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February 12, 2022

A super round-up of some super reads on Super Bowl weekend

As a big sports fan, I always enjoy the pomp and circumstance around Super Bowl.  Sometimes the game even lives up to all the excitement.  And since this is the first time in three decades I have a nearby team to root for (Who Dey), I may focus on bowling more than blogging this weekend.  But before focusing on snacks and spreads of all kinds, I thought I would catch up after a busy week by rounding up a super array of interesting pieces I saw this past week:

From The Brennan Center, "Countering Excessive Punishment with Chances for Redemption: A personal story shows the full costs of an unfair system and demonstrates how it can be improved."

From CNN, "Iraq War vet who punched police officers is 100th US Capitol rioter to be sentenced"

From The Herald-Star, "The end of the road for Ohio’s death penalty"

From The Hill, "The nation should model Utah's 'Clean Slate' on criminal records"

Also from The Hill, "On crime, Democrats should follow Eric Adams"

From Inquest: "Mass Disenfranchisement: The scourge of plea bargaining is robbing millions of a different, and just as fundamental, kind of liberty." 

Also from Inquest, "The Ties That Bind: Imprisonment violently separates us from those we love most — even those we come to love on the inside."

From the Los Angeles Times, "Why efforts to scale back California’s ‘three strikes’ law for juveniles are failing"

From the Marshall Project, "Prosecutors Who Want to Curb Mass Incarceration Hit a Roadblock: Tough-on-Crime Lawmakers; In an age-old battle over local control, some legislators seek to wrest power from prosecutors who aim to curb mass incarceration"

From Mother Jones, "A Notorious Prison Tech Giant Is Poised to Cash In on Pell Grants for Incarcerated People"

From Pennlive.com, "Most deaths in Pa. jails went unreported despite rules: ‘It is appalling’"

From Politico, "Frequent Prison Lockdowns Backfire. I Know From Experience. Biden has an opportunity to change prison culture for the better, if he takes it."

From WTVS Tampa Bay, "Florida leads US with most exonerations from the death penalty: 30 people have been exonerated from the death penalty in Florida since it was reinstated in 1976"

February 12, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

February 11, 2022

"Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis"

The title of this post is the title of this new paper recently posted to SSRN authored by Aliza Cover.  Here is its abstract:

The death penalty is a uniquely severe punishment — the ultimate, irreversible act of violence by state against citizen.  Because “death is different” from all other punishments, the Eighth Amendment restricts its use, mandating that it “be reserved for the worst of crimes and limited in its instances of application.”  Capital punishment statutes must narrow death eligibility, meaningfully differentiating between those “worst” murderers, who may be subject to the death penalty, and the rest of murderers, who may not.

This Article reports the findings of an empirical study designed to evaluate how effectively Idaho’s capital punishment scheme serves this constitutional narrowing requirement in practice.  The study involved a review of first-and second-degree murder convictions in cases filed from June 2002 through the end of 2019 to determine how many of these cases would have been factually eligible for the death penalty under the terms of Idaho’s statutes — regardless of whether they were pursued as capital cases by the prosecution.  This review revealed that 86–90% of all murder convictions were factually first-degree murder cases, and 93–98% of factual first-degree murder cases were eligible for the death penalty.  These findings strongly suggest that Idaho’s statute fails to fulfill the constitutional narrowing requirement.

The study also produced results on how frequently the death penalty is sought and imposed in death-eligible cases in Idaho.  The prosecution filed a notice of intent to seek the death penalty in 21% of factually death-eligible cases; the prosecution proceeded to a capital trial in 5% of death-eligible cases; and a death sentence was obtained in 3% of death-eligible cases.  These findings — which combine a high rate of death eligibility with a low rate of death-charging and death-sentencing — strongly suggest that death is an “unusual” punishment in Idaho, with important implications for its constitutionality under Furman v. Georgia.

February 11, 2022 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (12)

February 10, 2022

Prison Policy Initiative provides latest update on incarceration populations two years into the COVID pandemic

The folks at the Prison Policy Initiative always impress me with cutting-edge research and analysis in the form of "Briefings," and the latest report here provides a particularly interesting account what we know about prison and jail populations in the US two years into the pandemic.  The full briefing should be read in full, and the full title provide a bit of a summary of the themes: "State prisons and local jails appear indifferent to COVID outbreaks, refuse to depopulate dangerous facilities; While some prison systems and local jails have maintained historically low populations, others have returned to pre-pandemic levels, despite the ongoing dangers of COVID-19 and new, more transmissible variants."

I cannot readily summarize all the insights and data covered in this new PPI report, but here are excerpts (with links from the original):

In state and federal prisons, over 2,900 people have died of COVID-19, almost 476,000 people have been infected, and thousands of additional cases are linked to individual county jails. Even now, when more than 75% of people in the U.S. have received at least one dose of the vaccine, correctional staff are hesitant to get vaccinated or receive boosters, and prison systems are slow to roll out boosters to incarcerated people.  As the more contagious Omicron variant ravages parts of the nation and renders hospitals completely overrun, nearly three quarters of prisons are experiencing COVID-19 outbreaks; public health officials continue to recommend reducing prison populations as a primary method of risk reduction.  In fact, in October 2021, the American Public Health Association adopted a policy in support of decarceration as a public health matter and new research shows the detrimental effect of COVID-19 on all-cause mortality in state prisons.  Despite the clear need for smaller confined populations, the data show that with just a few exceptions, state and local authorities are allowing their prison and jail populations to return to dangerous, pre-pandemic levels.

The federal Bureau of Prisons, state governments and departments of corrections, and local justice system officials have a responsibility to protect the health and lives of those who are incarcerated. After almost two years of outbreak after outbreak in prisons and jails, correctional authorities must be held accountable for their repeated failure to reduce populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities.


Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and the increased health care needs of incarcerated people. For example, although California has reduced the state prison population by about 18% since the start of the pandemic, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons, and the prison system has witnessed a 300% increase in infections among incarcerated people over the past few weeks and a 212% increase in cases among staff.  In fact, as of December 15th, 2021, California’s prisons were still holding more people than they were designed for, at 113% of their design capacity (and up from 103% in January 2021).  Considering the continued overcrowding in the California prison system, it’s not surprising that the state is responsible for eight out of the ten largest COVID-19 prison clusters....

Many states’ prison populations are the lowest they’ve been in decades, but this is not because more people are being released from prisons; in fact, fewer people are. Data from 2020, recently released by the Bureau of Justice Statistics, shows that prisons nationwide released 10% fewer people in 2020 than in 2019. Instead, data suggest most of the population drops we’ve seen over the past 20 months are due to reduced prison admissions, not increasing releases....


Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 415 county jails of varying sizes, almost all (98%) decreased their populations from March to May of 2020, resulting in an average change of a 33% population decrease across all 415 jails at the start of COVID-19. These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent” offenses.

But those early-pandemic, common-sense policy changes didn’t last long. Between May 2020 and February 2021, the populations of 83% of the jails in our sample increased, reversing course from the earlier months of the pandemic. As of December 2021, 28% of the jails in our sample have higher populations now than they did in March 2020.  Overall, the average population change across these 415 jails from March 2020 to December 2021 has diminished to only a 10% decrease, while the average population change from July 2021 to December 2021 has dropped to 0%, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.

February 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

US Sentencing Commission releases big new report on "Recidivism of Federal Violent Offenders Released in 2010"

As I keep noting in recent years, it is has been great to see the US Sentencing Commission continuing to produce a lot of useful data reports even as its policy work is necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example released today is this 116-page new report titled "Recidivism of Federal Violent Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted here:


This report is the third in a series continuing the Commission’s research of the recidivism of federal offenders.  It provides an overview of the recidivism of the 13,883 federal violent offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation.  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for federal violent offenders released in 2010 to non-violent offenders in the study group....

Key Findings

  • This study demonstrated substantially greater recidivism among violent federal offenders compared to non-violent federal offenders.
    • The recidivism rates of violent and non-violent offenders released in 2005 and 2010 remained unchanged despite two intervening major developments in the federal criminal justice system — the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision.
    • This finding is consistent with other Commission reports demonstrating higher recidivism among violent offenders...
  • Violent offenders recidivated at a higher rate than non-violent offenders.  Over an eight-year follow-up period, nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, compared to more than one-third (38.4%) of non-violent offenders.
  • Violent offenders recidivated more quickly than non-violent offenders.  The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders.
  • Among offenders who were rearrested, violent offenders were rearrested for a violent offense at a higher rate than non-violent offenders, 38.9 percent compared to 22.0 percent.
    • Assault was the most common type of rearrest for both violent and non-violent offenders, but a larger proportion of violent offenders (24.9%) than non-violent offenders (15.4%) were rearrested for assault.
  • Age at release is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates decrease steadily with each age group for both groups of offenders.  However, violent offenders had higher rearrest rates than non-violent offenders in each age group.  Among offenders aged 60 and older, the oldest group of offenders studied, 25.1 percent of violent offenders were rearrested compared to 11.5 percent of non-violent offenders.
  • Criminal History Category (CHC) is strongly correlated with recidivism for both violent and non-violent offenders. Rearrest rates increase steadily with each CHC for both groups of offenders. However, violent offenders had higher rearrest rates than non-violent offenders in every CHC. Analyzed separately, violent instant offenders (59.9%) and violent prior offenders (64.8%) were rearrested at a higher rate than non-violent offenders (38.4%)....
  • The current recidivism findings for violent and non-violent offenders released in 2010 replicate the Commission’s findings for offenders released in 2005. Nearly two-thirds (63.8%) of violent offenders released in 2010 were rearrested, the same rate for violent offenders released in 2005 (63.8%). More than one-third (38.4%) of non-violent offenders released in 2010 were rearrested, a comparable rate to non-violent offenders released in 2005 (39.8%).

February 10, 2022 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (4)

February 9, 2022

"How 4 States Cut Their Criminal Justice Budgets Without Sacrificing Safety"

The title of this post is the title of this notable new article from the  Winter 2022  edition of State Legislatures magazine produced by the National Conference of State Legislatures.   I recommend this piece in full, and here is how it begins and a few highlights:

About 5% of states’ general fund budgets go to criminal justice — just over $45 billion in fiscal year 2019 — so many lawmakers are determined to make every dollar count.  But that’s not as easy as it might sound.

“The challenge for legislators is to reduce the use of high-cost, low-return policies and shift the savings into programs that have been shown to reduce crime,” says Jake Horowitz, director of The Pew Charitable Trusts’ Public Safety Performance Project.

Lawmakers have a variety of policy options at their disposal, but what actually works? Programs in Louisiana, Michigan, Oregon and Missouri provide some answers.

Louisiana: Reducing Prison Admissions...

Michigan: Shortening Jail Stays...

Oregon: Shoring Up Short-Term Transitional Leave...

Missouri: Reducing Revocations of Community Supervision...

“When people have access to high quality behavioral health services, interactions with law enforcement go down and, in the long term, we see reductions in the number of people in the criminal justice system,” says Alison Lawrence, associate director of NCSL’s Criminal Justice Program.

Corrections research departments are another valuable resource.  Lawmakers looking for effective ways to reduce their criminal justice budgets are finding that public safety and researched-backed corrections policy go hand in hand.  Cutting a research department, Horowitz says, “You might save a fully loaded salary, but then you’re flying blind, and you don’t know what is driving your costs.”

February 9, 2022 in Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Welcome to Bolts, a new digital publication with a focus on criminal justice at local political level

I am very pleased to learn that a great looking new publication, Bolts, is now up and running.  Here is an excerpt from the "About Us" page:

Bolts is a digital publication that covers the nuts and bolts of power and political change, from the local up. We report on the places, people, and politics that shape public policy but are dangerously overlooked. We tell stories that highlight the real world stakes of local elections, obscure institutions, and the grassroots movements that are targeting them.

We focus on two areas where local governments play a key role: criminal justice and voting rights.

When it comes to practices that balloon prisons or weaken democracy, decisions are often made by an opaque ecosystem of institutions and officials. Our journalism shines a spotlight on the levers of power that influence democracy and mass incarceration—think of your local judges, county clerks, or prosecutors—and the political battles around them.

Daniel Nichanian, who I believe is playing a key role in this new publication as its founder and editor-in-chief, spotlighted for me these early Bolts criminal justice pieces:

"In 2022, Intense Clashes Between Criminal Justice Reformers and Tough-On-Crime Foes: Eight big election questions that will shape the future of criminal punishment and mass incarceration"

"Which Counties Elect Their Prosecutors and Sheriffs in 2022?"

"Vacancies and Zombie Commissioners Leave Opening for Parole Reform in New York"

February 9, 2022 in Recommended reading, Who Sentences | Permalink | Comments (0)

February 8, 2022

"Prison Medical Deaths and Qualified Immunity"

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

The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided.  According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States.  Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care.  The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail administrators. In addition, the defense is not appropriate because medical care decisions by carceral actors are fundamentally different than traditional qualified immunity cases.  Traditional qualified immunity cases usually involve discretionary decisions that are one-off, emergency, binary choices made by a single actor or unit of actors.  In contrast, medical decisions in carceral settings are often serial, ongoing, and usually involve multiple decision makers, sometimes acting beyond their area of expertise.  These significant differences between medical decisions in carceral settings and traditional qualified immunity decisions illustrate the practical difficulties for incarcerated plaintiffs and their families in holding prisons accountable for violating the U.S. Constitution.  Recent developments refining the doctrine may lessen the negative impact of the defense on these civil rights claims, but they also do not address the core disconnect between the rationales justifying qualified immunity and its application in cases of severe injury or death from inadequate carceral healthcare.

February 8, 2022 in Prisons and prisoners | Permalink | Comments (1)

February 7, 2022

Taking stock of state felon disenfranchisement as federal reform falters

Long-time readers know I am a big fan of the franchise in our democracy, and thus I always question felon disenfranchisement laws. Disappointingly, it now seems unlikely that a federal voting rights reform law will be enacted to address this issue anytime soon. But, encouragingly, this new Politico piece notes that some states are making progress on this front even absent federal reforms.  The piece's full headline, "States moving fast after Congress failed to expand felon voting rights: The number of states automatically restoring voting rights has increased by 50 percent since after the 2018 election and others could follow this year," is a bit more upbeat than the full article.  But it still seems like there is reason for reform optimism, and here is an excerpt from an article worth reading in full:

Activists' hopes for a sweeping federal restoration of rights were dashed when Democrats’ voting rights megabill went down in the Senate in January.  The bill would have been revolutionary for those convicted of felonies because it would have presented one national standard: A person’s right to vote, under that legislation, could not be “denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.”

Outside of D.C., success has been found more readily in state capitals. In 21 states, people convicted of felonies automatically regain the right to vote upon their release from incarceration, according to the National Conference of State Legislatures....  The number of states automatically restoring voting rights has increased by 50 percent since after the 2018 election, with seven states passing laws or ballot initiatives that automatically restored a person’s rights once they were released, according to the NCSL....

And activists say they are also eyeing longer-term pushes in states like Kentucky, Alabama and Mississippi, hoping to attract more Republican support.  While Democratic lawmakers have recently formed the foundation for votes for the reenfranchisement of people with felony convictions, there is some noticeable cross-partisan support for it as well.

Chapters of Americans for Prosperity — the libertarian-leaning organization at the heart of the Koch constellation of conservative groups — have backed drives in states like New Mexico and Virginia.  And in Kentucky, some Republican lawmakers have backed pushes for the eventual restoration of voting and other rights in the state. 

February 7, 2022 in Collateral consequences, Who Sentences | Permalink | Comments (1)

Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort

Data from the US Sentencing Commission indicates that roughly 1 in 4 persons who serve time in federal prison gets rearrested within the first two years after release (see Table 2 in this 2016 USSC report), though some rearrests are for a violation of supervision conditions rather than a new crime.  Though I dislike when recidivism is broadly defined to included just "technical" violations, these USSC data provide useful and needed context for this Washington Times article headlined "320 federal inmates reoffended while on pandemic-related home confinement."  Here are excerpts (with emphasis added):

More than 300 federal inmates who were transferred to home confinement as a pandemic mitigation strategy reoffended and were sent back to prison, a top federal official said Thursday. Bureau of Prisons Director Michael Carvajal told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security that substance abuse was the “most common” offense that landed inmates back behind bars.

“About 160 of those 320 were for abuse of alcohol or drugs,” Mr. Carvajal said. “Some of them were escapes – they weren’t where they were supposed to be – most of them were violations of that nature. Some was misconduct, eight of those were new crimes committed, the rest of those were technical violations.”

A bureau spokesperson told The Washington Times that six of the eight new crimes were drug-related, one was for escape with prosecution and one was for smuggling non-citizens....

During Thursday’s hearing, he said the 320 reoffending inmates are among more than 37,000 who were transferred to home confinement since Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES) in March 2020 to address threats posed by the pandemic.

The CARES Act allows the bureau to transfer certain low-level inmates convicted of nonviolent crimes to home confinement if they meet the COVID-19 risk factors identified by the U.S. Centers for Disease Control and Prevention. While some transfers have been put back in prison, others have completed their sentences and 5,485 inmates are still in home confinement.

In other words, it seems that not one single violent crime has been committed by more than 37,000 persons released early to home confinement under the CARES Act authority.  This is an amazing reality to be robustly celebrated, in part because it reveals that our federal system can effectively identify low-risk offenders who can be released early at essentially no risk to public safety.  

This great new Inquest piece by Jessica Morton & Samara Spence, titled "Home Rule: In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities," places these data in another bit of telling context:

BOP’s own numbers show that people placed on home confinement pursuant to the CARES Act do not need to be returned to prison to prevent them from committing crimes. According to BOP data, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct.  By way of comparison, more than 100 BOP employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that BOP has 36,739 employees, BOP employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period.

This Inquest piece should be read in full because it has a number of additional great points beyond the remarkable reality that BOP employees are apparently more of a public safety threat than the CARES home confinement cohort.  But the broader point is that federal experience over the last two years shows that is is possible to decarcerate a certain prison population without posing any real threats to public safety; indeed, done the right way and at the right time it may be possible to have more freedom and less crime.  That is in part the premise driving various elements of the FIRST STEP Act, and the CARES home confinement cohort has, in essense, demonstrated "proof of concept."

Of course, home confinement release with constant risk of reconfinement during a pandemic is not "normal" in any respect and so I do not think it fair to try to extrapolate too far from these encouraging recidivism data.  Nevertheless, whether a fan or a foe of modern criminal justice reform efforts, the impressively good behavior of the CARES home confinement cohort should be something that everyone can celebrate.

February 7, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (7)

February 6, 2022

Sentencing court's "abandonment of impartiality and unwillingness to follow the law" prompts reversal and rebuke

As noted in this Newsweek piece, headlined "Court Says Judge Overstepped with Ruling, May Be In 'Wrong Line of Work'," a sentencing reversal in Michigan last week is making national headlines because of some of the strong words in the ruling of a unanimous court of appeals.  Here are some highlights from the press report:

A Michigan judge known for giving criminals higher sentences than what guidelines recommend and making controversial comments from the bench was told by a higher court Tuesday that remaining a judge may not be the job for him.

Jackson County Judge John McBain was reprimanded by the Michigan Court of Appeals' ruling on the case of Dawn Marie Dixon-Bey, a 49-year-old woman convicted of fatally stabbing her boyfriend on Valentine's Day in 2015. Dixon-Bey said she acted in self-defense.

"If a trial judge is unable to follow the law as determined by a higher appellate court, the trial judge is in the wrong line of work," the appeals court said in its opinion, which followed a previous reprimand for how McBain handled the case....

The case began in 2017 when McBain sentenced Dixon-Bey to serve a minimum of 35 years in prison, 15 years over the recommended guidelines, for the second-degree murder of her boyfriend Greg Stack. During the sentencing hearing, McBain made comments to Dixon-Bey such as "I hope you are haunted by the vision of you stabbing him. After this day, you don't exist," and that the one major flaw Stack had was "that he stayed in a relationship with you," Michigan Live reported.

In 2020, the appeals court derided McBain for the sentence he gave Dixon-Bey and said he treated the defendant as if she was convicted of premeditated murder and "grilled her" in court. At the time, the judges' panel overturned the initial ruling, but McBain ignored it and gave Dixon-Bey a 30-year sentence.

McBain argued at the hearing Dixon-Bey had planned the killing saying "she stabbed the victim in the heart not once, but twice, and murdered him in cold blood," according to Associated Press. He also said he could consider the evidence presented in the case as premeditation, despite the defendant not being convicted of that crime.

With the second sentencing sent back to the Court of Appeals, the panel unanimously overturned McBain's ruling and ordered he be removed from any future hearings related to the case. The judges said McBain's decision to hand out a high sentence based on finding Dixon-Bey's crime as premeditated and deliberated, contrary to the jury's verdict, "was an abuse of discretion and a willful violation of controlling precedent from our Supreme Court," their opinion said.

A helpful reader provided me with copy of the full ruling in Michigan v. Dixon-Bey, No. 354866 (Mich. Ct. App. Feb. 1, 2022) (available for download below). Sentencing fans should take the time to read the entire opinion, which addresses sentencing topics ranging from the consideration of acquitted conduct to the right of allocution. And, among other notable statements, the opinion concludes with the appeals court stating that the "trial court’s conduct and statements may warrant investigation by the Judicial Tenure Commission."

Download Dawn Marie Dixon-Bey Michigan Court of Appeals

February 6, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Intriguing squabble in Idaho over capital commutation authority

This AP article, headlined "Judge says Idaho governor can’t veto clemency for condemned man," reports on a new state ruling concerning who has capital commutation authority in the Gem State.  Here are some of the details:

A judge says Idaho’s governor doesn’t have the power to veto a clemency recommendation by the state’s parole board for a terminally ill man who was expected to be executed this year. The ruling from 2nd District Judge Jay Gaskill on Friday says putting Gerald Pizzuto Jr. to death would be illegal and so the court won’t issue a death warrant — a required document before an execution can occur. Gov. Brad Little’s office vowed to appeal.

Pizzuto, 66, has been on death row for more than three decades after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He was scheduled to be executed by lethal injection last year, but after a clemency hearing the Idaho Commission of Pardons and Parole voted 4-3 to recommended that Pizzuto’s sentence be changed to life in prison. The board cited Pizzuto’s poor health — he has terminal bladder cancer, heart disease and diabetes as well as decreased intellectual function — and said commutation would be an act of mercy.

Little, however, rejected the recommendation and said he wouldn’t commute Pizzuto’s sentence. Little noted the man committed the Idaho slayings shortly after being released from prison in Michigan, where he had been convicted of rape.

Pizzuto’s attorneys with the Federal Defender Services of Idaho went to court, with attorney Jonah Horwitz arguing last month that while Idaho’s Constitution gives the governor the power to grant temporary reprieves from execution, it stops far short of allowing the governor to override the parole board’s commutation recommendation.

Attorneys for the state had argued a phrase added by amendment in 1986 to the relevant section of the constitution, “only as provided by statute,” meant that the Legislature could modify the way commutation and parole powers are carried out. Deputy Attorney General LaMont Anderson told Gaskill during oral arguments that the Legislature had done exactly that in a state law that said the parole board could recommend commutation, but the governor must approve.

In Friday’s ruling, Gaskill said the final decision on commuting a sentence rests with the parole board and not the governor. “If the drafters intended to allow the governor to have the power of commutation, which is greater than the power to grant respites and reprieves, the drafters could have specifically stated this,” Gaskill said, pointing out that the constitutions of several other states including Texas, Oklahoma, Arizona and Pennsylvania do explicitly give commutation power to the governor.

The judge also noted that the section of Idaho’s Constitution detailing the parole and commutation powers had been amended a few times throughout the state’s history — most recently in 1986 — but none of the amendments gave full commutation authority to the governor....

In an emailed statement, the governor’s office said the decision was the ruling of “one judge,” and said Little had followed the constitution and state law as written. “Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case,” the office said. “Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Notably, as detailed at this DPIC page, Idaho has only carried out only three executions over the last 50 years and none in nearly a decade. But, in the modern US experience with capital punishment, there always seems to be a whole lot of litigation even if when there are not that many executions.

February 6, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Faithful Execution in the Fifty States"

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

Amid increasing political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly.  Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to the primacy of statutory law.  Under a rapidly emerging competing approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise.  The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act.  More recently, a number of self-described “progressive prosecutors” have employed the same theory at the local level to nullify state laws forbidding theft, shoplifting, drug possession, prostitution, and other crimes on social-justice grounds.

Although these developments have provoked heated public debate, most discussion to date has presumed incorrectly that a generalized model of prosecutorial discretion necessarily applies nationwide.  In fact, far from prescribing a common model of prosecutorial authority, the laws of the federal government and the fifty states vary widely with respect to both the degree of enforcement discretion they presume and the degree of autonomy they afford to local prosecutors.

Some states forbid categorical nonenforcement altogether, while others afford near total autonomy to locally elected prosecutors. Most states fall somewhere in between.  These varied laws — and not generalized abstractions about the rule of law, criminal justice policy, the proper prosecutorial function, or even the proper degree of local policy-making autonomy — should govern whether categorical nonenforcement is lawful in a particular jurisdiction.  Refocusing debate on these varied state arrangements would not only give proper effect to governing positive laws, but could also lower the stakes in each particular controversy.  It could also help build greater capacity to protect and enforce state constitutional law in other areas, helping to stabilize state government amid increasingly turbulent politics.

February 6, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)