Sentencing Law and Policy

"Proving Actionable Racial Disparity Under the California Racial Justice Act"

The title of this post is the title of this new article authroed by Colleen V. Chien, W. David Ball and William A. Sundstrom now available via SSRN. Here is its abstract:

Racial disparity is a fact of the US criminal justice system, but under the U.S. Supreme Court’s holding in McCleskey v. Kemp, racial disparities — even sizable, statistically significant disparities — do not establish an Equal Protection violation without a showing of “purposeful discrimination.”  The California Racial Justice Act (CRJA), enacted in 2020 and further amended in 2022, introduced a first-of-its kind test for actionable racial disparity even in the absence of a showing of intent, allowing for relief when the “totality of the evidence demonstrates a significant difference” in charging, conviction, or sentencing across racial groups when compared to those who are “similarly situated” and who have engaged in “similar conduct.”

Though the CRJA was enacted over two years ago, two obstacles have made its promised remedies exist largely on paper — confusion about how to apply its new test and a lack of access to the data needed to demonstrate a significant difference.  This article overcomes these obstacles by exploring and interpreting the significant difference test and by analyzing a database of disparities that enables controls for criminal history and geography (similarly situated) and overlapping elements (similar conduct) based on comprehensive data from the California Department of Justice.  We also present two case studies that demonstrate how defendants might establish an initial showing of significant difference sufficient to successfully move for discovery.

Recapping and assessing a SCOTUS week full of federal criminal case oral arguments

This week's biggest legal news is surely the reports of a notable state indictment out of the Big Apple.  But, as previously previewed here, this week was also a big one for federal criminal case oral arguments before the US Supreme Court.  With help from SCOTUSblog and a few other sources, here are some recaps of how these arguments went:

United States v. Hansen, No. 22-179:

• From Roll Call, "Supreme Court scrutinizes free speech limits of immigration law"
• From SCOTUSblog, "Justices divided on the constitutionality of the federal law that bans 'encouraging' immigrants to remain unlawfully in the United States"

Lora v. United States, No. 22-49:

• From Courthouse News Service, "Supreme Court seems split over Bronx drug dealer’s sentence in rival’s murder"
• From SCOTUSblog, "Court seems reluctant to extend ban on concurrent sentences in Armed Career Criminal Act"

Smith v. United States, No. 21-1576:

• From Bloomberg Law, "Most Justices Skeptical of Retrial Claim in Wrong Venue Case"
• From SCOTUSblog, "Venue is a platypus, a mixed-up animal" 

Samia v. United States, No. 22-196:

• From the New York Times, "Supreme Court Considers a Mercenary’s Confession and the Confrontation Clause"
• From SCOTUSblog, "Justices search for a clear rule for confessions in joint trials" 

Though I have not really followed any of these cases all that closely, I am still prepared to provide an "over/under" betting line at 2.5 wins for federal criminal defendants from this week's SCOTUS cases.  It seems the federal criminal defendant has a pretty good shot of prevailing in Hansen and Lora, but probably not in Smith, and Samia probably should be viewed as a toss up.  But perhaps folks who have followed these cases more closely will have a wiser take.

So very excited for "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order"

I am so very pleased and excited to start blogging about a day-long program that I have helped put together for next month that should be a "must-see" activity for anyone in the sentencing space, especially in the New York City area.  Specifically, on April 24, 2023, as detailed on this New York City Bar Association webpage and in this complete program agenda, we are doing a full day of sentencing-focused panels as part of an event titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."   Here is the basic event decription from the NYCBA webpage:

Published in 1973, Judge Marvin Frankel’s book Criminal Sentences: Law Without Order, assailed just about every aspect of existing arbitrary sentencing practices and advocated for the creation of a “commission on sentencing” to be tasked with developing guidelines for “the numerous factors affecting the length or severity of sentences.”  Judge Frankel’s book paved the way for modern sentencing reform, spurring the enactment of numerous sentencing reforms at the state level and the passage of the Sentencing Reform Act of 1984 which completely rebuilt the federal sentencing system.  As a result, Criminal Sentences: Law Without Order has affected tens of millions of defendants sentenced in state and federal courts over the last half-century.

At the same time, some have suggested his proposals — or at least their implementation — have contributed significantly to the growth of prison populations in recent decades.  Reflecting on Judge Frankel’s book a half-century later can provide profound insights and perspectives on how modern sentencing has evolved and where it should be headed.  The one-day symposium will bring together sentencing experts from academia and law practice to discuss various aspects of Judge Frankel’s ideas, how they have played out over the last half-century, and whether they should guide us for the next fifty years.

This full-day event will include a light breakfast, multiple plenary panels, lunch, two sets of concurrent panels, a fireside chat, and a closing reception.  Please find the day's complete agenda here.

If you click through to see the full program, you will see the extraordinary array of topics planned for discussion by an extraordinary array of judges and practitioners and academics.  I feel incredible fortunate to have had the chance to put this program togther with some many helpful folks assocaited with the Council on Criminal Justice, the Drug Enforcement and Policy Center, and the New York City Bar Association. 

Because this is an in-person event, folks will need to make their way to NYC to participate (but the program certainly justifies the trip).  In addition, in conjunction with this event, the we have solicited a big set of article for a "Frank at 50" special issue of the Federal Sentencing Reporter.  So, though not the same as a trip to the Big Apple, folks who cannot make it to the event can still keep an eye out for a future FSR issue on these topics.

Florida Gov DeSantis reportedly gearing up to attack former Prez Trump for his support of FIRST STEP Act

This notable and lengthy new New York Times article, headlined "DeSantis Burnishes Tough-on-Crime Image to Run in ’24 and Take On Trump," reports that Florida's Governor plans to assail former Prez Trump for his record on crimnal justice reform. Here are excerpts:

Gov. Ron DeSantis of Florida has spent months shoring up a tough-on-crime image as he weighs a run for the White House, calling for stronger penalties against drug traffickers and using $5,000 bonuses to bolster law-enforcement recruitment to his state.  Now, Mr. DeSantis and his allies plan to use that image to draw a contrast with the Republican front-runner in the 2024 race, former President Donald J. Trump.

Mr. DeSantis and his backers see the signature criminal-justice law enacted by Mr. Trump in 2018 as an area of weakness with his base, and Mr. DeSantis has indicated that he would highlight it when the two men tussle for the Republican nomination, according to three people with knowledge of Mr. DeSantis’s thinking.  That law, known as the First Step Act, reduced the sentences for thousands of prisoners....

One potentially complicating factor for Mr. DeSantis: He voted for the initial House version of the First Step Act in May 2018, while still a congressman.  He resigned his seat in September 2018 after winning the Republican primary for governor, and was not in the House to vote for the more expansive version of the sentencing reform bill that ultimately passed into law in December 2018....

In January, Mr. DeSantis announced a series of legislative measures for the coming session in Florida, which, among other actions, would toughen penalties against drug traffickers. “Other states endanger their citizens by making it easier to put criminals back on the street. Here, in Florida, we will continue to support and enact policies to protect our communities and keep Floridians safe,” Mr. DeSantis said in a statement at the time. “Florida will remain the law-and-order state.”...

Mr. Trump is aware of his vulnerability on the crime issue because of his record as president, according to people close to him.  Shortly after leaving office he began trying to inoculate himself against attacks by promising an uncompromising law-and-order agenda, with especially harsh treatment of drug dealers.

In a speech last year at the Ronald Reagan Presidential Library, Senator Tom Cotton, an Arkansas Republican who was a staunch supporter of most of Mr. Trump’s agenda but a critic of the First Step Act, called Mr. Trump’s moves on criminal justice reform the “worst mistake” of his term.

Since becoming a candidate for the third time in November, Mr. Trump has released a handful of direct-to-camera videos discussing policy.  In one, he proposed strengthening police departments with additional hiring and criticized what he called “radical Marxist prosecutors who are abolishing cash bail, refusing to charge crimes and surrendering our cities to violent criminals.”  He also called for deploying the National Guard into areas with high crime rates.  But he did not address sentencing, the core of his surprisingly lenient approach in office — and one that was at odds with his law-and-order campaign talk.

Asked to comment, Steven Cheung, a spokesman for Mr. Trump’s campaign, described Mr. Trump as “the law-and-order president that cracked down on crime and put away violent offenders, resulting in the lowest crime rate in decades.” Mr. Cheung accused Mr. DeSantis of giving “a safe haven for violent felons” that has resulted “in rampant crime in Florida” and said that Mr. Trump had received support from law enforcement officials around the country. And Mr. Cheung pointed to an array of crime statistics in Florida that the Trump campaign planned to highlight as unfavorable for Mr. DeSantis.

As president, following the advice of his son-in-law and senior adviser, Jared Kushner, in December 2018, Mr. Trump signed the First Step Act, which resulted in more than 3,000 inmates being released early from federal prison.  A Republican official who is not affiliated with Mr. DeSantis and who has closely tracked criminal recidivism among people released from prison because of the First Step Act, said that the volume of those releases would provide fodder for attack ads against Mr. Trump.

On Wednesday, Pedro L. Gonzalez, a conservative with a large online following who often attacks Mr. Trump from the right and defends Mr. DeSantis, tweeted that the man charged with assaulting a U.S. Senate staff member over the weekend was “released from prison thanks to Trump’s First Step Act” and linked to a Fox News story about the case. Many of those released under the First Step Act had been imprisoned for selling drugs — a crime that Mr. Trump now says publicly that he wants to punish with the death penalty because of the destruction wrought by illegal drugs....

“Did it for African Americans. Nobody else could have gotten it done,” Mr. Trump wrote in response to a reporter’s question in 2022, adding, “Got zero credit.” The word “zero” was underlined for emphasis. But in June 2020, as Americans massed on the streets to protest the police killing of George Floyd, Mr. Trump told his aides privately, according to Axios, that it was a mistake to have listened to Mr. Kushner....

In his final six months in office, Mr. Trump was erratic in his criminal justice policies. He went on a historic federal execution spree. But he also went on a pardon spree — handing out many dubious pardons, including one to a drug smuggler with a history of violence, through a process heavily influenced by Mr. Kushner. And by the time Mr. Trump was plainly looking for a future in politics again in 2021, he began talking publicly about executing drug dealers.

When are character letters NOT helpful in a fraud sentencing? When they are fraudulent.

In various posts in this space and elsewhere, one sometimes sees debates over the impact and import of submitting an array of character letters on behalf of a defendant facing sentencing.  I sense that, generally speaking, judges find these kinds of letters helpful, and they can often lead to better sentencing outcomes if well developed and effectively presented.  But, this news story from a federal sentencing this week in Pittsburgh provide a distinct view of these matters:

As far as character letters go, Randy Frasinelli submitted the best.  They came from corporate executives, nonprofit groups and an Ivy league university.  There’s one from the bishop of the Diocese of Pittsburgh.  And another from Leadership Pittsburgh.

There’s even one from former Allegheny County Executive Jim Roddey. Well, it was supposed to be from him.  But, if it was, Roddey spelled his own name wrong — twice.  According to the federal government, all of the letters are fake.

Frasinelli, 66, of Scott, pleaded guilty to bank fraud and money laundering in federal court in August after investigators said that he fraudulently obtained $3.8 million in covid-19 Paycheck Protection Program loans during the pandemic.  They said he used the money to buy artwork, luxury vehicles and firearms...

In its case, the government laid out a complex scheme through which Frasinelli applied for the loans in the names of four separate companies and then submitted falsified tax records and payroll records.  Although he was already facing federal charges — and was out on bond — prosecutors said, Frasinelli applied for another fraudulent loan a month after his arrest seeking another half-million dollars.

Now, the U.S. Attorney’s office is accusing him of falsifying his own character letters to be used to mitigate his sentence.  He is scheduled to be sentenced on Wednesday by U.S. District Judge W. Scott Hardy. Whether the sentencing will occur, however, is up in the air.  Frasinelli’s defense attorney — the third he’s had in his federal case — on Saturday filed a motion to withdraw from representing him.

The sentencing did go forward yesterday, and here is another local press piece detailing how things transpired:

A Scott businessman who bilked the government out of nearly $4 million in COVID-19 relief funds, tried to do it again while out on bond and then forged character letters praising himself to present to a judge will spend 6.5 years in federal prison, the judge ruled Wednesday.

U.S. District Judge W. Scott Hardy chastised Randy Frasinelli, 66, before he issued the sentence, which will be followed by five years of supervised release. He said Frasinelli’s forged letters had eroded the court’s trust in him....

Frasinelli, as part of his plea, took responsibility for his actions. That acceptance of responsibility lowered the sentencing range with which Judge Hardy had to work.  As part of the [pre]-sentencing report sent to the judge, Frasinelli included letters from his children and other family members, along with 14 from other non-family members praising him as a businessman and person.  The letters were signed by politicians and business leaders.

In a filing last week, the U.S. Attorney’s Office wrote they’d discovered at least 13 of the 14 letters from non-family members were forgeries.  Attorneys said Frasinelli’s forged letters should negate any special considerations in relation to his sentencing.... The forged letters, attorneys wrote, should negate any reduction Frasinelli was set to receive for accepting responsibility.  Rather than the sentence of 63 to 78 months that prosecutors agreed to recommend, they said the judge should instead consider the non-mitigated range of 78 to 97 months.

For those not great at base-12 math, the 6.5 years of imprisonment imposed here amounts to 78 months, and so the top of the original guideline range calculated in this case as well as the bottom of the new range suggested by prosecutors. I suppose only the judge knows what sentence he might have given absent the forged letters, but I know this case is a useful reminder that sentencing determinations will often reflect post-offense-conduct behaviors both bad and good.

An encouraging(?) account of prospects for modest criminal justice reforms from the current Congress

The Washington Post has this new small piece about happenings inside the Beltway with this big headline "Is there any chance for criminal justice reform bills? Surprisingly, yes."  Here is the heart of part of the discussion (with one line highlighted by me for follow-up):

So in this tense partisan atmosphere, is there any chance Congress could consider even modest change to the criminal justice system?

Well, certainly nothing big — or even a bill along the lines of the First Step Act, a law to cut some federal prison sentences that President Donald Trump signed in 2018.  But some lawmakers and outside advocates say there are still opportunities to pass more limited legislation to make the criminal justice system less punitive.

Lawmakers including Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) and Sen. Lindsey O. Graham (S.C.), the committee’s top Republican, introduced a bill last month to eliminate the disparity in federal sentencing for trafficking crack and cocaine.  The bill passed the House on an overwhelming bipartisan vote in 2021 but died in the Senate.

And Reps. Kelly Armstrong (R-N.D.), David Trone (D-Md.), John Rutherford (R-Fla.) and Lisa Blunt Rochester (D-Del.) started a bipartisan task force last month to try to pass legislation to ease the barriers to prisoners reentering society when their sentences are up.  “There’s a ton of Republicans that just want to do the right thing,” Trone said in an interview on Tuesday before he spoke at a reception hosted by the conservative R Street Institute meant to build support for the legislation. “And there’s a minority of Republicans who live on the rhetoric of, ‘Let’s stop everything.’”

It’s too early to say whether any of the bills will pass.  But Jason Pye, who lobbied for the First Step Act while he was vice president of legislative affairs at FreedomWorks, a conservative group, said he thought Republicans could move legislation once House Republicans tire of passing other bills that stand no chance of clearing the Democratic-held Senate.  “As far as I’m concerned, this is one of the few areas where there is not only bipartisan consensus, but support [from across the Republican] conference to do something,” said Pye, who is now director of rule-of-law initiatives at the Due Process Institute.

Especially as we march toward a big election year, I am not sure that House Republicans are likely to ever "tire of passing other bills that stand no chance of clearing the Democratic-held Senate."  But I am sure that there are a range of (small?) federal criminal justice reform bill that could get to the desk of President Biden if serious folks on both sides of the aisle get seriously committed to actually getting something done.  In addition to the items noted above, for example, I continue to want to believe some form of mens rea reform could be a part of a bipartisan effort to make our fedeeral criminal justice system for fair and effective.

Tenth Circuit deepens split over considering retribution in revocation of federal supervised release

In this post a few weeks ago, I flagged a recent Congressional Research Service document which fully detailed a jurisprudential divide among the circuits over justifications for supervised release revocation.  As that document detailed: 

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

Notably, yesterday a Tenth Circuit panel jumped into the action and agreed with the minority of other circuit via US v. Booker, No. 22-7000 (10th Cir. March 28, 2023) (available here). Here is how the 17-page opinion in Booker gets started:

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum.  For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution.  See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error.  Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution.  Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker’s twenty-four-month sentence.

Because of the plain error issue, this new Booker case would likely not make a good vehicle for SCOTUS to resolve this deep circuit divide over supervised release decision-making. (And, as a silly aside, I certainly would not be keen to have another major "Booker" sentencing ruling.)  But, given US Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts.  SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

Another push to try to end the death penalty in Ohio

As reported in this local piece, there is another effort afoot to abolish capital punishment in the Buckeye state.  The article is fittingly headlined "Lawmakers call for an end to capital punishment in Ohio. Again."  Here are excerpts:

Although Ohio hasn't executed anyone since 2018, a dozen state senators are banding together to abolish the death penalty. It is unclear if they'll garner enough support to end capital punishment in Ohio.

The first major hurdle is Senate President Matt Huffman, R-Lima, who opposes ending the death penalty. However, Huffman said he would hold a vote on the bill if a majority of the 33-member Senate wanted it.

The effort to end the death penalty is a familiar one for State Sen. Nickie Antonio, D-Lakewood. She has sponsored abolition bills every session for the past dozen years. "I believe it's indeed time for the state of Ohio to take the pragmatic, economically prudent, principled step to end capital punishment, which has been found to be expensive, impractical, unjust, inhumane and in the past even erroneous," Antonio said Tuesday at a statehouse news conference. She noted 11 people on Ohio Death Row have been exonerated.

Antonio said that every year she introduces the abolition bill, she has more bipartisan support. This time, she's starting out with five Republican and seven Democratic co-sponsors.  State Sens. Steve Huffman, R-Tipp City, and Michele Reynolds, R-Canal Winchester, both said their religious faith spurred them to join Antonio's effort. Steve Huffman is Matt Huffman's cousin.

"I believe that life begins at conception and ends at natural death. Like many people of faith, I believe that all human lives are deserving of dignity... even people that have committed heinous crimes," Reynolds said. The bill would replace capital punishment sentences with life in prison without parole.

Currently, there are 138 people on Ohio Death Row.  The state has executed 56 men since February 1999 when it resumed executions.  No executions have been carried out since Republican Mike DeWine became governor in January 2019.  DeWine has postponed executions, citing issues in obtaining supplies of lethal injection drugs.

DeWine, who voted for the current law when he was a state senator, has remained mum about his current personal view of the death penalty.  County prosecutors and Ohio Attorney General Dave Yost support the death penalty. Yost, a Republican, issued a statement that said Ohio's capital punishment system fails to deliver justice to families of murder victims.

Some prior related posts:

• Fascinating death penalty development in Ohio (from 2012)
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? (from 2019)
• Can a new conservative group help get the death penalty abolished in Ohio? (from 2020)
• New poll indicates considerable support for death penalty repeal among Ohio GOP legislators (from 2022)

"Criminal Justice Record Clearing: An Analysis from Two States"

The title of this post is the title of this new paper authored by Matthew Stubenberg, Renee Danser and D. James Greiner now available via SSRN.  Here is its abstract:

Millions in the United States have criminal records.  Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this paper, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies.  In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions.  Kansas law only allows for petition-based expungement.  Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.”

Our primary contribution, however, is an analysis of which statutory reforms would provide the biggest bang for the buck, i.e., would render the largest number of cases or charges eligible for a record-clearing remedy.  We found, for example, that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression.  In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval, suggesting that even when the government undertakes information suppression from its own databases, it finds the task challenging.  Finally, our analysis examined why certain records were not eligible for expungement or sealing in each state.  This additional analysis will inform legislatures and activists where their efforts can best be put to use.

Intriguing new PPI report on "unregulated growth of e‑messaging in prisons"

The Prison Policy Initiative has this new new report authored by Mike Wessler on a paerticular technology in prison titled "SMH: The rapid & unregulated growth of e‑messaging in prisons."  Here is how it begins (with links from the original):

Over the last twenty years, advocates and regulators have successfully lowered the prices of prison and jail phone rates.  While these victories garnered headlines and attention, the companies behind these services quietly regrouped and refocused their efforts.  Seeking different ways to protect their profits, they entered less-regulated industries and offered new products to people behind bars.  One new service in particular — text-based electronic messaging or “e-messaging” — has experienced explosive and unregulated growth.  As a result, rather than living up to its potential as a way to maintain connections between people in prison and the outside world — something that benefits all of us — high costs and shoddy technology have made e-messaging little more than the latest way these companies drain money from incarcerated people and their loved ones.

In 2016, we released a groundbreaking report that took a first look at e-messaging, sometimes — but incorrectly — called “email.”  At that time, the technology was experimental, untested, and viewed skeptically by many correctional administrators.  Since then, though, it has become common inside prison walls.

To better understand this explosive growth in e-messaging, we examined all 50 state prison systems, as well as the Federal Bureau of Prisons (BOP), to see how common this technology has become, how much it costs, and what, if anything, is being done to protect incarcerated people and their families from exploitation.  We found an industry that is in flux, expanding quickly, and has yet to face the legislative and regulatory oversight it desperately needs.

"In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety"

The title of this post is the title of this recently published book authored by Lenore Anderson.  I am pleased that I will have an opportunity to speak with the author and one of her colleagues during this event this coming Wednesday at 12noon.  Here is the event description:

Lenore Anderson has built her career on reforming criminal justice, both in her previous position as chief of policy in the San Francisco District Attorney's Office and in her current role as co-founder and president of Alliance for Safety and Justice (ASJ).  In her debut book, "In Their Names: The Untold Story of Victims’ Rights, Mass Incarceration, and the Future of Public Safety," Anderson examines how the United States’ focus on victims’ rights often perpetuates mass incarceration.  She argues that bureaucrats justify increased incarceration under the guise of public safety, rather than creating solutions to better serve crime victims.

Join the Drug Enforcement and Policy Center (DEPC) for a discussion with Lenore Anderson and Shakyra Diaz, the Chief of Federal Advocacy at ASJ, and moderated by DEPC Executive Director Douglas Berman.  Panelists will discuss how state leaders and advocates can create effective public safety solutions that replace over-incarceration.

The registration link for this online event can be found here.

Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law

Last month, as discussed here, the Washington Post published a lengthy article engaging in considerable hand-wringing about federal death penalty developments under the headline "Justice Department standards on federal death penalty called confusing."  This month, the AP has this lengthy article with some similar hand-wringing under the headline "Biden’s Justice Dept. keeps hard line in death row cases."  Here are excerpts:

Death penalty opponents expected Biden to act within weeks of taking office to fulfill his 2020 campaign promise to end capital punishment on the federal level and to work at ending it in states that still carry out executions. Instead, Biden has taken no steps toward fulfilling that promise.

But it’s not just inaction by Biden.  An Associated Press review of dozens of legal filings shows Biden’s Justice Department is fighting vigorously in courts to maintain the sentences of death row inmates, even after Attorney General Merrick Garland temporarily paused executions.  Lawyers for some of the over 40 death row inmates say they’ve seen no meaningful changes to the Justice Department’s approach under Biden and Trump.

“They’re fighting back as much as they ever have,” said Ruth Friedman, head of the defender unit that oversees federal death row cases.  “If you say my client has an intellectual disability, the government ... says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

Administration efforts to uphold death sentences for white supremacist Dylann Roof, who killed nine Black church-goers, and Boston Marathon bomber Dzhokhar Tsarnaev are better known. Lower-profile cases ... have drawn less scrutiny.  The Justice Department confirmed that since Biden’s inauguration it hasn’t agreed with a single claim of racial bias or errors that could lead to the overturning of a federal death sentence....

In announcing the 2021 moratorium, Garland noted concerns about how capital punishment disproportionately impacts people of color and the “arbitrariness” — or lack of consistency — in its application.  He hasn’t authorized a single new death penalty case and has reversed decisions by previous administrations to seek it in 27 cases.

Garland recently decided not to pursue death for Patrick Crusius, who killed nearly two dozen people in a racist attack at a Texas Walmart. His lawyers have said he had “severe, lifelong neurological and mental disabilities.” He could still be sentenced to death under state charges.  Garland also took the death penalty off the table for a man accused in 11 killings as part of a drug trafficking ring.... 

Prosecutors decide before trial whether or not to seek the death penalty, and current death row inmates were all tried under previous administrations. Prosecutors have less leeway after a jury’s verdict than before trial.  Court challenges after trials are also often not about whether it was appropriate to pursue the death penalty, but whether there were legal or procedural problems at trial that make the sentence invalid.  “It’s a very different analysis when a conviction has been entered, a jury has spoken,” said Nathan Williams, a former Justice Department lawyer who prosecuted Roof. “There has to be a respect for the appellate process and the legal approaches that can be taken.”

A Justice Department spokesman said prosecutors “have an obligation to enforce the law, including by defending lawfully obtained jury verdicts on appeal.” The department is working to ensure “fair and even-handed administration of the law in capital-eligible cases,” he said.  Inmate lawyers dispute that prosecutors have no choice but to dig in their heels, saying multiple mechanisms have always existed for them to fix past errors.

Justice officials announced this month that they wouldn’t pursue death in the resentencing of Alfonso Rodriguez Jr., convicted of killing North Dakota student Dru Sjodin.  But that only happened after a judge vacated the original death sentence.  Notably in 2021, the department agreed with lawyers for Wesley Coonce, sentenced to death for killing a fellow inmate in a mental health unit, that lower courts should look again at intellectual disability questions in his case. But the Supreme Court disagreed, declining to hear his case or remand it to lower courts....

Garland’s criteria for letting some capital cases proceed isn’t clear, though the department often consults victims’ families. Some feel strongly that suspected or convicted killers should face death.  Inmate attorneys have asked for all capital cases to get a fresh look. Garland has appeared to take one step in that direction.

The department this year restored written guidance emphasizing that staff can be proactive in fixing egregious errors in capital cases, though none has invoked that option.  Garland also re-set processes in which capital defendants can, in certain circumstances, ask the department to consent to their bids for relief.

Even though this article primarily higlights various ways in which AG Garland has not kept a "hard line" on capital cases, the headline and theme of the piece seems to be focused on the notion that DOJ ought not be seeking to uphold presumptively lawful death sentences. 

Prior related post:

• Is it really so hard to make sense of AG Garland's federal capital punishment administration?  

Justice Gorsuch (joined by Justice Kavanaugh) dissents from denial of cert in criminal contempt case

The Supeme Court's new order list this morning has only one cert grant in a civil case, but it concludes with a notable five-page dissent from the denial of certiorari in Donzinger v. US, No. 22–274.  Here is part of the factual backstory as explained in the dissent authored by Justice Gorsuch and joined by Justice Kavanaugh involving prosecution of a lawyer for criminal contempt:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

Justice Gorsuch goes on to explain the shaky precedents and laws cited to support the unusual process for convicting the defendant here.  And he concludes the dissent this way:

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

A SCOTUS week full of federal criminal case oral arguments

In addition to a schedule for the coming week that includes issuing orders (on Monday) and opinions (on Tuesday), the Supreme Court has six oral arguments on its calendar.  Four of those cases are federal criminal matters, and here are the basics with the help of SCOTUSblog:

Monday 3/27

United States v. Hansen --- Issue: Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

 

Tuesday 3/28

Lora v. United States --- Issue: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

Smith v. United States --- Issue: Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held

 

Wednesday 3/29

Samia v. United States --- Issue: Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the confrontation clause of the Sixth Amendment.

Is support for criminal justice reform in red states really still "strong"?

The question in the title of this post is prompted by this lengthy new Arnold Ventures piece titled "Red State Support for Criminal Justice Reform Remains Strong."  I recommend the piece in full, in part because it has plenty of notable content even though its contents do not fully support the title of the piece.  Here are some extended excerpts:

Partisans and pundits like to present criminal justice reform as an issue that pits red states against blue states.  But beyond the headlines, policymakers from both sides of the aisle are working to build a criminal justice system that is more effective, efficient, accountable, and just.  Even following the spike in crime during the Covid-19 pandemic, bipartisan commitment to criminal justice reform has remained remarkably robust — including leadership from conservative coalitions....

In North Carolina, Conservatives for Criminal Justice Reform (CCJR) has gained traction since its founding in 2016 and has advanced several pieces of reform legislation. Their first goal was raising the juvenile age so that a 16- or 17-year-old charged with a low-level felony or misdemeanor would not enter the adult court system.... Other wins included the General Assembly and Senate’s unanimous passage of the Second Chance Act in 2019, which allowed the expungement of nonviolent charges, and Senate Bill 300 in 2021, which was sponsored by three Republican state senators. That bill standardized police officer training and created a database to track uses of force resulting in death or serious injury....

Another organization aiming to reach both sides of the aisle is R Street Institute, a D.C.-based think tank.  Recently, the organization has worked on initiatives concerning the cost-saving success of police-led juvenile diversion programs and cite-and-release programs as an alternative to arrest....

Over the last decade, policy change around marijuana has progressed rapidly.  In November 2022, Maryland and Missouri voters approved ballot measures to legalize recreational marijuana, meaning that it is now legal in just under half of all states (and decriminalized in a majority of states).  Additionally, some of the remaining states are poised to reexamine their cannabis laws this year, including Pennsylvania, Hawaii, Texas, and Oklahoma.

Last October, Oklahoma Gov. Kevin Stitt — a Republican who has become a national leader in red state criminal justice reform — ordered a special election for State Question 820, which would have legalized recreational marijuana use. While the referendum ultimately failed, it garnered significant Republican support in the relatively conservative state. It also included some of the most comprehensive marijuana criminal justice reforms seen in any legalization effort to date and will serve as a benchmark for future efforts around the country....

Meanwhile, Americans for Prosperity, a conservative advocacy group, has set their sights on another drug policy long overdue for reform: sentencing disparities between crack and powder cocaine. For over 35 years, the sentencing imbalance between these two types of cocaine has disproportionately and undeniably impacted Black communities. In 2022, the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act narrowly failed in the Senate after passing the House, and in February 2023 it was reintroduced by a bipartisan group including U.S. Sens. Lindsey Graham and Rand Paul....

In the last five years, 10 states have passed clean slate legislation — policies that expand eligibility for the clearance or sealing of arrest and conviction records, as well as automate that process — for people who have remained crime-free.  Another half dozen states are expected to consider bills around the topic in the coming year or so.  Advocates say the popularity of these efforts is due to a principle all sides can agree on: Bureaucratic barriers should be removed so that more people can get back to work and support themselves....

“Clean Slate efforts have gained strong bipartisan support because they are deeply rooted in the American Dream — the belief that if you work hard, you should be able to get ahead and provide for your family,” says Sheena Meade, CEO of Clean Slate Initiative. ​“Also, people are starting to understand that those who benefit from a second chance are normal folks. One in three Americans have an arrest or conviction record, and most records are not for serious offenses.”

These clean slate policies can have massive impact. For instance, since the implementation of Pennsylvania’s clean slate law in 2019, over 40 million cases have been sealed, benefiting 1.2 million Pennsylvanians.... The Nolan Center for Justice, established by the American Conservative Union Foundation, is also a prominent voice for clean-slate policies. ​“We tailor our approach depending on who we speak to,” explains Kaitlin Owens, Nolan’s deputy director of advocacy. ​“For instance, reaching out to business leaders who can testify on the positives of hiring formerly incarcerated folks can go a long way.”

In addition to its support for people who have recently been released from incarceration, the Nolan Center also works to effectuate change within prisons. For instance, model policy written by Nolan in 2017 around improving the treatment of incarcerated women was distributed to state legislatures via the American Legislative Exchange Council (ALEC), a conservative nonprofit organization, resulting in 32 states — many of them southern Republican strongholds — passing such legislation.  One example is North Carolina, which in 2021 passed the Dignity Act limiting the use of restraints and cavity searches on pregnant women, providing access to menstrual products, and ensuring mothers are placed in facilities within a reasonable distance to their children. 

I find it both notable and interesting to see how Arnold Ventures is trying to make the case that "bipartisan commitment to criminal justice reform has remained remarkably robust."  I would not quibble with this claim if the title of this article focused on conservative advocacy groups because all the groups mentioned in the article (and others like Right on Crime) continue to press forward with thoughtful arguments that all sorts of criminal justice reforms are justified by conservative principles.  Put slightly differently, there is certainly a strong case to be made that conservative principles and conservative advocacy groups still strongly support criminal justice reforms.

But the article title claims that "Red State" support for reform "Remains Strong."  This claim could be supported, yet North Carolina is the only state extensively discussed in the article has actually enacted reforms (whereas failed and stalled reform efforts in Oklahoma and elsewhere are also discussed).  Putting aside that many consider North Carolina a purple state (in part because it has a Democratic governor), it is disappointing that the article does not mention an array of notable recent reforms in red states like Florida and Indiana and Ohio.  (And, though the article discusses some federal reform proposals, it does not discuss the recent "bipartisan" work of Congress to reject Washington DC's local effort to reform its criminal code.)

In sum, though I sincerely want to believe that the "bipartisan commitment to criminal justice reform has remained remarkably robust," I see the politics of crime and punishment circa Spring 2023 to be much more nuanced, dynamic and multi-dimensional with a lot of distinct political and practical factors pushing and pulling distinct reform efforts.  And while it is useful to see Arnold Ventures painting a rosy picture concerning modern reform politics, this picture does not seem entirely complete.