Sentencing Law and Policy

Highlighting notable new Inquest essays looking "Beyond Gideon"

I continue to struggle to find time to keep up with all the commentaries posted at Inquest.  As regular readers know from my prior postings, Inquest bills itself as "a decarceral brainstorm," and it keeps churning out a wide array of essays on a wide array of criminal justice topics.  For example, a few weeks ago, a new essay by Jared Mollenkof focused on a new local prosecutor: " A Prosecutor’s Decarceral Potential: A new Minneapolis-area county attorney won’t end mass incarceration. But she has the chance to cause less harm and promote healing."

Capturing my attention this morning is a new Inquest series titled "Beyond Gideon," which is described as a "collection of essays examining how — or whether — public defenders can meaningfully contribute to the end of mass incarceration."  Here is part of how the series is set up here:

In the struggle against the harms of the carceral state, Inquest recognizes the limits of the public defense system — and of other actors in the criminal legal system.  Yet we also recognize that public defenders, by being among the closest to the people and communities harmed by mass incarceration, have a valuable role in working toward a world without it.  By running for office, advocating for decarceral legislation, and getting the attention of the Supreme Court, public defenders can — and do — fight for change.

Beyond Gideon is our attempt to broaden this lens.  In this series, we address questions about the role of public defense in challenging mass incarceration, and the conversations required to move that work forward.

We open with a reading list of archival essays examining how public defenders fit in the current system.  Over the next two weeks, in recognition of the sixtieth anniversary of the Gideon ruling, we will add a five-part series of new essays from people invested in thinking through the role of public defenders in bringing about a decarceral future.

There are two new essays already now available on the Inquest site, and here are the titles and links:

By Premal Dharia, "Gideon Turns Sixty: The Court’s decision must not preempt questions about the role public defenders can play in ending mass incarceration."

By Alexis Hoag-Fordjour, "Choice of Counsel: People assigned a public defender are the only ones deprived of the right to choose their lawyer.  This often intersects disastrously with racial bias."

"Defining 'Victim' Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments"

The title of this post is the title of this new article authored by Paul Cassell and Michael Ray Morris, Jr. now available via SSRN. Here is its abstract:

Who qualifies as a “victim” is the critical foundational question for the Crime Victims’ Rights Act (CVRA) and other crime victims’ rights laws.  This article provides the first comprehensive exploration of this “victim” definition question.  It traces out how the CVRA (and many states) define the term “victim” as broadly covering anyone who has been harmed as the result of a crime.  This article begins by reviewing how issues surrounding the definition of “victim” have evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” with precision.  The definition of “victim” has gradually evolved from a person who was the target of a crime to a much broader understanding of a person who has suffered harm as the result of a crime.

The CVRA provides a good illustration of the expansive contemporary definition of “crime victim” — a definition whose implications frequently are not fully appreciated by courts, prosecutors, and other actors in the federal criminal justice system.  The Act defines victim as a person “directly and proximately harmed” by a crime.  This definition extends crime victims’ protections to many persons who may not have been the target of a crime.  This article also analyzes important categories of crimes — violent, property, firearms, environmental, and government process crimes — where “victim” definition issues often occur.  It also takes a close look at a significant recent case involving the CVRA’s crime victim definition: the Boeing 737 MAX crashes case.  The article concludes by arguing that legislators should adopt, and courts should enforce, a far-reaching conception of a “crime victim” as anyone who suffers harm from a crime.  This conception is needed to ensure that important victims’ rights are extended to all who need their protection. 

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

"The Poor Reform Prosecutor: So Far From the State Capital, So Close to the Suburbs"

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

Given the undeniable role that prosecutorial discretion has played in driving mass incarceration, it makes sense to turn to them to scale it back as well.  This has certainly been a central motivation of the progressive/reform prosecutor movement that started in the late 2000s.  And while this movement has had some notable successes, recent years have shed some important light on the limits it faces as well.  In this essay, I want to focus on how the county-ness of prosecutors hems in their power from two different directions.

On the one hand, as county officials, prosecutors — at least in most major urban areas — have a large number of constituents who live in the suburbs and regularly oppose reforms … of policies that by and large do not affect them. It’s telling that many, if not most, reform prosecutors have been elected in counties that either have no suburbs at all within their borders (Philadelphia, Baltimore, St. Louis) or where the suburbs are a small fraction of the overall population (Boston, Portland).  It’s clear across a wide range of cities that the core support for reform DAs comes from Black communities with high levels of violence, i.e., the communities that bear the brunt of DA decisionmaking.  The more suburban voters in a county, however, the more diluted those voices become.

On the other hand, as county officials, prosecutors operate at the mercy of state officials, who have a wide range of powers for clipping their wings: legislatures can give state AGs concurrent jurisdiction, for example, and in many places governors can remove elected DAs or take their cases away from them.  While states are shielded from (some) federal interventions by the 10th Amendment, county officials have no such protection, as reform DAs in GOP-controlled states are increasingly beginning to discover.

My argument here is not one for nihilism.  Even with these limits, the so-called “progressive prosecutor” movement can (and has!) accomplish quite a lot.  But these constraints are very much real constraints, and ones that defy any sort of easy (or perhaps just any) policy fix.  It is essential to map out what these limits look like, the constraints they impose, and what they mean for reform efforts going forward.

Texas completes its second execution of the week

As reported in this AP article, "Texas has executed an inmate convicted of the drug-related killings of four people more than 30 years ago, including a woman who was 9-months pregnant."  Here is more:

Arthur Brown Jr., 52, received a lethal injection Thursday evening at the state penitentiary in Huntsville.  He was condemned for the June 1992 slayings, which took place in a Houston home during a drug robbery.  Authorities said Brown was part of a ring that shuttled drugs from Texas to Alabama and had bought drugs from Jose Tovar and his wife Rachel Tovar.

Killed during the drug robbery were 32-year-old Jose Tovar; his wife’s 17-year-old son, Frank Farias; 19-year-old Jessica Quiñones, the pregnant girlfriend of another son of Rachel Tovar; and 21-year-old neighbor Audrey Brown.  All four had been tied up and shot in the head. Rachel Tovar and another person were also shot but survived.

“I don’t see how anybody could have just killed a pregnant woman and then made her suffer so much.  It’s just beyond words,” Quiñones’ older sister, Maricella Quiñones, said before the execution.

Brown was the fifth inmate put to death in Texas this year and the ninth in the U.S.  His execution was the second of two in Texas this week.  Another inmate, Gary Green, was executed Tuesday for killing his estranged wife and her young daughter.  Brown was defiant in his final statement before the lethal injection was administered. “What is happening here tonight isn’t justice," he said. "It’s the murder of another innocent man.”

The U.S. Supreme Court earlier Thursday declined an appeal from Brown’s attorneys to halt the execution.  They had argued that Brown was exempt from execution because he was intellectually disabled, a claim disputed by prosecutors.  The high court has prohibited the death penalty for the intellectually disabled....

One of Brown’s accomplices in the shootings, Marion Dudley, was executed in 2006.  A third partner was sentenced to life in prison. Brown, who was from Tuscaloosa, Alabama, had long maintained another person committed the killings.

Brown’s attorneys had previously filed other appeals that had been rejected by lower courts.  They argued he was innocent and that a witness actually implicated another suspect.  They also claimed Brown’s conviction was tainted by racial bias, alleging one of the jurors decided he was guilty because he was Black.

A judge in Houston on Tuesday denied a request by Brown’s attorneys for DNA testing of evidence that they said could have exonerated their client.  Josh Reiss, chief of the Post-Conviction Writs Division with the Harris County District Attorney’s Office in Houston, called Brown’s last-minute appeals a delay tactic....

Brown was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, five of the inmates have been executed this year.

With Prez Biden's blessing, majority of Senate Dems vote to reject DC criminal code reforms

The state of federal politics on crime and punishment came to the fore this week as the US Senate voted last night on whether to reject a proposed new District of Columbia criminal code.  This New York Times piece, headlined "Senate Clears Bill to Block D.C. Crime Law, Sending It to Biden After Reversal."  Here are excerpts:

The Senate on Wednesday voted overwhelmingly to block a new District of Columbia criminal code that reduces mandatory minimum sentences for some violent offenses, with Democrats bowing to Republican pressure to take a hard line on crime in a move that underscored the rising political potency of the issue ahead of the 2024 elections.

The 81-to-14 vote, with one senator voting “present,” cleared the Republican-written measure to undo the District’s law, sending it to President Biden, who after initially opposing it abruptly changed course last week and said he would sign it.

It was a sudden turn of events for the District’s council and its overhaul of local sentencing laws. Just a few weeks ago, Mr. Biden weighed in against congressional action to block the measure, accusing Republicans of meddling in local affairs.

But the high-profile incidence of carjackings and homicides in the capital and growing nationwide evidence that voters were casting their ballots based on candidates’ response to violent crime spurred a rapid retreat.  Dozens of House Democrats joined Republicans in opposing the District’s criminal code, and a growing number of Senate Democrats signaled they were inclined to follow suit, prompting Mr. Biden’s turnabout.

On Wednesday, 31 Democrats and two independents joined Republicans in supporting a resolution of disapproval of the criminal code, sending it to the president for his signature. Senator Raphael Warnock, Democrat of Georgia, voted “present.”

Republicans, using the authority of Congress to review all District laws, forced the showdown in an effort to paint Democrats as weak on law enforcement. They said the outcome demonstrated that any trend toward leniency was at an end. “We need to make certain that we send a strong message that the American public have had it with crime in America,” said Senator Bill Hagerty of Tennessee, the chief Republican author of the resolution. “The crime spree that is happening in our major cities must come to an end.”

But if Democrats were hoping that their opposition to the new criminal code would stop Republican attacks on their party’s image on crime in next year’s elections, they were likely to be disappointed based on comments made by Senator Mitch McConnell, Republican of Kentucky and the minority leader.  “Nobody will confuse Washington Democrats’ last-minute reversal on this one resolution for a road-to-Damascus moment on the crime issue,” Mr. McConnell said. “The American people are a lot smarter than that.”...

Local officials lamented the interference and even tried to pull back the criminal code before it was rejected by the Senate.  But the process to block it had already been set in motion, and Congress ignored the attempt to short-circuit the outcome.

The rewrite of the criminal code, which was years in the making, had split local officials as well.  The law was vetoed by Mayor Muriel E. Bowser, who was overridden by the District council. Her opposition, however, opened the door to Democrats abandoning their usual support of the District and voting in favor of overturning the law.

The White House’s handling of the issue angered House Democrats, who felt they were hung out to dry by the president after he said early last month that he would oppose the resolution of disapproval.  As a result, when the matter came before the House in early February, most Democrats backed the District council and voted against the effort to rescind the sentencing package, believing they were siding with the president, who would veto it.

Instead, Mr. Biden arrived on Capitol Hill last week and told Senate Democrats in a private luncheon that he would sign the measure if it reached his desk, undercutting House Democrats and District officials.  He said the crime legislation had gone too far even though he supported autonomy for the District of Columbia.  White House officials noted that the president had never explicitly pledged to veto the measure, only that the administration opposed it.

Some Senate Democrats stood by the District and argued that its democratically elected officials should be free to write their own laws without being subjugated to Congress. Senator Cory Booker, a New Jersey Democrat who has been active on criminal justice issues, mounted a defense of the District’s law in a party luncheon on Tuesday, according to senators who attended....

But the president’s reversal, the mayor’s veto and rising public unease with violent crime drove most Democrats to rally behind blocking the law, including Senator Chuck Schumer of New York, the majority leader, as well as both senators from neighboring Virginia, Mark Warner and Tim Kaine.  Mr. Kaine is among the senators up for re-election next year.  Both Democrats from Maryland, the other adjoining state, Senators Benjamin L. Cardin and Chris Van Hollen, voted “no.”

I was not familiar enough with all of the particular of the proposed DC Code reform to have a detailed and nuanced view of its pros and cons.  But I am certain that very few member of Congress voted on this matter based on any nuanced particulars of the proposed DC Code reform.  This issue turned into a "tough" versus "soft" on crime vote (with a hint of DC independence), and the political winds — which Prez Biden feels and also impacts — blew this vote a particular way.  It will be interesting to see if and how this vote and these winds shape future policy and politics, not only with respect to the work of Congress but also as campaign 2024 picks up steam.

Highlighting the continuing challenges of calculating FIRST STEP Act earned time credits

At Forbes, Walter Pavlo has this new piece, headlined "The Bureau Of Prisons Evolving Calculation Of First Step Act," on the continuing challenges of applying a key aspect of prison reform part of the big federal criminal justice reform bill passed back in 2018.  I recommend the piece in full, and here are excerpts:

Since January 2022, the Federal Bureau of Prisons (BOP) has been trying to determine how to calculate how the First Step Act (FSA), a law signed by President Donald Trump in December 2018.  As we enter March 2023, there still is no clear direction on the calculation and the frustration has grown among prisoners and families who are anxiously waiting on a determination of when a federal prison term will end....

The premise of FSA is to reward federal prisoners’ participation in meaningful classes meant to return a better citizen to society and, hopefully, reduce the chances of them returning to prison.... The BOP initially calculated the FSA credits manually beginning in January 2022 when the Federal Register published the Final Rule on FSA. The initial BOP calculations for minimum level offenders with minimum chances of recidivism was that 15 days per month started from the beginning of the prison term, something more generous than what was even stated in the FSA law. Prisoners across the country were released based on this calculation.  This initial and interim manual calculation was used through August 2022 when the BOP rolled out a new auto-calculator.  That auto-calculator had a major interpretation that was not a part of FSA either, which stopped all credits from being earned once the prisoner was 18 months from release. This was particularly hard on those prisoners with shorter sentences.

As December 2022 came to a close, the BOP’s auto-calculator interpretation came under scrutiny from U.S. Senators Dick Durbin and Chuck Grassley, the law’s biggest proponents. Suddenly, the BOP changed course and another calculation was promised and it landed with yet another interpretation that is limiting the amount of credits prisoners can earn.

The BOP is now in its third iteration of FSA calculation and this is just as confusing as its first.  Now the BOP is stating that prisoners can only earn 10 credits per month for the first year of incarceration....

Prisoners across the country are taking their cases to federal court asking for relief and for federal judges to get involved in determining the duration of the prison sentence.  In a case in the District of Maryland (Sreedhar Potarazu v BOP, Case No. 1:22-cv-01334) the case manager for the plaintiff gave his own interpretation of how credits were applied by the BOP, giving Mr. Potarazu 10 credits per month for nearly 3 years of his sentence.  There was no basis for the calculation which did not cite specific policy on which the calculation was based, providing even more confusion among both prisoners and staff across the BOP.  Previously, the BOP has used declarations, which were similarly not based on a specific policy, from executives at its Central Office.

It is becoming increasingly apparent that the FSA will be finally determined by a federal court decision and not by what should be a simple interpretation of the law by the BOP. However, many prisoners who await the outcome from court decisions will have spent weeks or months in prison unnecessarily.

New Prison Policy Initiative briefing covers "Racial disparities in diversion: A research roundup"

I received word via email of this new Prison Policy Initiative briefing titled "Racial disparities in diversion: A research roundup."  Here is how it starts (with links from the original):

As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process. This practice sounds like a win-win for communities — and it’s successful by many metrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.

This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.

Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too. Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.

DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses

A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here).  This week, that testimony has generated some notable responses. 

Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."  And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.)  Here are some snippets from the new supplemental brief:

In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15.  In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....

In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam).  The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.

That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court....  The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....

Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform.  And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.

Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level.  And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”

"The Failed Promise of Installment Fines"

The title of this post is the title of this notable new paper authored by Beth Colgan and Jean Galbraith now available via SSRN. Here is its abstract:

In the 1970s, the Supreme Court prohibited the then-common practice of incarcerating criminal defendants because they lacked the money to immediately pay off their fines and fees.  The Court suggested that states could instead put defendants on installment payment plans.  As this Article shows, this suggestion came against a backdrop of impressive success stories about installment fines — including earlier experiments in which selected defendants had reliably paid off modest fines through carefully calibrated payment plans.  Yet as this Article also shows, installment fines practices of today differ significantly from those early experiments, as lawmakers have increased fine amounts, added on fees, surcharges, and restitution, and penalized nonpayment through additional costs and other sanctions.  This has turned installment fines into tools of long-term oppression. 

Further, the early experiments were only ever limited solutions that left behind people in the most precarious financial circumstances, widened the government’s net around only those of limited means, and raised the risk that crime policy would be driven by revenue generation aims rather than justice.  Those problems continue today.  For all too many, installment fines are unaffordable, endless, and arbitrarily administered — and applied instead of better and more equitable solutions.  We close the Article by arguing that the present-day uses of installment fines merit both constitutional challenge and policy reform.

Texas completes its fourth execution of 2023

As reported in this AP article, a "Texas inmate convicted of fatally stabbing his estranged wife and drowning her 6-year-old daughter in a bathtub nearly 14 years ago was executed on Tuesday."  Here are more details:

Gary Green, 51, received a lethal injection at the state penitentiary in Huntsville.  He was condemned for the September 2009 deaths of Lovetta Armstead, 32, and her daughter, Jazzmen Montgomery, at their Dallas home. Green’s attorneys did not file any appeals seeking to stop the execution.

A Buddhist spiritual adviser chosen by Green stood beside the death chamber gurney at the inmate’s feet and said a brief prayer. Green then apologized profusely when asked by the warden if he had a final statement.... 

Instead of inserting the IV needles in each arm, prison technicians had to use a vein in Green’s right arm and a vein on the top of his left hand, delaying the injection briefly for Green, who was listed on prison records as weighing 365 pounds (165 kilograms)....  He was pronounced dead 33 minutes later, at 7:07 p.m.

Ray Montgomery, Jazzmen’s father and one of the witnesses, said recently that he wasn’t cheering for Green’s execution but saw it as the justice system at work. “It’s justice for the way my daughter was tortured.  It’s justice for the way that Lovetta was murdered,” said Montgomery, 43.  He and other witnesses did not speak with reporters afterward....

In prior appeals, Green’s attorneys had claimed he was intellectually disabled and had a lifelong history of psychiatric disorders.  Those appeals were rejected by the U.S. Supreme Court and lower appeals courts.  The high court has prohibited the death penalty for the intellectually disabled, but not for people with serious mental illness.

Authorities said Green committed the killings after Armstead sought to annul their marriage....  Armstead was stabbed more than two dozen times, and Green drowned Jazzmen in the home’s bathtub.  Authorities said Green also intended to kill Armstead’s two other children, then 9-year-old Jerrett and 12-year-old Jerome.  Green stabbed Jerrett but both boys survived....

Josh Healy, one of the prosecutors with the Dallas County District Attorney’s Office that convicted Green, said the boys were incredibly brave. Green “was an evil guy. It was one of the worst cases I’ve ever been a part of,” said Healy, now a defense attorney in Dallas....

Green’s execution was the first of two scheduled in Texas this week. Inmate Arthur Brown Jr. is set to be executed Thursday. Green was the eighth inmate in the U.S. put to death this year.

He was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. Despite a civil court judge in Austin preliminarily agreeing with the claims, four of the Texas inmates including Green have been executed this year.

The Sentencing Project launches a "Second Look Network"

Regular readers should know that I am a big fan of second-look sentencing mechanisms, so I am also now a fan of a new "network" that I learned about via email today.  Here is a portion of the email (with links from the original):

The Sentencing Project is excited to announce the launch of the Second Look Network! The Second Look Network is a coalition of attorneys and post-sentence advocates across the country working on behalf of incarcerated individuals seeking relief from lengthy or unfair sentences.

The Network will facilitate the exchange of ideas and information between its members, and provide various opportunities for collaboration on effective litigation and mitigation strategies, host training sessions, and provide connections to experts and local policy efforts.  The Network will also provide communications and media support to its members. With support from Arnold Ventures, we are proud to create such a space to fill this need for the litigation community. 

To help build and maintain this Network, The Sentencing Project has welcomed a Director and Program Manager to our team.

Becky Feldman, Second Look Network Director

Becky is a post-conviction defense attorney and came to The Sentencing Project with 17 years of litigation and reentry experience on behalf of incarcerated people serving life sentences in Maryland prisons. 

Leyda Pereyra, Program Manager

Leyda is a social justice, equity and human rights advocate. Previously, Leyda served as an operational strategist and consultant to various campaigns that centered on health equity, economic empowerment, research and public policy through culturally responsive social justice frameworks.

We welcome you to learn more about the Network here. We also invite you to review the membership criteria, and, if applicable, apply to join us as we build this community.

I have written a whole lot about a broad array of second-look ideas and related issues in a a number of article through the years.  Here is a sampling of some of my major second-look related writings:

• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

Five months after mass marijuana possession pardons, DOJ announces application form for certificates

Back in October 2022, as detailed here, Prez Biden granted a mass pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation."  But, perhaps problematically for some, a mass pardon done not readily come with the certificate or other official documentation that individuals often received when receiving a more traditional, individualized grant of clemency. 

To address this issue, I had heard that the Pardon Attorney office in the US Justice Department was working on a process to issue pardon documentation.  And, this past Friday, this DOJ press release addressed this matter under the heading "Justice Department Announces Application Form for Marijuana Pardon Certificates."  Here are the particulars (with links from the original):

[T]he Justice Department is launching an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.  On Oct. 6, 2022, the President announced a full, unconditional and categorical pardon for prior federal and D.C. offenses of simple possession of marijuana.  The President’s pardon lifts barriers to housing, employment and educational opportunities for thousands of people with those prior convictions. President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon.

The online application will be available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon.  The web form allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on Oct. 6, 2022, for simple possession of marijuana.

The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities — such as restrictions on the right to vote, to hold office or to sit on a jury — that are imposed because of the pardoned conviction.  The application released today may also be helpful as proof of pardon for those who seek to obtain licenses, bonding or employment.  As President Biden said at the time of the proclamation, his action intends to “help relieve the consequences arising from these convictions.”  

Those who were pardoned on Oct. 6, 2022, are eligible for a certificate of pardon.  Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on Oct. 6, 2022.

Those who were convicted of state marijuana offenses do not qualify for the pardon.

The department is committed to carefully and expeditiously reviewing the applications and issuing certificates to those pardoned under the proclamation. For more information regarding eligibility and answers to frequently asked questions, please visit Presidential Proclamation on Marijuana Possession.

Prior related posts from October 2022:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 

"Mandatory Sentences as Strict Liability"

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

Strict liability crimes — crimes that do not require a criminal intent — are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences — sentences automatically imposed upon a criminal conviction — are unconstitutional in certain contexts for the exact same reason.  Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law.  Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole.  Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.

This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes.  Specifically, the Article argues that courts should re-conceptualize mandatory sentences as a type of strict liability.  To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.