Sentencing Law and Policy

"Solitary Confinement, Human Dignity, and the Eighth Amendment"

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

The harms of solitary confinement have been well-documented for centuries, yet the practice persists.  Despite recent efforts to reform the use of solitary confinement in certain states and localities, over 120,000 people are currently confined in solitary conditions in American prisons and jails.  In part, America’s addiction to solitary remains incurable because the doctrine governing whether a particular punishment practice is constitutional — that is, the doctrine interpreting the Eighth Amendment’s cruel and unusual punishments clause — fails to adequately recognize the harm caused by solitary.  To be sure, modern Eighth Amendment doctrine recognizes specific deprivations attendant to solitary (i.e., deprivations of human interaction, environmental stimulation, sleep, and outdoor exercise).  But by requiring an atomization of the harm of solitary into these singular deprivations, current Eighth Amendment doctrine fails to capture the breadth, depth, and significance of the harm caused to people experiencing these deprivations in combination.  In other words, modern Eighth Amendment doctrine’s focus on singular deprivations overlooks the harm to personhood that solitary inflicts.

This Article proffers human dignity as a novel conceptual vehicle for capturing and articulating solitary’s harm to personhood.  Starting from the Supreme Court’s edict that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” the Article employs a construct of dignity as integrity — or wholeness — of personhood.  Using dignity-as-integrity as a conceptual vehicle to encompass the physical, psychological, and social harms of solitary, the Article provides a doctrinally and theoretically coherent construct for understanding solitary’s deprivations and the harm those deprivations inflict on personhood.  By utilizing the dignity-as-integrity construct, the Article not only provides a more coherent frame to understand the harms of solitary confinement, it also helps better understand how conceptions of dignity shape Eighth Amendment doctrine.  For if the touchstone of the Eighth Amendment is truly “nothing less than the dignity of man,” an understanding of dignity that encompasses integrity of personhood is critical to providing meaningful parameters on the State’s power to punish.

South Carolina completes its first execution in 13 years

As reported in this AP piece, "South Carolina put inmate Freddie Owens to death Friday as the state restarted executions after an unintended 13-year pause because prison officials couldn’t get the drugs needed for lethal injections."  Here is more:

Owens was convicted of the 1997 killing of a Greenville convenience store clerk during a robbery.  While on trial, Owens killed a person incarcerated at a county jail. His confession to that attack was read to two different juries and a judge who all sentenced him to death....

Owens’ last-ditch appeals were repeatedly denied, including by a federal court Friday morning.  Owens also petitioned for a stay of execution from the U.S. Supreme Court.  South Carolina’s governor and corrections director swiftly filed a reply, stating the high court should reject Owens’ petition. The filing said nothing is exceptional about his case.  The high court denied the request shortly after the scheduled start time of the execution.

His last chance to avoid death was for Republican South Carolina Gov. Henry McMaster to commute his sentence to life in prison.  McMaster denied Owens’ request as well, stating that he had “carefully reviewed and thoughtfully considered” Owens’ application for clemency.

Owens may be the first of several people to die in the state’s death chamber at Broad River Correctional Institution. Five other people are out of appeals, and the South Carolina Supreme Court has cleared the way to hold an execution every five weeks.

South Carolina first tried to add the firing squad to restart executions after its supply of lethal injection drugs expired and no company was willing to publicly sell them more.  But the state had to pass a shield law keeping the drug supplier and much of the protocol for executions secret to be able to reopen the death chamber.

To carry out executions, the state switched from a three-drug method to a new protocol of using just the sedative pentobarbital.  The new process is similar to how the federal government kills people on death row, state prison officials said....

South Carolina has put 43 people to death since the death penalty was restarted in the U.S. in 1976. In the early 2000s, it was carrying out an average of three executions a year.  Only nine states have put more people to death.

Since the unintentional execution pause, South Carolina’s death row population has dwindled.  The state had 63 condemned people in early 2011.  It now has 31 after Owens’ death Friday.  About 20 people have been taken off death row and received different prison sentences after successful appeals.  Others have died of natural causes.

Fifth Circuit panel rejects Second Amendment challenge to federal felon in possession for defendant with prior car theft offense

The Fifth Circuit earlier this week added still more nuances to Second Amendment, felon-in-possession jurisprudence through a panel opinion in US v. Diaz, No. 23-50452 (5th Cir. Sept. 18, 2024) (available here). As noted in posts linked below, since the Supreme Court's Rahimi opinion, the Eighth Circuit has categorically rejected Second Amendment challenges to § 922(g)(1), which criminalizes all possession of all firearms by all those with a felony conviction, whereas the Sixth Circuit has upheld this law "as applied to dangerous people."   The Fifth Circuit has now upheld the law in a slightly different way, in this case as applied to a person convicted as a car thief based on the fact that there were Founding era laws "authorizing severe punishments for thievery and permanent disarmament in other cases." 

The full Diaz ruling is interesting, especially for its variation in method in applying Bruen and Rahimi to reject challenges to § 922(g)(1).  Practically speaking, in the run of criminal cases typically brought as felon-in-possession prosecutions, the different jurisprudential approaches adopted the different circuits may not matter all that much.  But this is still a big deal not only for anyone trying to figure out Second Amendment law to advise individuals with a criminal past who wish to own guns, but also for any number of others seeking clarity on the allowable rules and constitutional limits for firearm regulation.  And the fact that three circuits have taken three different approaches to this (frequently litigated) issue is yet another signal that this matter will likely have to be taken up by SCOTUS sooner rather than later.  

A few of many prior related posts:

• After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 
• Noting just some of the continuing litigation and uncertainty about gun rights after Rahimi 
• Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional 
• After Rahimi remand, Eighth Circuit panel again rejects Second Amendment challenge to federal felon in possession charge
• Sixth Circuit panel rules federal prohibition of felon gun possession is "constitutional on its face and as applied to dangerous people"
• New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law 

Notable example of clemency as another form of second-look sentencing in Arizona

Most modern discussions of what is often called "second-look" sentencing typically focus on the opportunities and processes for judges to reconsider on various grounds the duration of the prison sentences they previously imposed.  But there is, of course, a kind of second-look sentencing mechanism with a much longer history and a constitutional pedigree, namely executive clemency.  And this new local story from Arizona, headlined "Arizona man sentenced to 292 years for nonviolent crimes released from prison," provides a notable example of state clemency as a kind of second-look sentencing.  Here are some of the particulars:

After serving 10 years of a 292-year sentence for nonviolent offenses, an Arizona man has been released from prison. Atdom Patsalis, who was recently granted clemency and sentenced to home arrest, was greeted by family and supporters as he walked out of a community reentry building in Phoenix Thursday morning.

He said it felt surreal to finally be free. "I had absolutely accepted the fact that I would spend the rest of my life in prison," Patsalis said. "So this feels like a dream."

In 2015, Patsalis was convicted on 25 felony counts stemming from a string of residential burglaries in Bullhead City over three months in late 2013 and early 2014. He was in his early 20s at the time, homeless and struggling with drug addiction. The judge ordered all convictions to run consecutively, turning a series of lesser sentences into a life sentence.

Patsalis spent years appealing the convictions but was ultimately unsuccessful. With the help of the Arizona Justice Project, a Phoenix-based nonprofit that advocates for the innocent and wrongly convicted, Patsalis recently secured a shortening of his sentence through the clemency process.

After a final hearing earlier this month, the Arizona Board of Clemency agreed to release Patsalis to home arrest, subject to electronic monitoring....

Shawnee Ziegler, the Arizona Justice Project's director of operations, worked on Patsalis' case and credited the Arizona Board of Executive Clemency for looking at who Atdom had become, not just the person who committed the crimes. "Atdom's case was one of the worst cases of manifest injustice that we had seen in the 26-year history of our project," she said. "So being here today to watch him walk out is just a miracle."...

In four months, Patsalis will have an opportunity to go before the Clemency Board again to potentially be given general parole without any monitoring. Eventually, he could see an absolute discharge of his sentence.... "I don't think that the justice system is supposed to be about locking people up and taking people's hope away," Pastalis said. "It's about giving people the opportunity to make different choices and decisions. Giving them an opportunity to have a second chance."

Five executions scheduled in five different states over the next week

Over the first eight months of 2024, the United States has averaged less than two executions per month.  And two executions per month has been, very roughly, the average pace of executions in the US for the past decade.  For context and comparison, over the decade from 2005 to 2014, the US averaged nearly four executions per month; over the decade from 1995 to 2004, the US average approach almost six executions per month. 

But starting with a scheduled execution in South Carolina tomorrow, there are five executions scheduled over the next week with Missouri and Texas both having executions scheduled for Tuesday, September 24, and Oklahoma and Alabama both having executions scheduled for Thursday, September 26.  Based on a (too quick) scan of the DPIC database, I believe it has been nearly 15 years since the US has completed five executions within a week. 

It remains to be seen if all of these executions will be completed as scheduled.  As Chris Geidner discusses in this new substack post, some of the condemned are raising innocence claims and others are pressing various litigation avenues seeking to disrupt state execution plans.  If all these scheduled executions are completed, the US would have carried a total of exactly 1600 executions in the "modern" death penalty era (which is now nearly 50 years along).

Updated DEPC resource reviews "Drugs on the Ballot" 2024 (and in prior elections)

I am very pleased to be able to promote this updated resource page, "Drugs on the Ballot," authored by the great staff at the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  The page not only details the various marijuana reform ballot initiatives that voters will be considering in at least four states this November, but it also provides a set of maps and timelines of efforts to enact and implement state marijuana reforms over time, via both ballot measures and legislation.  Here is the introduction to the resource on the main page:

Ever since California voters legalized medical marijuana via a ballot initiative in 1996, many advocates in the U.S. have embraced direct democracy as a means to bypass reluctant legislatures and advance marijuana legalization and broader drug policy reforms.  There are now 24 states that have legalized adult-use marijuana, in addition to Washington D.C. On November 7, 2023, Ohio joined the list of 14 out of those 24 states that have legalized adult-use marijuana via the ballot box.  As of the summer 2024, marijuana is legal for medical use in 38 states.  Of those, 18 states passed medical marijuana at the ballot box, with the other 20 passing medical marijuana via the legislature.  The 2020 ballot saw Oregon decriminalize possession of small amounts of all drugs, though a 2024 law passed by Oregon’s legislature has mostly rolled back the measure.  Voters in 2022 approved a ballot initiative decriminalizing some psychedelic plants and fungi in Colorado.

This page details the drug-related ballot initiatives up for a vote in the November 2024 election and provides a timeline of efforts to enact and implement marijuana reforms via the ballot box since 1996.  It also provides information on the 2022 ballot initiatives, as well as the 2023 ballot initiatives in Oklahoma and Ohio, and the results of six Ohio localities that sought to decriminalize marijuana via local ordinances in November 2022.

"Conditions of Confinement: Do Harsher Carceral Environments Reduce Political Participation?"

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

How does the severity of incarceration-not just its occurrence-affect formal political participation?  I address this question with two natural experiments in Pennsylvania prisons and jails.  In Study 1, I leverage exogenous variation in the custody levels individuals are assigned to in Pennsylvania prisons based on sharp cutoffs in their custody classification scores.  In Study 2, I use booking and release data from eight Pennsylvania county jails to study the effect of being incarcerated during extreme heat without access to air conditioning.  I estimate precise null effects in Study 1 but show in Study 2 that incarceration during extreme heat causes substantial reductions in turnout and registration.  Contrary to past work, these demobilizing effects are concentrated among white individuals.  These results provide the first causal evidence of the "interpretive" policy feedback mechanism following punitive interactions and demonstrate the need for more research into how heterogeneity in citizen-state interactions differentially affects political outcomes.

Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

In this recent post, I flagged the upcoming sentencing of Caroline Ellison as an interesting high-profile case in which the federal sentencing guidelines call for an LWOP sentence, but the presentencing report recommended only "time served with three years of supervised release."   Yesterday the feds weighed in without a specific sentencing recommendation, but signaling her cooperation called for quite a sentencing reward.  This New York Times piece provides these details:

Caroline Ellison, a close colleague of the disgraced cryptocurrency mogul Sam Bankman-Fried, provided “extraordinary cooperation” to the government, federal prosecutors said on Tuesday, signaling that she should receive a lenient sentence for her role in the sweeping fraud that led to the collapse of the FTX crypto exchange.

Ms. Ellison, 29, who was also Mr. Bankman-Fried’s on-and-off girlfriend, pleaded guilty to fraud shortly after FTX collapsed in November 2022, alongside two other members of his inner circle. In a court filing this month, Ms. Ellison’s defense lawyers asked the judge overseeing the case, Lewis A. Kaplan, to sentence her to three years of supervised release, with no prison time.

In the government’s filing on Tuesday, prosecutors did not recommend a specific sentence to the judge but pointed out that her cooperation was “not only substantial, but exemplary.” Ms. Ellison was the star witness at Mr. Bankman-Fried’s trial last fall in federal court, where she spent nearly three days on the stand.  She described an incriminating spreadsheet that Mr. Bankman-Fried had used to mislead business partners and recounted the final days of FTX, holding back tears as she delivered some of the trial’s most emotional testimony.

Mr. Bankman-Fried was convicted of a sophisticated fraud that siphoned $8 billion from customer accounts to finance venture investments, political donations and other spending. He was sentenced to 25 years in prison in March.  Judge Kaplan is set to decide Ms. Ellison’s sentence in federal court in Manhattan on Sept. 24.

“In her many meetings with the government, Ellison approached her cooperation with remarkable candor, remorse and seriousness,” the prosecutors wrote in their 14-page memo to Judge Kaplan.  “And she persevered despite harsh media and public scrutiny and Bankman-Fried’s efforts to publicly weaponize her personal writings to discredit and intimidate her.”...

In their sentencing memo, Ms. Ellison’s lawyers detailed the often-stormy romantic relationship between their client and Mr. Bankman-Fried.  For years, they wrote, Ms. Ellison was effectively in his thrall, living in a social “bubble” centered on Mr. Bankman-Fried. At his suggestion, Ms. Ellison started taking Adderall so that she could work longer hours, the memo said. Mr. Bankman-Fried initially “suggested their liaison would develop into a full relationship,” the lawyers wrote.  “But after a few weeks, he would ‘ghost’ Caroline without explanation.”...

Since pleading guilty, Ms. Ellison has struggled to find paying work, according to her lawyers’ memo. She was turned down for a job with a charity that promoted math education for young women.  At one point, she secured a position helping low-income families prepare tax returns; a couple of weeks later, she was asked to leave after the employer realized who she was, according to a letter from her aunt that was filed with the sentencing memo.

Ms. Ellison has volunteered for more than 700 hours with community organizations, teaching adult literacy classes and fostering rescue dogs, the memo said.  She is working with her parents, who both teach at the Massachusetts Institute of Technology, on a math enrichment textbook for advanced high school students, and has written a novella set in Edwardian England.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served

US Sentencing Commission releases new report on "Cyber Technology in Federal Crime"

The US Sentencing Commission today released this notable new research report titled "Cyber Technology in Federal Crime."  This latest report is introduced on this USSC webpage, which also sets forth "Key Findings" along with some interesting graphics.  Here is the main text from this USSC page:

There has been little analysis on the individuals sentenced for a federal offense who used cyber technology for illegal purposes. In developing this report, the Commission collected information on individuals sentenced for offenses using cryptocurrency, the dark web, and hacking for fiscal years 2014 through 2021.  This report provides demographic and sentencing information for those individuals who used at least one of three types of cyber technology during their offenses — hacking, cryptocurrency, and the dark web — along with the types of offenses committed using these technologies.  The Commission analyzed this data to draw comparisons with all other federally sentenced individuals between fiscal years 2014 and 2021 who did not use these technologies....

Key Findings

Between 2014 and 2021, 2,590 sentenced individuals used at least one of three types of cyber technology — hacking, cryptocurrency, and the dark web — in connection with a federal offense, and the number increased substantially during the time studied from 2014 to 2021.  However, this number represented less than one percent of the total federal caseload....

Individuals who used cyber technology in their offense were more likely to be White, male, younger, and have completed at least some college than other sentenced individuals.

• Over two-thirds (68.6%) of individuals who used cyber technology in their offense were White, compared to 21.5 percent of other sentenced individuals.
• While 94.0 percent of those who used cyber technology were male, 86.8 percent of other sentenced individuals were male.
• Almost a quarter (22.4%) of individuals who used cyber technology had a college degree, compared to 5.8 percent of other sentenced individuals.

Individuals who used hacking, cryptocurrency, or the dark web in their offense had less criminal history than individuals who did not use cyber technology in the commission of a federal crime.  Less than half of other sentenced individuals were in Criminal History Category (CHC) I, the lowest category.

The most common offenses committed by individuals who used cyber technology in their offense were child pornography (28.9%), fraud (27.5%), drug trafficking (20.6%), and money laundering (8.9%).

Making the case that "Biden Needs to Work on His Clemency Legacy"

The quoted portion of the title of this post is the headline of this New York Times commentary authored by Rachel Barkow and Mark Osler.  I recommend the piece in full, and here are excerpts:

End-of-term clemency chaos has become an unfortunate presidential tradition, as presidents scramble after ignoring this crucial power for most of their time in office. That is how we ended up with Bill Clinton unloading 140 pardons on his last day in office, including one to the wholly undeserving Marc Rich, a fugitive financier; George W. Bush wrecking his relationship with Dick Cheney by refusing at the last minute to give a full pardon to Scooter Libby, Mr. Cheney’s chief of staff, for obstructing a federal investigation; and Donald Trump issuing pardons to undeserving cronies and celebrities.

Mr. Biden has granted 25 pardons and commuted the sentences of 131 other people, according to the most recent Justice Department data. That is a mere 1.4 percent of the petitions he has received, based on our analysis. No modern U.S. president, going back to Richard Nixon, has had a rate so low; though of course, Mr. Biden is still in office.

In addition, he has granted pardons by proclamation to people convicted of the possession and “simple use” of marijuana on federal lands and in the District of Columbia, and to about 2,000 veterans who were convicted of engaging in gay sex under a military code that outlawed the behavior for more than 60 years. (Pardons by proclamation to a class of people are not included in Justice Department data.)...

Hopefully, Mr. Biden will avoid the missteps made by some of his recent predecessors (particularly by Mr. Trump) and focus on the pending petitions filed by people who followed the rules and submitted them through official channels. If there is a petition at the White House with a positive recommendation, it should be granted without further deliberation. It has already run a gauntlet of review that included the U. S. attorney for the district where the petitioner was convicted, the U.S. Deputy Attorney General, the staff at the Domestic Policy Council and the White House counsel. Isn’t that review enough?

Recent related post from MLP&R:

• Making the case to Prez Biden with candidates for cannabis clemency

"County-level jail and state-level prison incarceration and cancer mortality in the United States"

The title of this post is the title of this intriguing new article from multiple authors just published in the Journal of the National Cancer Institute. Here is its abstract:

This study examined the association of county-level jail and state-level prison incarceration rates and cancer mortality rates in the United States.  Incarceration rates (1995-2018) were sourced from national data and categorized into quartiles.  County- and state-level mortality rates (2000-2019) with invasive cancer as the underlying cause of death were obtained from the National Vital Statistics System.  Compared with the first quartile (lowest incarceration rate), the second, third, and fourth quartiles (highest incarceration rate) of county-level jail incarceration rate were associated with 1.3%, 2.3%, and 3.9% higher county-level cancer mortality rates, respectively, in adjusted analyses.  Compared with the first quartile, the second, third, and fourth quartiles of state-level prison incarceration rate were associated with 1.7%, 2.5%, and 3.9% higher state-level cancer mortality rates, respectively.  Associations were more pronounced for liver and lung cancers.  Addressing adverse effects of mass incarceration may potentially improve cancer outcomes in affected communities.

Not-quite mid-week round up of stories and commentaries of note

I have a whole bunch of tabs open on my desktop with whole bunch of notable pieces that have caught my eye recently.  That means it is time for a round up, so here goes: 

From ABC News, "Texas lawmakers show bipartisan support to try to stop a man's execution"

From the AP, "Alaska High Court Lets Man Serving a 20-Year Sentence Remain in US House Race"

From Forbes, "Bureau Of Prisons’ Issues With First Step Act Lead To Food Strike"

From Governing, "Murder and Population Decline: A Troubling Urban Linkage"

From The Marshall Project, "Could People Facing the Death Penalty Lose the Right to Tell Juries Their Life Stories?"

From the New York Times, "Nixon Started the War on Drugs. Privately, He Said Pot Was ‘Not Particularly Dangerous.’"

From NPR, "From Clinton to Trump, how talk about crime has changed since a landmark bill"

From Politico, "California Democrats try to change the subject from shoplifting to drugs"

From Prison Journalism Project, "In Prison and Out, We Have Never Voted"

From Reason Foundation, "Today’s legislative addiction to criminalization feels like déjà vu"

Notable state court ruling finds violation of Iowa Constitution prosecuting gun possession by "nonviolent drug-offense felons"

In the wake of Bruen and Rahimi, I have primarily sought to follow federal Second Amendment litigation over various provisions of federal criminal gun dispossession laws.  But a kind reader has sent me a notable new state court ruling on this topic, Iowa v. Dickson, No. FECR020524 (Iowa D. Ct. Sept. 13, 2024).  The full ruling, which can be downloaded below, runs a full 31-pages and covers lots of state and federal law.  Here are a few excerpts which highlight why its merits a full read:

This Court ... generally finds [persuasive] the historical analysis set forth in a dissenting opinion by then-Judge Barrett in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).... [showing] that history does not support a conclusion that a legislature may disarm all felons — violent and nonviolent alike — merely on account of their status as felons.  But this Court is not convinced that the historical evidence discussed in Jackson and then-Judge Barrett's dissent in Kanter is really best read as establishing the principle that a legislature may, consistent with the right to keep and bear arms, prohibit the possession of arms by all of the members of any group which the legislature, constrained only by its own discretion, deems to be dangerous.

The Court's doubt about the conclusion is based in part on common sense.  If that broad reading of the principle reflected in the historical evidence is correct, then, for example, Congress presumably could pass a statute categorically prohibiting all persons who are not members of the military or sworn peace officers from keeping and bearing arms, and so long as that statute contained a statement declaring that the law arose from Congress's conclusion that persons other than members of the military and sworn peace officers are too dangerous to possess firearms, the prohibition would be constitutional under the Second Amendment.  It seems to this Court exceedingly unlikely that the right to keep and bear arms which the Second Amendment protects has ever been understood to permit firearms regulations of that kind, or to be consistent with a principle from which such a regulation could arise....

Accordingly, the Court is not persuaded that our General Assembly may, consistent with the right to keep and bear arms recognized in article 1, section 1A, disarm any category of individuals whom the General Assembly deems to be dangerous.  And the Court therefore concludes that the State has failed to carry its burden to "affirmatively prove that" § 724.26(1), as applied to nonviolent drug-offense felons like the Defendant here, "is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Bruen, 597 U.S. at 19....

The Defendant's prior felony convictions are for nonviolent drug distribution offenses.  Nothing about such offenses inherently raises a suspicion that a person who has committed such offenses is a threat to public safety.  And the State has produced no evidence suggesting that one convicted of such offenses is likely to be violent or dangerous.

Accordingly, the Court is unable to conclude that that § 724.26(1), to the extent that it disarms nonviolent felons like the Defendant, is narrowly tailored to serve a compelling government interest.  And as such, the Court concludes that § 724.26(1) is unconstitutional as applied to the Defendant, under article 1, section 1A of the Iowa Constitution.

Download Order granting motion to dismiss filed 9-13-24 Iowa v. Dickson 922g

Any recommendations for Amendments needing SCOTUS attention on this Constitution Day?

In this post on this day 15 years ago, I used the occasion of Constitution Day to encourage discussion of parts or provisions of the Constitution that seem under-appreciated.  That post and its comments were amusing to review for various reasons, and I figured today might call for a variation on that theme.  Specifically, with the Supreme Court's new Term just a few weeks away, I wonder if anyone might be eager to flag some Amendments that they wish SCOTUS would give some more attention.

As I have noted before, in recent X/Twitter postings, Orin Kerr has bemused and on-going hand-wringing about the fact that the Supreme Court has now completed "three straight Terms of deciding no Fourth Amendment cases."  To make him happy and for other good reasons, I would certainly like to see SCOTUS get back to giving attention to various aspects of the Fourth Amendment's application in our modern digital age.  And, of course, regular readers know that the Fifth and Sixth Amendment issues implicated by acquitted conduct sentencing are matters that I consider long overdue for more Supreme Court attention.  The Eighth Amendment got some attention in the Grants Pass case last Term, but in a quirky setting, and I can never get enough of the Justices' explanation of the limits of the Cruel and Unusual Punishments Clause.

In a post here a few months ago, I noted Kent Scheidegger's insightful lament about the "high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket."  In that post, I set out my theory that some of the conservative current Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.  The quick "evolution" from Bruen to Rahimi, as well as the continued churn in lower courts over the new originalist turn in Second Amendment jurisprudence, is a clear indication that forging new originalist jurisprudence in the criminal law arena creates considerable uncertainty (and fuels all sort of new litigation by convicted persons).  That also proved the (still on-going) story surrounding the originalist Sixth Amendment turns from Crawford and Blakely two decades ago.

With the long conference just weeks away, I hope there are all sorts of juicy constitutional criminal cases in the works for the coming SCOTUS Term.  Especially for a law professor, it is always "good for business" when various constitutional amendments get some more attention.  But perhaps folks might have thoughts in the comments about where they would like to see the Justices' focus more time and attention.

A couple older and newer prior related posts:

• Seeking input on the most under-appreciated part of the US Constitution
• Not quite original(ist) musings on SCOTUS showing little interest in constitutional criminal procedure cases 

Notable and high-profile example of second-look sentencing reduction in Colorado

Regular readers know I am a fan of second-look sentencing mechanisms, and I was thus intrigued to see this press report out of Colorado seeming to involve a notable sentence reduction in a notable high-profile state case.  Here are the details:

A judge in Adams County District Court on Friday wiped away the 5-year prison sentence being served by a former Aurora paramedic convicted in the death of Elijah McClain.  Judge Mark Warner vacated Peter Cichuniec’s prison term and converted the sentence to four years of probation, a move prosecutors previously said would “undermine the jury’s verdict” in the case.  “The court finds, really, there are unusual and extenuating circumstances and they are truly exceptional in this particular case,” Warner said during a brief hearing.

Cichuniec, 51, was convicted of criminally negligent homicide and assault by drugging in the 2019 killing of McClain, a 23-year-old Black man who died after Aurora police put him in a neck hold and a paramedic injected him with an overdose of the sedative ketamine.  Cichuniec was supervising the paramedic who injected the drug. He was the only one of the three people convicted on charges stemming from McClain’s death to be sent to prison.

Warner in March sentenced Cichuniec to five years in prison — the mandatory minimum prison time required under Colorado law for the assault conviction — but Cichuniec in June asked the judge to reduce the length of the sentence on the grounds that his case involves “unusual and exceptional” circumstances.

State law allowed Warner to reduce the mandatory minimum prison sentence after Cichuniec spent at least 119 days in prison and after the Colorado Department of Corrections assessed Cichuniec’s risk level and reported back to the judge, which both happened.

Prosecutors opposed Cichuniec’s request, writing in a court filing that lowering Cichuniec’s sentence would be against the interests of justice.  They noted that it is rare for mandatory prison sentences to be reduced under the exception in state law that Cichuniec claimed, with just 203 sentences modified under the statute between 1977 and June 2024....

As he issued his ruling, Warner commented on Cichuniec’s lack of prior criminal history, rehabilitative potential, good character and his prior “pro-social” history, as well as his overall role in the events that led to McClain’s death — Cichuniec was the highest-ranking paramedic at the scene, but was most directly responsible for “the logistics of the call and safety of others involved,” Warner said....

Warner noted as he ruled Friday that Cichuniec needed to make quick decisions that night.  “The court must also, and does today as well, look at the deterrence effect of the sentence,” Warner said.  “…For the most part, the court believes based on the issues that arose in this case, a deterrence effect has been really accomplished and there are unique circumstances to this case.”...

[Former paramedic Jeremy] Cooper and former Aurora police officer Randy Roedema were each convicted of criminally negligent homicide and sentenced to 14 months of work-release.  Two other Aurora police officers, Jason Rosenblatt and Nathan Woodyard, were acquitted by juries of all criminal charges in McClain’s death.

I do not know any of the particulars of Colorado sentencing law, but it seems the state has had a limited form of second-look sentencing in place for many decades. And yet the data reported in this article suggest that each year, on average, fewer than five sentences get modified pursuant to the applicable statute. These details are interesting in general, as is the application of the law in this case.

"Scrutinizing Sentencing"

The title of this post is the title of this notable new essay authored by Christopher Slobogin which was just posted to SSRN (and seems quite well timed right before we are to celebrate Constitution Day). Here is its abstract:

Physical liberty is the most fundamental of all constitutional rights.  Yet the Supreme Court has continued to employ rational basis review of criminal sentencing rather than ensure that prison sentences are narrowly tailored to meet a compelling state interest.  Properly scrutinized, mandatory sentencing regimes, extremely long sentences, and boilerplate parole and probation conditions would be unconstitutional.

US Sentencing Commission releases some more updated "Quick Facts" publications

Regular readers are now used to my praise for the US Sentencing Commission for continuing to release new sets of its terrific "Quick Facts" publications.  But ir remains the case that I cannot praise the USSC enough for producing these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  IHere are the newest sets of postings by the USSC on the "Quick Facts" page from last week:

Offender Groups

• NEW Federally Sentenced Women (September 2024)

Sex Offenses

• NEW Child Pornography (September 2024)

Other Offenses

• NEW Robbery (September 2024)
• NEW National Defense (September 2024)

Should Alabama's next scheduled nitrogen gas execution be video recorded?

The question in the title of this post is prompted by this AP piece discussing litigation over the nitrogen gas execution scheduled in less than two weeks in Alabama.  Here are excerpts: 

The state of Alabama asked a judge Friday to deny defense lawyers’ request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson. They are challenging the constitutionality of the method after Alabama carried out the nation’s first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution — that of Kenneth Eugene Smith — using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

The lethal injection of a Georgia man was recorded in 2011.  The Associated Press reported that video camera and a camera operator were in the execution chamber.  Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital.  A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request. “There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

"Plea Agreements and Suspending Disbelief"

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

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.