Sentencing Law and Policy

"Unconstitutional Punishment Categories"

The title of this post is the title of this article authored by William W. Berry III now available via SSRN. Here is its abstract:

Two terms ago, the Supreme Court decided Jones v. Mississippi, in which it upheld but arguably narrowed its Eighth Amendment categorical bar on the imposition of mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court held that the Eighth Amendment did not require a fact-finding prerequisite to the imposition of JLWOP sentences.  The opinion, however, did not speak to the question of whether other categories of JLWOP sentences might violate the Eighth Amendment.

Indeed, the Court has identified six categories of capital punishment that the Eighth Amendment proscribes: (1) mandatory death sentences; (2) executions of juveniles; (3) executions of intellectually disabled defendants; (4) executions for certain felony murder crimes; (5) executions for the crime of adult rape; and (6) executions for the crime of child rape.  The Court has extended some of the categorical punishment bars to JLWOP, covering three of the unconstitutional capital punishment categories — mandatory JLWOP sentences, JLWOP sentences for adult rape, and JLWOP sentences for child rape.

The open question is whether the other three unconstitutional death penalty categories under the Eighth Amendment also apply to JLWOP sentences.  This Article explores that doctrinal gap. While the Court’s decision in Jones v. Mississippi suggests that it is not eager to expand the scope of Eighth Amendment generally and the scope of JLWOP in particular, the Court has never explicitly concluded that JLWOP is fundamentally different from the death penalty for purposes of the Eighth Amendment.  And if the death penalty and JLWOP are the same for Eighth Amendment purposes, applying the remaining unconstitutional death penalty categories to JLWOP would not be expanding the doctrine, but simply completing it.  This Article argues that the Court should take that step if presented with the opportunity.

Highlighting still more notable new Inquest essays

I continue to struggle to find time to keep up with the steady stream of great pieces regularly posted at Inquest.  As regular readers know from my regular postings, Inquest, "a decarceral brainstorm," keeps churning out must-read essays, and I try to keep up just by flagging here some of the recent sentencing/prison pieces folks may want to be sure check out:

By Katharine Blake, "A New Clarity: In search of an abolitionist language"

By Marcus Kondkar, "Face to Face: The Visiting Room offers an intimate glimpse into the stories of Louisianians serving life without parole"

By Abbe Smith, "Bars and Barriers: Far from a decarceral plan, 'Barred' is nonetheless a trenchant look at how the criminal system fails the innocent and guilty alike"

By Candice Delmas, "A Weapon of Last Resort: It's time to reconsider the power and promise of hunger strikes — without denying the tactic’s radical, disruptive, and violent character"

US Attorney General Garland releases new federal charging guidelines that include instructions to treat crack like powder cocaine

I thought the increasing prospects for statutory sentencing reforms from Congress might be the big federal sentencing news of this week, but this new Washington Post piece suggests that even bigger news is coming from the Department of Justice.   Here are the (incomplete) details from the first press piece:

Attorney General Merrick Garland on Friday instructed federal prosecutors to end sentencing disparities in cases involving the distribution of crack and powder cocaine after decades of law enforcement policy disproportionately treating crack offenders more punitively.  Garland’s move effectively seeks to eliminate the significant difference in the amount of powder cocaine relative to crack cocaine that is required to be in a suspect’s possession to trigger mandatory minimum federal sentences if convicted.

Critics of the longtime policy have said it is a relic of the Washington’s misguided war-on-drugs era that targeted Black and Brown communities, resulted in overpopulated prisons and strained federal and local resources at the expense of more effective strategies. Proponents of treating crack dealers more punitively have said that form of the drug is faster acting and capable of producing more intense highs. Under current federal policy, possession of 28 grams of crack cocaine would trigger a mandatory minimum prison sentence of five years, compared to 500 grams of powder cocaine.

Garland’s memo to the nation’s U.S. attorneys directs prosecutors to charge “pertinent statutory quantities that apply to powder cocaine” when pursuing crack cases and to “advocate for a sentence consistent with powder cocaine rather than crack cocaine.” The move, long sought by civil rights advocates, comes as the Equal Act, a legislative bill that would eliminate the disparity, has been stalled in the Senate amid objections from some Republicans after passing the House last year with bipartisan support.

Joe Biden, then a U.S. senator from Delaware, crafted the 1986 crime bill that initially set a 100-to-1 ratio between powder and crack cocaine to trigger mandatory minimum sentences. The Fair Sentencing Act 0f 2010 reduced the ratio to 18-to-1. The Biden administration endorsed the Equal Act last year....

Garland’s memo cited Justice Department testimony last year to the Senate Judiciary Committee that such a disparity “is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine.”

During his confirmation hearing in February 2021, Garland told Sen. Cory Booker (D-N.J.), a co-sponsor of the Equal Act, that the inequitable sentencing in crack and powder cocaine cases had a “disparate impact on communities of color.” “There’s no justification for this, and we should end this,” Garland said at the time. He also said that powder cocaine “is as dangerous with respect to crime rates as crack cocaine, both of which have now been unfortunately overtaken by fentanyl and the opioids. But both of those are bad problems [and] equalizing penalties for crack and powder should have no difference with respect to our ability to fight violent crime.”

Garland aides said the new guidelines, which will take effect within 30 days, are part of a broader set of changes the attorney general is making to the Justice Department’s charging policies.  The department under Garland continues to support the passage of the Equal Act, aides said; unlike a legislative change to federal policy, they noted, Garland’s memo would not retroactively apply to previous convictions.

Jim Pasco, executive director of the National Fraternal Order of Police, said in an interview that he supported Garland’s directive. Though the group has opposed eliminating the sentencing disparity in the past, and it did not take a position on the Equal Act, Pasco said the police union’s views have evolved “as there’s been more clarity around the science.” Pasco said the Biden administration has supported police with additional resources to fight a rise in violent crime, and the union does not believe the policy changes on cocaine sentencing will adversely affect the efforts of law enforcement.

Garland’s action could face blowback from Republicans who have championed a bill that would reduce the sentencing disparity but not eliminate it entirely. In April, Sens. Charles E. Grassley (Iowa), Mike Lee (Utah), Roger Wicker (Miss.) and Lindsey O. Graham (S.C.) proposed legislation that would reduce the ratio of powder-to-crack cocaine that would trigger mandatory minimum sentences to 2.5-to-1. Unlike the Equal Act, however, that bill would achieve greater parity in part by increasing penalties for powder cocaine users.

Aggravatingly, as of 2pm EST, the new AG Garland crack charging memo is not available on the Justice Department's website.  I am very eager to see thsi memo, as well as whatever else appears in the "broader set of changes the attorney general is making to the Justice Department’s charging policies" before commenting at length.  But I will start by noting that federal law does provide at least one possible means for Garland’s memo to retroactively apply to some previous crack convictions: AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity.

UPDATE:  A helpful reader made sure to get me copies of these new charging memos from AG Garland.  Here they are (with commentary to follow in coming days):

Download Attorney General Memorandum - General Department Policies Regarding Charging Pleas and Sentencing

Download Attorney General Memorandum - Additional Department Policies Regarding Charges Pleas and Sentencing in Drug Cases

New crack sentence reductions (but not equalization or retroactivity) reportedly in Congress's year-end lawmaking

I think I am excited — though I might also be more than a bit disappointed — to see reports from a few press sources that Congress may be getting close to passing a version of crack sentencing reform, though apparently not one that will fully equalize powder and crack sentencing terms or that will make new reforms retroactive.  This Reuters piece, healdined "U.S. Senate set to address cocaine sentencing disparity in funding bill," provides these details:

Negotiators in the U.S. Senate have reached a tentative deal to narrow sentencing disparities between crack and powder cocaine and plan to tuck the measure into a bill funding the government, according to four people briefed on the matter....

Under a deal reached by bipartisan negotiators, that [crack/powder weight disparity] would be narrowed to 2.5 to 1, said the people, who requested anonymity to discuss private talks. Congress is likely to attach the measure to a year-end spending bill that lawmakers are currently hashing out, they added.

Legislation that would completely eliminate the sentencing disparity between crack and powder passed in the House of Representatives by a wide margin last year, though it has not advanced in the Senate.

Several Senate Republicans, including Chuck Grassley, the party's highest-ranking member on the Judiciary Committee, have publicly supported a 2.5-to-1 proportion instead. Grassley's office did not respond to a request for comment. Senator Dick Durbin, the No. 2 Senate Democrat and a key actor in cocaine sentencing talks, declined to comment.

The tentative deal does not include retroactive relief for people already convicted of crack-related offenses, which sentencing reform groups had been pushing for, the people said.

The disparities between crack and powder date back to war-on-drugs policies of the 1980s. In 1986, Congress passed a law to establish mandatory minimum sentences for drug trafficking offenses, which treated crack and powder cocaine offenses using a 100-to-1 ratio. Under that formula, a person convicted for selling 5 grams of crack cocaine was treated the same as someone who sold 500 grams of powder cocaine. That proportion was narrowed to 18 to 1 in 2010.

While the people involved in negotiations see the passage of the cocaine sentencing compromise as likely, they warned the deal could still fall apart as Congress races to pass the sweeping, expected $1.7 trillion government funding measure.

I always welcome "half-a-loaf" criminal justice reforms and better than getting nothing done at all.  And I had come to think this Congress was going to get nothing done at all on this front.  So, I am keen to be excited about something seemingly on a path to enactment.

But Senator Grassley's original proposal for a 2.5-1 cocaine sentencing ratio, as detailed here, called for essentially increasing punishment levels for powder cocaine along with loweing punishments for crack cocaine.  Given that US Sentencing Commission data show that there are now nearly three times as many powder cases sentenced in federal courts as crack cases, it is possible that efforts to reduce disparities here (depanding on the particulars) could actually raise sentences overall.  My guess is that any deal being stuck is likely to have a net reduction in expected prison time, but the devil will be in the statutory details.  In addition, how the new US Sentencing Commission responds to any statutory reforms will be most consequential in the long run.

DPIC releases year-end report emphasizing botched executions and no 2022 increases in death penalty support

The Death Penalty Information Center this morning released this annual report under the heading "The Death Penalty in 2022: Year End Report; Public Support for Death Penalty at Near-Record Low Despite Perception that Violent Crime is Up."  Here is the start of the report's introduction, with lots and lots of interesting capital punishment data and discussion thereafter:

In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, public support for capital punishment and jury verdicts for death remained near fifty-year lows.  Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.

The Gallup crime survey, administered in the midst of the midterm elections while the capital trial for the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida was underway, found that support for capital punishment remained within one percentage point of the half-century lows recorded in 2020 and 2021.  The 22 new death sentences imposed in 2022 are fewer than in any year before the pandemic, and just 4 higher than the record lows of the prior two years.  With the exception of the pandemic years of 2020 and 2021, the 18 executions in 2022 are the fewest since 1991.

One by one, states continued their movement away from the death penalty.  On December 13, 2022, Oregon Governor Kate Brown announced the commutation of the capital sentences of all 17 death-row prisoners and instructed corrections officials to begin dismantling the state’s execution chamber.  The commutations completed what she called the “near abolition” of the death penalty by the state legislature in 2019.  Thirty-seven states — nearly three-quarters of the country — have now abolished the death penalty or not carried out an execution in more than a decade.

For the eighth consecutive year, fewer than 30 people were executed and fewer than 50 people were sentenced to death.  The five-year average of new death sentences, 27* per year, is the lowest in 50 years.  The five-year average of executions, 18.6 per year, is the lowest in more than 30 years, a 74% decline over the course of one decade.  Death row declined in size for the 21st consecutive year, even before Governor Brown commuted the sentences of the 17 prisoners on Oregon’s death row.

2022 could be called “the year of the botched execution” because of the high number of states with failed or bungled executions. Seven of the 20 execution attempts were visibly problematic — an astonishing 35% — as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves.  On July 28, 2022, executioners in Alabama took three hours to set an IV line before putting Joe James Jr. to death, the longest botched lethal injection execution in U.S. history.  Executions were put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to follow execution protocols.  Idaho scheduled an execution without the drugs to carry it out.  One execution did not occur in Oklahoma because the state did not have custody of the prisoner and had not made arrangements for his transfer before scheduling him to be put to death.

District Court finds sexual assault by guard and assistance prosecuting perpetrator provide basis for sentence reduction under 3582(c)(1)(A)

A helpful reader alerted me to a notable new opinion from a federal district court in US v. Brice, No. 13-cr-206-2 (ED Pa. Dec. 15, 2022) (available fore download below), which finds “extraordinary and compelling” reasons warranting a sentence reduction in the defendant's sexual assault by a federal corrections officer and her assistance to prosecutors in bringing that officer to justice.  Here is hope the Brice opinion gets started as a key passage: 

This case presents a difficult question under the First Step Act for compassionate release and involves balancing the disturbing conduct underlying Defendant Rashidah Brice’s conviction with the extraordinary and compelling events that occurred after sentence was imposed.  For reasons explained below, I will partially grant Brice’s motion and reduce her sentence by 30 months but will not order her release as she has requested.  Although Brice’s circumstances are extraordinary and compelling and warrant a reduction from her original sentence, due to the serious and violent nature of her crimes and their effect on the victims, I find that releasing Brice now would not be consistent with the sentencing factors of 18 U.S.C. § 3553(a)....

It is entirely appropriate for me to consider how Brice responded to suffering abuse at the hands of her prison guards. The “broad discretion” federal courts have “to consider all relevant information” at a “proceeding[] that may modify an original sentence” is “bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”  Concepcion v. United States, 142 S. Ct. 2389, 2398 (2022). That Brice reacted to her trauma by agreeing to assist in the prosecution of her assailant supports a finding that Brice’s disproportionate suffering while in custody “warrant[s] . . . a reduction” in her sentence and that these circumstances are extraordinary and compelling.  Despite facing tremendous adversity both in her personal life before prison and at the hands of a prison guard, Brice responded by preventing more inmates from being abused, including cooperating in an investigation regarding individuals who had authority over her and could have retaliated against her.  I also note that Congress and the Department of Justice have determined that “[p]rison rape often goes unreported,” 34 U.S.C. § 30301(6), and “retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a serious concern in correctional facilities.” Department of Justice, National Standards To Prevent, Detect, and Respond to Prison Rape, 77 F.R. 37106-01 (June 20, 2012).

Download BRICE sentence reduction opinion

The helpful reader who brought this ruling to my attention indicated this may be "the first time a federal court has concluded that either of these circumstances warrants compassionate release." The reader also rightly stated that this decision "is particularly timely, as Congress and Department of Justice leadership have been pressing the Bureau of Prisons to seek compassionate release for women abused behind bars."

"Do Prison Conditions Change How Much Punishment A Sentence Carries Out? Lessons From Federal Sentence Reduction Rulings During the COVID-19 Pandemic"

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

A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment — as contrasted with prison conditions — as the sole determinant of how much punishment a sentence carries out.  Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions.  Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions.  The BOP used this authority almost exclusively for people who were in the final stages of terminal illness.  The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard.  The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so.

Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons.  Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment.  This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws — including second looks — as well as efforts to increase transparency surrounding life inside prisons.

The Sentencing Project releases (already dated) review of "Top Trends in Criminal Justice Reform, 2022"

The folks at The Sentencing Project yesterday released this terrific new fact sheet that reviews a number of state criminal justice reforms developments in this past year.  I recommend the short document in full for all the reviewed details, but here is part of the overview:

State lawmakers in at least 15 states and Washington D.C. adopted policy reforms in 2022 that may contribute to decarceration and addressing collateral consequences while promoting effective approaches to public safety.  This briefing paper provides an overview of recent policy reforms in the areas of extreme sentencing and decarceration, drug policy, prison reform, probation and parole, guaranteeing voting rights, and youth justice.

Changes in criminal justice policy were realized for various reasons, including an interest in managing prison capacity. Lawmakers have demonstrated interest in enacting reforms that recognize that the nation’s scale of incarceration has produced diminishing returns for public safety.  However, stakeholders working to reform adult and youth criminal legal system practices also encountered rhetoric on increases in violent crime which impacted the ability to adopt significant reforms like the repeal of mandatory minimum sentences and expansion of alternatives to incarceration for prison bound defendants.  Consequently, legislators and other stakeholders have prioritized implementing policies that provide a more balanced approach to public safety.  The evolving framework is rooted in reducing returns to prison for technical violations, expanding alternatives to prison for persons convicted of low level offenses and authorizing earned release for prisoners who complete certain rehabilitation programs.

Interestingly, more than half the states with notable reforms in the past year referenced in this report are so-called red states (e.g., Alabama, Florida, Indiana, Kentucky, Missouri, Oklahoma, Tennessee, Wyoming). And I call this review "already dated" because early this morning, Ohio moved a significant step closer to being another red state to complete significant criminal justice reform this year.  This local article reports the basics:

Ohio lawmakers finalized a sweeping criminal justice reform bill Thursday morning that backers say will reduce the burden on previously incarcerated Ohioans and reduce the likelihood that they return to prison.

Senate Bill 288 tackles a wide range of reforms, including changes that would make it easier to expunge criminal records and shorten prison sentences.  The bill got considerably longer Wednesday when lawmakers added distracted driving prohibitions, anti-corruption measures and increased penalties for failing to report elder abuse.

Mississippi completes likely last execution in United States for 2022

As reported in this AP article, a "man who raped and killed a 16-year-old girl in Mississippi was put to death by lethal injection on Wednesday, becoming the second inmate executed in the state in 10 years." Here is more:

Thomas Edwin Loden Jr., 58, was pronounced dead at 6:12 p.m. by Sunflower County Coroner Heather Burton. He’d been on death row since 2001, when he pleaded guilty to capital murder, rape and four counts of sexual battery against Leesa Marie Gray. She was stranded with a flat tire in June 2000 when Loden forced her into his van....

Earlier this month, a federal judge declined to block Loden’s execution amid a pending lawsuit by him and four other Mississippi death row inmates over the state’s use of three drugs for lethal injections, a protocol they allege is inhumane....

In November, Alabama Gov. Kay Ivey sought a pause in executions and ordered a “top-to-bottom” review of the state’s capital punishment system after a series of failed lethal injections. Mississippi has done “mock executions and drills” on a monthly basis to avoid a botched execution, Jeworski Mallett, deputy commissioner of institutions for the Department of Corrections, told reporters.

The Department of Corrections revealed in court papers in July 2021 that it had acquired three drugs for its lethal injection protocol: midazolam, which is a sedative; vecuronium bromide, which paralyzes the muscles; and potassium chloride, which stops the heart. Since 2019, only Alabama, Oklahoma, Mississippi and Tennessee have used a three-drug protocol, said Jim Craig, a MacArthur Center attorney, speaking at a November court hearing.

This page at the Death Penalty Information Center reports that there are execution dates scheduled in two states tomorrow, but also that those execution are not likely to move forward. Therefore it appears that this Mississippi execution will be the last in the US this year, which means that there were a total of 18 execution in this us in 2022. That marks more executions in the US than in 2021 (11) and 2020 (17), but fewer than in every other year going back until 1991 (14).

Another ugly report about some ugly realities involving prison rape by guards in federal prisons

This new Reason article discusses a new disconcerting report emerging from the US Senate.  The piece is fully headlined, "Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes; Long delays and management failures 'allowed serious, repeated sexual abuse in at least four facilities to go undetected'."  Here is how it gets started:

The federal Bureau of Prison's deeply flawed, backlogged system for investigating sexual assault fails to protect female inmates from rape while protecting employees who commit sexual assault, according to a bipartisan report issued today by the Senate Permanent Subcommittee on Investigations (PSI).

The PSI investigation found that the Bureau of Prisons (BOP) has failed to implement a federal law to prevent prison rapes, and that long delays in investigating complaints have led to a backlog of more than 8,000 internal affairs cases, leading to failures to hold employees accountable. The report says that these management failures "allowed serious, repeated sexual abuse in at least four facilities to go undetected."

"BOP's internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result," the report concludes. "Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms."

Overall, the PSI investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women's prisons over the last decade.  However, the report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

The 68-page report from the Senate PSI is available at this link.  It makes for hard, but important, reading.

SCOTUS grants cert review on two more criminal cases

Yesterday the US Supreme court issued this new order list to continue to fill out its relatively fallow docket. Two of the three new cases the Supreme Court has decided to take up are criminal matters, and this SCOTUSblog post provides these details:

The Supreme Court on Tuesday morning added three new cases to its merits docket for the 2022-23 term.  The justices considered all three cases – involving federal securities laws, the Sixth Amendment’s confrontation clause, and the proper remedy when a defendant is tried in the wrong place – at their private conference last week.  Although the justices announced an initial set of new grants from that conference on Friday afternoon, Tuesday’s grants follow a recent pattern of issuing a second set of grants from the court’s final regularly scheduled conference of the year.

The justices agreed to review the case of Adam Samia – whom the federal government describes as a “hitman” who “committed an array of crimes worthy of a James Bond villain.”  Samia was convicted and sentenced to life in prison for his role in the murder of Catherine Lee, a real estate agent in the Philippines.

At Samia’s joint trial with his two co-defendants, prosecutors relied in part on a confession from one of the co-defendants, Carl Stillwell, who identified Samia as the person who pulled the trigger.  Prosecutors redacted Stillwell’s statement so that it did not use Samia’s name, and the presiding judge instructed the jury that it could only consider Stillwell’s statement in determining Stillwell’s guilt.

Samia was convicted and sentenced to life in prison.  He came to the Supreme Court in August, asking the justices to decide whether admitting Stillwell’s redacted statement, when it immediately incriminated Samia, violated Samia’s right under the Sixth Amendment to confront the witnesses against him.

In Smith v. United States, the justices will take up the case of Timothy Smith, an Alabama software engineer and avid fisherman who was indicted for hacking into the website of Strikelines, a Florida company that identifies and sells the locations of artificial fishing reefs (which fisherman normally do not share).

Smith was tried in the Northern District of Florida, where the company was located; he was convicted on two of the three counts on which he was indicated and sentenced to 18 months in prison and a year of supervised release. Smith argued that he was tried in the wrong place, because he lives in Alabama and the website’s servers were in the Middle District of Florida.

On appeal, the U.S. Court of Appeals for the 11th Circuit agreed with Smith that one of the counts on which he had been convicted had been tried in the wrong place. The question that the Supreme Court agreed on Tuesday to decide involves the remedy for that mistake. Smith contends that he should be acquitted on that count and cannot be retried anywhere, while the federal government counters (and the 11th Circuit ruled) that prosecutors can try him again somewhere else.

Though I am disappointed not to see any notable new sentencing cases, I am still gratified to see that the Court will be grappling with some additional criminal cases that may give us more insights into how some of the newer justices approach this part of the SCOTUS docket.

Outgoing Oregon Gov commutes all 17 of state's remaining death sentences to LWOP

As detailed in this local article, "Gov. Kate Brown announced on Tuesday afternoon that she would commute the sentences of all 17 individuals on Oregon’s death row to life in prison without the possibility of parole, the latest in her end-of-term string of clemency decisions."  Here is more:

“I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people — even if a terrible crime placed them in prison,” Brown said in a statement sent out in a press release.  “This is a value that many Oregonians share,” Brown said.  The governor also directed the Department of Corrections to dismantle the state’s death chamber.

Oregon has not executed anyone on death row for a quarter century and Brown continued the moratorium that former Gov. John Kitzhaber put in place in 2011.  Governor-elect Tina Kotek, who like Brown and Kitzhaber is a Democrat, is personally opposed to the death penalty based on her religious beliefs and said during the campaign that she would continue the moratorium.

Voters have gone back and forth on the death penalty over the years, abolishing and reinstating it repeatedly.  Voters’ most recent decision on the death penalty was in 1984, when they inserted it into the state Constitution....

In 2019, the Legislature passed a bill that limited the crimes that qualified for the death penalty by narrowing the definition of aggravated murder to killing two or more people as an act of organized terrorism; intentionally and with premeditation kilIing a child younger than 14; killing another person while locked up in jail or prison for a previous murder; or killing a police, correctional or probation officer....

Brown said in her statement Tuesday that commuting the sentences of people currently serving on Oregon’s death row was consistent with what she described as lawmakers’ “near abolition” of capital punishment.  “Unlike previous commutations I’ve granted to individuals who have demonstrated extraordinary growth and rehabilitation, this commutation is not based on any rehabilitative efforts by the individuals on death row,” Brown said.  “Instead, it reflects the recognition that the death penalty is immoral. It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.”

Twelve of the seventeen people on death row are white, three are Latino, one is American Indian or Alaska Native and one is Black, according to the governor’s office....

Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said it was her understanding that staff at the Oregon Department of Justice Crime Victim and Survivor Services Division had been working all day Tuesday to notify family members and had reached all of the families impacted by the death row commutations.  A spokesperson for the governor confirmed that the DOJ division handled notification. However, Brewer said the governor should have given families more advance notice of her decision.

“I think the victims should have been told about this so they had some time to prepare for it,” Brewer said.  “These are horrific cases that left completely devastated families.  They’re preparing for the holidays and all of a sudden, they see in the (newspaper) that the person who traumatized — devastated — their families had their death sentence commuted.”...

Advocates including the Oregon Justice Resource Center pushed for the governor to commute all death row sentences for years.  On Tuesday, the center’s executive director Bobbin Singh said in a statement that Brown “has made the right choice for Oregon in commuting these death sentences and dismantling the death chamber.”...

Brown’s clemency actions, which included early release for people deemed at risk of serious health impacts from COVID-19 and inmates who helped fight Oregon’s catastrophic 2020 wildfires, have freed roughly 1,000 people from state prisons.  The Oregonian/OregonLive asked Brown’s spokespeople on Friday for the total number of people for whom the governor had issued pardons and commuted sentences.  On Tuesday, press secretary Liz Merah responded that the governor has commuted the sentences of a total of 1,189 incarcerated people.

The governor also pardoned approximately 45,000 people this year for their marijuana possession convictions, although that did not result in anyone being freed from prison because no one in Oregon was incarcerated for simple possession of an ounce or less of marijuana. And she issued 77 other pardons for crimes that the governor’s office did not identify.

Oregon Senate Republican Leader Tim Knopp, R-Bend, released a statement late Tuesday asking whether the people of Oregon had voted to end the death penalty.  “I don’t recall that happening,” he said.  “This is another example of the Governor and the Democrats not abiding by the wishes of Oregonians.  Even in the final days of her term, Brown continues to disrespect victims of the most violent crimes.”

The official press release from Gov. Brown's office, titled "Governor Kate Brown Commutes Oregon's Death Row," is available at this link.

Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim

In this post last month, I flagged a fascinating order authored by US District Judge Carlton Reeves in a case in which a defendant was brining a Second Amendment challenge to the federal criminal statute prohibiting felons from possessing firearm.  In the order, Judge Reeves, after stressing the Supreme Court's recent re-orientation of Second Amendment jurisprudence, asked the parties whether he "should appoint a historian to serve as a consulting expert in this matter" because the "Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals," and so an "expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions."

Today, as reported here by CNN, the Department of Justice filed its reponse to the order, and it "is advising a federal judge in Mississippi that he does not need to hire a historian to determine whether a contested gun law complies with the Supreme Court’s most recent Second Amendment opinion. Here is more from the CNN piece:

In the new filing, the Biden administration defended a federal statute barring felons from possessing firearms and urged the court not to hire an historian, arguing that the government should win the case without such an intervention.  “Our legal tradition rests in large part on the responsibility of the parties to present materials necessary to support their legal positions,” a government lawyer said in the new brief.

“The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions,” US Attorney Darren J. LaMarca wrote.

The Government's full nine-page filing is available at this link, and he is one of many interesting passages:

This Court ... should look to the parties to provide any necessary support for their positions as to whether the “the Second Amendment’s plain text” extends a right to keep and bear arms to persons convicted of felony offenses and, if so, whether barring them from possessing firearms “is consistent with this Nation’s historical tradition of firearms regulation.”  Bruen, 142 S.Ct. at 2130.  If the Court concludes that a detailed analysis of these issues is necessary to resolve this case, the Government stands ready to submit further and more detailed briefing as ordered by the Court.  The Government anticipates that such materials would provide ample basis for deciding the motion pending in this case.  See, e.g., Range, 53 F.4th at 266 (“the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition”).  Following our standard adversarial practice, the Court then can decide which of the competing perspectives is the more persuasive, supplemented with the Court’s own examination of the historical record as illuminated by the parties.

Some prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

"Criminal Justice Reform and the Centrality of Intent"

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

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system.  These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice.  But less attention has been given to reforming the substantive content of the criminal law — specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in criminal cases.  Yet important change is needed in this area.

This article addresses that need, proposing to abolish three substantive doctrines which share a common flaw: They all reduce or eliminate the prosecution’s burden of proving a defendant’s mental culpability — their 'intent' — in criminal homicide cases.  The three doctrines arise in two overlapping areas of the criminal law: the law of homicide and the law of accomplice liability.  All three doctrines make it significantly easier to secure convictions, for serious crimes including murder, without requiring the state to prove the defendant’s mental culpability with respect to the specific crime charged.  The solution to this injustice — and the chief recommendation of this article — is therefore identical in all three cases: Amid the current national and bipartisan movement to reform the criminal justice system, legislatures and courts should abolish these doctrines.

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

Though I have previously flagged this event, I wanted to be sure to highlight again this exciting webinar scheduled for tomorrow (December 13 starting at 12noon).  This event has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here, again, 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

Rounding up some particularly recent ugly prison stories

Following incarceration news and commentary leads me to see, all too often, all sorts of discouraging reports about life in prison. I will sometimes post some of these reports, but they are really too frequent to cover fully in this space.  Just in the last week, for example, I have seen so many of these kinds of pieces from so many sources that I thought a round up was in order:

From the AP, "AP Investigation: Prison boss beat inmates, climbed ranks"

From CNN, "Justice Dept. report outlines series of mistakes that led to prison beating death of Boston gangster Whitey Bulger"

From The Intercept, "Incarcerated People Forced To Do Dangerous Work For “Slave” Wages At Height Of Pandemic"

From The Mashall Project, "Federal Prisons Were Told to Provide Addiction Medications. Instead, They Punish People Who Use Them."

From NBC News, "No food in 9 days for 19 Nevada prisoners on hunger strike"

From the New York Times, "Some Prisoners Remain Behind Bars in Louisiana Despite Being Deemed Free"

From Salon, "Your child's glasses may have been made with forced prison labor"

"No Sense of Decency"

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

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.”  In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left.  Criticism of the doctrine has been fierce, but largely academic until recent years.  Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day.  For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism.

Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test.  Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them.  Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment.

This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements.  It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency tests, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment.  The Article then proposes a new test — grounded in the structural harms of the modern criminal punishment system — that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity.  This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter.