Sentencing Law and Policy

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

Former BOP director talks up need for second step to follow up FIRST STEP Act

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "First Step Act was only half the job; now a ‘Second Step’ is needed." It is worth reading in full, and here are  excerpts:

The First Step Act (FSA) was a landmark achievement in the area of criminal justice reform.  It came at a time of partisan politics and a divided Congress and was the only significant bi-partisan legislation passed during the Trump administration....  I had a unique viewpoint at this time: I was Acting Director of the Bureau of Prisons (BOP) during the negotiations and ultimate passage of the FSA....  But how successful is it?  I argue it was a small start, hopefully, on the way to something bigger.

The FSA had two primary goals: 1) to reduce the overcrowded prison population in the BOP and 2) to provide incentives for people in prison to take recidivism reducing programs which will increase the likelihood that they will succeed upon their release and not return to prison.  In my opinion, the FSA succeeded wildly in number 1, and failed miserably in number 2.  So, in short, yes, we definitely need something bigger: a second step.

While up-to-date data has not been made available, it appears that somewhere between 10,000 and 20,000 people have already been released early under the FSA, with thousands more in the queue.  BOP is still calculating how people earn time credits, and they continue to release more in batches.  Based on those numbers alone, it is hard to argue that the FSA was not successful in reducing the prison population.

The primary incentive offered under the FSA is time credits for completion of recidivation reducing programs. Application of these time credits will allow some people to complete their sentence early and transfer to supervised release, and others to transfer early to halfway houses or home confinement.  The problem with the FSA is that while it incentivizes people to take recidivism reducing programs, the only people eligible for the coveted time credits are those already deemed to be minimum- or low-risk for recidivating.  Said another way, only people assessed as minimum- and low-risk for recidivism are eligible to earn time credits leading to early release. But those are not the people we should be incentivizing to take recidivism reducing programs.  The ones who truly need these programs are those deemed to be of medium or high risk of recidivating.  Aren’t those the people we should be focusing on?  But the FSA does not allow these people to earn time credits....

Let me be clear: I am not saying the FSA is a bad law.  On the contrary, it has resulted in increased program opportunities and other changes to our federal prison system, and it has reduced the number of people in federal prisons.  What I am saying is that the need for a Second Step is great, as people deemed medium or high risk of recidivating are released without the benefit of critical recidivism reducing programs.

About 95 percent of the people currently in our nation’s prisons will be released to our communities. They will be our neighbors.  Isn’t it imperative that we do all we can to ensure that upon release they have the skills, tools, and resources to be productive, law-abiding members of society?  We need Congress to act now, in another bi-partisan effort, to pass laws that will ensure everyone incarcerated today is incentivized and given access to programs that will help reduce their recidivism risk.

"The Right to Social Expungement"

The title of this post is the title of this new article authored by Itay Ravid now available via SSRN. Here is its abstract:

In recent years, policy makers advancing criminal legal reform have engaged in attempts to correct years of harsh and expansive use of criminal laws.  Two main parallel trends dominate these attempts.  One is forward-looking — the decriminalization of many activities currently punishable by the criminal legal system.  The second is backward-looking, and related — expungement and vacatur reforms that aim to allow individuals to start fresh.

While these latter efforts are intended to erase the criminal stain from official criminal records, the non-official domain gained less traction, leading to an absurd reality in which news stories about individuals’ criminal histories remain accessible in the virtual world, practically forever.  Tragically, these online news stories are often more practically detrimental to reintegration than the official criminal records.  As such, they frustrate the criminal legal system’s efforts to correct past mistakes.

The literature on criminal legal reform thus far has given less attention to this crucial problem.  This Article contributes to narrowing this scholarly gap.  To do so, it introduces “the right to social expungement” — which recognizes the rights of individuals arrested for or convicted of offenses now vacated, expunged, legalized, or decriminalized to have stories about their past interaction with the criminal legal system removed from media websites.

Utilizing the case study of individuals arrested for or convicted of selling sex, this Article provides two theoretical justifications for recognizing this right: 1) the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and 2) criminal law’s amelioration doctrine, which offers a path to retroactively apply lenient criminal justice policies.  The piece further argues that, counter to conventional wisdom, the right to social expungement can in fact sit comfortably within a plausible interpretation of the right to privacy and freedom of the press.  The Article concludes by offering preliminary guidance for establishing the right to social expungement.

Sentencing scheduled for morning after jury convicts Alex Murdaugh of murdering his wife and son ... UPDATE: Life sentences imposed

For whatever reasons, I have not been enthralled by the Murdaugh saga and trial in South Carolina.  But, after a swift set of guilty verdicts from the jury tonight, I am intrigued to see the sentencing unfold.  But, this AP article details, it seems that sentencing will unfold Friday morning:

Disgraced South Carolina attorney Alex Murdaugh was convicted of murder Thursday in the shooting deaths of his wife and son in a case that chronicled the unraveling of a powerful Southern family with tales of privilege, greed and addiction.

The jury deliberated for less than three hours before finding Murdaugh guilty of two counts of murder at the end of a six-week trial that pulled back the curtain on the once-prominent lawyer’s fall from grace.

Murdaugh, 54, faces 30 years to life in prison without parole for each murder charge when court is scheduled to reconvene for sentencing at 9:30 a.m. Friday.

I saw another press piece indicating that prosecutors will be seeking LWOP sentences. Given that Murdaugh is 54 years old, the 30-year minimum that is applicable is almost a functional life term.

Any predictions?

UPDATE:  As reported in this local article, headlined "Judge sentences Alex Murdaugh to 2 consecutive life sentences for the murders of his wife and son," apparently Murdaugh will not get out of prison even if he comes back to life after he dies while serving the first of his life sentence.  I am not quite sure how to otherwise understand the concept of "consecutive" life sentences, but maybe there is something notable in South Carolina sentencing law that makes it sensible to impose multiple life sentences consecutively.

CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing"

As highlighted in this prior post, the Council on Criminal Justice last summer launched a new national commission "to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice." This CCJ Commission has released this major policy report today titled "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing." This press release provides some highlights from the full report. Here are excerpts from the press release:

America’s civilian justice system fails to adequately identify veterans, steer them away from prosecution and incarceration, and coordinate or research the effectiveness of programs attempting to support them, the Council on Criminal Justice (CCJ) Veterans Justice Commission said in releasing its first set of recommendations today.

While data-based tools exist to verify a person’s veteran status, only 9 of the nation’s 18,000 law enforcement agencies and 11% of its 3,100 jails report using them, relying instead on veterans to self-identify, the Commission said. But many veterans fail to do so because of shame or fear of losing benefits. Hundreds of jurisdictions now operate specialized Veterans Treatment Courts (VTCs), but participation is often restricted to minor offenses, and just 36 of 2,300 prosecutors’ offices reported operating veteran-specific diversion programs. As a result of these and other holes in the system, veterans miss out on diversion opportunities or treatment targeting the service-related trauma and other conditions that often drive their criminal behavior.

The Commission, which is led by former Defense Secretary and U.S. Senator Chuck Hagel and includes former Defense Secretary and White House Chief of Staff Leon Panetta, issued three recommendations to address these and other challenges confronting veterans at the “front end” of the criminal justice system, from arrest through sentencing:

• To improve identification of veterans when they come in contact with the justice system, Congress should authorize a study to evaluate the effectiveness of databases that capture veteran status, order necessary improvements, and incentivize their use by local and state agencies....
• States and the federal government should pass laws expanding or creating opportunities for veterans to avoid arrest, conviction, or incarceration if they complete programs, including VTCs, requiring them to take responsibility for their actions and address issues underlying their criminal offending. The Commission also said courts should be permitted to consider combat exposure and other military experiences a mitigating factor at sentencing, including in cases involving violence.
• Noting that reliable data on justice-involved veterans is sorely lacking, the Commission recommended that the federal government establish a National Center on Veterans Justice to fund research and identify effective program interventions....

Prior related posts:

• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 
• Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems 

RFK's assassin, Sirhan Sirhan, denied parole after 17th California parole board hearing

As reported in this New York Times article, a "California panel on Wednesday denied parole for Sirhan B. Sirhan, the man convicted in the 1968 assassination of Senator Robert F. Kennedy, in its first review of the case since Gov. Gavin Newsom decided last year that Mr. Sirhan, 78, should not be released." Here is more:

The parole board’s latest decision, which followed a hearing via videoconference from the state prison in San Diego, where Mr. Sirhan has been held, was the second time in three years that Mr. Sirhan’s release had been considered.  He has spent more than a half-century behind bars for shooting Mr. Kennedy, then a candidate for president, inside the Ambassador Hotel in Los Angeles at the end of a campaign appearance in 1968.  At the time, Mr. Sirhan was 24.

His lawyers have argued that he is not a danger to the public and should be released.  In 2021, a panel of the parole board agreed. But after an extraordinary chain of events, the governor overruled the panel last year, charging that Mr. Sirhan had not yet been rehabilitated.

On Wednesday, after Mr. Sirhan’s 17th parole hearing, the new recommendation was made by a commissioner and a deputy commissioner who were not part of the review panel in 2021. Governor Newsom had no comment....

By 2021, California law required the parole board, when making a determination on releasing an inmate, to consider the inmate’s advanced age and his relative youth at the time a crime was committed.  After 15 prior denials, a panel of commissioners granted him parole that year.  They noted then that Mr. Sirhan had improved himself by taking classes in prison. Two of Mr. Kennedy’s sons had also urged leniency.

But most of the family was adamant that Mr. Sirhan remain behind bars and pleaded with Mr. Newsom to exercise his power under California law to reject the panel’s recommendation.  In January 2022, after more than four months of review, the Democratic governor — who has long spoken of Mr. Kennedy as a role model — granted that plea.

“After decades in prison, he has failed to address the deficiencies that led him to assassinate Senator Kennedy,” the governor wrote last year. “Mr. Sirhan lacks the insight that would prevent him from making the same types of dangerous decisions he made in the past.”

Mr. Sirhan’s lawyer, Angela Berry, has since asked a Los Angeles Superior Court judge to reverse Mr. Newsom’s 2022 parole denial. With that petition pending, she said on Wednesday that she believed the panel’s latest decision had been influenced by the governor’s rejection last year.

Prior related posts:

• Notably high-profile cases now the focus of parole decision-making 
• RFK killer. Sirhan Sirhan, recommended for parole after decades of denials 
• "If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?" 
• California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin 

An interesting (and dubitante) SCOTUS argument in Dubin

I flagged in this post from last November the Supreme Court's cert grant in Dubin v. United States, which concerns the reach of the federal criminal law that adds a mandatory two-year prison term for using another person’s identity in the process of committing another crime.  That statute, 18 U.S.C. § 1028A, is titled "Aggravated identity theft," but the statutory language would seem to cover a whole lot more conduct than what most think of as identify theft.  In fact, the government seem to be claiming that waiter who adds for himself an unauthorized $1 tip when swiping a patron's credit card would be guilty of credit card fraud and an additional two-year mandatory prison term under § 1028A.  

This matter was argued before the Supreme Court yesterday and the lengthy argument had all sorts of interesting elements.  (The transcript, running over 100 pages, is available here; the audio is available here.)  As detailed in the pieces linked below, it seems nearly all the Justices believe there have to be some limiting principles for application of this statute.  But while the Justices seem to generally doubt the government's broad statutory reading, it is unclear what part of the statutory text may provide real limits and on what terms.  Stay tuned:

From Bloomberg Law, "Justices Appear Ready to Limit Breadth of Identity Theft Law"

From the New York Times, "Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law"

From SCOTUSblog, "Justices lean toward narrow reading of aggravated identity theft"

From Security Boulevard, "Supreme Court: Does BIlling Fraud Violate Federal ID Theft Statutes?"

Prison Policy Initiative reports on "Women’s Mass Incarceration: The Whole Pie 2023"

The folks at Prison Policy Initiative has released its latest update in its incarceration pie series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2023" authored by By Aleks Kajstura and Wendy Sawyer. Everyone should click through to see all the great graphics that go with report, and here are parts of text toward the start and at the very end of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  Further, how has the COVID-19 pandemic changed the number of women behind bars?  These are important questions, but finding those answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 172,700 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system by specific offense.  In this updated report, we’ve also gone beyond the numbers, using rare self-reported data from a national survey of people in prison, to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up....

Most notably, and in stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons.  As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The data needed to explain exactly what happened, when, and why do not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated using the same data sources from year to year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years....

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in almost 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement.

While more data is needed, the data in this report lends focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

BJS releases interesting data on "Employment of State and Federal Prisoners Prior to Incarceration, 2016"

The Bureau of Justice Statistics today released this new web report presenting data on employment of state and federal prisoners in the 30 days prior to arrest for the offense for which they were incarcerated. The findings are based on data collected in 2016, so are a bit dated. They are still interesting, and here are some of the listed "Key Findings."

• More than 6 in 10 state (61%) and federal (63%) prisoners were employed in the 30 days prior to arrest for the offense for which they were incarcerated, with about half (49% state and 54% federal) having a full-time job.

• About a quarter of persons in state (24%) and federal (25%) prison were unemployed and not looking for work in the 30 days prior to arrest.

• Females in state (47%) and federal (55%) prison were less likely to be employed than males in state (62%) and federal (64%) prison.

• Among state prisoners, whites and Hispanics (66% each) were more likely than blacks (54%) to be employed in the 30 days prior to arrest. Among persons sentenced to serve time in federal prison, whites (64%) were more likely than blacks (54%) and American Indians or Alaska Natives (52%) and less likely than Hispanics (71%) and Asians, Native Hawaiians, or other Pacific Islanders (77%) to be employed in the 30 days prior to arrest.

• Non-U.S. citizens in state (81%) and federal (78%) prison were more likely than U.S. citizens in state (60%) and federal (58%) prison to be employed in the 30 days prior to arrest.

• Almost two-thirds of persons in state prison being held for violent (63%) offenses were employed in the 30 days prior to arrest, compared to more than half of those being held for property (57%) or drug (53%) offenses.  Among persons in federal prison, 80% of those serving time for property, 67% for public-order, 60% for drug, and 58% for violent offenses were employed in the 30 days prior to arrest.

• Persons in state and federal prison (59% in each) with one or more prior incarcerations were less likely to be employed than those in state (69%) and federal (73%) prison with no prior incarcerations. More than half of state (54%) and federal (51%) prisoners whose age at first arrest was younger than 18 were employed in the 30 days prior to arrest, compared to more than two-thirds of those in state (69%) and federal (72%) prison whose age at first arrest was 18 or older. through face-to-face interviews with a national sample of state and federal prisoners.

Notable 5-4 SCOTUS split in ruling to limit civil penalties of Bank Secrecy Act

Certain types of Supreme Court cases involve issues that can make it relatively easy to predict how nearly every Supreme Court Justice will vote.  But so-called "white-collar" cases are often not the predictable type, and today's Supreme Court ruling in Bittner v. United States, No. 21-1195 (Feb. 28, 2023) (available here), is a notable example of this reality.  The case involved the proper accounting for civil penalties for non-willful violations of the Bank Secrecy Act, and the individual prevails against the federal government through this notable voting pattern: 

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C. JACKSON, J., joined that opinion in full, and ROBERTS, C. J., and ALITO and KAVANAUGH, JJ., joined except for Part II–C. BARRETT, J., filed a dissenting opinion, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.

Criminal justice fans should be a bit disappointed by the decision by three Justices to not join Part II-C of Justice Gorsuch's opinion. That section has these notable things to say about the rule of lenity:

Under the rule of lenity, this Court has long held, statutes imposing penalties are to be “construed strictly” against the government and in favor of individuals.  Commissioner v. Acker, 361 U.S. 87, 91 (1959)....

The rule of lenity is not shackled to the Internal Revenue Code or any other chapter of federal statutory law. Instead, as Acker acknowledged, “[t]he law is settled that penal statutes are to be construed strictly,” and an individual “is not to be subjected to a penalty unless the words of the statute plainly impose it.” 361 U. S., at 91 (internal quotation marks omitted and emphasis added).  Notably, too, Acker cited to and relied on cases applying this same principle to penalty provisions under a wide array of statutes, including the Communications Act of 1934, a bankruptcy law, and the National Banking Act.  See ibid....

[T]he rule exists in part to protect the Due Process Clause’s promise that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931).

If this section of the Bittner opinion carried the Court, I suspect this case might end up cited in more than a few criminal statutory interpretation cases. Maybe it still will be, but I suspect this ruling will end up of more interest to bankers than to criminal lawyers.

"Revocation at the Founding"

The title of this post is the title of this notable new paper authored by Jacob Schuman and now available via SSRN. Here is its abstract:

The Supreme Court is divided over the constitutional law of community supervision.  The justices disagree about the nature of liberty under supervision, the rights that apply when the government revokes supervision as punishment for violations, and the relationship between parole, probation, and supervised release.  These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4-1-4 on whether the right to a jury trial applies to revocation of supervised release.  Their dispute focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late 18th-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior.  Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the punishment for a crime, providing surveillance and reporting on the defendant’s behavior, and with violations punishable by imprisonment.  Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation of community supervision is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial.  This requirement only disappeared during the 19th century with the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment.  Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to probation or parole.  The law of revocation at the Founding preserves lost constitutional rights that deserve modern reconsideration and renewal.

Alabama officials ready to resume carrying out death sentences

Alabama had two botched lethal injection executions back in Fall 2022, which prompted its Governor to order a review of execution protocols and operation.  As detailed in this local article, headlined "Executions back on in Alabama after brief moratorium," Alabama has completed that review and will now try to get back to conducting executions:

Executions are back on in Alabama. According to an email from Gov. Kay Ivey’s communications director, Ivey received a letter Friday from Alabama Department of Corrections Commissioner John Hamm.  Hamm told the governor that the “top-to-bottom” review of the state’s execution process is complete.

“Upon receiving word from Commissioner Hamm, Governor Kay Ivey asked Attorney General Steve Marshall to ask the Supreme Court to issue an execution warrant for an eligible death row inmate whenever he deems appropriate,” said Ivey’s Communications Director Gina Maiola.  In a letter to Marshall, Ivey said, “it is time to resume our duty of carrying out lawful death sentences.”

On Friday afternoon, Marshall announced on social media that he filed a motion seeking the Alabama Supreme Court to set an execution date for James Barber.  Barber has been on death row since 2004 for the fatal beating of 75-year-old Dorothy Epps. Marshall added that his office “will be seeking death warrants for other murderers in short order.”

No details were provided as to what was learned during the internal review of the execution process, but Hamm wrote that the ADOC has “ordered and obtained new equipment” for future executions....

On Nov. 21, following two failed execution attempts, Ivey ordered a halt to all executions in Alabama.  “Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” a press release from that day stated. Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete.

The announcement of a halt to executions came just days after Kenneth Smith’s execution was called off just before midnight on Nov. 17.  The state called off the lethal injection after not being able to find veins to start the intravenous lines needed for the three-drug cocktail, which had to be done before midnight when the execution warrant expired. Another execution -- that of Alan Miller -- was called off in September for similar reasons.

The only change publicly known to Alabama’s execution protocol that was made during the three-month moratorium was a change made by the Alabama Supreme Court, ending the midnight deadline.  The state’s highest court authorized a rule change allowing for an execution warrant to be issued for a time frame rather than a single day.  The rule means the governor can choose the timing of an execution, according to the court’s order....

There are currently 166 inmates sitting on Alabama Death Row.

In his letter to Ivey announcing the end of the internal review, Hamm said, “After discussing the matter with my staff, I am confident that the Department is as prepared as possible to resume carrying out executions consistent with the mandates of the Constitution.  This is true in spite of the fact that death row inmates will continue seeking to evade their lawfully imposed death sentences.”

Some prior related posts:

• Alabama botches execution by failing to be able to complete it before expiration of death warrant 
• Alabama unable to complete execution because of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 
• Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended
• Could Alabama have an execution using nitrogen gas in 2023? 

SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve

As predicted in this post a couple days ago, sentencing fans now get to turn their attention to the Supreme Court for the next chapter of a fascinating FIRST STEP Act statutory interpretation issue.  Specifically, in this morning's SCOTUS order list, one of the two cases receiving certiorari grants was Pulsifer v. United States.  Here is the (lengthy) question presented as set forth in the defendant's cert petition:

The “safety valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria.  See 18 U.S.C. § 3553(f)(1)–(5).  Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1) (emphasis added).

The question presented is whether the “and” in 18 U.S.C. § 3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).

Notably, as regular readers know, the circuit split on this issue has deepened to include two more circuits on both sides of the debate.  Federal criminal justice practitioners and sentencing fans certainly will be following this case closely because its resolution will impact thousands of drug defendants sentenced in federal courts every year. But statutory construction gurus (and isn't that everyone) will also surely be interest in the debates this case can present about textualism, plain meaning and the rule of lenity. Stay tuned.

"Defining the Victim in the Law of Homicide"

The title of this post is the title of this new book chapter now available via SSRN authored by Stefanie Bock and Stuart P. Green. Here is its abstract:

This chapter focuses on five main issues related to the question of who or what can be a “victim” of homicide.  We argue as follows:

First, that homicide law should protect all living members of the human species regardless of their individual characteristics, abilities, achievements, or social status; though we recognize that, as technology and social norms continue to develop, this anthropocentric approach of homicide offences should potentially be supplemented by specialized norms providing for the adequate protection of animals and artificially intelligent beings. 

Second, that differentiations in grading or sentencing based on the age, gender, or occupation of the victim are unwarranted.

Third, that homicide law should be limited to cases in which the victim has been born at the time the death-causing injury was inflicted and that other cases, involving fetuses that are injured by hostile third parties and then die (whether in utero or after birth) should be prosecuted, if at all, under the separate rubric of “feticide.”

Fourth, that homicide law should be concerned exclusively with the killing of “others,” as opposed to “self” and that suicide therefore should not be a criminal offence; though we concede that where there is a risk that a person is being pressured to commit suicide or is doing so in error, it may be appropriate to prosecute for assistance to, or incitement of, suicide or indirect perpetration of homicide.

Fifth, that in determining whether a victim should be regarded as “already dead” and therefore beyond the scope of homicide law, we should apply a set of criteria that is consistent with that applied in determining the beginning of life (viz, the irreversible cessation of brain stem function or the irreversible cessation of circulatory and respiratory function).