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October 27, 2023

Federal court rules Second Amendment precludes denial of gun permit based on multiple arrests and dozens of traffic violation and license suspensions

Way back in 2008 when the US Supreme Court first recognized in Heller that the Second Amendment protected an an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home," I started speculating about whether and how jurisdictions might try to build new gun regulations about this vague "law-abiding" descriptor from Heller.  Could and would governments claim that persons with only misdemeanor convictions had no Second Amendment rights?  How about persons with only traffic tickets or who have only been arrested but not convicted?   Given that most Americans, in my experience, are guilty at some time of speeding or illegal parking or jaywalking or some other public order nuance, taking this "law-abiding" label very seriously might dramatically limit who has Second Amendment rights.

Of course, after Heller, the reach of the Second Amendment was litigated a lot in lower courts in a lot of setting.  But this litigation has taken on a whole new chapter after last year's Bruen ruling by SCOTUS clarified that text, history and tradition provided the proper test for sorting through the Second Amendment's proper application.  Notably, though, the Bruen ruling used the adjective "law-abiding" nearly two dozen times in the course of its reorientation of Second Amendment doctrine.  Thus, Bruen arguably makes understanding this term in this context even more important for the future of constitutional gun rights.

In a couple of weeks, the Supreme Court  will hear oral argument in US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization based on the individual asserting gun rights.  But a helpful reader made sure I did not miss a federal district court ruling from New York's federal courts earlier this week that may put traffic scofflaws who love their guns at ease.  This New York Times article, headlined "Traffic Tickets Are No Bar to Owning a Gun in New York City, Judge Rules," provides a useful summary of the ruling and broader context:

The New York Police Department wrongly denied a Brooklyn man a firearm license because of his many traffic violations, a federal judge ruled Tuesday, a decision that could stop the city from considering moral character when deciding whether someone can have a gun.

The case in the Southern District of New York centered on Joseph Srour, a Brooklyn man rejected twice after he applied in 2018 to keep rifles, guns and shotguns in his home for protection. Mr. Srour challenged the department’s decision to reject his application based on the city’s administrative code, which allows a licensing agency, in this case the Police Department, to deny a firearm permit if it determines that an applicant lacks “good moral character” or for “other good cause.”

In his decision, Judge John Cronan, nominated to the bench in 2019 by then President Donald Trump, wrote that the department used “broad and unrestrained” standards when considering Mr. Srour’s case. “Because that unconstitutional exercise of discretion occurs every time a licensing official applies or has applied these provisions, they each are facially unconstitutional,” he wrote, referring to the “good moral character” condition cited by the Police Department....

The ruling by Judge Cronan, which is likely to be heard by the appeals court, could allow people with more serious records than Mr. Srour’s to own a gun if it stands, said David Pucino, legal director of the Giffords Law Center to Prevent Gun Violence. “It would be serious problem,” he said. “These kinds of decisions have the potential to cripple the ability of law enforcement and other regulating authorities to enforce the laws that are on the books. This is an attack on that.”...

Mr. Srour had no criminal convictions, but the New York police twice denied his application to keep firearms in his home based in part on his two arrests, 28 traffic violations, 24 license suspensions and six driver's license revocations. He also had two criminal court summonses for creating a wake while operating a personal watercraft, according to the lawsuit he filed in 2022.

The circumstances surrounding Mr. Srour’s arrests, his failure to disclose them on his application and his poor driving history “portray a lack of good moral character and disregard for the law,” the city wrote in its notice rejecting Mr. Srour’s application. Judge Cronan wrote that those communications were not “models of clarity in explaining the precise legal grounds for denying his applications to possess firearms” and reflected “unfettered discretion.”

“Without doubt, the very notions of ‘good moral character’ and ‘good cause’ are inherently exceedingly broad and discretionary,” he wrote. “Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another.”

Mr. Srour, 49, who sells baby cribs and mattresses, declined to comment on the decision because the case is still pending. His lawyer, Amy Bellantoni, called the ruling “well reasoned and legally sound.”

The full 48-page ruling in Srour v. NYC is available at this link.

October 27, 2023 in Collateral consequences, Second Amendment issues, Who Sentences | Permalink | Comments (4)

October 26, 2023

Top Texas criminal court stays execution at last moment (and a quarter century after murder)

As reported in this AP piece, "Texas’ top criminal appeals court has stopped Thursday evening’s scheduled execution of a Texas inmate who had been condemned for killing another prisoner more than 26 years ago."  Here is more:

William Speer, 49, had been set to receive a lethal injection at the state penitentiary in Huntsville. The victim’s sister and religious leaders had recently asked authorities to spare his life.

Speer was convicted of the strangling death of Gary Dickerson in July 1997 at the Telford state prison, located near New Boston in northeast Texas.

His attorneys had asked the Texas Court of Criminal Appeals to stop his execution over allegations that prosecutors at his 2001 trial failed to disclose evidence, presented false testimony and that his trial lawyers failed to present evidence about Speer’s troubled childhood. They say Speer was physically and sexually abused as a child. Prosecutors have denied the allegations against them.

Less than five hours before his scheduled execution at 6 p.m. CDT, the appeals court granted the request by Speer’s attorneys. “We have reviewed the application and find that (Speer’s) execution should be stayed pending further order of this Court,” the appeals court wrote in its two-page order. Speer’s lawyers said the stay order cannot be appealed to federal courts because it is a state law issue.

His lawyers said Speer has transformed while in prison, expressed regret for his actions and now helps lead a religious program that ministers to other death row inmates.... The Texas Attorney General’s Office did not immediately reply to an email seeking comment....

At the time of inmate Dickerson’s killing, Speer had been serving a life sentence for fatally shooting a friend’s father, Jerry Collins, at the man’s Houston area home in January 1991. Speer was 16 then.

The paroles board on Tuesday voted 7-0 against commuting Speer’s death sentence to a lesser penalty. Members also rejected granting a six-month reprieve.

Speer killed Dickerson in a bid to join the Texas Mafia prison gang, prosecutors said. The gang ordered the hit after mistakenly concluding Dickerson had informed authorities about tobacco it had tried to smuggle into the prison. Speer and another inmate, Anibal Canales Jr. were sentenced to death for the killing. Canales remains on death row.

At Speer’s trial, Sammie Martin, who is Dickerson’s only living sibling, told jurors her mother was devasted by her brother’s death. But Martin asked that Speer’s life be spared. “I have spent much time reflecting on what justice my brother and my family deserved,” Martin wrote in federal court documents filed earlier this week. “In my heart, I feel that he is not only remorseful for his actions but has been doing good works for others and has something left to offer the world.”

Martin said she was never informed by prosecutors about Speer’s scheduled execution. In court documents filed this week, lawyers with the Texas Attorney General’s Office said that despite Martin’s feelings about Speer’s execution, “the state retains its interest in deterring gang murders and prison violence, as well as seeing justice done for Dickerson.”

A group of religious leaders from around the country have also asked that Speer be spared. In a letter to the paroles board and Gov. Greg Abbott, they wrote that Speer’s religious work with other prisoners “does not excuse his actions, but it gives us a fuller picture of who Will is as a human, Christian, leader, and teacher.”

October 26, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

New (opaque) study of federal sentences reports domestic terrorism sentences less severe than international terrorism sentences

This new AP article, headlined "International terror defendants face longer prison terms than domestic counterparts, new study finds," reports on what sounds like an interesting new study of federal sentencing outcomes in a small group of (high-profile) cases.  Unfortunately, the study itself is not yet public and so I can only report on the AP's accounting:

People convicted of crimes related to domestic extremism face far shorter prison terms than those convicted in international terrorism cases, even when the crimes are similar, a new report on the outcomes of hundreds of federal criminal cases has found.

The first-of-its-kind analysis, completed by terrorism researchers at the University of Maryland, was provided exclusively to The Associated Press. It comes after federal officials and researchers have repeatedly identified domestic violent extremists such as white supremacists and anti-government groups as the most significant terror threat to the U.S....

“This research is significant in confirming empirically what many have long argued: international terrorism cases are sentenced more harshly than domestic cases, even when the conduct is the same, and that these disparities are due to a combination of differences in the law and biases in implementing them,” said Shirin Sinnar, a professor at Stanford Law School, who was not involved in the research but reviewed it at the request of the AP.

Researchers at the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism, or START, and its Center for Health and Homeland Security examined federal criminal cases between 2014 and 2019 that were brought against people radicalized in the U.S. who were pursuing political, social, economic or religious goals.

International terrorism cases were defined by the researchers as those in which the defendants had links to or were acting in support of terrorist groups or movements based outside the U.S., while domestic cases involved defendants connected to groups or movements that operate primarily inside the U.S.

The analysis looked at 344 cases, including 118 international cases and 226 domestic cases, and found the disparities are caused by multiple factors, including the charges federal prosecutors choose to file, the laws that are on the books, as well as the sentencing decisions made by judges.

Jan. 6 cases are not included in the analysis, which has not yet been peer reviewed. START’s Michael Jensen, a principal investigator of the study, said 2019 was chosen as a cutoff to ensure final outcomes of even the most complex cases were captured. Still, he said, sentencing gaps in the Jan. 6 cases that he’s analyzed also reflect this disparity. Federal prosecutors have even taken the rare step of appealing the sentences of some Jan. 6 defendants, including leaders of the Oath Keepers and Proud Boys, some of whose sentences were years below what federal sentencing guidelines had laid out.

START’s analysis found wide disparities in prison terms for similar conduct, which were most pronounced in certain kinds of cases. The largest was in cases where defendants plotted violent attacks that ultimately failed or were foiled, where international defendants received an average prison sentence of 11.2 years, compared with 1.6 years for domestic defendants.

For violent cases that led to injuries, domestic defendants received on average 8.6 years, versus 34.6 for international defendants. The disparity was smaller, but still significant, in violent fatal attacks with domestic cases at about 28.8 years and international cases at about 39.2 years....

START controlled for factors already known to contribute to sentencing disparities, such as race, gender, criminal history and the use of so-called sentencing enhancements that increase the possible prison time for certain crimes. Even accounting for these other factors, international defendants still receive harsher punishments on average....

Federal law makes a distinction between international and domestic terrorism. The State Department has formally designated dozens of groups operating abroad as foreign terror organizations and even marginal support to such groups that doesn’t result in violence can be punishable by up to 20 years in prison. There is no comparable designation for domestic extremists such as the Proud Boys, Atomwaffen or other groups with a history of violent plots and acts....

In the cases studied, terrorism-specific charges and sentencing enhancements that increase prison time were disproportionately applied to international defendants. Chief among those is the material support statute that can only be used for cases linked to international terrorist groups; a related statute that may be used for domestic terrorism was rarely invoked. Federal prosecutors used the international material support charge in 50 percent of international cases; it was just half a percent in domestic ones – a single case.

People charged in violent domestic cases also often faced less serious charges not often associated with crimes of terror, like illegal possession of firearms, the study found. The so-called terror enhancement that increases prison time was used in 60 percent of international cases, compared with just 15.4 percent in domestic ones.

George Varghese, a former national security prosecutor, said prosecutors had been hamstrung by how the law treats international terror differently than domestic extremism, but that courts also bear some responsibility. “These domestic terrorists are being treated more like run-of-the-mill criminal defendants and receiving sentences far below those of international terrorism defendants,” he said.

Without access to the actual research/report that is the basis for this AP piece, we are left to wonder about whether the comparisons here are truly apples-to-apples. As the AP piece highlights, there are some formal legal differences here, and I will be especially interested to see if guideline calculations reflect big differentials in these (quite rare) cases.

October 26, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

October 25, 2023

Prison Policy Initiative highlights ten stats about modern criminal justice system

Emily Widra at Prison Policy Initiative has produced this new item under the title "Ten statistics about the scale and impact of mass incarceration in the U.S."  The stats listed, along with PPI's signature visuals, actually cover a lot more than incarceration, and here is how the list is set up:

The United States’ reliance on incarceration outpaces most of the globe: every single state incarcerates more people per capita than virtually any independent democracy on Earth.  But the sheer magnitude and impact of a system so large can be hard to fully comprehend.  We looked back over some of the best criminal legal system research and chose these ten statistics as some of the most handy for advocates, policymakers, and journalists working to help the public appreciate just how far-reaching mass incarceration is in this country.

Here are a couple of the items from the list (with links from the original):

October 25, 2023 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment | Permalink | Comments (6)

Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

A week from today, on November 1, 2023, the new US Sentencing Commission's amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works).  Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history.  But there is far more going on with all these amendments than can be readily summarized in this forum.  Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments.  Specifically, from a USSC training event, here is a slideshow that summarizes the USSC's amendment work, and a whole bunch of helpful "Amendment in Brief" documents assembled here provide primers on nine amendments.

As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead.  And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines.  Helpfully, the Commission has created this "Background Information" page to try to address some questions about retroactivity.  But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application. 

I predict questions and litigation in part based on an interesting little document that the USSC posted here titled "Comparison of Retroactive Guideline Amendments."   Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as "Group size" and "Eligible for reduction" under the new criminal history amendments.  In short form, the document estimates that over 85,000 prisoners are in the "Group size" who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction.  In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.

I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon.  I recommend these highly:

"How Zero-Point Offender Change Will Work Prospectively"

"How Zero-Point Offender Change Should Work Retroactively"

October 25, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Upon new review, split Ohio Supreme Court now upholds 65-year (functional life) prison term for woman who stole from nursing homes

As reported in this local article, the "Ohio Supreme Court on Wednesday in a split decision upheld the 65-year sentence − a new ruling that unravels a previous decision by the high court."  The full opinion in State v. Gwynne, Slip Opinion No. 2023-Ohio-3851 (Ohio Oct. 25, 2023), which runs a total of 61 pages, is available at this link. The press article effectively provides a summary and the notable backstories around this latest ruling in a long-discussed Ohio case:

Susan Gwynne admitted that she stole thousands of items from dozens of residents at nursing homes and assisted living facilities in Delaware and Franklin counties where she worked.  But she didn't think she should get 65 years in prison....

The case raises the questions: What is appropriate punishment for a first-time, non-violent felony offender, when consecutive sentences are merited and what oversight should appeals courts have?  The case also reflects what can happen when the balance of the Ohio Supreme Court shifts.

Writing for the majority, Chief Justice Sharon Kennedy said state law directs appellate courts to generally defer to trial courts' sentencing decisions.  She wrote that an appellate court could change a trial court's sentence if it "clearly and convincingly finds" the record doesn't support the trial court's findings.  The new opinion authored by Kennedy disagreed with the opinion issued in December 2022.

In December 2022, the Ohio Supreme Court said in a 4-3 ruling that trial courts need to consider an overall combined prison term when imposing consecutive sentences.  The court also found the Fifth District Court of Appeals erred in deciding it had no authority to review and vacate Gwynne’s 65-year sentence.  The high court sent it back to the appeals court to reconsider the length of Gwynne's sentence.

Once the control of the court shifted in January, the justices voted 4-3 to reconsider the December 2022 ruling.  Justice Melody Stewart wrote in her dissenting opinion that the court only decided to reconsider the case when Republican Joe Deters joined the court.  Gov. Mike DeWine appointed Deters to fill a vacancy created when Kennedy moved up to be chief justice.

She said that Kennedy's majority opinion will leave Ohio's law on consecutive sentencing − stacking prison time on multiple counts to run one after the other rather than concurrently − "so muddled that it will be virtually impossible for any defendant" to mount a successful challenge of a stacked sentence.  Trial court judges issue consecutive sentences in cases if they deem it necessary to protect the public and it'd be proportionate to the offenses.  Generally, though concurrent sentences are the default.

In a second dissent, Justice Jennifer Brunner noted other cases similar to Gwynne's crimes in which the defendants received far less prison time.  She said people who get 65 years in prison are almost always convicted of rape, kidnapping, torture or other heinous violent behavior.

Ohio Supreme Court Justice Michael Donnelly, who has been vocally critical of the Gwynne case and recused himself, said "This sentence is exhibit A in how the state of Ohio needs a total overhaul of its criminal sentencing scheme and we need a database."  The current system allows for disparity − grossly excessive and unexplainedly lenient sentencing, he said....   Donnelly supports establishing a statewide criminal sentencing database, which would allow researchers, judges and the public to compare outcomes of similarly situated defendants.

Gwynne, now 62, is incarcerated at the Ohio Reformatory for Women in Marysville.  Her release date is May 30, 2081 when she'd be 120-years-old.

October 25, 2023 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

October 24, 2023

"The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness"

The title of this post is the title of this new article available via SSRN authored by Kristen Bell. Here is its abstract:

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague.  Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions.  This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.”  Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment.  By urging revival of the void for uncertainty doctrine, this Article outlines a novel path for state constitutional litigation and proposes how state legislatures can reform parole statutes to put them on sound constitutional footing.

October 24, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

October 24, 2023 in Campaign 2020 and sentencing issues, Celebrity sentencings, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (73)

October 23, 2023

"Non-State Punishment"

The title of this post is the title of this new article now on SSRN and authored by Colleen Murphy and Lesley Wexler.  Here is its abstract:

How should we think about the Jewish community’s punishment of Jewish kapos, councilmembers, and police officers after the Holocaust?  Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup?  In the American context, the invocation of ‘cancel culture’ or ‘wokeness’ reflects concern about the defensibility of non-state practices of accountability.  Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors.

Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands.  Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration.  However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.

To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment.  This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment.  The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise.  The first dimensions is the type of justice punishment promotes (ordinary justice or transitional justice).  The second dimension is the agent meting out punishment (state actors or non-state actors).  Each category of punishment faces distinct questions of standing and justifiability.

Our conceptual map makes four contributions.  First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment.  Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice.  Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’  For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment.  As we discuss, some push back on so called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment is in fact occurring.  Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment.  Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth telling.

October 23, 2023 in Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Notable voices speaking out against civil forfeiture as SCOTUS argument over required process approaches

Next Monday, the US Supreme Court will hear oral argument in Culley v. MarshallNo. 22-585, which presents this question:

In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the "speedy trial" test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

Because there are many folks on both the left and the right who are not big fans of civil forfeiture of property, almost all of the advocate amicus briefing is in support of the individual for more process.  And some of the commentary I have seen recently on this case is likewise pretty one-sided (though coming from all political sides):

From Balls & Strikes, "How Easily Can Cops Steal Your Stuff, and Other Hard Questions For the Supreme Court"

From The Hill, "Ending state-sanctioned theft to preserve police legitimacy"

From The Federalist, "The Supreme Court Shouldn’t Let Governments Get Away With Impounding Innocent People’s Property"

From USA Today, "I was innocent, but police seized my car and stalled for years. Their scheme has to stop."

Though I do not follow forfeiture issues and doctrines all that closely, I am extremely interested to see how the current group of Justices approach a Due Process issue that could possibly have all sort of ripple effects.

October 23, 2023 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

October 22, 2023

Lots of pictures and words about the growing share of persons growing old in prison

The New York Times has this extended opinion piece, with lots of storytelling and lots of pictures, under the headline "Elderly and Imprisoned: ‘I Don’t Count It as Living, Only Existing.’" The piece is authored by Carmilla Floyd and here are excerpts:

Between 1993 and 2013, the number of people 55 or older in state prisons increased by 400 percent. The American Civil Liberties Union estimates that by 2030, people over 55 will constitute a third of the country’s prison population.

Research shows that most people age out of criminal conduct. Moreover, the Department of Justice asserts that the risk of elderly people reoffending after release is minimal. Yet decades of tough-on-crime sentencing and increasingly rigid release policies have left many to grow old in a system that was not designed to accommodate them. The cost is high, for both the residents and the public at large....

Reforms have ignited hope among residents who expected to die in prison. In California, the Public Safety and Rehabilitation Act of 2016 provides a process for nonviolent offenders to be considered for parole if their release poses no unreasonable risk to the community. Also in California, the Elderly Parole Program lays out a path for some residents who are over 50 and who have served at least 20 years. The state has also established compassionate release programs for terminally ill or medically incapacitated residents.

Efforts to reduce the aging prison population are driven not solely by compassion but also by the tremendous cost of incarcerating older people. Residents do not qualify for Medicaid, leaving the state responsible for all care expenses. Older residents are more likely to suffer from chronic illnesses like diabetes, dementia and cancer and to struggle with depression and anxiety.

Yet the rules and policies around parole decisions are often obstacles to releasing elderly residents, especially if they committed violent offenses in their youth. These secretive and subjective policies should be changed to focus on risk assessment and rehabilitation rather than the initial crime. Punitive sentences like life without parole should be abolished altogether.

October 22, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8)

Death Penalty Information Center has updated its impressive "Death Penalty Census."

Via this notice on the Death Penalty Information Center's website, I have noticed that DPIC "has updated its Death Penalty Census, a database of every death sentence imposed since 1972."  Here is more about this valuable resource:

The database now contains information accurate as of January 1, 2022, inclusive of the 50th year of the modern death penalty. The Census contains information on 9,820 death sentences imposed on 8,842 defendants. It includes the name, race, and gender of each defendant, along with the region, state, county, and year in which the sentence was imposed.

When it was launched in 2022, the Census included available data through January 1, 2021. With the addition of one year of data, it now includes all death sentences imposed through January 1, 2022, as well as the outcome of death sentences and current case statuses as of that date. The update added 21 new death sentences imposed in 2021, three exonerations that took place that year, and numerous updates regarding sentence reversals, deaths on death row, resentences, and other changes to the status of cases.

For anyone interested in data for tracking modern capital punishment, this DPIC Death Penalty Census seems like a gold-standard resource.

October 22, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (0)