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October 6, 2023

Plugging again the "Drugs on the Docket" podcast (with updated content) before hitting road

350x350bbI will be on the road (and often offline) over the next couple weeks, and so it seems like a great time to flag again recent work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast. 

As noted in prior posts when the podcast was first released a few months ago, a set of six episodes  comprises the first season, with each episode running under an hour.  The whole original season is fully available on Apple PodcastsGoogle Podcasts and YouTube.  And, excitingly, the "Drugs on the Docket" team (of which I am a member) has been spending recent few weeks recording some updated content through shorter recordings (under 20 minutes) covering new legal and policy developments related to issue each of the full episodes of Season 1.  Some of these have already been released an a few more are forthcoming.

I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative.  Because I am eager to see this podcast grow its audience (and also because my colleagues at DEPC have worked remarkably hard to put this content together), I will keep using this space to encourage everyone to check out all the episodes (and I will keep welcoming substantive suggestions as we work on topics for Season 2).   

Once again, here is how the podcast subject matter is generally 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.

Especially since I will likely have less content in this blog space over the next 10 days, I hope many folks will take a few moments to check out the "Drugs on the Docket" podcast.

October 6, 2023 in Drug Offense Sentencing | Permalink | Comments (0)

A few notable new criminal cases on the latest SCOTUS "relist watch"

The latest Relist Watch by John Elwood over at SCOTUSblog, titled "The long conference’s relists," concludes with a few criminal cases. Here is most of the description of these cases, which are now much more likely to lead to a cert grant or at least some significant comment from some Justice:

Justin Sneed murdered Barry Van Treese, owner of an Oklahoma City motel, in one of the guest rooms. Sneed implicated Richard Glossip, the motel’s manager, claiming that Glossip had paid him to kill Van Treese.  On the strength of Sneed’s testimony, Glossip was convicted and sentenced to death.  However, the prosecution failed to disclose to the defense important information undercutting Sneed’s credibility (that he was under the care of a psychiatrist), and failed to correct Sneed’s testimony that it knew to be false.  Before the Oklahoma Court of Criminal Appeals, the state confessed error and said Glossip’s conviction should be vacated, though the attorney general still believed Glossip to be culpable.  But the Oklahoma court denied relief, saying that relief was still barred by “limitations on successive post-conviction review,” since Glossip had unsuccessfully sought post-conviction review numerous times before. In two separate petitions captioned Glossip v. Oklahoma (resulting from Glossip’s fourth and fifth applications to that court for post-conviction relief), Glossip now seeks relief from the Supreme Court.  The Supreme Court stayed his execution in May 2023 pending these petitions, so this case will clearly receive close attention.

Johnson v. Prentice: In most prisons, those held in solitary confinement are still allowed regular exercise.  However, exercise can be denied for a period in response to misconduct. Beginning in March 2013, Michael Johnson, a state prisoner in Illinois convicted of murder, was held in solitary confinement for over three years.  Johnson had been diagnosed by prison officials with a host of mental illnesses.  But because of repeated misconduct, Johnson had only a handful of hours in which he was permitted to exercise over the course of three years. He spent the rest of that period alone in a small cell, which for stretches was windowless. Johnson sued prison officials for violating his civil rights.  The district court entered summary judgment for the state; a divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed.  Rehearing en banc was denied by an equally divided vote.  Johnson asks the court to resolve whether denying virtually all exercise violates the Eighth Amendment absent a security justification.

Thornell v. Jones, our last case, is a petition filed by Arizona arguing that the 9th Circuit erred in granting habeas relief to Danny Lee Jones on the ground that he received constitutionally ineffective assistance at his trial for beating two people to death.  Arizona argues that the court improperly granted no deference to the district court’s detailed factual findings to the contrary.  A total of 10 judges dissented from the court’s denial of rehearing en banc.  The state seeks summary reversal, and the justices plainly are giving the case a close look.

October 6, 2023 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

October 5, 2023

Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi

This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen.  Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi.  A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:

The State of California aggressively criminalizes the possession of firearms.  We have seen that this disproportionately affects people of color, particularly Black people.  Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment.  And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.”  We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence.  Many of our clients are themselves victims of domestic violence.  But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

A few prior related posts:

October 5, 2023 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (6)

Last Prisoner Project releases big new report on "The State of Cannabis Justice"

The Last Prisoner Project, a marijuana reform group, has today releases a set of state report cards as part of a big new report titled "The State of Cannabis Justice." This LPP website shows the state-by-state grades that are explained more fully in this 70-page report. Here is the report's executive summary:

A deeper look into the status of cannabis justice policy throughout the nation reveals that cannabis justice policy is rapidly progressing and has situated itself at the center of policy priorities.

As of 2023, 23 states have enacted adult-use cannabis legalization, 24 states have enacted cannabis-specific record clearance laws, and 10 states have enacted cannabis-specific resentencing laws.  Importantly, these criminal justice policies have become commonplace in recent legislation.  In fact, since 2018, 100% of the 13 states that have legalized cannabis have included record clearance policies and since 2021, they have all been state-initiated.  While resentencing policies have been slower to take hold, they are also growing in importance and have been included in more than half of the legalization bills since 2020.  The increasing inclusion of these policies speaks to the importance of providing relief for individuals harmed by the historically unjust War on Drugs.

Unfortunately, the report also shows that, despite the country’s progress in the breadth and depth of cannabis justice policy, we are still far behind.  While more and more states are working to include retroactive relief for cannabis related offenses, the policy lags behind in every single state.

While states such as California, Minnesota, Maryland, and New Mexico have strong statutory language, they have all fallen behind in actually offering relief to impacted individuals. In California, the deadline to effectuate record clearance has passed, yet, over 20,000 individuals are still without relief.  In Minnesota, the structure of a separate review board has caused significant delays, leaving the state yet to appoint the board despite the instructed start date already passing.  In Maryland, it is unknown if the state has begun to enact the criminal justice provisions. In New Mexico, the state has faced rollback efforts to limit the impact of retroactive provisions throughout the past two years.

These implementation struggles make it clear that statutory language is only a start to effective change, and this report only touches the surface in evaluating the accessibility of relief.  The progress of cannabis justice policy is promising, but an evaluation of their status shows that there is still much to be done.

October 5, 2023 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered | Permalink | Comments (2)

"The Dissociative Theory of Punishment"

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

The American public has complex views on criminal punishment.  They are driven primarily by retributive motivations.  But they have other justice considerations, such as restoration and rehabilitation, that can be activated in different ways.  Laypersons are also motivated to psychologically distance and dissociate from those they perceive to be criminal “others” and to see punishment itself as a kind of dissociation, embodied by the prison form.  The psychological processes that produce these beliefs lead to an insistence on prison as a necessary criminal justice outcome, despite reservations about its effectiveness and concerns about the state of mass incarceration and punitive penal policy more generally.

This Article builds on the psychology of punishment literature to offer a deeper understanding of the dissociative theory of punishment and how it produces the belief in the necessity of prison.  Drawing on original, qualitative focus group data and analysis, this Article identifies the specific psychological mechanisms that motivate dissociation, explains the role of the belief in retributive justice as part of this process, and offers nuanced insights into the contours of the dissociative theory and the way people psychologically reason about criminal punishment.

October 5, 2023 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

October 4, 2023

"The Abolition and Retention of Life Without Parole in Europe: A Comparative and Historical Perspective"

The title of this post is the title of this new article authored by Mugambi Jouet and available via SSRN. Here is its abstract:

Life without parole is increasingly recognised as another death penalty in dooming prisoners to die behind bars.  Abolitionism and retentionism now characterise its state in Europe on the tenth anniversary of the European Court of Human Rights' landmark Vinter decision.  In abolishing irreducible life sentences, Vinter crystallised a long-term evolution in prisoners’ rights since the Enlightenment.  Meanwhile, enduring animosity toward prisoners has led their rights to recurrently become the stage for wider debates about the legitimacy of European institutions.  The United Kingdom’s threats to leave the European Court of Human Rights notably enabled it to exempt itself from Vinter.  Still, the European project retains numerous supporters, which helps explain why life without parole’s abolition is making progress in continental Europe, as confirmed by comparisons with the United States, Canada, Australia, and New Zealand.  The Article ultimately demonstrates that prisoners’ rights are both a microcosm of broader questions regarding European integration and a benchmark of human dignity’s historical evolution.

October 4, 2023 in Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Are SCOTUS Justices really targeting "bedrock principles protecting the rights of criminal defendants"?

The question in the title of this post is prompted by this lengthy new Slate commentary authored by LaDoris Hazzard Cordell headlined "The Supreme Court’s Right Flank Is Laying Groundwork To Dismantle Defendant Rights." I am not especially convinced by many claims in this piece, and the article mostly serves as a round-up of (sometimes old) dissenting comments by Justice Thomas in various constitutional cases.  But I still thought the article was worth flagging to highlight what some fear could be future work by SCOTUS in the constitutional criminal justice jurisprudence realm.  Here is part of the preamble and main headings for the piece:  

Yet, in the past two terms, Roberts and his five conservative colleagues — the court’s recently developed conservative supermajority — have thumbed their noses at judicial precedent by overturning Roe and by overturning four Supreme Court decisions that upheld affirmative action in college admissions.  Entering a new term, it’s important to understand that this is just the beginning.  One of the court’s future targets is going to be bedrock principles protecting the rights of criminal defendants.

Employing an unholy triad of disrespect for judicial precedent, originalism, and magical thinking, Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, and Chief Justice Roberts are signaling in their dissents, majority opinions, and concurrences a willingness to overrule landmark Supreme Court decisions that established basic constitutional protections in our criminal legal system.  Justice Thomas has led the way in this area.  By inviting supplicants to bring these cases back to the court, the supermajority is positioned to overturn them.  We should be very alarmed.  Here is a short list of the constitutional protections that will soon be under threat.

1. The Miranda Warning...

2. The Prohibition on Warrantless Searches and the Exclusionary Rule...

3. The Right to State-Appointed Counsel and the Right to Effective Assistance of Counsel...

4. The Right of the Public to Observe Jury Selection in Criminal Trials...

5. The Right to a Jury Pool That Reflects the Community...

6. The Right to Exercise Bias-Free Peremptory Challenges...

7. The Right of Adults and Juveniles to Be Free of Cruel and Unusual Punishment in Sentencing...

It is interesting that this list has three items related directly to jury trials without making mention of the fact that jury trials have largely vanished in the operation of our nation's criminal justice systems with only roughly 3% of indictments being resolved through jury trials.  And, this commentary leaves out the fact that certain members of the so-called "conservative supermajority" — particularly Justice Gorsuch, but also Justice Thomas — have been more protective of certain bedrock criminal procedure principles like the right to a jury trial and the requirement of proof beyond a reasonable doubt than have been many other Justices.  Moreover, as Rahimi and other lower court cases highlight, the recent Second Amendment jurisprudence led by Justice Thomas has provided new rights' claims for a new set of criminal defendants (including Hunter Biden).

That all said, there is definitely something to the idea that a serious commitment to originalism would likely result in a lot of new and different constitutional criminal justice jurisprudence in a lot of areas.  But I am not at all convinced that a majority of the current justices are seriously committed to originalism in the criminal justice arena (in part because that could likely lead to an expansion of — or at least expansive arguments regarding — many Fourth, Fifth, Sixth and Eighth Amendment rights). 

October 4, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

October 3, 2023

Florida completes its sixth execution of 2023

As reported in this AP piece, "man who killed two women after meeting them a day apart in north Florida bars in 1996 was put to death Tuesday evening." Here is more:

Michael Zack III, 54, was pronounced dead minutes after 6:14 p.m. following a lethal injection at Florida State Prison in Starke....

He was executed for the murder of Ravonne Smith, a bar employee he befriended and later beat and stabbed with an oyster knife in June 1996.  He also was convicted and separately sentenced to life in prison for murdering Laura Rosillo, who he met at another Florida Panhandle bar....

Zack’s lawyers had sought to stop the execution, arguing that he was a victim of fetal alcohol syndrome and post-traumatic stress disorder.  On Monday afternoon, the U.S. Supreme Court denied Zack’s appeal for a stay of execution without comment.

Zack’s execution was the eighth under Gov. Ron DeSantis since 2019 and the sixth this year after no executions were carried out from 2020 to 2022.  DeSantis has made tougher, more far-reaching death penalty laws an issue in his presidential campaign.

October 3, 2023 in Death Penalty Reforms | Permalink | Comments (6)

Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case

Regular readers know I have been talking up SCOTUS's first case for oral argument this Term, Pulsifer v. United States, a statutory interpretation case dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  Perhaps because it was the only case on the argument calendar yesterday, the Justice spent almost a full two hours debating the meaning of the word "and" with two capable counsel.  The full oral argument recording and transcript are available here at the SCOTUS website. 

Here are some press discussion of the oral argument in Pulsifer and surrounding realities:

From Courthouse News Service, "Courthouse Rock: Justices play conjunction junction on first day of term"

From The Hill, "Supreme Court opens term with case on prison terms for drug offenders"

From Mother Jones, "Does 'And' Mean 'And'? Or 'Or'? The Supreme Court Will Decide."

From Roll Call, “Congressional conjunction turns Supreme Court argument into grammar class; Justices weigh if ‘and’ means ‘and’ in a criminal sentencing law"

From the New York Times, "On First Day of New Term, Supreme Court Hears Debate Over First Step Act

From Slate, "The Supreme Court’s Oddest Pairing Comes out Swinging on Behalf of Criminal Defendants"

Based on a too-quick listen to the full oral argument, I am inclined to guess that this case will end up with a 5-4 vote in favor of the government's proposed statutory interpretation that would restrict the reach of the FIRST STEP Act's expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms.  But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant's reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).  

I suppose I can say with certainty that this case will not be resolved 9-0 and that the ultimate opinions likely will be of great interest to statutory interpretation fans as well as to sentencing fans.  I also would guess that we will get ruling in early 2024, though this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).  Fun times!

October 3, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Notable press account of federal execution spree at end of the Trump Administration

Given all the attention usually given to everything surrounding death penalty policy and administration, I have been somewhat surprised not to see more enduring discussions of all the federal executions that the Trump Administration carried out in its final months.  But now I see this lengthy new AP article on this interesting topic under the headline "Fuller picture emerges of the 13 federal executions at the end of Trump’s presidency."  Here is how the article begins:

A day before the federal government executed a Texas man for the killing of an Iowa couple when he was 18, celebrity lawyer Alan Dershowitz pleaded with then-President Donald Trump — a former client — to call the execution off. During a Dec. 9, 2020, call to the White House, Dershowitz told Trump that Brandon Bernard, at 40, wasn’t the man he was when Todd and Stacie Bagley were killed in 1999 and that he deserved to have his sentence commuted to life in prison.

Trump sounded sincere when he said he wished he could spare Bernard’s life, but he added apologetically that he’d already promised the victims’ relatives that Bernard would be put to death, Dershowitz said about the 20-minute call.  “‘They’re on their way. They’re on their way,’” Trump kept saying, Dershowitz recalled. The relatives, Trump explained, were on the road to the prison in Terre Haute, Indiana, where federal executions are carried out and it was “‘too late to pull them back.’”

Bernard was executed the next day.

Secrecy was a hallmark of the 13 federal executions during the last six months of Trump’s presidency. Although reporters were allowed to witness them, it was impossible to know at the time what was happening behind the scenes.

Fresh details have emerged since the executions, including from Dershowitz, who spoke recently to The Associated Press. The fuller picture reveals that officials cut corners and relied on a pliant Supreme Court to get the executions done, even when some — including Trump himself, in Bernard’s case — agreed that there might be valid reasons not to proceed with them all.

Here is some more interesting passages from the article:

Other newly available information includes an autopsy report obtained by the AP for Corey Johnson, convicted of seven drug-related killings. It concluded that during his execution, he suffered pulmonary edema, a painful condition akin to drowning. So much fluid rushed up his trachea that some exited his mouth....

Trump’s 2016 win didn’t particularly worry federal death row inmates, prisoner Billie Allen, who was and remains in the unit, said by email. After all, there hadn’t been a public clamor for federal executions to resume following a 17-year hiatus.

But guards began practicing executions in 2019, including by wheeling other guards role-playing as inmates out of cells in restraint chairs. “It was a sign … executions were about to take place,” Allen said. “Many of us knew Trump was going to keep killing … until he ran out of time.”

Observers assumed it was Trump’s initiative. But in his 2022 book, “One Damn Thing After Another,” Trump’s attorney general at the time of the executions, Bill Barr, suggested it was actually his. Barr said he spoke to Trump just once about the plans. Regarding capital punishment, Trump asked, “Why do you support it?” Barr wrote that Trump seemed satisfied when he answered that for brutal killings, it was “the only punishment that fit the crime.”

October 3, 2023 in Who Sentences | Permalink | Comments (11)

October 2, 2023

"The Counterintuitive Consequences of Sex Offender Risk Assessment at Sentencing"

The title of this post is the title of this new article recently posted on SSRN authored by Megan T. Stevenson and Jennifer L. Doleac. Here is its abstract:

Virginia adopted a risk assessment to help determine sentencing for sex offenders.  It was incorporated as a one-way ratchet toward higher sentences: expanding the upper end of the sentence guidelines by up to 300 per cent.  This led to a sharp increase in sentences for those convicted of sexual assault.  More surprisingly, it also led to a decrease in sentences for those convicted of rape.  This raises two questions: (a) why did sentencing patterns change differently across these groups, and (b) why would risk assessment lead to a reduction in sentence length?

The first question is relatively easy to answer.  While both groups saw an expansion in the upper end of the sentencing guidelines, only sexual assault had the floor lifted on the lower end, making leniency more costly.  The second question is less straightforward.  One potential explanation is that the risk assessment served as a political or moral shield that implicitly justified leniency for those in the lowest risk category.  Even though the risk assessment did not change sentencing recommendations for low-risk individuals, it provided a 'second opinion' that could mitigate blame or guilt should the low-risk offender go on to reoffend.  This decreased the risks of leniency and counterbalanced any increase in severity for high-risk individuals.

October 2, 2023 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (22)

On first Monday in October, another round of previews for SCOTUS's starting sentencing case, Pulsifer v. US

After a rough weekend for US pro golfers and Ohio's pro football teams, I am glad that a new season officially kicks off today with the Supreme Court hearing its first oral arguments to start its October Term 2023.  Actually, the Term arguably got rolling Friday with cert grants in a dozen new cases (though only a couple involved criminal law issues), and also with this morning's lengthy new order list denying cert in hundreds of cases. 

But, for SCOTUS, the first oral argument on the first Monday in October is something like the throwing of the first pitch on baseball's opening day. (And, speaking of baseball, the MLB playoffs should keep October exciting even if SCOTUS does not.)  As I have noted recently, I am especially excited that SCOTUS's first case for argument is Pulsifer v. United States, a statutory interpretation case dealing with a sentencing provision of the FIRST STEP Act.  Stated in a pithy way, the issue in Pulsifer is whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve actually means "and" or might instead mean "or."  

In this post last week, I noted a few preview pieces about the case, but now I have see a few more worth flagging:

From Lisa-Legalinfo, "SCOTUS Hears Argument Over Meaning Of “And” In First Step Act

From SCOTUSblog, "Mandatory minimums, payday lending, and voting rights in first session of Supreme Court term"

From Slate, "The Supreme Court’s First Case Is a Brutal Grammatical Test"

LawProf Aaron Tang authored the Slate commentary, and his closing sentiments seek to connect the (little?) Pulsifer case to the (big?) issues swirling around the Supreme Court at the start of a new Term (with links from original):

If the court wants to push back against the partisan trends in recent terms, it can heed the wise advice once offered by Judge Learned Hand, who remarked that “the spirit of liberty is the spirit which is not too sure that it is right.”

By humbly admitting uncertainty on the perplexing issue in Pulsifer, the court can apply a more promising approach to hard cases.  It can rule against whichever side would be best able to avoid the harm of a mistaken ruling — an approach I’ve called the “least harm principle” of judicial decision-making.

Indeed, criminal law already has a doctrine well suited to this principle. It is the “rule of lenity,” or the idea that where criminal statutes are susceptible to multiple reasonable interpretations, the court should adopt the defendant-friendly reading.

The best reason for this rule is that it is virtually always harder for criminal defendants to avoid the harm of mistakenly harsh criminal punishments than for the government to avoid the harm of lenient sentences.  Indeed, even if it loses this very case, the government would still have discretion to ask a trial judge to impose a harsher sentence on Pulsifer if it believes he is particularly dangerous.

In the end, the Pulsifer case will not be the most high-profile case the court decides this year.  But the case will provide important initial insights into how the justices are planning to respond to a disastrous summer for its public legitimacy — not to mention the costly mass incarceration crisis that is decimating our communities.  Here’s hoping it does so with a dose of humility.

A few prior related posts about SCOTUS Pulsifer case:

October 2, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

October 1, 2023

En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment

As noted in this Reuters article, the full Fifth Circuit has decided to review the notable split panel ruling last month in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here).  That ruling declared that Mississippi's disenfranchisement for life under of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In my prior post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and here is a bit more context from the Reuters piece: 

A federal appeals court on Thursday agreed to reconsider a ruling by three of its judges that struck down part of Mississippi's state constitution that strips the right to vote from thousands of convicts after they complete their sentences.

The decision by the 5th U.S. Circuit Court of Appeals to hold a so-called en banc rehearing of the case before all 16 of its active judges automatically voids, for now, last month's 2-1 panel ruling finding the provision was a "cruel and unusual punishment" that disproportionately affected Black people....

The disputed part of the state constitution mandates lifetime disenfranchisement for people convicted of a set of crimes including murder, rape and theft. A group of convicts sued the state in 2018 to regain their right to vote.

U.S. Circuit Judge James Dennis wrote for the majority last month that the provision, which he said was adopted in 1890 after the U.S. Civil War to "ensure the political supremacy of the white race," violated the U.S. Constitution's Eighth Amendment, which bars cruel and unusual punishments.

The provision, whose list of disqualifying crimes had been amended twice, remained effective in achieving its "racially discriminatory aim," Dennis said. Of the nearly 29,000 Mississippians convicted of disenfranchising offenses who had completed their sentences from 1994 to 2017, 58% were Black, he said. According to the 2020 census, just under 38% of Mississippi residents are Black.

Prior related posts:

October 1, 2023 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)