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March 23, 2024

Intriguing discussion of judges' experiences with death penalty case

Law360 has this notable new piece about judicial experiences with the death penalty.  The lengthy piece defies ready summary, but here are some snippets:

Law360 recently spoke to multiple judges with experience in capital practice about what it means to handle death penalty cases, which are legally complex and emotionally taxing.  Whatever their beliefs on the morality, effectiveness and fairness of the death penalty, the judges said they must put those feelings aside while they're on the bench.

"I have to follow the law and I have to do my job," said Gary B. Randall, a longtime state judge in Nebraska who sentenced three defendants to death throughout his career before retiring in 2020.

But many judges say they aren't always prepared to handle cases involving capital punishment, and most of them learned to do it with little to no instruction.  "You have to learn on the job. You take the cases as they come and you do your best," Michael A. Wolff, the dean emeritus of Saint Louis University School of Law and a former chief justice of the Supreme Court of Missouri, told Law360.

Judges have the option to attend the National Judicial College, a nonprofit based at the University of Nevada, Reno that provides training for judges. In January, the college received a $1 million grant from the U.S. Department of Justice's Bureau of Justice Assistance to prepare state judges to handle death penalty cases.  According to a statement by the college, the grant will fund two years' worth of programming that includes quarterly webinars, a six-week online course, a bench practice book, a clearinghouse of model orders, and eight podcasts.

Each phase of a death penalty trial presents judges with unique challenges, from impaneling a jury to providing instructions before a verdict.  Judges must weed out jurors who don't want to be involved with a case involving a possible death sentence.  They must show extreme attention to detail when considering aggravating or mitigating factors, including severe mental illness or disability, that could make the difference in whether a defendant lands on death row.  And because capital cases are almost always high-profile, judges must also learn to manage the media.

In addition to the technical and legal issues, presiding over death penalty cases carries a heavy mental and emotional burden that judges can struggle to deal with.  It's something that the National Judicial College is also looking to address as part of its new programming lineup, which will offer on-site courses in four locations around the country on a broad range of topics, including "judicial wellness and vicarious trauma," according to a statement announcing the grant.

March 23, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

March 22, 2024

"The Delinquent Guidelines: Calling on the U.S. Sentencing Commission to Stop Counting Defendants’ Prior Offenses Committed Before Age 18"

The title of this post is the title of this new article authored by Ian Marcus Amelkin and Nicholas Pugliese now available via SSRN. Here is its abstract:

The United States Sentencing Guidelines’ recidivism provisions recommend harsher punishment for defendants with a prior criminal record. The Guidelines authorize an accounting not only of a federal defendant’s criminal record as an adult, but also as a child. Prior offenses committed before age 18 enhance sentences for thousands of people each year, but the practice has not been widely explored in the academic literature. A federal defendant’s juvenile record can lead to a higher Guidelines range through a variety of mechanisms: it can increase a defendant’s criminal history category, increase the crime’s total offense level, qualify the individual for “career offender” status, and deny relief from mandatory minimum sentences.

The use of pre-18 priors to enhance later federal sentences is both constitutionally suspect and misguided public policy. First, the practice stands in tension with Supreme Court precedent recognizing “that children are constitutionally different from adults for purposes of sentencing” in a way that makes them “less deserving of the most severe punishments.” Second, it is unequitable to people of color, who are more likely to be prosecuted for their pre-18 conduct than their white counterparts who commit similar acts. Third, it generates unequal treatment between similarly-situated defendants, a result at odds with the Guidelines’ “primary goal” of fostering uniformity in sentencing. Finally, it raises problems of notice given that pre-18 offenders are not told that their juvenile or youthful offender cases, which are not “convictions” under most states’ laws, can later be used against them to enhance a future federal sentence.

Now that the Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to stop counting pre-18 prior offenses.

March 22, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences | Permalink | Comments (5)

March 21, 2024

Highlighting how new resentencing laws could help law students consider becoming prosecutors

Hillary Blout has this intriguing new Slate commentary headlined "One Simple Criminal Justice Reform Could Solve the Prosecutor Shortage Crisis."  The headline is a bit off because the commentary discusses a reform that is not really that "simple" and that surely would not alone "solve" the need for more prosecutors.  Nevertheless, the commentary is worth a full read and makes a good pitch for a concept I certainly favor.  Here are excerpts: 

[P]rosecutor-initiated resentencing is a form of “second-look” legislation that enables prosecutors to revisit old cases and propose revised sentences to the court. PIR posits that if prosecutors can recommend a sentence on the front end, then it is only just that they be able to look back, years later, and determine whether that sentence is still appropriate....

New research shows that there is a rapidly growing prosecutor shortage in this country, with retirements and resignations outpacing new recruits. In Miami, for example, 33 percent of prosecutor positions are unfilled.  Although some may cheer the shrinking scope of law enforcement officers, the shortage crisis may ultimately have a negative impact on reform efforts: If you want more reform, you actually need more prosecutors processing cases.

During the PIR process, prosecutors meticulously review cases, considering factors such as a person’s life before prison, how they have spent their time in prison, and their plans to reenter society. In the past five years, I have worked to advance this area of law, leveraging my experience as a former prosecutor who recognizes the importance of looking back. Today, five states — California, Washington, Oregon, Illinois, and Minnesota — have enacted PIR, resulting in nearly 1,000 people resentenced and given a second chance at freedom.  The process is favored by prosecutors because it centers victim input, rehabilitation, and public safety, making it a balanced and holistic reform.

One way PIR laws are engaging future attorneys is through law school clinics, fellowships, and internships.  These programs educate students about the multifaceted role of prosecutors — beyond influencing decisions on charging, bail, evidence, and plea bargains.  Through law clinics specifically, students review real cases of currently incarcerated people, scrupulously analyzing details over months and presenting them to elected prosecutors, who ultimately decide whether their offices will bring the person home.

Such clinical experience can broaden law students’ understanding of prosecution and reveal prosecutors’ power to effect change on the front end and the back end.  At the core, this challenges the adversarial nature of our criminal justice system.  Innovations like PIR have the power to recruit a young, diverse talent pool who may otherwise choose a different path than prosecution.

I have seen several such attorneys shift career paths toward prosecution after interacting with PIR and similar innovations early on in their careers. It is clear that dynamic innovations such as PIR encourage people who might otherwise not see themselves in these roles — first-generation college students, people of color, and women — to consider prosecution as a means of ensuring justice.

March 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Intriguing spread in outcomes after Mississippi "Goon Squad" sentencings

I have not followed at all the ugly details involved in the so-called "Goon Squad" case from Mississippi, but a number of folks have flagged these cases for me this week as six police officers have been sentenced in federal court for abusing two men.  This new CBS News article provides some details under the headline "All 6 officers from Mississippi "Goon Squad" have been sentenced to prison for torturing 2 Black men."  Here are the basics:

Sentencing has concluded for the six white former officers in Mississippi who pleaded guilty to breaking into a home without a warrant and torturing two Black men.

High-ranking former deputy Brett McAlpin, 53, was the fifth former law enforcement officer sentenced this week by U.S. District Judge Tom Lee after pleading guilty to the attack, which involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth. The final member of the group, 32-year-old former Richland police officer Joshua Hartfield, was given a sentence of about 10 years on Thursday afternoon....

Lee has also sentenced four other former law enforcement officers who were involved in the attack.  Christian Dedmon was sentenced to 40 years in prison for his role in that attack and another incident in December 2022.  Hunter Elward was sentenced to over 20 years in prison.  Two other officers, Jeffrey Middleton and Daniel Opdyke, were sentenced to 17.5 years in prison each.

For each of the deputies sentenced so far, Lee has handed down prison terms near the top of the sentencing guidelines. Lee has previously called the officers' actions "egregious and despicable." The attack involved beatings, repeated uses of stun guns and assaults with a sex toy before one of the victims was shot in the mouth in a mock execution gone awry.

Once inside, the officers mocked the victims with racial slurs and shocked them with stun guns. They handcuffed them and poured milk, alcohol and chocolate syrup over their faces. Dedmon and Opdyke assaulted them with a sex toy. They forced them to strip naked and shower together to conceal the mess, and Hartfield guarded the bathroom door to make sure the men didn't escape.

After Elward shot Jenkins in the mouth, lacerating his tongue and breaking his jaw, they devised a coverup. McAlpin pressured Parker to go along with it, asking him to keep quiet in exchange for his freedom. The deputies agreed to plant drugs, and false charges stood against Jenkins and Parker for months. McAlpin and Middleton, the oldest men of the group, threatened to kill the other officers if they spoke up....

Attorneys for several of the deputies said their clients became ensnared in a culture of corruption that was not only permitted, but encouraged by leaders within the sheriff's office.

Based on this article, I surmise the sentencing outcomes (and apparently the guideline calculations) for this joint criminal activity varied considerably because the roles of each defendant varied considerably (and it seems the one defendant who got the very longest sentence was being sentenced for two incidents).   I would be eager to hear in the comments from anyone who has followed these cases more closely about more of the sentencing details.

March 21, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (8)

"Misdemeanor Enforcement Trends in New York City, 2016–2022"

The title of this post is the title of this notable and lengthy new research report released today by the Brennan Center.  The report's homepage includes links to data and fact sheets and all sort of other interesting materials.  And the report's introduction highlights the importance of greater data gathering in this space, and here are a few paragraphs therefrom (with footnotes omitted):

When people think of the American criminal justice system, they think of prisons, lengthy sentences, and parole hearings. They also think of serious offenses such as murder, aggravated assault, and rape. But the majority of cases are less serious offenses, as defined in statute, including drug possession, shoplifting, gambling, public drunkenness, disorderly conduct, vandalism, speeding, simple assault, and driving with a suspended license.  For many Americans, minor offenses — that is, misdemeanors, violations, and infractions — are the primary entry point into the criminal justice system. Entanglement in this part of the system is anything but minor....

Despite its broad reach, the minor offense system is difficult to quantify.  Government officials often do not collect data on infractions, civil violations, and other offenses they consider too trivial to count. The data that is collected — typically data on misdemeanors — is likely an undercount.  Even so, in the United States, misdemeanors amount to roughly three-quarters of all criminal cases filed each year. Every day, tens of thousands of people are ticketed, arrested, or arraigned for a misdemeanor, making it a central feature of the United States’ crisis of overcriminalization and an engine of its overreliance on incarceration.

In recent years, scholars and legal practitioners have brought attention to the need to rein in the sprawling minor offense system.  Misdemeanor adjudication has earned a reputation of assembly-line justice that lacks meaningful public defense or due process protections.  Some researchers have described it as a means to mark and manage disadvantaged groups deemed potential risks, whereby the “process is punishment.” In addition to the degradation of arrest, the imposed obligations and sanctions — frequent court appearances, the opportunity cost of lost wages, fines and fees, collateral consequences of a criminal record, and even jail detention — are frequently disproportionate to the severity of the crime....

As concern about the minor offense system has grown, efforts to shrink it have proliferated.  At the same time, since the start of the Covid-19 pandemic, many people in urban areas have perceived or experienced increased physical and social disorder in public spaces — petty theft, open drug use, public intoxication, people suffering mental health crises, homeless encampments, defacement of property, transit fare evasion, and public urination.  Petty and nuisance offenses, visible poverty, and public displays of disorderly and unpredictable behavior, coupled with high-profile media coverage of violent crimes and harassment, have renewed calls for stronger enforcement of lower-level offenses.

This report seeks to shed light on minor offense enforcement — what has changed in recent years, what has not, and what can be done to fix it.  Building on previous scholarship, it offers an updated national snapshot of the scale of misdemeanor cases filed between 2018 and 2021, highlighting changes over the Covid-19 pandemic.

March 21, 2024 in Data on sentencing, Detailed sentencing data, Offense Characteristics | Permalink | Comments (28)

March 20, 2024

Georgia completes its first execution in four years

As reported in this local article, "Georgia has executed its first prisoner in four years after the Supreme Court declined to intervene in the execution." Here is more:

Willie James Pye, 59, was convicted of murder and other crimes in the November 1993 killing of Alicia Lynn Yarbrough. He is scheduled to be put to death Wednesday. The planned lethal injection using the sedative pentobarbital happened at 11:03 p.m. at the state prison in Jackson.

In their request for clemency, Pye’s lawyers called the 1996 trial “a shocking relic of the past” and said the local public defender system had severe shortcomings in the 1990s.... “Had defense counsel not abdicated his role, the jurors would have learned that Mr. Pye is intellectually disabled and has an IQ of 68,” they said, citing the findings of the state’s expert.

Defendants who are intellectually disabled are ineligible for execution. Experts said that Pye meets the criteria, but that the burden of proof in Georgia was too high to reach, his lawyers argued....

But the Georgia Parole Board rejected those arguments after a closed-door meeting on Tuesday, and denied Pye’s bid for clemency. Pye’s lawyers filed late appeals to the U.S. Supreme Court urging it to intervene, but the justices declined.

March 20, 2024 in Death Penalty Reforms | Permalink | Comments (2)

"Reducing Barriers: A Guide to Obtaining Reasonable Accommodations for People with Disabilities on Supervision"

The title of this post is the title of this new report from the ACLU.  Here is a part of its introduction:

Scores of people in the United States are under probation, parole, and other forms of post-conviction “supervision.” As of 2021, nearly 4 million people in the U.S. — or 1 in every 69 — were on probation or parole. Supervision requires strict adherence to dozens of wide-ranging, vague, and conflicting rules — under penalty of sanctions, including incarceration — for any slip-up.  Thus, rather than an alternative to incarceration, supervision is often a tripwire into jail and prison. In 2017, nearly half of all prison admissions in the U.S. stemmed from supervision violations.

For people with disabilities, success under supervision is particularly challenging. Substantial numbers of people on supervision have disabilities, including mental health, intellectual/developmental (ID/D), sensory, and physical disabilities.  Such individuals regularly face heightened barriers to understanding and complying with supervision rules, effectively communicating with supervision authorities and other stakeholders, getting to required appointments, obtaining and maintaining employment, participating in required treatment programs, abstaining from drugs and alcohol, and adhering to electronic monitoring requirements.  Given other forms of structural discrimination, these barriers are particularly high for people with disabilities who are Black and Brown, LGBTQ, and/or experiencing homelessness or poverty.

People with disabilities thus regularly need changes to the way supervision is administered, such as appointment reminders, plain-language instructions, deaf interpreters, and alternative meeting times or locations....

Using federal disability law as its framework, this Guide discusses barriers to success for people with disabilities who are on supervision, and offers potential reasonable accommodations.  It is intended for defense attorneys representing people with disabilities who are facing, or actively serving, terms of supervision.  Using information in this Guide, attorneys can advocate for their clients to receive legally-mandated reasonable accommodations.  Attorneys may raise “reasonable accommodations” claims during legal proceedings, as well as through letters or informal discussions with supervision authorities.  Attorneys can bring such claims throughout the supervision process — when conditions are initially imposed, over the course of supervision, and during revocation proceedings.  Generally, accommodation needs should be raised as early as possible.

March 20, 2024 in Offender Characteristics, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

A little interesting coverage of an interesting SCOTUS argument on drug mule case experts

Though Supreme Court action regarding Texas immigration enforcement was the story grabbing most of the headlines yesterday, Tuesday also brought an interesting SCOTUS oral argument in Diaz v. USDiaz concerns whether government expert testimony about what drug mules may know is problematic under the Federal Rules of Evidence, and the (little) press about the argument highlights its intrigue:

From Bloomberg Law, "Justices Search for Sweet Spot on Testimony on Criminal Mind"

From NBC News, "Supreme Court wrestles with dispute over expert testimony in drug 'mule' case: Delilah Guadalupe Diaz says testimony that she likely knew of the presence of drugs in her vehicle when she was stopped at the border unlawfully undermined her defense."

From Reuters, "U.S. Supreme Court Divided Over ‘Blind Mule’ Border Drug Smuggling Case from California"

From the San Diego Union-Tribune, "Supreme Court considers criminal intent in arguments in San Diego 'blind mule' drug courier case"

March 20, 2024 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

March 19, 2024

Interesting discussion of Washington's 2020 law allowing prosecutor-initiated resentencing

The Seattle Times recently published this lengthy article providing an interesting overview of practices under a recent Washington law enabling prosecutors to seek resentencing when an original sentence "no longer advances the interests of justice."  This article is headlined "WA has no parole. Should prosecutors control who gets a second chance?".  The long article is worth reading in full, and here are excerpts:

Of Washington’s 39 elected county prosecutors, only about a third had sought resentencing under the 2020 law as of August, according to preliminary data gathered through public disclosure requests by a lawyer with the nonprofit Washington Defender Association.  Just three counties — King, Pierce and Clark — had five or more cases.

While that data is incomplete, an informal survey by Pierce County Prosecutor Mary Robnett’s office last November also suggests most of her peers have used the law sparingly or not at all.  Several prosecutors said sparingly is exactly how the law should be used, given the trauma that reopening cases would likely inflict on victims and their familiesthe seriousness of many charges involved and Washington’s firm sentencing guidelines.

But others say a broad opportunity for resentencing is needed given the state’s ending of parole in the early 1980s, its effect magnified by a tough-on-crime era that dramatically increased sentence lengths. About half of the roughly 13,000 people incarcerated in Washington prisons, as of December, are serving a sentence of more than 10 years.

With the limitations of SB 6164 apparent, some are questioning whether prosecutors should serve as gatekeepers. “I think it’s unfair that they’re the only players in the system who can say a person’s incarceration no longer serves the interest of justice,” said state Rep. Tarra Simmons.

March 19, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Encouraging FBI data now provides fuller picture of 2023 crime declines

Jeff Asher's substack has this notable new post summarizing the latest encouraging FBI crime data.  I recommend folks read the full posting, but here are some highlights:

The FBI released quarterly data covering all of 2023 yesterday preliminarily showing a widespread decline in crime nationally last year. There was a 13 percent decline in murder in 2023 relative to 2022, a 6 percent decline in reported violent crime, and a 4 percent decline in reported property crime based on data from just over 13,000 agencies that reported quarterly data through December. The declines were fairly uniform regardless of city or county size with the exception of rising auto thefts in bigger cities and counties. The decline in murder in 2023 is likely the largest one year decline ever recorded....

Murder

Caveats aside, a 13 percent decline in murder nationally — if that is what is shown in the final year-end figures — would be by far the largest one year decline in murder ever recorded (data available back to 1960). The previous largest decline in murder ever recorded was 9.1 percent in 1996, so even a 10 percent decline last year would be the largest one-year decline ever recorded both in terms of percent change and the number of fewer people murdered. A 10 percent decline in murder would mean a drop of more than 2,000 murder victims from one year to the next for the first time ever recorded and around 3,500 fewer murder victims nationally in 2023 than there were in each of 2020 and 2021.

A double-digit percent decline in murder in 2023 (let’s assume some regression in the final numbers and call it 11 percent) would put the 2023 US murder rate at roughly 17 percent below where it was in 2020, largely in line with where it was in 2016 and 2017, and still up around 9 percent above where it was in 2019 (the super preliminary data for 2024 is quite promising — more on that in a few weeks)....

Violent Crime

As I previously noted, calculating national crime rates is inexact and these figures can change slightly from year to year in unpredictable ways making precise comparisons to previous years challenging. A 5.7 percent decline in reported violent crime — as preliminarily suggested by the quarterly data — would be one of the larger annual declines in reported violent crime (it fell slightly faster a few years in the 1990s).

The decline in reported violent crime in the quarterly data suggests 2023 likely had the lowest reported violent crime rate nationally since the late 1960s, even leaving room for the size of the decline to shrink from the -5.7 percent currently shown.

Property Crime

Property crime had a smaller decline in the quarterly data with the fly in the ointment being a surge in auto thefts. This was especially evident in large cities and suburban counties and was fueled by social media showing how to steal Kia and Hyundai cars. The preliminary evidence on auto thefts for 2024, however, looks promising with a 24 percent YTD decline so far in Chicago, 39 percent in New Orleans, 41 percent in Philadelphia, and 10 percent in New York City (to name just a few cities).

March 19, 2024 in National and State Crime Data | Permalink | Comments (3)

March 18, 2024

"Judging Federal Defense Systems: Does The Type Of Counsel Representing Defendants Influence Outcomes In Federal District Court?"

Because today is National Public Defense Day, I figured this was a good time to flag this recent empirical article recently published in the Albany Law Review authored by Richard Hartley, Kelly Roberts Freeman and Bryce Peterson.  This complicated research has too many details to summmarize here, but this discussion from the conclusions especially caught my attention:

The findings from our models of these three important decisionmaking stages in federal criminal courts reveal that outcomes are indeed conditioned by the type of counsel representing the defendant.  But the specific effects depend on the outcome examined and the type of attorney being compared to federal public defenders.  For example, defendants who are represented by CJA appointed and private attorneys have better odds of being released ROR compared to defendants represented by federal public defenders.  Regarding the incarceration decision, however, both CJA appointed and private attorney clients have higher odds of being sent to prison than those represented by federal public defenders.  Similar results emerged for the sentence length decision.  Individuals represented by CJA appointed and private attorneys received significantly longer average sentences than those represented by federal public defenders.

These results support the idea that federal public defenders, as integrated members of the federal courtroom workgroup, may have more expertise in federal criminal case processing and familiarity with federal judges and Assistant United States Attorneys that enable them to be better positioned to obtain more favorable sentencing outcomes for their clients.  Their disadvantage compared to CJA appointed and especially private attorneys at the ROR decision, however, is interesting and may have to do with the types of clients or cases that the public defender offices represent.

March 18, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Federal judge, finding "intentional disregard" of constitutional rights at FCI-Dublin, orders appointment of special master

As detailed in this AP article, a "special master will be appointed to oversee a troubled federal women’s prison in California known for rampant sexual abuse against inmates, a judge ordered Friday, marking the first time the federal Bureau of Prisons has been subject to such oversight."  Here is more:

A 2021 Associated Press investigation that found a culture of abuse and cover-ups at the Federal Correctional Institution in Dublin brought increased scrutiny from Congress and the Bureau of Prisons. The low-security prison and its adjacent minimum-security satellite camp, located about 21 miles (34 kilometers) east of Oakland, have more than 600 inmates.

U.S. District Judge Yvonne Gonzalez Rogers called the prison “a dysfunctional mess” in her order. She did not name someone to be the special master but wrote that the court would appoint one quickly.... The order is part of a federal lawsuit filed in August by eight inmates and the advocacy group California Coalition for Women Prisoners. They allege that sexual abuse and exploitation has not stopped despite the prosecution of the former warden and several former officers....

Since 2021, at least eight FCI Dublin employees have been charged with sexually abusing inmates. Five have pleaded guilty. Two were convicted at trial. Another case is pending. Roughly 50 civil rights lawsuits against FCI Dublin employees are also ongoing.... Rogers wrote that “in making this extraordinary decision, the Court grounds itself in BOP’s repeated failure to ensure that the extraordinary history of this facility is never repeated.”

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.

Rogers made an unannounced visit to the prison Feb. 14, touring the facility and its satellite camp for nine hours. She spoke with at least 100 inmates, as well as staff. Many of the inmates told her that they did not fear sexual misconduct and said “no” when asked if it was still prevalent at the prison, Rogers wrote. Still, the plaintiffs in the August lawsuit have “presented incidents of sexual misconduct that occurred as recently as November of 2023.”

Judge Rogers 45-page order explaining her rulings on various orders in the case is available at this link. Here is how it starts:

The Federal Correctional Institute (“FCI”) Dublin is a dysfunctional mess.  The situation can no longer be tolerated. The facility is in dire need of immediate change. Given the record presented and the Court’s personal observations, further magnified by recent events, the Court finds the Bureau of Prison (“BOP”) has proceeded sluggishly with intentional disregard of the inmates’ constitutional rights despite being fully apprised of the situation for years.  The repeated installation of BOP leadership who fail to grasp and address the situation strains credulity. The Court is compelled to intercede.

For the reasons set forth below, the Court GRANTS plaintiffs’ motion for class certification and GRANTS IN PART AND DENIES IN PART the motion for preliminary injunction.  The Court issues these, and other anticipated Orders so that the constitutional rights of those imprisoned at the prison are no longer at significant risk.  The Court shall appoint a special master forthwith.  The Court will issue further Orders narrowly tailored to address the ongoing retaliation which has resulted from the convictions and sentencings of five prison officials, including the previous warden, for criminal sexual abuse and sexual contact.  The special master shall assist the Court to ensure compliance with these orders. 

March 18, 2024 in Prisons and prisoners, Who Sentences | Permalink | Comments (10)

"Repairing the 'Sea of Disorganized' Procedures for Determining Competency for Execution"

The title of this post is the title of this new article authored by Melanie Kalmanson and Bridget Maloney now available via SSRN. Here is its abstract:

When the government executes a person with severe mental illness, it is questionable whether the execution even serves any true retributive purpose due to the prisoner’s inability to rationally understand the reasoning for the execution.  Since the U.S. Supreme Court’s landmark decision in Ford v. Wainwright, scholars and courts have debated the appropriate process for determining a prisoner’s competency for execution — and what that even means.

Despite decades of discourse, recent cases — most significantly recent executions of persons who suffered from severe mental illness — illustrate that the processes used across the country for determining competency for execution are insufficient.  This article presents a multifaceted solution to how states can improve their processes for reviewing whether prisoners are competent for execution in an effort to ensure each execution comports with the requirements of the Eighth Amendment, as established in Ford and its progeny.  Practically, the article proposes recommendations for the process courts use to determine whether a prisoner is incompetent for execution — including imposing a mandatory stay to allow adequate time for the determination and updating the standard of incompetency.  Also, for the first time, this article contemplates regulating certain aspects of experts’ evaluations of prisoners who claim incompetency for execution — including requiring certain diagnostic imaging and standardizing the format of expert evaluations.

March 18, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

March 17, 2024

Some new questions about how new guidelines are retroactively impacting old federal sentences

Spring is often about new beginnings, and I find myself with a couple new questions about whether, when and how some new guidelines have been (or have not yet been) impacting some old federal sentences.  This post may be mostly for the guideline-inclined, but here goes:

Question 1: How is implementation of the USSC's recent criminal history amendments (Amendment 821) going?  The US Sentencing Commission back in August 2023 voted to make retroactive its two big criminal history amendments (which reduced the impact of "status points" and lowered sentences for certain "zero point"offenders) effective as of February 1, 2024.  USSC data suggested that nearly 20,000 current federal prisoners could be eligible for a sentence reduction, and now I am wondering how implementation is going.  I expect the USSC will release retroactivity data in the coming months and years, and I hope the (often challenging) process of retroactive guideline implementation is going smoothly.

Question 2:  Are the Commission's retroactive guidelines rules wrongfully excluding too many persons?  This question is prompted by this new article in the lastest issue of the Federal Sentencing Reporter authored by Steve Sady titled "Retroactive Guidelines Amendments Must Apply to Individuals Who Receive Below-Guidelines Sentences to Protect the Individualized Sentencing Required by Federal Sentencing Statutes."  As the title suggests, this article argues that the USSC's retroactivity rules are too narrow.  Here is the article's abstract:

Retroactive amendments to the federal sentencing guidelines, such as Amendment 821 to the calculation of criminal history, confer discretion on judges to reduce sentences when the Sentencing Commission determines that a guideline is overly harsh.  The statute on retroactive amendments, 18 U.S.C. § 3582(c)(2), authorizes modification of sentences “based on” the pre-amendment guidelines range.  From the time of the initial Commission until 2011, all defendants whose guidelines range calculations included the amended guideline were eligible for a comparably lower sentence, regardless of whether the sentence was below-, within-, or over the guidelines range, under U.S.S.G. § 1B1.10.  But in response to Booker, the Commission amended the policy statement in 2011 to bar from eligibility persons who received below-guidelines sentences, whether by downward variance or departure.

This change reflected the earlier Commission’s hostility to Booker variances under the advisory guidelines and conflicts with subsequent Supreme Court authority holding that downward variances are “based on” the guidelines range within the meaning of § 3582(c)(2).  By disqualifying those who had grounds for below-guidelines sentences, the Commission fails to follow statutory directives regarding individualized sentencing and avoidance of unwarranted disparities.  The exclusion of persons who established that downward departure or variance was warranted under the overly harsh pre-amendment guidelines is irrational and unfair, apparently based on an anachronistic attachment to the mandatory guidelines.  The Commission should amend its policy statement without delay to recognize eligibility for all defendants whose sentences are “based on” the guidelines range within the broad meaning of the statute.

March 17, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Might Pennsylvania's top court pioneer new constitutional checks on extreme felony murder sentences?

The question in the title of this post is prompted by a notable case recenly accepted for review by the Pennsylvania Supreme Court. This recent Bolts article by Victoria Law. This piece should be read in full (like all Bolts pieces), though the full headline covers the essentials: "Pennsylvania Reckons with Its Draconian Laws on Life Imprisonment: Over 1,000 Pennsylvanians are serving life without parole sentences for murders they didn’t themselves commit. The state supreme court agreed to review whether this is constitutional." Here are excerpts: (with links from the original):

In 2014, [Derek] Lee, then age 29, participated in a burglary in which his accomplice fatally shot the homeowner. Lee had not been involved in the killing and wasn’t even in the room at the time.  Nonetheless, two years later, he was convicted of felony murder, a type of charge that prosecutors can bring against someone who was involved in a crime that led to a death, even if the death was unintentional or the defendant didn’t participate in the killing.

In Pennsylvania, felony murder is classified as second-degree murder, and all convictions for second-degree murder trigger an automatic sentence of life without parole.  These abnormally draconian laws have made Pennsylvania home to near-record numbers of people sentenced to die in prison.  The state has the second-highest number of people serving life without parole, nearly 5,100 people; approximately one in five have been convicted of felony murder. ...

Life without parole has frequently been proposed as a more humane alternative to the death penalty, but advocates for reform call it “death by incarceration.” Ashley Nellis, senior researcher with the Sentencing Project, points out that LWOP sentences allow for virtually no second chance no matter a person’s transformation or the amount of time that has elapsed.  “The state is killing you, just slower — and for a wider range of offenses or participation in those offenses,” she said.

Nellis points out that the expansion of life without parole has far outpaced the decline in the death penalty. The number of people serving life without parole has jumped 66 percent since her organization began collecting data in 2003, reaching roughly 56,000 people as of a 2021 report by the organization. In Texas, for instance, the number of life without parole sentences has grown as the number of those sentenced to death has dropped. “When you’re looking at a death sentence, you have a capital attorney and [other] special rights given to you because of the seriousness of the sentence,” Nellis noted, but those protections are not available to those facing LWOP.

March 17, 2024 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (29)