Sentencing Law and Policy

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

In (sentencing) memoriam: noting a few major sentencing majority opinions by Justice O'Connor

Justice Sandra Day O'Connor was nominated to be the first female Supreme Court Justice by President Ronald Reagan when I was in middle school, and I had been a law professor for nearly a decade by the time she stepped down from being an active member of the Court.   As is true for nearly every Justice, sentencing rulings do not comprise a major part of the notable and consequential corpus of opinions that Justice O'Connor authored during a quarter century on the Court.  (SCOTUSblog reports in this lengthy tribute that "during her nearly quarter-century as a justice, O’Connor wrote 645 opinion.")  But there are still more than enough notable sentencing rulings from Justice O'Connor to make a very long list if I were to detailed them all.  As a memorial, I figured I would take a few moments to provide an abridged list of just some sentencing highlights among the hundreds of controlling opinions authored by Justice O'Connor:

Tison v. Arizona (1987)

Miller v. Florida (1987)

Penry v. Lynaugh (1989)

Coleman v. Thompson (1991)

Monge v. California (1998)

Ewing v. California (2003)

By keeping this list abridged and focused on sentencing-related opinions for the Court, I have left off many of Justice O'Connor's other major contribution in the criminal justice space.  In terms of other big court opinions in the criminal justice arena, Justice O'Connor's work in Teague v. Lane (1989) is arguable the most consequential; with a focus on separate opinions, her major dissents in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004) are especially memorable.

I suspect readers may recall fondly (or perhaps not so fondly) lots of other criminal justice opinions authored by Justice O'Connor not listed above.  I welcome thoughts about her sentencing legacy and any sorts of comments about Justice O'Connor's role in shaping our modern criminal justice jurisprudence.

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2023"

Providing another report for prison data junkies, the Bureau of Justice Statistics today released this 26-page report titled ""Federal Prisoner Statistics Collected Under the First Step Act, 2023." Here the report's introduction and some of the "Key findings" that seemed most interesting:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on specific topics and to report these data annually. BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. In addition, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2023, the statistics in this report are for calendar year 2022, which represented the fourth full year of reporting under the FSA. Data for calendar year 2023 will be available from the BOP in 2024. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the BOP (122 institutional facilities).

• The federal prison population increased about 1%, from 156,542 at yearend 2021 to 158,637 at yearend 2022.

• At yearend 2022, there were 8,627 persons with prior military service in BOP facilities, accounting for about 5% of the total federal prison population.

• The number of non-U.S. citizens in federal prison at yearend 2022 was 24,078, virtually unchanged from 2020 and 2021....

• Seventy percent of persons in BOP facilities at yearend 2022 had earned a high school diploma, general equivalency degree (GED), or other equivalent certificate prior to their admission to federal prison (110,531), and an additional 3,543 earned their GED credential or equivalent certificate during 2022.

• In 2022, there were 10,177 instances of persons in special housing units, a 10% increase from 2021 (9,261)....

• In 2022, 20,880 federal prisoners participated in a nonresidential substance use disorder treatment program, while 12,035 participated in a residential program....

• In 2022, there were 80,490 prohibited acts committed by persons incarcerated in federal prisons....

• In 2022, BOP staff were physically assaulted by federal prisoners 965 times, which resulted in serious injuries 19 times and 12 prosecutions of prisoners....

• The BOP partnered with 1,580 external groups to provide recidivism reduction programming in 122 federal prison facilities in 2022.

• Sixty percent (947) of the BOP’s partnerships that were in place in 2022 to provide recidivism reduction programming were with faith-based groups.

• Of the 145,062 persons in federal prison as of December 31, 2022 assessed with the BOP’s recidivism risk tool, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), 54% were classified as minimum or low risk for recidivism, 27% were classified as high risk for recidivism, and 19% as medium risk at yearend 2022.

• In 2022, PATTERN classified a higher percentage of females than males as minimum or low risk for recidivism (81% compared to 52%).

• As of December 31, 2022, PATTERN classified 61% of black and 59% of American Indian or Alaska Native federal prisoners as a medium or high risk of recidivism, compared to 36% of white and 27% of Asian, Native Hawaiian, or Other Pacific Islander prisoners.

• In 2022, PATTERN classified 83% of federal prisoners ages 55 to 64 and 93% of those age 65 or older as having a minimum or low risk of recidivism.

• In 2022, the BOP identified 41 Evidence-Based Recidivism Reduction (EBRR) Programs and 52 Productive Activities (PAs) that persons in federal prison could access for various needs, including antisocial behavior, anger management, substance abuse, parenting skills, and dyslexia.

Notable resources and notice from the US Sentencing Commission

Via an official US Sentencing Commission email this afternoon, I received word on two new items of note and will just cut-and-paste the details here:

Public Meeting Scheduled for December 14, 2023 at 2:00pm (ET)

We invite you to join us on Thursday, December 14, 2023 at 2 p.m. (ET) for a public meeting of the U.S. Sentencing Commission.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby). The Commission will also livestream and record this event at the link below. The agenda follows:

• Vote to Adopt August 2023 Meeting Minutes
• Report from the Chair
• Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment

Livestream Link

Problem-Solving Court Resources

(November 30, 2023) As part of its policy priority work this year, the Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile and publicly release information in support of problem-solving court program development. Access an interactive map, table of program documents, and a timeline of Commission work at the link below.

• Explore Here

The big-ticket item here, of course, is "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Last year's proposed guideline amendments were quite significant and consequential, and I am excited to see in about two weeks if this year's proposals will merit the same description.

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

Bureau of Justice Statistics releases "Prisoners in 2022 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics today released its latest yearly accounting of US prison populations titled "Prisoners in 2022 – Statistical Tables." The first page of the 48-page document provides this overview and "highlights":

At yearend 2022, correctional authorities in the United States had jurisdiction over 1,230,100 persons in state or federal prisons, an increase of 2% or 25,100 persons from yearend 2021 (1,205,100 persons) (figure 1). This rise erased the 1% decline reported in 2021 and marked the first increase in the combined state and federal prison population in almost a decade (since 2013). The number of persons held under the jurisdiction of the Federal Bureau of Prisons (BOP) grew 1% (up 2,000 persons) from 2021 to 2022, while the number held under the jurisdiction of state correctional authorities increased 2% (up 23,100).

Ninety-six percent of persons in U.S. prisons in 2022 were sentenced to more than 1 year under the jurisdiction of state or federal correctional authorities (1,185,600). Thirty-five states and the BOP showed growth in their sentenced prison populations from 2021 to 2022, with increases of at least 1,000 persons in eight states and the BOP.

• The U.S. prison population was 1,230,100 at yearend 2022, a 2% increase from yearend 2021 (1,205,100).

• The number of females in state or federal prison increased almost 5% from yearend 2021 (83,700) to yearend 2022 (87,800).

• Nine states and the BOP increased their total prison populations by over 1,000 persons from yearend 2021 to yearend 2022.

• State correctional authorities had jurisdiction over 1,039,500 persons sentenced to at least 1 year in prison in 2022, while the BOP had legal authority over 146,100 persons with similar sentences.

• At yearend 2022, an estimated 32% of sentenced state and federal prisoners were black; 31% were white; 23% were Hispanic; 2% were American Indian or Alaska Native; and 1% were Asian, Native Hawaiian, or Other Pacific Islander.

• The imprisonment rate at yearend 2022 (355 sentenced prisoners per 100,000 U.S. residents of all ages) was down 26% from yearend 2012 (480 per 100,000) but up 1% from yearend 2021 (350 per 100,000).

• In 2022, states and the BOP admitted 469,200 persons to prison, which was 20,800 more than they released that year (448,400) and 48,200 more than they admitted the year before (421,000).

"The Imperialism of Desert"

The title of this post is the title of this new paper authored by Ofer Malcai and Re'em Segev ow available via SSRN. Here is its abstract:

What is the relation between desert and other values such as equality, priority for the worse off, and utility?  According to the common view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all.  However, another view holds that while desert is a basic value, other values are merely derived from it.  This controversy is relevant, for instance, to allocative decisions and criminal punishment, where we need to know if other values should be balanced against desert.  Yet, despite its theoretical significance and practical importance, this topic is underexplored.  Aiming to fill this gap, we consider the arguments for and against the competing views.

Prison Policy Initiative sets out long list of "Winnable criminal justice reforms" for state systems

Prison Policy Initiative has produced this new 16-page document titled "Winnable criminal justice reforms: A Prison Policy Initiative briefing on promising state reform issues for 2024."  I believe this kind of publication is now an annual production by PPI, and this year's version lists 32 suggested reforms.  Here is how the report describes its mission, followed by links to the main reform areas identified:

In this year’s guide to winnable criminal justice reforms, we’ve added information on how Medicaid and Medicare laws can be changed to better serve people in reentry, and we’ve added a section on efforts around the country to legalize marijuana and decriminalize other drugs.  As always, we’ve also updated our list of Winnable criminal justice reforms and added new example bills and resources where you can learn more.

While this briefing is not intended to be a comprehensive platform, we’ve curated this list to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system.  We have also included some talking points and resources that can be used to push back when carve-outs to criminal justice reforms (that is, categorical exclusions of people who would benefit from reforms) are being discussed.

Because each state’s criminal legal system varies so much — from law and procedures, the data collected, and even how the same words are defined — it can be difficult to apply lessons from other states to the same problem in one’s own.  This guide is designed to facilitate the sharing of ideas and information across states.  That said, while we point to multiple bills, model legislation, and regulations in this document, we also recognize that many of these examples reflect compromise and could be strengthened or made more comprehensive.  This information is intended to serve as a resource as you determine which problems are a priority in your state and which lessons from elsewhere are most useful.

The reforms focus on nine areas:

• Expanding alternatives to criminal justice system responses to social problems
• Reducing the number of people entering the “Revolving doors” of jails and prison
• Improving sentencing structures and release processes to encourage timely and successful releases from prison
• Reducing the footprint of probation and parole systems and supporting success on supervision
• Protecting incarcerated people and families from exploitation
• Promoting physical and mental health among incarcerated and formerly incarcerated people
• Giving all communities equal voice in how our justice system works
• Setting people up to succeed upon release
• Eliminating relics of the harmful and racist “war on drugs”

Does Justice Gorsuch's praise for juries suggest he would be a vote against acquitted conduct sentencing?

The question in the title of this post flows from the notable comments made by Justice Gorsuch in today's Supreme Court oral argument in McElrath v. Georgia.  The full argument can be found here; and this Washington Post piece provides the essentials and starts this way:

Under delusions that she was poisoning him, a teenage Damian McElrath stabbed his mother, Diane, to death in 2012. He washed up, called 911 and told the dispatcher what he had done and why he was right to have done it. A few years later, when the state of Georgia prosecuted him, a jury found that McElrath was insane at the time — and also, not insane.

The jury found him “not guilty by reason of insanity” on the charge of “malice murder,” meaning that he lacked the capacity to distinguish right from wrong or that his delusions meant he lacked criminal intent. But on charges of felony murder and aggravated assault, the jury found him “guilty but mentally ill.”

When the Georgia Supreme Court reviewed the case, it said the conflicting verdicts were so illogical as to be “repugnant” and told prosecutors they could try McElrath again on all three charges. That decision created an exception to the U.S. Constitution’s double jeopardy clause, which says that once acquitted, a defendant cannot be retried on the same charge.

At a hearing Tuesday before the U.S. Supreme Court, the justices appeared ready to tell their Georgia counterparts that it is their turn for a do-over. Justices across the ideological spectrum seemed to believe that once a person has been acquitted of a charge — for whatever reason the jury chooses — the matter is closed.

As Justice Neil M. Gorsuch put it, for “230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

Regular readers likely know I wholeheartedly agrees with Justice Gorsuch's vision that "a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system...." But, of course, if prosecutors can pursue, and a judge can impose, a sentence based on acquitted conduct, then a jury does not serve as much of a check on judges or prosecutors or overreach, and we do not respect the democratic design of our Constitution.  If the Justices ever get around to taking up the issues of acquitted conduct, which they should at some point feel duty bound to do, I certainly hope Justice Gorsuch gives meaning to his words in that context.

"High fees, long waits cast shadow over new criminal expungement laws"

The title of this post is the headline of this notable new Stateline piece highlighting some challenges of implementing record relief laws. I recommend the full piece, and here are excerpts:

More states are making it easier for residents to clear or seal their criminal records. The effort has drawn bipartisan support, as lawmakers across the political spectrum say it will help people find jobs and housing, in turn boosting local economies and reducing reliance on social services....

But the shift has created some new concerns.  The surge in applications after lawmakers eased rules created a major backlog in several states. Some residents struggle to pay the required fees.  And some prosecutors and legislators worry that people who commit additional crimes after their records are expunged may not be held fully accountable.

At least four states — Louisiana, Maryland, Minnesota and New York — passed legislation this year that would make clearing or sealing one’s criminal record easier. Michigan and Ohio also had similar laws go into effect this year.

Expungement removes arrests and convictions from a criminal record as if they never existed, while record sealing hides records from the public but allows access by court officials and some law enforcement agencies. Almost every state has some form of expungement or record sealing policy. Though they can vary widely, most policies require individuals to be crime-free for a set amount of time, usually tied to how serious their conviction was....

Over the past five years, more states have moved to offer automatic expungement or sealing, which generally uses a computer system to wipe or shield people’s criminal records when they become eligible.  At least 26 states and the District of Columbia have an automatic system already in place or in the works....

Some state Republicans have “abandoned this mentality of tough on crime,” according to Nino Marchese, the director of criminal justice and civil justice at the American Legislative Exchange Council, a conservative nonprofit membership organization that drafts model legislation. Marchese said state legislators in the group are increasingly inclined toward evidence-based policymaking, which typically involves analyzing research and data, to draft criminal justice policies.

But some residents haven’t been able to get their records expunged because of the fees and large backlogs.... Some critics argue that broadening eligibility for expungements or the sealing of criminal records will put the public at risk by cloaking violent crimes.

Some of many prior related posts:

• "Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts" 
• "Criminal Justice Record Clearing: An Analysis from Two States" 
• Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms 

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

Notable accounts of implementing Florida's new non-unanimous capital sentencing

This afternoon brought up two notable new items in my news feed concerning Florida's new experiences with its new laws for administering the death peanlty:

From the Death Penalty Information Center, "Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death":

On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote.  Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision.  Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor.

From the Tampa Bay Times, "Court weighs if Tampa rapper’s jury should be unanimous on death penalty: State law now allows death by a jury vote of 8-4. Courts disagree whether the new law can apply to pending cases":

This spring, the Legislature and Gov. Ron DeSantis approved a law that eliminated the requirement that juries be unanimous if they are to recommend the death penalty. The new minimum threshold is a vote of 8-4. Thus, even if four jurors vote for life in prison, a court can still impose capital punishment.  But the question lingers: What to do with defendants, like Adams, whose cases were pending when the law changed? Should they be subject to the new 8-4 rule?

Lawyers for [Billy] Adams argued in a court hearing last week that the change would amount to an ex post facto law — a law that applies retroactively — which is explicitly prohibited in the U.S. and Florida constitutions.

Assistant Public Defender Jamie Kane told a judge that the new law creates new pressure for the defense. Under the previous law, the defense only had to convince one juror that a life sentence was appropriate. Under the new law, they have to convince at least five.  “That is a big difference,” Kane said. “Our burden has increased dramatically.”

Hillsborough prosecutors responded that the new 8-4 standard was merely a procedural change in the law, and therefore it should apply to cases going forward, including Adams’. “Does this retroactively increase punishment for this crime?” Assistant State Attorney Lindsay Hodges said in the hearing.  “The answer is no. ... The punishment is still death.”

"Who Bears the Burden When Prison Guards Rape?"

The title of this post is the title of this new essay authored by Meredith Esser and available via SSRN. Here is its abstract:

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP).  Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years.  In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault.  However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims — in a manner inconsistent with other federal early release provisions — and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden.  For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances.  Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

SCOTUS hearing two criminal cases to start latest argument session

The Supreme Court is back to in-person work on Monday with the start of its final oral argument session for 2023.  And this one begins with two criminal cases over the first two days, as described in this SCOTUSblog post by Amy Howe:

The justices will kick off the December argument session on Nov. 27 with oral argument in a pair of consolidated cases, Brown v. United States and Jackson v. United States, involving the Armed Career Criminal Act.  The ACCA [provides a 15-year]  minimum sentence ... for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.”  The question before the justices is how to define “serious drug offense” for purposes of the ACCA. Eugene Jackson and Justin Rashaad Brown argue that the definition should incorporate the federal drug schedules that were in effect either when the individual committed the federal firearm offense (Jackson) or at the time of sentencing for that offense (Brown), while the federal government argues that it should instead incorporate the schedules that were in effect at the time of the state drug offenses.

On Tuesday, the justices will confront double jeopardy issues in the case of Damian McElrath, a Georgia man who was found not guilty by reason of insanity on one murder charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on a different murder charge (as well as an aggravated assault charge).  On appeal, the Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on all charges. It concluded that the verdict was “repugnant”: McElrath’s acquittal on one murder charge required the jury to find that he was insane when he killed his mother, but he could only be convicted on the other charges if the jury found that he was not insane.

When the case returned to the lower court, McElrath argued that the Constitution’s ban on double jeopardy barred the state from trying him again on the murder charge on which he had been acquitted.  But the Georgia Supreme Court rejected that argument.  It explained that a “repugnant” verdict is essentially “void” and therefore does not create a double jeopardy problem.  McElrath renews that argument in the Supreme Court, while the state defends the Georgia Supreme Court’s ruling.  Under state law, Georgia contends, there was never a valid verdict in McElrath’s case, and he can therefore be retried.

UPDATE: I just noticed that LawProf Michael Dorf has this lengthy post about the ACCA cases, titled “Today at SCOTUS: Guns or Drugs?,” which makes some great statutory interpretation points.  Here is a taste:

Each of the briefs proceeds as though the rule it proposes is somehow dictated by the statutory text understood in light of well-accepted background understandings. In fact, however, it's perfectly clear that the statutory language, even read in light of those background understandings, is highly under-determinative as to the question presented.

In such cases, we are accustomed to the Justices indulging (whether or not consciously) their ideological priors. Here those priors are unclear. The more liberal Justices don't like guns but are probably inclined to think that Congress has over-criminalized drug offenses. The more conservative Justices are not especially troubled by drug criminalization; nor are their Second Amendment sensors likely to be activated by the "bad guy with a gun" scenarios these cases present

Pardon stories focused on humans to close out the Thanksgiving weekend

In this post a few days ago, I bemoaned the recent headlines about governors and presidents exercising clemency that were mostly about "fowl" pardons.  But in the days that followed, I was pleased to see a couple of notable new stories about actual humans getting pardoned by governors with notable clemency records.  Here are headlines and some details:

From Missouri, "Missouri governor granting pardons at pace not seen since WWII era":

For a dozen years as a rural sheriff, Mike Parson was the face of justice, the man ultimately responsible for catching and locking up local lawbreakers. Now governor, Parson also has become the face of mercy by pardoning more than 600 people in the past three years, more than any Missouri governor since the 1940s.

“I still believe in law and order. I believe criminals need to be treated as such, and they’ve got accountability,” Parson said in an interview with The Associated Press. But “it doesn’t mean they’re a criminal all their life,” Parson added. “I think you’ve got to be able to look at it.”...

Parson's staff began systematically tackling the backlog in December 2020, even as more requests poured in. They set a goal of evaluating around 100 cases each month, weighing applicants' work and education history, community involvement, character references and contrition for their crimes. The types of crimes, how young offenders were and how much time had passed also came into play as Parson made his decisions. So far, Parson has denied about 2,400 clemency requests while granting 613 pardons and 20 commutations.

From Wisconsin, "Gov. Tony Evers extends pardons to 1,111 with 82 more ahead of Thanksgiving"

Gov. Tony Evers extended his pardon count to 1,111 with 82 more announced ahead of Thanksgiving, mostly for people convicted of low-level drug offenses or minor theft. “It continues to be a privilege to hear about individuals’ lives, work, and what they have done to overcome their past mistakes and build positive, rewarding lives for themselves and their families,” said the Democratic governor, who has pardoned far more people than any of his predecessors.

The pardons announced Wednesday include a carpenter who was found with marijuana in his home over 20 years ago, a middle school teacher who tried to cash a fraudulent check in her late teens and a general labor supervisor who stole propellers from boats over two decades ago. About one third of the 82 pardons were for people convicted of possessing or selling marijuana. Another third had been convicted of possessing or selling other controlled substances.