively little fanfare among a parade of high-profile legislation.

The new law makes California the first state that will automatically seal most criminal records for those who complete their sentences. Advocates pushed for the change because they said such records can prevent once-incarcerated people from getting jobs, housing, schooling and more. Jeff Selbin, the director of the Policy Advocacy Clinic at the U.C. Berkeley School of Law, called the legislation “the most expansive and comprehensive record-clearing law of its kind in the country.”

The measure, which builds on an earlier state law, takes effect in July and will automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences. Records of arrests that didn’t lead to convictions will also be sealed.

There are some exceptions: People convicted of serious and violent felonies, as well as those requiring sex offender registration, won’t have their records cleared under the law. And criminal histories would still be disclosed in background checks when people apply to work in education, law enforcement or public office.

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

Previewing SCOTUS arguments on reach of federal public-corruption laws

The Supreme Court starts a new round of oral arguments this Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States.  SCOTUSblog has these previews of the coming arguments:

"A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting."

"Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law"

In addition, here are a few media previews:

From The Buffalo News, "Supreme Court to hear Ciminelli, Percoco appeals – and decide shape of federal corruption laws"

From Reuters, "U.S. Supreme Court to weigh Cuomo-era New York corruption cases"

From the Wall Street Journal, "The Supreme Court Gets a Fraud Test: The Justices hear two major cases on prosecutorial overreach."

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.