Sentencing Law and Policy

Based on state's new Racial Justice Act, state judge throws out gang enhancements after finding “significant statistical disparity”

This local article, headlined "Judge finds Contra Costa DA’s filing practices are racist, dismisses gang charges in murder case," reports on an interesting new ruling from a California state judge relying on an interesting new California law. Here are some details:

In an unprecedented ruling statewide, a Contra Costa judge on Friday dismissed gang charges against four men under the California Racial Justice Act, ruling that county prosecutors have disproportionately targeted Black people with sentencing enhancements that open the door for life in prison without parole.

It is a case already under heavy scrutiny because two of the defendants were directly referenced in racist text messages sent by Antioch police officers who investigated their alleged crimes. The texts — part of a much larger scandal involving racism, alleged civil rights violations and dozens of impugned officers — made light of injuring the men during their arrests and referred to Black people in explicitly biased, hateful ways.

Contra Costa Judge David Goldstein’s Friday ruling did not take into consideration any of the racist texts. Rather, Goldstein based it on a decade of data — what he called a “significant statistical disparity” — showing that gang charges are more often filed against Black people. The stunning development clears the way for any Black person who has faced or is facing those charges in Contra Costa over the past decade to challenge them in court....

In making his decision Friday, Goldstein relied on data that both prosecutors and defense attorneys largely agreed upon that showed that Black people were from 6 to 8 percent more likely to be charged with “special circumstance gang enhancements” than people who weren’t Black.  Those enhancements, alleging gang membership and added on top of the underlying criminal charges at issue in a case, can greatly increase the sentence a defendant receives.

Goldstein threw out the gang enhancements against four East Bay men — Eric Windom, Terryon Pugh, Keyshawn McGee and Trent Allen — who are accused of fatally shooting a man to benefit an Oakland gang.  His ruling does not affect the murder, attempted murder and conspiracy counts against them.

Friday marks the second time that prosecutors in Contra Costa have made California history for violating the Racial Justice Act.  Last October, Judge Clare Maier ruled that a county prosecutor used “racially coded language” that “evoked racial stereotypes of African American men” during a two-defendant murder trial and threw out murder convictions for both men.

Maier’s ruling dealt specifically with a portion of the act that refers to the prosecution’s statements during trial, while Goldstein’s ruling cited a different subsection that covers the charging practices of an entire DA’s office.

Evan Kuluk, a lawyer with the county’s Alternate Defender’s Office and an attorney in both cases, told this news organization that “the impact of today’s ruling is an acknowledgement that racial bias infects every stage of the criminal legal process.”

Goldstein’s ruling calls into question dozens of other similar cases filed in Contra Costa, going back 10 years. Contra Costa DA Diana Becton — the first Black person and first woman ever to serve in that role in the county’s 173-year history — says her office now plans to look back at some of those cases with this new ruling in mind....

For many defense attorneys in Contra Costa, Friday’s ruling was a seen as vindication after years of calling on Contra Costa prosecutors to audit their own filing decisions.  In 2019, Becton partnered with the Vera Institute for a project intended to identify implicit bias in the way cases are prosecuted but has yet to release the underlying data.  Chief Public Defender Ellen McDonnell said Goldstein’s ruling “drives home the unfair charging practices that too often result from the role of implicit bias in our legal system.”

A (first) weekend plug for Season 1 of "Drugs on the Docket" podcast

In this Monday post, I flagged that the Drug Enforcement and Policy Center at The Ohio State University released Season One of a new podcast, "Drugs on the Docket."  As mentioned there, all six episodes of this first season are now available on Apple Podcasts, Google Podcasts and YouTube.   

In my (admittedly biased) view, the various curated discussions in this "Drugs on the Docket" podcast are all quite interesting and informative.  And because I am quite eager to see this podcast develop and audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I am sure to keep using this space to encourage everyone to check out the first set of episodes.  

Once again, here is how the podcast subject matter is described via this podcast webpage:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Check it out, makes for great weekend listening.

"The Public Voice of the Defender"

The title of this post is the title of this new article available via SSRN authored by Kay Levine and Russell M. Gold.  Here is its abstract:

For decades police and prosecutors have controlled the public narrative about criminal law — littering the news landscape with salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets.  Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations — all of which inflict severe harm on defendants and their loved ones.  But defenders rarely show the public the world they inhabit.

That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them.  This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system.  It builds on the social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy.  As a few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions.  Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades.

Minnesota through new legislation becomes 28th state to prohibit juve LWOP

Via email from The Campaign for the Fair Sentencing of Youth, I learned this afternoon that "Minnesota has officially become the 28th state to ban juvenile life without parole as an omnibus public safety bill (SF 2909) was signed by Minnesota Governor Walz after passing through the Minnesota Senate and House of Representatives." This Equal Justice Initiative piece provides some details and context:

Minnesota lawmakers this week abolished life imprisonment without parole for children. The reform is part of a public safety bill designed to transform the state’s approach to children accused of criminal offenses.

The bill not only retroactively eliminates juvenile life-without-parole sentences but also provides that children sentenced in adult court will be eligible for supervised release after at least 15 years in prison.

A newly created Supervised Release Board will be required to consider an expert assessment of the individual’s cognitive, emotional, and social maturity as well as relevant science on children’s neurological development.

Approximately 40 people will be eligible for review, University of Minnesota law professor Perry Moriearty told the Star Tribune.

The new law also creates a statewide Office of Restorative Practices to promote alternative, community-based approaches to hold children accountable, respond to victims’ needs, and address the issues underlying children’s behavior.

State grants will be provided to counties to develop local restorative justice initiatives, such as victim-offender dialogues and family group conferences, with input from parents, youths, school administrators, county prosecutors, and local law enforcement.

LawProf Mark Osler has this Twitter thread about the public safety bill that was just signed into law in Minnesota, and it highlights some other interesting sentencing features (among many others):

The bill restructures clemency. Among other features, the Pardon Board (the Gov, AG & Chief Justice) can grant clemency by a 2-1 vote with the gov in the majority. Previously, it required a unanimous vote. It also establishes a clemency commission to evaluate cases....

Adds members to the board of public defense and to the sentencing commission (including a formerly incarcerated member)....

Creates an avenue for prosecutor-initiated re-sentencing.

Caps probation at 5 years, and makes that cap retroactive for those already sentenced....

Establishes good-time credits for those in prison who pursue programming and education (up to 17% of a sentence can be earned), on top of the 1/3 of sentences that already are presumptively on supervised release.

Intriguing report that Trump legal team believes Apprendi can require downgrading his NY criminal charges

A helpful colleague made sure I did not miss this new Daily Beast article headlined "Trump’s New Ploy to Knock the Manhattan DA’s Case Down to Misdemeanors."  Here is how the piece starts:

When the Manhattan District Attorney finally indicted former President Donald Trump in March, Alvin Bragg made the curious decision to not detail Trump’s crimes in the official indictment — something critics seized on almost immediately to say this was an overblown case.

While previous investigators had wrestled with how to charge Trump with felonies, Bragg overcame that hurdle by essentially charging Trump with 34 misdemeanor counts of faking business records — then leveling them up to felonies in a parallel legal document.  Under New York law, faking business records is only a felony if it’s done while committing another crime.  In this case, prosecutors say Trump hid his 2016 porn star hush money payment in order to break election laws, therefore the 34 counts of taking business records become felonies.

But according to a source familiar with the Trump legal team’s internal discussions, the former president’s lawyers are now exploring how to use that otherwise ingenious move as a weakness to severely power down the case.  And Trump’s lawyers believe their new tactic could force the DA to reconsider if this is a fight worth having.  Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned.

Trump’s lawyers are eyeing the 2000 SCOTUS decision Apprendi v. New Jersey, which stressed the importance of putting in an indictment all the aspects of a crime that could enhance penalties.

Here is more:

When Trump was arraigned in criminal court in April, his defense lawyer Joe Tacopina assured reporters this case would “never” make it to trial.  And the Trump team’s new potential tactic threatens to downgrade the severity of the case before it ever reaches a jury, which could force the DA to consider whether a case full of misdemeanors justifies an expensive prosecution.

The legal precedent Trump’s team is considering is also buttressed by a 1999 Supreme Court decision, Jones v United States, which decided that “any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.”

If Trump’s team successfully uses that defense strategy, it would be an embarrassing defeat for Bragg, who could have just as easily put all the information about the case that was included in the “Statement of Facts” in the indictment and avoided this whole mess.

Prison Policy Initiative shines light on "shadowy form of incarceration" known as civil commitment

The folks at the Prison Policy Initiative have released yet another new effective and informative data report. This new report is titled "What is civil commitment? Recent report raises visibility of this shadowy form of incarceration" and is authored by Emma Peyton Williams.  Here is part of the starting text:

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence.  Around the turn of the millennium, 20 states, Washington D.C., and the federal government passed “Sexually Violent Persons” legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.”  In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence.  In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice.  This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional.  The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Some advocates call civil commitment facilities “shadow prisons,” in part because of how little news coverage they receive and how murky their practices are.  In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization.  But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.  This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic....

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.”  Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime, or preventative detention for a theoretical future crime that has not occurred.  Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts.  The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.”  But neither “risk assessment” nor “progress through treatment” are objective measures.  In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

Some extended discussion of criminal doctrines as SCOTUS unanimously dismisses federal tort suit against Twitter alleging "aid" to ISIS

The US Supreme Court handed down six opinions in argued cases this morning, many of which were unanimous.  There was an intellectual property theme, of sorts, as the opinions included a patent ruling and an interesting copyright fair use case.  Also arguably in the IP lane was also the disposition of federal tort suits brought against Google and Twitter claiming that they were liable for aiding and abetting ISIS terrorism under 18 USC § 2333(d)(2).  The main opinion from the unanimous Court disposing of these cases was authored by Justice Thomas in Twitter v. Taamhen, No. 21–1496 (S. Ct. May 18, 2023) (available here). And those technically a matter or tort law, lots of the discussion draws on criminal law doctrines. Here is the start of the opinion of the Court and one passage with the lots of talk of criminal doctrines:

Under 18 U.S.C. § 2333, United States nationals who have been “injured . . . by reason of an act of international terrorism” may sue for damages.  § 2333(a).  They are not limited to suing the individual terrorists or organizations that directly carried out the attack, however.  That is because § 2333(d)(2) also imposes civil liability on “any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.”  Victims of terrorist acts therefore may seek to recover from those who aided and abetted the terrorist act that injured them.

The plaintiffs (who are respondents) contend that they have stated a claim for relief under § 2333(d)(2).  They were allegedly injured by a terrorist attack carried out by ISIS.  But plaintiffs are not suing ISIS.  Instead, they have brought suit against three of the largest social-media companies in the world — Facebook, Twitter (who is petitioner), and Google (which owns YouTube) — for allegedly aiding and abetting ISIS.  As plaintiffs allege, ISIS has used defendants’ social-media platforms to recruit new terrorists and to raise funds for terrorism.  Defendants allegedly knew that ISIS was using their platforms but failed to stop it from doing so.  Plaintiffs accordingly seek to hold Facebook, Twitter, and Google liable for the terrorist attack that allegedly injured them.  We conclude, however, that plaintiffs’ allegations are insufficient to establish that these defendants aided and abetted ISIS in carrying out the relevant attack....

[C]ourts have long recognized the need to cabin aiding-and-abetting liability to cases of truly culpable conduct.  They have cautioned, for example, that not “all those present at the commission of a trespass are liable as principals” merely because they “make no opposition or manifest no disapprobation of the wrongful” acts of another.  Brown v. Perkins, 83 Mass. 89, 98 (1861); see also Hilmes v. Stroebel, 59 Wis. 74, 17 N. W. 539 (1883); Duke v. Feldman, 245 Md. 454, 457–458, 226 A. 2d 345, 347 (1967).  Put another way, overly broad liability would allow for “one person [to] be made a trespasser and even a felon against his or her consent, and by the mere rashness or precipitancy or overheated zeal of another.” Bird v. Lynn, 49 Ky. 422, 423 (1850).  Moreover, unlike its close cousin conspiracy, aiding and abetting does not require any agreement with the primary wrongdoer to commit wrongful acts, thus eliminating a significant limiting principle. See Nye & Nissen v. United States, 336 U.S. 613, 620 (1949).

To keep aiding-and-abetting liability grounded in culpable misconduct, criminal law thus requires “that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’” before he could be held liable.  Id., at 619 (quoting Peoni, 100 F. 2d, at 402).  In other words, the defendant has to take some “affirmative act” “with the intent of facilitating the offense’s commission.” Rosemond, 572 U. S., at 71.  Such intentional participation can come in many forms, including abetting, inducing, encouraging, soliciting, or advising the commission of the offense, such as through words of encouragement or driving the getaway car.  2 LaFave § 13.2(a), at 457–460; see also J. Hawley & M. McGregor, The Criminal Law 81 (3d ed. 1899).  Regardless of the particulars, however, it is clear that some culpable conduct is needed. See Rosemond, 572 U.S., at 73, 77.

"What If Criminal Lawmaking Becomes Trustworthy?"

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

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants.  Recent shifts in the politics of crime, however, complicate this perspective’s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter-majoritarian judicial decisions.  This essay tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics.  It suggests that while arguments for narrow construction of criminal statutes will remain strong for the foreseeable future, a more moderate and competitive politics of crime could justify greater judicial deference, at least at the margins and in some limited circumstances, to democratic choices regarding criminal procedure.

Notable sentencing research in recent special issue of "Law and Human Behavior"

I just tripped across the February 2023 issue of the journal "Law and Human Behavior," which is labeled as "Special Issue: Racial Justice in the Criminal Justice and Legal Systems."  This issue has lots of notable research, and sentencing fans might be especially interested in these pieces:

"The trial tax and the intersection of race/ethnicity, gender, and age in criminal court sentencing" by Peter S. Lehmann

"The eye of the beholder: Increased likelihood of prison sentences for people perceived to have Hispanic ethnicity" by Erik Girvan and Heather Marek

"Does 'Jamal' Receive a Harsher Sentence Than 'James'? First-Name Bias in the Criminal Sentencing of Black Men" by Dushiyanthini (Toni) Kenthirarajah, Nicholas P. Camp, Gregory M. Walton, Aaron C. Kay and Geoffrey L. Cohen

A couple of notable new international death penalty stories

A couple of new headlines and Associated Press stories concerning the application of the death penalty worldwide caught my attention this morning.  Here are links and the essential:

"Singapore hangs 2nd citizen in 3 weeks for trafficking cannabis despite calls to halt executions":

Singapore on Wednesday hanged another citizen for trafficking cannabis, the second in three weeks, as it clung firmly to the death penalty despite growing calls for the city-state to halt drug-related executions....  Under Singapore laws, trafficking more than 500 grams (1.1 pounds) of cannabis may result in the death penalty....

Singapore executed 11 people last year for drug offenses after a two-year hiatus due to the COVID-19 pandemic.  The hanging of one particular Malaysian believed to be mentally disabled sparked an international outcry and brought the country's capital punishment under scrutiny for flouting human rights norms.

"Executions worldwide rose dramatically in 2022, Amnesty International reports":

Executions worldwide increased by 53% in 2022 from a year earlier, with a significant rise in Iran and Saudi Arabia, Amnesty International said in an annual report Tuesday that also criticized Indonesia as having one of the highest numbers of new death sentences in Asia.

Amnesty said 70% of the executions in the Middle East and North Africa were carried out in Iran, where their numbers rose by 83% from 314 in 2021 to 576 in 2022.  The number of executions in Saudi Arabia tripled from 65 in 2021 to 196 in 2022.

Ninth Circuit panel rules that Elizabeth Holmes cannot stay out on bail while her appeal is pending

As reported in this new AP article, "Theranos CEO Elizabeth Holmes appears to be soon bound for prison after an appeals court Tuesday rejected her bid to remain free while she tries to overturn her conviction in a blood-testing hoax that brought her fleeting fame and fortune." Here is more:

The Ninth Circuit Court of Appeals ruling comes nearly three weeks after Holmes deployed a last-minute legal maneuver to delay the start of her 11-year prison sentence.  She had been previously ordered to surrender to authorities on April 27 by U.S. District Judge Edward Davila, who sentenced her in November.

Davila will now set a new date for Holmes, 39, to leave her current home in the San Diego area and report to prison. The punishment will separate Holmes from her current partner, William “Billy” Evans, their 1-year-old son, William, and 3-month-old daughter, Invicta.  Holmes’ pregnancy with Invicta — Latin for “invincible,” or “undefeated” — began after a jury convicted her on four counts of fraud and conspiracy in January 2022.

Davila has recommended that Holmes serve her sentence at a women’s prison in Bryan, Texas.  It hasn’t been disclosed whether the federal Bureau of Prisons accepted Davila’s recommendation or assigned Holmes to another facility.

Holmes’ former lover and top lieutenant at Theranos, Ramesh “Sunny’ Balwani, began a nearly 13-year prison sentence in April after being convicted on 12 counts of fraud and conspiracy last July in a separate trial.  Balwani, 57, was incarcerated in a Southern California prison after losing a similar effort to remain free on bail while appealing his conviction....

Holmes’s lawyers have been fighting her conviction on grounds of alleged mistakes and misconduct that occurred during her trial.  They have also contended errors and abuses that biased the jury were so egregious that she should be allowed to stay out of prison while the appeal unfolds — a request that has now been rebuffed by both Davila and the Ninth Circuit Court of Appeals.

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 
• Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April
• Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions 

Watching a quartet of SCOTUS criminal justices cases as the Term starts to wind down

As has been true in the last few Terms, the current Supreme Court Term is almost certain to be remembered for decisions outside the core realm of criminal justice.  But it has still already been an interesting SCOTUS Term for hard-core criminal justice fans with seemingly lots of (small?) wins for criminal defendants in cases like Reed, Cruz, Ciminelli, and Percoco.  Of course, the "easy" cases tend to be resolved first, and I would not expect quite so many wins for criminal defendants in the weeks ahead.  

By my rough count, there are still around ten still-pending criminal justice (or criminal-justice-related) cases for the Justices still to resolve before they head off for their summer vacations.  All the remaining cases could prove interesting and consequential, but here are four remaining cases that have most captured my attention (with help from this SCOTUSblog list):

Jones v. Hendrix, No. 21-857 [Arg: 11.1.2022]

Issue(s): Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

 

Dubin v. U.S., No. 22-10 [Arg: 2.27.2023]

Issue(s): Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

 

Counterman v. Colorado, No. 22-138 [Arg: 04.19.2023]

Issue(s): Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

Tyler v. Hennepin County, Minnesota, No. 22-166 [Arg: 04.26.2023]

Issue(s): (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

I would welcome in the comments any predictions about likely outcomes in these cases and/or the flagging of other pending criminal-justice-related cases from this Term that folks are keeping a close eye on.  We are not quite to the final stretch of the SCOTUS Term, but there are opinions coming this Thursday and likely just about every week from now until the end of June.

The Sentencing Project releases new report covering “Youth Justice By The Numbers”

The Sentencing Project released today this notable new report titled, “Youth Justice By The Numbers.”  The very first page of this nine-page report spotlights that from "2000 (the peak year) and 2020, the number of youth held in juvenile justice facilities on a typical day fell from 108,800 to 25,000, a 77% decline." Here is how the start of this report contextualizes this finding and others presented in this report:

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since that time. Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly low-level, and the 21st century has seen significant declines in youth arrests and incarceration.  Between 2000 and 2020, the number of youth held in juvenile justice facilities fell from 109,000 to 25,000 — a 77% decline.

As The Sentencing Project marks 50 years since the era of mass incarceration began, states working to end this overly punitive era can learn important lessons from both the rise and then the sustained fall in youth arrests and placements.

Lots of sentencing coverage as part of Season 1 of "Drugs on the Docket" podcast

I am extremely pleased to highlight that the Drug Enforcement and Policy Center at The Ohio State University has now officially launched Season One of a new podcast, "Drugs on the Docket."  All six episodes of this season are available on Apple Podcasts, Google Podcasts and YouTube.  My colleagues at DEPC have worked remarkably hard to put this content together, and I hope folks find the curated discussions interesting and informative.

Here is how the podcast subject matter is described via this podcast webpage along with episode titles:

Drugs on the Docket is a production of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University. Each episode explores how U.S. court rulings — primarily those handed down from the Supreme Court — impact drug law and policy and continue to shape the War on Drugs.  Drugs on the Docket unpacks various ways courts have engaged with and responded to the opioid epidemic, police discretion, the sentencing disparities between crack and powder cocaine, and more.  The series, hosted by Hannah Miller, invites guests with expertise in criminal justice, drug policy, and drug enforcement to help us break down the sometimes complex and always interesting stories behind today’s drug law landscape.

Drugs on the Docket is produced by DEPC’s Service Engagement Project Manager Hannah Miller and Public Engagement Specialist Holly Griffin.  DEPC Executive Director Douglas A. Berman is our editorial advisor.  Music by Joe DeWitt.

Episode 1 – Federal drug sentencing and the evolution of the crack to powder cocaine ratio with Mark Osler

Episode 2 – Ruan v. United States and the intersection of healthcare, criminal law, and the opioid crisis with Jenn Oliva and Kelly Gillespie

Episode 3 – A Special Conversation with former Supreme Court of Ohio Chief Justice Maureen O’Connor

Episode 4 – United States v. Angelos, federal mandatory minimums, and sentencing reform with Weldon Angelos and Paul Cassell

Episode 5 – Data and storytelling in federal drug sentencing and the U.S. Sentencing Commission with Doug Passon and Mark Allenbaugh

Episode 6 – Whren v. United States, Terry v. Ohio, and the Fourth Amendment with Gabriel “Jack” Chin

In helping with this effort, I came to realize fully just how much work is involved in podcast production.  Still, if this first season finds an audience, we may soon begin the hard work of producing another season.  And so recommendations for fitting topics and guests are welcome.

US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules

In this post last month, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines. The big ticket items in the proposed amendments concern "status points" and "zero-point offenders"; as detailed here, the Commission has officially sought comment on whether it should make these key parts of its new criminal history amendment "available for retroactive application."

Today, the USSC publish on its website this new 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is  how the memo gets started:

On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual.  Specifically, Part A of the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), and Part B, Subpart 1 provides a twolevel downward adjustment for certain offenders with zero criminal history points under the guidelines (“zero-point offenders”).  Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.  As required by its Rules of Practice and Procedure,  the Commission voted at the April 5, 2023 public meeting to instruct staff to prepare a retroactivity impact analysis to aid the Commission in determining whether to do so.  This memorandum provides that analysis.  

Part I of this memorandum summarizes the operation of the 2023 criminal history amendment applicable to “status points” and “zero-point offenders.”  Part II of the memorandum provides background on the statutory authority and guidelines policy statement governing retroactive application of amendments to the federal sentencing guidelines, noting the factors to be considered in the Commission’s decision regarding retroactivity. Part III of the memorandum provides an estimate of the impact of Parts A and B, Subpart 1 of the amendment if the Commission were to authorize the courts to apply these parts of the amendment retroactively.  Part IV of this memorandum describes how the analysis was performed.

Here is the summary of the details of the USSC's analysis of who would benefit from retroactive application of its proposed criminal history amendments:

Staff estimates that there are 50,545 offenders in the custody of the Federal Bureau of Prisons (BOP) as of January 28, 2023, who were assigned status points at sentencing (“status points offenders”)....  Staff estimates that approximately one-quarter (22.7%, n = 11,495) of the 50,545 status points offenders would have a lower guideline range if the Commission were to make Part A of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 106 months, a reduction of 14 months (or 11.7%).  The offenders would be released over a period of many years....

Staff estimates that there are 34,922 offenders in BOP custody as of January 28, 2023, for whom no criminal history points were assigned under Chapter Four, Part A of the Guidelines Manual when sentenced for their instant offense.  Of those 34,922 zero-point offenders, 12,574 meet the criteria in Part B, Subpart 1 of the 2023 Criminal History Amendment.  Staff estimates that slightly more than half (57.8%, n = 7,272) of those offenders would have lower guideline range if the Commission were to make Part B, Subpart 1 of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).  The offenders would be released over a period of many years.

Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.

SCOTUS grants cert in ACCA cases to address prior drug convictions as predicates for 15-year mandatory minimum

As predicted in this recent post, the Supreme Court today in this morning's SCOTUS order list granted cert in a pair of cases (which were consolidated) raising another question regarding the application of the Armed Career Criminal Act's mandatory minimum 15-year prison term for illegal gun possession.  The cases are Brown v. US, No. 22-6389 and Jackson v. US, No. 22-6640, and here are links to the Brown cert petition and the Jackson cert petition.  Here is the "Question Presented" from the Brown petition:

The Armed Career Criminal Act provides that felons who possess a firearm are normally subject to a maximum 10-year sentence.  But if the felon already has at least three “serious drug offense” convictions, then the minimum sentence is fifteen years. 

Courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach. That requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate.

But federal drug law often changes — as here, where Congress decriminalized hemp, narrowing the federal definition of marijuana.  If state law doesn’t follow suit, sentencing courts face a categorical conundrum.  Under an earlier version of federal law, the state and federal offenses match — and the state offense is an ACCA predicate.  Under the amended version, the offenses do not match — and the state offense is not an ACCA predicate.  So the version of federal law that the court chooses to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented is:

Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

UPDATE: A helpful reader made sure I did not overlook the fact that a different drug is at issue in the Jackson case.  At issue in that case is the status of a conviction that came before 2015 when "the federal government removed ioflupane I123 from the federal drug schedules."  

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).