Sentencing Law and Policy

Renewed bipartisan effort to end the federal crack/powder sentencing disparity via the EQUAL Act

During the last Congress, I became way too optimistic about the prospect of passage of the EQUAL Act to entirely eliminate the federal crack and powder cocaine sentencing disparity. But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act and after the Senate version secured 11 GOP sponsors, I really thought nearly four decades of a misguided sentencing structure could be coming to an end.  But, as detailed in posts here and here from the first half of 2022, opposition from some key Republican Senators prevented the bill from getting to the desk of President Biden. 

I am now inclined to be much less optimistic about the EQUAL Act's chance in the new Congress.  But I am still pleased to see bipartisan efforts continuing, as evidenced by this new press release from Senator Cory Booker.  Here are some details:

Today, U.S. Senators Cory Booker (D-NJ), chair of the Senate Judiciary Subcommittee on Criminal Justice and Counterterrorism, and Dick Durbin (D-IL), chair of the Senate Judiciary Committee, along with Representatives Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), the House Democratic Leader, announced the reintroduction of the bipartisan Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, legislation to eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced. 

Joining Booker and Durbin as original cosponsors on the EQUAL Act in the Senate are Senators Lindsey Graham (R-SC), the ranking member of the Senate Judiciary Committee, Thom Tillis (R-NC), Chris Coons (D-DE), Cynthia Lummis (R-WY), and Rand Paul (R-KY).  Joining Armstrong (R-ND) and Jeffries (D-NY) as original cosponsors on the EQUAL Act in the House are Representatives Don Bacon (R-NE) and Bobby Scott (D-VA).

The sentencing disparity between crack and powdered cocaine, at one point as high as 100 to 1, helped fuel the mass incarceration epidemic.  According to the U.S. Sentencing Commission, in Fiscal Year 2021, 77.6% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic....

"Eliminating the crack-powder cocaine sentencing disparity is a step toward applying equal justice under the law,” said Representative Armstrong. “The EQUAL Act is sound, bipartisan criminal justice reform, that received overwhelming support in the House last Congress. It’s long overdue that we pass this bill and finally end the disparity to make a real difference for families across the nation.”...

Background

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses differed vastly.  For instance, until 2010, someone convicted of distributing 5 grams of crack cocaine served the same 5-year mandatory minimum prison sentence as someone convicted of distributing 500 grams of powder cocaine.  Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color. 

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the crack and powder cocaine sentencing disparity from 100:1 to 18:1.  In 2018, Senators Booker and Durbin and Representative Jeffries were instrumental in crafting the First Step Act, which made the Fair Sentencing Act retroactive. 

Booker, Durbin, Armstrong, and Jeffries first introduced the EQUAL Act to eliminate the disparity once and for all in 2021.  In September 2021, the legislation passed the House with a wide bipartisan margin, 361-66.  In the Senate, the legislation ultimately attracted 11 Republican and 24 Democratic cosponsors.

The full text of the legislation can be viewed here.

A few of many prior posts on the EQUAL Act:

• GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses" 
• US House votes 361-66 to pass today the EQUAL Act to end disparity between powder and crack cocaine sentences
• Is it foolish to hope, after now 35 years, that Congress will soon fix the crack-powder federal sentencing disparity? 
• Why is getting the EQUAL Act through the US Senate proving so challenging? 
• GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act
• Discouraging report on a possible last gasp for this Congress to pass the EQUAL Act 
• New year and new Congress brings a new effort to advance new EQUAL Act 

Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined "Alabama 'close' to finishing nitrogen execution protocol."  Here are the basics:

The head of Alabama's prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. "We're close. We're close," Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol "should be" finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a "system" to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state's execution procedures should be completed, "probably within the next month."

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is "Quite probably no." But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.

"Vigilantism and 'Public Confidence': The Pertinence of Public Opinion to Sentencing"

The title of this post is the title of this new essay authored by Michael Tonry now available via SSRN. Here is its abstract:

Public confidence in courts, judges, and sentencing, and belief in the legitimacy of legal institutions, as exists in Scandinavia, Germany, and the Netherlands, are self-evidently good things.  Politicians in England and Wales often avow the importance of “public confidence” in explaining why they promote or adopt especially repressive (e.g., Antisocial Behaviour Orders, Imprisonment for Public Protection) or illiberal (e.g., abolition of double jeopardy doctrine) legislation.  Three non-trivial issues lurk.  First, the rhetoric gets the causal ordering wrong.  As Justice Auld observed, public confidence is not “an aim of a good criminal justice system; but a consequence of it.”  Second, there is an underlying belief or assumption that “the public” disapproves current practices and wants changes made.  Masses of research show, however, that most depictions of the public’s views are unreliable and provide inadequate bases for policy making.  The public knows astonishingly little about criminal justice, opinions are shaped by media coverage and sensationalism, and considered views are not relentlessly punitive.  Third, there is more than a whiff of vigilante thinking in the idea that public opinion should be the basis for laws that prescribe or judicial decisions that concern punishments of particular people for particular crimes.

New Pennsylvania Gov announces his capital punishment abolitionist plans

Pennsylvania has over 100 condemned murderers on its death row, though it has not completed an execution in nearly a quarter century.  And, as reported in this AP piece, the new Governor of the Keystone State is committed to keep the state execution-free.  Here are the details:

Democratic Gov. Josh Shapiro said Thursday he will not allow Pennsylvania to execute any inmates while he is in office and called for the state’s lawmakers to repeal the death penalty.

Shapiro, inaugurated last month, said he will refuse to sign execution warrants and will use his power as governor to grant reprieves to any inmate whose execution is scheduled.  In doing so, he is exercising an authority used for eight years by his predecessor, Gov. Tom Wolf, to effectively impose a moratorium on the death penalty in a state where it has been sparsely used.

Shapiro went further, asking lawmakers to repeal the death penalty and calling it fallible and irreversible.  “Today, I am respectfully calling on the General Assembly to work with me to abolish the death penalty once and for all here in Pennsylvania,” Shapiro said in a news conference at Mosaic Community Church in Philadelphia.  The state, he said, “should not be in the business of putting people to death.”...

On the campaign trail last year for governor, Shapiro had said he was morally opposed to the death penalty, even though he had run for attorney general in 2016 as a supporter of the death penalty for the most heinous cases.

While Wolf was governor from 2015 until last month, judges delivered eight more death sentences.  In the meantime, Wolf issued eight reprieves to inmates who had been scheduled to be put to death.  Wolf had said he would continue the reprieves until lawmakers addressed inequities in the use of the death penalty, but lawmakers never did and Wolf’s reprieves remain in effect.

Wolf’s use of reprieves was upheld by the state Supreme Court in a legal challenge brought by county prosecutors, who argued that Wolf was unconstitutionally turning what had been intended to be a temporary tool into a permanent one.

Pennsylvania has 101 men and women on its shrinking death row, according to statistics from the Department of Corrections.  The state has executed three people since the death penalty was reinstated in 1976, as courts and now governors have blocked every other death sentence thus far. All three men who were executed gave up on their appeals voluntarily.  The state’s most recent execution took place in 1999.

CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences, in part because that Task Force is continuing to produce all sorts of interesting documents about long sentences (see prior posts linked below).  The latest report, available here, is authored by Roger Przybylski and is titled "Long sentences, better outcomes: Opportunities to improve prison programming."  Here is the report's introduction: 

People serving long prison sentences — defined as sentences of 10 years or more — make up a large and growing share of the prison population in the United States.  In 2005, roughly 459,000 people were serving long sentences, accounting for 46% of the state prison population.  By 2019, the number had grown to 524,000 and the proportion to 57%.

Policymakers, practitioners, and researchers have long been interested in prison-based programming that prepares people to engage productively in their communities post-release and reduces recidivism (i.e., re-arrest, reconviction, or reincarceration).  Although a robust body of knowledge on the types of prison programs most strongly associated with reduced recidivism has been developed over the past 40 years, research on the effectiveness of these programs has not focused specifically on participants serving long sentences.

Fewer than 10 prison systems have implemented programs specifically for people serving long sentences in recent years; these programs are in their infancy and have not yet been rigorously evaluated for effectiveness.  They focus on enhancing skills for adapting to prison life and/or mentoring younger incarcerated individuals serving shorter sentences — and are not designed to comprehensively meet the therapeutic, reentry, and other needs of people serving long sentences.  As a result, relatively little is known about the development, implementation, and effectiveness of programming that targets the unique needs of those in prison for long periods of time.

This brief describes the specialized needs of individuals serving long sentences, explores how prison-based programming might address those needs, describes existing programs for people serving long sentences, examines common obstacles to program access and engagement for this population, and identifies opportunities to enhance positive outcomes, both during custody and after release.

Prior related posts on CCJ's Task Force on Long Sentences:

• Notable CCJ new task force examining long prison terms
• Council on Criminal Justice releases "Long Sentences by the Numbers" 
• Council on Criminal Justice releases "Long Sentences: An International Perspective" 
• Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms" 

Some notable SCOTUS sentencing stories from the relist watch

After an extended hiatus, the Supreme Court gets back in action next week.  In turn, John Elwood is back to keeping up with the cert pool through his terrific SCOTUSblog posts providing "Relist Watch."  And this week's "Relist Watch" installment has a couple of stories that all sentencing fans will find interesting:

The Supreme Court will meet this Friday for the first time in nearly a month to consider whether to grant review in new cases....

One other curious thing about our last installment’s relists: There were five petitions challenging the constitutionality of sentencing criminal defendants based on conduct the jury acquitted them of committing.  Those cases are just sitting there on the court’s docket, with no further action by the Supreme Court since it distributed them for the Jan. 20 conference.  The court generally doesn’t announce what it’s doing with pending petitions, so we have no choice but to speculate here.  But near as we can tell, the court appears to be holding those cases to see whether the U.S. Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.  One of the five petitioners, Dayonta McClinton (whom I represent), argues that the Sentencing Commission’s proposal is woefully inadequate to resolve the issue, but it still may explain the court’s inaction.  Things may become clearer down the road.

That brings us to new business. There are 423 petitions and motions pending on the Supreme Court’s docket for this Friday’s conference. Two of those cases are newly relisted....

The second new relist, Davis v. United States, is far more conventional.  Petitioner Quartavious Davis was sentenced to 159 years of imprisonment for a series of seven Hobbs Act robberies he committed over a two-month period when he was 18 and 19 years old.  Although Davis went to trial, his five co-defendants all pleaded guilty and received much shorter sentences.  Davis argues that his attorney rendered ineffective assistance by failing to pursue and negotiate a plea agreement with the government, and by failing to render adequate advice to him regarding whether to plead guilty or go to trial.  Davis contends he would have pleaded guilty if he had been advised properly.  Although the court of appeals concluded Davis could not show prejudice absent an allegation that the government had offered him a plea deal, Davis contends it was enough to show that his similarly situated co-defendants were able to negotiate plea agreements, suggesting that there is no reason the government would not have been willing to extend Davis the same benefits. 

Buffalo mass shooter formally sentenced to LWOP in New York state court

Though New York in 1995 brought back the state's death penalty legislatively,  New York's highest court in June 2004 decided that the state's death penalty statute violated the New York Constitution.  Consequently, the harshest sentence that a mass killer in New York can get under state law is life without parole, and this New York Times piece reports on just such a high-profile sentencing today in Buffalo. Here are some details:

The gunman in a racist massacre at a Buffalo supermarket last year was sentenced to life in prison without the chance of parole on Wednesday, after apologizing for his attack amid a torrent of raw emotions from the victims’ families, including one man who lunged at him in court.

“You will never see the light of day as a free man again,” the judge, Susan Eagan, said after reading a statement about the harmful effects of institutional racism and white supremacy, calling it an “insidious cancer on our society and nation.”

The sentence reflected the outcome of a guilty plea to 10 counts of first-degree murder and a single count of domestic terrorism motivated by hate, which carries a penalty of life imprisonment without parole.  Judge Eagan’s sentence came after a brief apology by the gunman, Payton Gendron, who said he was “very sorry” for the attack and blamed online content for the shooting rampage on May 14, in which 10 people were killed, all of them Black, and three people injured. He said he didn’t want to inspire other racist killings....

As Mr. Gendron spoke, a member of the audience began screaming and cursing at him, the second such interruption in an emotionally raw hearing. Earlier, the sentencing was dramatically interrupted and the courtroom cleared after a man lunged at the defendant.  Judge Eagan emptied the courtroom and reconvened the hearing a short time later, pleading for decorum while saying she understood the anger toward the gunman. “We are all better than that,” she said. Before Mr. Gendron heard his sentence, families of the victims testified as to the insurmountable damage done by the attack.

“You are a cowardly racist,” said Simone Crawley, whose grandmother Ruth Whitfield, 86, was killed in the shooting. She asked for accountability for others who aided or turned a blind eye to Mr. Gendron’s growing radicalization....

Zeneta Everhart, whose son Zaire was injured, but survived, said: “The world says you have to forgive in order to move on.  But I stand before you today to say that will never happen.”

Kimberly Salter’s husband, Aaron Salter, a retired Buffalo police officer, did not survive: He was shot and killed in the attack.  Ms. Salter quoted the Bible as she stood just feet from Mr. Gendron, who wore an orange jumpsuit and spectacles. “You will reap,” she said, “what you sow.”...

Mr. Gendron, 19, pleaded guilty in November to the state charges.  He is also charged with federal hate crimes and weapons violations, some of which could carry the death penalty if the Justice Department decided to seek it.  Those charges are still pending....

His video feed of the attack was briefly online, before being shut down by social media companies.  Still, the Buffalo attack remains one of the nation’s deadliest racist shootings, joining a list that includes the killing of nine Black parishioners at a church in Charleston, S.C., in 2015; an antisemitic rampage in Pittsburgh, at the Tree of Life synagogue in 2018 where 11 people were killed; and an attack at a Walmart in El Paso in 2019 in which more than 20 people were killed by a man who had expressed hatred of Latinos.

New Sentencing Project report: "Counting Down: Paths to a 20-Year Maximum Prison Sentence"

The folks at the Sentencing Project have long advocated for an absolute limit on the length of prison terms, and this new 20-page report on the topic is titled "Counting Down: Paths to a 20-Year Maximum Prison Sentence."  Here is part of the report's executive summary:

In the United States, over half of people in prison are serving a decade or longer and one in seven incarcerated people are serving a life sentence.  To end mass incarceration, the United States must dramatically shorten sentences. Capping sentences for the most serious offenses at 20 years and shifting sentences for all other offenses proportionately downward, including by decriminalizing some acts, is a vital decarceration strategy to arrive at a system that values human dignity and prioritizes racial equity.

This report begins by examining the evidence in support of capping sentences at 20 years.  Countries such as Germany and Norway illustrate that sentences can be far shorter without sacrificing public safety.  A wealth of criminological evidence makes clear that unduly long sentences are unnecessary: people age out of crime, and even the general threat of long term imprisonment is an ineffective deterrent.

The Sentencing Project recommends the following seven legislative reforms to cap sentences at 20 years and right-size the sentencing structure:

1. Abolish death and life without parole (LWOP) sentences, limiting maximum sentences to 20 years.

2. Limit murder statutes to intentional killings, excluding offenses such as felony murder, and reduce homicide penalties.

3. Eliminate mandatory minimum sentences and reform sentencing guidelines to ensure that judges can use their discretion to consider mitigating circumstances.

4. Provide universal access to parole and ensure timely review.

5. Eliminate consecutive sentences and limit sentence enhancements, including repealing “truth-in-sentencing” and “habitual offender” laws.

6. Create an opportunity for judicial “second look” resentencing within a maximum of 10 years of imprisonment, regardless of an individual’s offense.

7. Shift all sentences downward, including by de-felonizing many offenses and decriminalizing many misdemeanors.

Finally, this report offers ideas for how stakeholders can take steps toward shrinking sentences today.  Prosecuting attorneys can use their discretion to limit sentences to 20 years when charging and plea bargaining, as well as engage in sentence review.  Judges can impose lower sentences where possible.  And communities can invest in interventions that prevent long sentences by keeping people from entering or reentering the criminal legal system altogether. Limiting maximum terms to 20 years need not be the end goal of criminal legal reform — 20 years is still an extraordinary length of time in prison — but it is an essential step toward a fair and proportionate justice system.

Latest issue of Federal Sentencing Reporter now available: "New U.S. Sentencing Commission Gets to Work"

As mentioned in this post a few months ago, the latest volume of the  Federal Sentencing Reporter  has a number of issues filled with a number of commentaries providing all sorts of advice for the new US Sentencing Commission.  The first of these FSR issues was titled "21st Century Advice to the New Commissioners" and can be found online here.  The follow-up FSR issue is titled "New U.S. Sentencing Commission Gets to Work," and it includes another set of original articles and related materials providing additional advice for the new USSC.   This new issue is available online here, and it begins with this introductory essay authored by me and Prof Steve Chanenson under the title "A Big Agenda and a Big Question for the New Sentencing Commission." Here is the abstract of this introductory essay:

Recent Senate confirmation of President Biden’s nominees to the U.S. Sentencing Commission transformed a long-hobbled agency into a refreshed expert body with a new opportunity to reexamine federal sentencing law and practice.  The new Commission has no shortage of large and small issues to tackle in the months and years ahead, and it faces not only a full and substantive agenda, but also a big operational question as it gets to work on its priorities.  The Commission has long stressed consensus in developing guideline amendments and related policy work.  But now with a full Commission of seven members when only four Commissioner votes are needed to advance guideline amendments and other formal policy decisions, it is possible that some Commissioners may not see a practical reason for the new Commission to always proceed by consensus and to advance only unanimously supported amendments.  A new Commission with a new willingness to move forward with amendments and policy initiatives, even in the absence of consensus, could prove to be a much bolder Commission.  But is bolder necessarily better, in terms of substantive work products and the ability to advance and implement proposed reforms?  Would a U.S. Sentencing Commission acting without consensus be more politically vulnerable in these divided and divisive times?

Prior related post:

• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

"Rape as Indignity"

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

Rape law has a consent problem.  The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially.  It is now widely taken as axiomatic that non-consensual sex is paradigmatic of rape.  But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual non-consent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others.  Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous.  The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.

This Article proposes a novel grounding for rape law — not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative — respect for persons — has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition.  Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence.  In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.

Vera Institute of Justice presents "A New Paradigm for Sentencing in the United States"

I am very pleased to see the official publication of this very interesting new report authored by Marta Nelson, Samuel Feineh and Maris Mapolski of the Vera Institute of Justice. I had the good fortune to see an early draft of this provocative document, and I hope it gets widely read and generates considerable discussion and debate. Here is a small portion of the lengthy report's executive summary:

This report posits that maintaining our system of mass incarceration will not bring people in the United States the safety and justice they deserve, while dismantling it in favor of a narrowly tailored sentencing response to unlawful behavior can produce more safety, repair harm, and reduce incarceration by close to 80 percent, according to modeling on the federal system.  In this report, the Vera Institute of Justice (Vera) addresses a main driver of mass incarceration: our sentencing system, or what happens to people after they have gone through the criminal legal system and are convicted of a crime.  The report

› provides a review of the history of sentencing in this country;

› summarizes the research and evidence surrounding sentencing’s impact on individual and community safety;

› offers new guiding principles that legislators should consider in place of the current primary reliance on deterrence, retribution, and excessive use of incapacitation;

› outlines seven key sentencing reforms in line with these guiding principles;

› models the impact of these reforms on both public safety and mass incarceration; and

› suggests a “North Star” for sentencing policy with a legal presumption toward community-based sentences except in limited circumstances....

Our current sentencing system defaults to putting most people convicted of crimes behind bars.  In 2006 in the United States — the last year in which national sentencing data was gathered — 70 percent of people convicted of state felonies ended up in prison; in the federal system, 90 percent of people convicted in 2019 did....

This default to incarceration does not build safety.  A 2021 meta-analysis of 116 studies found that custodial sentences not only do not prevent reoffending, but they can also actually increase it.  Explanations include that stripping neighborhoods of so many vital residents, including parents and breadwinners, can destabilize neighborhoods, and that the brutality of U.S. prisons, as well as the lack of opportunities after release, can negatively affect people’s behavior toward others while incarcerated — and afterward.

So how do we significantly change course? As a starting place, we must move away from retribution, deterrence, heavy reliance on incapacitation, and rehabilitation as the cornerstones of sentencing theory, policy, and practice.  These justifications for sentencing have been in currency for more than 200 years but are seldom scrutinized.  It is time to do so.

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

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.