Sentencing Law and Policy

US Sentencing Commission releases data briefing on proposed youthful offender guideline amendments

On January 12, 2024, the US Sentencing Commission posted here what is described as "Public Data Briefing: 2024 Proposed Amendment Relating to Youthful Individuals." On this webpage, one can find a 20-minute video with USSC staff discussing lots of intricate criminal history and other sentencing data (which also can be found on these presentation slides).  Here is how the Commission contextualizes this presentation:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a two-part proposed amendment related to youthful individuals.  This briefing presents data on the impact of juvenile adjudications on criminal history scoring and sentencing outcomes to help inform public comment.

Supreme Court grants cert on Eighth Amendment issue relating to enforcement of public camping restrictions to homeless

As flagged in this recent post, SCOTUS Justices have been actively considering two especially notable Eighth Amendment cases, and this afternoon via this new order list the Court formally granted cert in City of Grants Pass, Oregon v. Johnson.  The cert petition in this case presented the Question Presented this way:

In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the person has “access to adequate temporary shelter.”  Id. at 617 & n.8.  In this case, the Ninth Circuit extended Martin to a classwide injunction prohibiting the City of Grants Pass from enforcing its public-camping ordinance even through civil citations.  That decision cemented a conflict with the California Supreme Court and the Eleventh Circuit, which have upheld similar ordinances, and entrenched a broader split on the application of the Eighth Amendment to purportedly involuntary conduct.  The Ninth Circuit nevertheless denied rehearing en banc by a 14-to-13 vote.

The question presented is: Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment?

Regardless of the issue, it is often a solid bet that the Supreme Court grants cert with an eye on reversal.  Predicting a reversal here seems especially wise given both the particulars of the ruling below and the apparent views of the current Justices on applying the Eighth Amendment.  But the terms of Eighth Amendment debate (and likely reversal) in this new case could prove both interesting and quite important, especially since the current Court has taken up so few Eighth Amendment rulings in recent years.

Feds officially announce decision to pursue death penalty for racist mass murderer in Buffalo

As reported in this AP article, "Federal prosecutors will seek the death penalty against a white supremacist who killed 10 Black people at a Buffalo supermarket, they said in a court filing Friday." Here is more about the decision and some context for a widely-watched case:

Payton Gendron, 20, is already serving a sentence of life in prison with no chance of parole after he pleaded guilty to state charges of murder and hate-motivated domestic terrorism in the 2022 attack. New York does not have capital punishment, but the Justice Department had the option of seeking the death penalty in a separate federal hate crimes case. Gendron had promised to plead guilty in that case if prosecutors agreed not to seek the death penalty.

In a notice announcing the decision to seek the death penalty, Trini Ross, the U.S. attorney for western New York, wrote that Gendron had selected the supermarket “in order to maximize the number of Black victims.” The notice cited a rage of factors for the decision, including the substantial planning leading to the shooting and the decision to target at least one victim who was “particularly vulnerable due to old age and infirmity.”

Relatives of the victims had expressed mixed views on whether they thought federal prosecutors should pursue the death penalty....

The Justice Department has made federal death penalty cases a rarity since the election of President Joe Biden, a Democrat who opposes capital punishment. This is the first time Attorney General Merrick Garland has authorized a new pursuit of the death penalty. Under his leadership, the Justice Department has permitted the continuation of two capital prosecutions and withdrawn from pursuing death in more than two dozen cases. Garland instituted a moratorium on federal executions in 2021 pending a review of procedures. Although the moratorium does not prevent prosecutors from seeking death sentences, the Justice Department has done so sparingly.

It successfully sought the death penalty for a antisemitic gunman who murdered 11 people at a Pittsburgh synagogue, which had been authorized as a death penalty case before Garland became attorney general. It also went ahead last year with an effort to get the death sentence against an Islamic extremist who killed eight people on a New York City bike path, though a lack of a unanimous jury meant that prosecution resulted in a life sentence. The Justice Department has declined to pursue the death penalty in other mass killings. It passed on seeking the execution of a gunman who killed 23 people at a Walmart in El Paso, Texas.

On May 14, 2022, Gendron attacked shoppers and workers with a semi-automatic rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles (320 kilometers) from his home in rural Conklin, New York. He chose the business for its location in a predominantly Black neighborhood and livestreamed the massacre from a camera attached to his tactical helmet.

The dead, who ranged in age from 32 to 86, included eight customers, the store security guard and a church deacon who drove shoppers to and from the store with their groceries. Three people were wounded but survived. The rifle Gendron fired was marked with racial slurs and phrases including “The Great Replacement,” a reference to a conspiracy theory that there’s a plot to diminish the influence of white people.

Prior related posts:

• Will feds consider a capital prosecution of the racist Buffalo mass murderer? 
• Does commitment to equal justice mean AG Garland must or must not seek the death penalty for racist Buffalo mass murderer? 
• Is it really so hard to make sense of AG Garland's federal capital punishment administration? 
• Buffalo mass shooter formally sentenced to LWOP in New York state court 
• Another accounting of the Biden DOJ's capital approach as it approaches a capital decision 

"Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules"

The title of this post is the title of this new paper now available via SSRN authored by Paul Robinson, Hugh Rennie and Clever Earth. Here is its abstract:

The U.S. appears to be increasingly politically divided between “red states” and “blue states,” to the point that many serious public voices on both sides are urging that the country seriously consider separating along a red-blue divide.  A range of stark public disagreements over criminal law issues have fed the succession movement.  Consider obvious examples such as abortion, decriminalization of marijuana, “stand your ground” statutes, the death penalty, and concealed weapon carry laws.  Are red and blue values so fundamentally different that we ought to recognize a reality in which there exists red codes and blue codes?

To answer that question, this study examined the criminal codes of the six largest deep red states and the six largest deep blue states — states in which a single political party has held the governorship and control of both legislative bodies for at least the past three elections.  It then identified 93 legal issues on which there appeared to be meaningful difference among the 12 states’ criminal law rules.  An analysis of the patterns of agreement and disagreement among the 12 states was striking.  Of the many thousands of issues that must be settled in drafting a criminal code, only a handful — that sliver of criminal law issues that became matters of public political debate, such as those noted above —  show a clear red-blue pattern of difference.

If not red-blue, then, what does explain the patterns of disagreement among the 12 states on the 93 criminal law issue?  What factors have greater influence on the formulation of criminal law rules than the red-blue divide?

The Article examines a range of possible influences, giving specific examples that illustrate the operation of each: state characteristics, such as population; state criminal justice characteristics, such as crime rates; model codes, such as the ALI’s Model Penal Code; national headline events, such as the attempted assassination of President Reagan; local headline cases that over time grow into national movements, such as Tracy Thurman and domestic violence; local headline cases that produced only a local state effect; the effect of legislation passed by a neighboring state; and legislation as a response to judicial interpretation or invalidation.

In other words, not only is the red-blue divide of little effect for the vast bulk of criminal law, but the factors that do have effect are numerous and varied.  The U.S. does not in fact have red codes and blue codes.  More importantly, the dynamics of criminal law formulation suggest that distinctive red codes and blue codes are never likely to exist because the formulation of most criminal law rules are the product of a complex collection of influences apart from red-blue.

Might a couple very different Eighth Amendment issues still get on the SCOTUS docket this Term?

Over at SCOTUSblog, John Elwood has the latest of his always informative "Relist Watch" posts available here with the title "OT2023’s last grants?".  Here is an accounting for that title:

The court will be taking a second look at nine cases.  In some ways, that is to be expected.  The court typically casts a broad net at the second January conference, because it’s usually the last conference at which cases can be granted and heard during the April argument session without expedited briefing.  So this week’s list likely includes the last of the grants to be decided this term.

And here is his accounting of two of the relisted cases dealing with very different Eighth Amendment issues (with links from the original):

The most high-profile case of the bunch is City of Grants Pass, Oregon v. Johnson, which has gained some media attention.  A divided panel of the U.S. Court of Appeals for the 9th Circuit held that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the Constitution for the city of Grants Pass, Oregon, to enforce its anti-camping ordinance against homeless people when the local homeless population outstrips the capacity of local homeless shelters.

Fifteen judges dissented from the 9th Circuit’s refusal to rehear the case en banc. Grants Pass now petitions for review, arguing that the 9th Circuit’s decision is not only egregiously wrong, but entrenches a circuit split. Underscoring the importance of the issue, 24 briefs have been filed by an array of amici, from law enforcementofficials to California Governor Gavin Newsom to the homeless advocates the LA Alliance for Human Rights....

The Supreme Court held in Atkins v. Virginia that it violates the 8th Amendment’s prohibition on cruel and unusual punishments to subject intellectually disabled offenders to capital punishment.  Then the court in Hall v. Florida and Moore v. Texas adopted a definition of intellectual disability that looked to (among other factors) “significantly subaverage intellectual functioning,” and in particular, IQ testing and whether “the lower end of [the offender’s] score range falls at or below 70.”

Joseph Clifton Smith was convicted and sentenced to death for murdering Durk Van Dam so he could steal his boots, tools, and $140.  In repeated IQ tests, Smith scored 78, 75, 74, 74, and 72.  On habeas review, the district court held that Smith was intellectually disabled, noting among other things that because his 72 score had a 3-point margin of error, his IQ could be as low as 69.  The U.S. Court of Appeals for the 11th Circuit affirmed.

In Hamm v. Smith, Alabama argues that the record is inadequate to prove intellectual disability because only the lowest of Smith’s five tests satisfies the threshold, and only then at the outer limit of the standard of error.  In addition, Alabama asks the justices to overrule Hall and Moore or at least clarify that those cases permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s margin of error.

Split Massachusetts top court rules "life without parole for emerging adults" violates state constitution

The Massachusetts Supreme Judicial Court today handed down a very legnthy ruling, reflecting a 4-to-3 vote among the justices, addressing a constitutional challenge to LWOP sentencing imposed on persons under 21 at the time of thier offense. The ruling of the majoirty in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), gets started this way:

When it comes to determining whether a punishment is constitutional under either the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, youth matters.  See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015).  In Miller, supra at 465, 476, the United States Supreme Court struck down mandatory life imprisonment without the possibility of parole for juveniles based in part on the "mitigating qualities of youth."  Approximately one and one-half years later, this court went further than Miller and concluded that sentencing a juvenile to life without parole in any circumstance would violate art. 26.  See Diatchenko I, supra at 669-670.

The defendant, Sheldon Mattis, was convicted of murder in the first degree, among other charges, and was sentenced to a mandatory term of life in prison without the possibility of parole, see G. L. c. 265, § 2 (a). Commonwealth v. Watt, 484 Mass. 742, 754-756 (2020).  On appeal, he challenged the constitutionality of his sentence as applied to him. He argued that because he was eighteen years old at the time of the murder, he is entitled to the same protection as juvenile offenders (i.e., those from fourteen to seventeen years of age) convicted of murder in the first degree, who receive a term of life with the possibility of parole. See G. L. c. 265, § 2 (b).

Here, we consider whether our holding in Diatchenko I should be extended to apply to emerging adults, that is, those who were eighteen, nineteen, and twenty years of age when they committed the crime.  Based on precedent and contemporary standards of decency in the Commonwealth and elsewhere, we conclude that the answer is yes.

There are a number of concurrences and dissents, and here are a few paragraphs paragraph from the start of the lead dissent authored by Justice Jowy:

I cannot say that society, through its elected officials, may not express its revulsion of the crime of murder in the first degree by imposing a punishment of life without the possibility of parole on adults without offending our Declaration of Rights.  Therefore, I respectfully dissent....

Our assessment under art. 26 is not whether the mandatory imposition of life without the possibility of parole for individuals from eighteen to twenty-one is, in our view, wise, prudent, or even best for society.  Our inquiry is limited to whether the punishment, chosen by the Legislature, is so disproportionate that it reaches the level of cruel or unusual. See Diatchenko I, 466 Mass. at 669.  Because, under our contemporary standards of decency and precedent, the mandatory imposition of life without the possibility of parole on adults who commit murder in the first degree when they are from eighteen to twenty-one is not "so disproportionate" that "it 'shocks the conscience and offends fundamental notions of human dignity,'" id., quoting Cepulonis, 384 Mass. at 497, the sentence does not violate art. 26's proscription against cruel or unusual punishment. It therefore must be upheld.

US Senate Judiciary Committee hearing set on "Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety"

I was pleased to discover today that the US Senate Judiciary Committee has announced it will have a full committee hearing next week on this topic: "Five Years of the First Step Act: Reimagining Rehabilitation and Protecting Public Safety."  This official site reports the hearing will be Wednesday, January 17th, 2024, at 10:00am EST, and that site also will stream the event live.

I presume we will find out about the invited witnesses next week, and I am looking forward to seeing both written and live testimony in the days ahead.  

Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm

As reported in this Reuters article, a "federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment." Here is more:

Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen....

Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. "Smith is not guaranteed a painless death," Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith "has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain."

Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

The full 48-page opinion is available at this link, and here is part of a key final section of the court's discussion:

So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason.  The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol.  Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and Glossip.  Bucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).

Considering all the evidence presented and the parties’ arguments, Smith has not met that burden.  His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884.  As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884.  Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50.  Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.

Smith is not guaranteed a painless death.  Bucklew, 139 S. Ct. at 1124.  On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework.  Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.

Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.

"Resetting the Record: The Facts on Hiring People with Criminal Histories"

The title of this post is the title of this short research brief authored by Shawn Bushway and published by RAND.  A couple of introductory paragraphs note the goals of the document:

Misperceptions can keep employers from hiring people who have criminal records. A growing body of RAND Corporation research counters some prevailing myths about risks of reoffending and provides hiring managers, policymakers, and citizens facts that support better-informed hiring decisions.

Criminal history background checks can provide hiring managers with important information about a job candidate. That said, employers risk making uninformed decisions that exclude good workers if they do not know which factors in the background check actually help predict an individual’s risk of reoffending.  The RAND Corporation’s Resetting the Record body of research presents evidence-based findings that could help employers make better, fact-driven decisions about hiring people with criminal records.  Exploring the research cited in this brief and sharing it with hiring managers may help create a triple win: companies get the employees they need, people with records get jobs, and society benefits.

Early reports of Confrontation Clause SCOTUS oral argument suggest a likely defendant win (and perhaps a big ruling)

I have not followed too closely the SCOTUS briefing in Smith v. Arizona, a case which concerns application of the Confrontation Clause of the Sixth Amendment when prosecutors seek to present at trial a report prepared by a different crime lab analyst than the one able to testify.  But a quick review of some of the press reports of today's oral argument suggest that the drug defendant seems likely to prevail in this case and that maybe a jurisprudentially significant ruling might be afoot.  Here are links and openning from the coverage:

From Law.com, "Justices Seem Skeptical of ‘Substitute Expert’ Used in Arizona Criminal Trial"

The U.S. Supreme Court appeared sympathetic Wednesday to Arizona criminal defendant Jason Smith who claimed the state’s use of a “substitute expert” violated his constitutional right to confront the witnesses against him.  The justices spent nearly two hours hearing Smith v. Arizona, which centers on the controversial practice of prosecutors calling substitute experts to testify about an earlier experts’ forensic analysis in a criminal case. 

From Law360, "Justices Toy With New Testimony Rule In Ariz. Expert Dispute"

The U.S. Supreme Court seemed to agree Wednesday that Arizona prosecutors violated a criminal defendant's Sixth Amendment right to confront witnesses testifying against him by presenting a substitute expert witness at trial, and instead centered most of its questions on whether the court should revise its rule for identifying testimonial statements.

From SCOTUSblog, "Court appears to favor Arizona man’s confrontation clause claim"

The Supreme Court on Wednesday appeared sympathetic to an Arizona man who contends that his constitutional rights were violated when an expert witness testified for the prosecution about drug analysis performed by another forensic scientist’s. Jason Smith alleges that the expert’s testimony contravened the Sixth Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him,” and a majority of the justices seemed inclined to agree with him.

The full oral argument transcript can be accessed here.

"Six U.S. Execution Methods and the Disastrous Quest for Humaneness"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

This chapter examines the history and current status of the United States' six execution methods: hanging, firing squad, electrocution, lethal gas, lethal injection, and nitrogen hypoxia.  While lethal injection remains the most common technique, inmates have continuously challenged injection's experimental and scientifically dubious procedures on the grounds they are inhumane and unconstitutional.  Indeed, this country's ongoing transition from one technique to another — then back again — abounds with legislative, judicial, and correctional evidence detailing why each method failed so appreciably to become more civilized than the method superseded.  This chapter concludes that every execution state's desire to ensure the death penalty's survival at any cost propels each execution method's celebrated introduction and disastrous perpetuation.

Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi's application to part of ACCA

I still expect the Pulsifer case about the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (the "and" versus "or") to prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.  Pulsifer was the first case argued to start the Term back in October (coverage here), and I am hopeful we might get an opinion in the coming weeks.  But while we wait, I just saw there is new reading material for SCOTUS sentencing fans, as the first set of merits briefs were filed last week in Erlinger v. US. 

Ehlinger, as noted when cert was granted in November, had this formal Question Presented by the federal government:  "Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were 'committed on occasions different from one another' before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1)."  In an earlier post, I flagged that the US Solicitor General, in response to a cert petition, had told SCOTUS that, in light of the  new "standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States," the feds believe that question has to be answered yes.

Becuase both the defendant and the feds now agree that aplication of a part of ACCA implicates Apprendi rights, the top-side merits briefs filed last week come from both the defendant and the US Solicitor General (and can be accessed here from the SCOTUS website).  Both briefs make for interesting reads, though I am going to be even more interested to see next month what the opposing brief from the appointed amicus has to say.

"Should a man convicted of murder help set D.C. sentencing guidelines?"

The title of this post is the headline of this new lengthy Washington Post article.  Here are excerpts:

The D.C. Council is set to decide Tuesday whether a man who spent 27 years behind bars for murder should serve on a city commission that drafts and modifies criminal sentencing guidelines — a nomination that is likely to spark heated debate.

Proponents argue that the appointment would give the panel a new perspective on the issue of incarceration, while the District’s top prosecutor warned that the nominee, Joel Castón, could push the commission in a soft-on-crime direction.

Castón, in a Monday evening interview, said Graves misrepresented his character and incorrectly assumed his perspective simply because he has been incarcerated....

Castón was released from prison last year, nearly three decades after he killed an 18-year-old man in a 1994 parking lot shooting. In 2021, while still a prisoner, he was elected to the D.C. Advisory Neighborhood Commission, becoming the first incarcerated person voted into public office in the city.

Council Chairman Phil Mendelson (D), who nominated Castón to the 12-member sentencing commission, said in an interview that the panel expressed interest in having a previously incarcerated person join the group. Linden Fry, the commission’s executive director, said members began discussing the addition of a person who had been incarcerated after they learned “how other sentencing commissions in the United States have added returned-citizen members.”...

But Matthew M. Graves, the U.S. attorney for the District, whose office prosecutes felony cases in the city, questioned Castón’s integrity in a letter to Mendelson.  Graves said the nominee would be likely to advocate for lesser sentencing ranges that would make it even harder for prosecutors to secure prison time for people convicted of firearm violations in the nation’s capital....

Minimum and maximum sentences for crimes are established by District law, and D.C. Superior Court judges impose prison time within those ranges. In deciding what a particular sentence should be, judges rely on a manual containing elaborate formulas for calculating an appropriate prison term based partly on a defendant’s criminal background and the specifics of the offense.  The resulting guidelines are advisory, and judges can depart from them — although data published by the commission last year showed that judges’ sentences hewed to the recommendations in nearly 97 percent of felony cases.  The sentencing commission governs the manual and any revisions to it.

This WaPo piece provides a lot more background and context for the notable sparring over this potential appointment to the District’s Sentencing Commission.  And here are some other local recent media pieces have recently discussed these matters:

• "DC Council's nomination for the sentencing commission faces pushback from US Attorney"
• "‘Stop this revolving door’: US attorney pushes back on DC Council’s sentencing commission nominee"

The recent five-page letter from US Attorney Michael Graves to the Members of the Council of the District of Columbia, which is dated January 2, 2024, is available at this link.

CCRC releases latest annual review, "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023"

Over at the Collaterial Consequence Resource Center, the CCRC staff have this new post noting the release of the latest annual report reviewing new state record relief laws.  This new publication, authored this year by Margaret Love and Nick Sibilla, is titled "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023."  Here is how the introductory post gets started:

At the beginning of each year since 2016, CCRC has issued a report on legislative enactments in the year just ended, describing and evaluating new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. This year’s report, “Advancing Second Chances: Clean Slate and Other Record Reforms in 2023,” is now available.

Our annual legislative reports have documented the steady progress of what we characterized three years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. Between 2018 and 2022, more than 500 new record reforms were enacted by all but two states.  

Last year we reported that the legislative momentum had slowed somewhat, and this year it has slowed still further.  Only a handful of states enacted significant new record reforms in 2023, most in the form of new record-clearing schemes. We attribute this slowdown in part to how much has been accomplished in legislatures across the country in the past seven years. For example, more than half the states now allow people with a felony conviction to vote unless they are actually incarcerated, a number that has doubled since 2016.  In addition, most states have also taken steps to limit public access to some criminal records, and to ensure that employers and licensing agencies do not discriminate against people with a criminal history. Many have extended diversionary dispositions well beyond the class of first offenders who were uniquely eligible for non-conviction relief a decade ago. 

In 2023, 20 states, the District of Columbia, and the federal government enacted 36 separate pieces of legislation and took executive action to restore rights and opportunities to people with an arrest or conviction history.

As in past years, more than half of the new laws in 2023 involved individual record clearing. Because of the significant progress on this front in recent years, many of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. Nonetheless, three states enacted major new automatic “clean slate” record schemes while others expanded eligibility for petition-based sealing. A handful of states continued to remove marijuana convictions from public view, and still other states trimmed barriers to relief by automating the application process, reducing waiting periods, or eliminating obstacles represented by outstanding court debt (fines and fees).

In addition, many of the new laws limited consideration of criminal records in economic settings, regulating employment and occupational licensing, or removing barriers to restoring a driver’s license.  The U.S. Small Business Administration took important steps toward eliminating restrictions in federally guaranteed loans.

Our sixth annual legislative report card (Reintegration Awards for 2023, reprinted below) recognizes the most productive legislatures in 2023, and notes that there are now only two states that have enacted no record reforms since our reporting began in 2016. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from Minnesota and New York to Louisiana and South Carolina.

A range of notable death penalty stories from a range of states to kick off 2024

A number of capital headlines/stories from a number of states caught my eye this morning.  Here's a quick round-up of some pieces from the start of the year:

From Alabama, "Alabama convicted killer waits to be executed this month by nitrogen gas"

From California, "Where Los Angeles County district attorney candidates stand on the death penalty"

From Florida, "Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences"

From Indiana, "The death penalty: Inside Indiana’s complicated history with capital punishment"

From Mississippi, "State still wants execution dates set for 2 men on Mississippi's death row"

From Missouri, "Missouri bill seeks to make rape, child sex trafficking punishable by death"

From Nebraska, "Nebraska Senator introduces bill to make nitrogen asphyxiation a legal method of execution"

From Utah, "Utah Judge Clears the Way for Use of the Firing Squad"

From West Virginia, "Senate President will push reinstatement of death penalty in WV"

From Wyoming, "The Last Time Wyoming Used the Death Penalty was in 1992"

Kodak Black struggling on supervised release after Prez Trump commuted his federal prison term

As detailed in this official statement, former Prez Trump on his last day in office commuted a lot of sentences, including shaving more than two years off the 46-month federal prison sentence given to Bill Kapri, more commonly known as Kodak Black.  But that act of clemency did not eliminate three years of supervised release for Black.  And this new press article, headlined "EXCLUSIVE: Kodak Black Could Serve Original Jail Sentence Donald Trump Commuted In 2020 [sic]," caught my eye today because it suggests he could be sent back to prison for some time.  And then I found this press article from a few weeks ago, headlined "Kodak Black won’t be home for Christmas. Judge says he is a ‘danger to the community’," reporting that Black is already back behind bars.  

First the backstory from the December 2023 Miami Herald piece (which uses the term "probation" to reference what I think is actually federal supervised release):

Rapper Kodak Black, busted yet again on state drug possession charges, won’t be home for Christmas.  Black, whose legal name is Bill Kapri, has been held since last week in a federal detention center in Miami after violating his probation on a gun-buying conviction dating back more than four years.

Federal Magistrate Judge Jacqueline Becerra said she would not release the 26-year-old Pompano Beach rapper to attend a drug treatment facility in Arizona after his lawyer Bradford Cohen openly acknowledged he had an addiction problem.  “If you’re buying drugs or using drugs, you’re a danger to the community,” Becerra said, leaving the final decision on whether Black should continue to be detained on the probation violation up to U.S. District Judge Jose Martinez. A federal prosecutor said Black should not be released for drug rehab out of state. “If we let him out today to go out to Arizona, we don’t know what’s going to happen,” Assistant U.S. Attorney Bruce Brown said in court.

In February, Broward Circuit Court Judge Barbara Duffy ordered Kodak to stay at a rehabilitation facility for 30 days after an hours-long hearing....

The probation violation stems from a 2019 case in which Kodak pleaded guilty to lying on a background check form when he purchased handguns at a Hialeah weapons store, federal court records show.  He was sentenced to 46 months in prison, though it was commuted by former President Donald Trump in January 2021, shortly before he left office.

The rapper, however, was placed on probation for three years, with the period ending in January 2024. Two weeks ago, Plantation police say they found the rapper asleep in a Bentley with drugs on him. He was charged with cocaine possession, evidence tampering, and improperly stopping, standing or parking.

And now the new "exclusive" update from AllHipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm.  The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET.  If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running.  When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle.  They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Cops then alleged Kodak Black’s mouth was “full of white powder.” Nearby was a white rock-like substance, which he initially claimed was Percocet. After a test of the substance, along with a white plastic bag in his pocket, it was confirmed the residue was actually cocaine.  Consequently, he was charged with cocaine possession, tampering with or fabricating physical evidence and improper stop, stand or park.

Kodak Black has a string of legal troubles since his rise to rap notoriety.  In July 2022, he was taken into custody on charges of possessing a controlled substance without a prescription and trafficking oxycodone. Officers pulled him over in Fort Lauderdale for tinted windows, which appeared darker than the legal limit.  A routine check revealed the vehicle’s registration and Kodak Black’s driving license were expired.  They also found nearly $75,000 in cash and a small clear bag containing 31 white tablets that were later identified as oxycodone.  He was ordered to drug rehab.

I flagged this story not only because Kodak Black is a celebrity with many high-profile supporters, but also because it serves as a good example of how even a presidential clemency grant can serve to provide very little protection against further criminal justice entanglements.

"Race, class, and criminal adjudication: Is the US criminal justice system as biased as is often assumed? A meta-analytic review"

The title of this piece is the title of this notable new article authored by Christopher Ferguson and Sven Smith that a helpful reader flagged for me. This article will be published in the journal Aggression and Violent Behavior, and here is its abstract:

It is widely reported that the US criminal justice system is systematically biased in regard to criminal adjudication based on race and class.  Specifically, there is concern that Black and Latino defendants as well as poorer defendants receive harsher sentences than Whites or Asians or wealthier defendants.  We tested this in a meta-analytic review of 51 studies including 120 effect sizes.  Several databases in psychology, criminal justice and medicine were searched for relevant articles.  Overall results suggested that neither class nor race biases for criminal adjudications for either violent or property crimes could be reliably detected.

For all crimes, effect sizes (in terms of r) for Black vs White comparisons were.054, for Latinos vs Whites, 0.057 and for Asians vs Whites −0.028. There was significant heterogeneity between studies, particularly for Asian vs White comparisons.  Effect sizes were smaller than our evidentiary threshold, indicating they are indistinguishable from statistical noise.  For drug crimes, evidentiary standards were met, although effect sizes were very small.  Better quality studies were less likely to produce results supportive of disparities. Studies with citation bias produced higher effect sizes than did studies without citation bias suggesting that researcher expectancy effects may be driving some outcomes in this field, resulting in an overestimation of true effects.  Taken together, these results do not support beliefs that the US criminal justice system is systemically biased at current. Negativity bias and the overinterpretation of statistically significant “noise” from large sample studies appear to have allowed the perception or bias to be maintained among scholars, despite a weak evidentiary base. Suggestions for improvement in this field are offered. Narratives of “systemic racism” as relates to the criminal justice system do not appear to be a constructive framework from which to understand this nuanced issue.