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January 26, 2024

US Sentencing Commission creates helpful information webpage on "First Step Act Earned Time Credits"

In addition to being active in advancing large and small guidelines amendments, the great new US Sentencing Commission has been doing a great new job providing helpful information to the federal criminal justice community (beyond its always terrific and important data publications and analyses).  Specifically, a few months ago, as noted here, the USSC created this terrific webpage collecting information about "problem-solving courts" that have developed through federal court systems.  

This week, the Commission unveiled another helpful new webpage, this one focused on "First Step Act Earned Time Credits."  The Commission's site includes an original infographic and links to other helpful information, and it is introduced this way:

The First Step Act of 2018 (Public Law 115–391) created a system in which some incarcerated individuals can earn time credits for participating in recidivism reduction programming or productive activities. Time credits can later be applied towards early release from secure custody. Eligibility criteria and rules for earning and applying time credits are governed by statute and implemented through BOP program statements and policies.

The Commission has published this page to assist in understanding the First Step Act and its current implementation, relying on primary source documents created by other government agencies. It is for informational purposes only and is not intended as legal analysis. The information does not necessarily represent the official position of the Commission and it should not be considered definitive or comprehensive.

January 26, 2024 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Will other states move to nitrogen after Alabama's pioneering success with new execution method?

The question in the title of this post is was my first question in the wake of last night's newa that Alabama carried out an historic first execution using nitrogen gas.  This New York Times article provides this account of the execution and what it could mean:

Alabama carried out the first American execution using nitrogen gas on Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.

The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time, and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, Ala., according to John Q. Hamm, the state prison system’s commissioner.  The U.S. Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents that the untested method could cause Mr. Smith to suffer.

Mr. Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.  State lawyers had previously claimed in court filings that an execution by nitrogen would ensure “unconsciousness in seconds.”  He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes.  Eventually, the journalists said, his breathing slowed until it was no longer apparent.

Mr. Hamm said it looked like Mr. Smith had tried to hold his breath as long as he could, and he downplayed Mr. Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”...

Lee Hedgepeth, a reporter in Alabama who witnessed the execution, said Mr. Smith’s head moved back and forth violently in the minutes after the execution began. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” Mr. Hedgepeth said.

Mr. Smith was one of three men convicted in the 1988 murder of Elizabeth Sennett, whose husband, a pastor, had recruited them to kill her.

It was the second time Alabama had tried to kill Mr. Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.  Mr. Smith’s lawyers and the state’s attorney general, Steve Marshall, said Thursday’s execution was the first that had been carried out by nitrogen anywhere in the world.

Other states have looked to Alabama’s experience as they face mounting problems obtaining lethal injection drugs because of pressure from medical groups, activists and lawyers.  Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia, as the method is known, if they cannot use lethal injection, though they have never tried to do so. “Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” Mr. Marshall said, suggesting that the availability of an “efficient” execution method could act as a deterrent to criminals.

The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications.  The court’s three liberal members disagreed with the majority’s decision.

In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Mr. Smith’s challenges.

The dissents from Justices Sotomayor and Kagan are available at this link.   In addition to "the world" watching, states have surely been watching this case closely.  That lower courts, and ultimately the Supreme Court, refused to interfere with this novel execution method likely will lead some some state legislators and prison officials to consider more seriously about nitrogen gas as a means of carrying out a death sentence.

At the same time, defendants facing execution by means of lethal injection might just prod states to adopt this new execution method.  In some states, defendants have contested lethal injection execution protocols by arguing that nitrogen gas would provide a more humane means to execute.  After this Alabama execution, such arguments may now be somewhat more forceful and may make some states even more likely to adopt nitrogen gas execution protocols.

January 26, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (45)

January 25, 2024

US Sentencing Commission schedules hearings for early March on proposed guideline amendments

Via email I learned this afternoon of the US Sentencing Commission announcement that it will have hearings in early March concerning the proposed guidelines amendments it promulgated last month (basics here). The announcement is here on the Commission's website, and reads as follows:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Wednesday, March 6 and Thursday, March 7, 2024 (time TBD). The public hearing will be held in the Mecham Conference Center of the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will also be live-streamed.

The purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines.

The email I received also  provide a useful reminder (and links) concerning the Commission's request for public comment on its guideline amendment proposals: "The Commission is currently seeking comment on this year's proposed amendments. The Public Comment Submission Portal will accept comment through February 22, 2024." 

January 25, 2024 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Federal judge sentences Peter Navarro to 4 months of imprisonment for contempt of Congress

As reported in this Fox News piece, "Peter Navarro, who served in the White House under former President Donald Trump, was sentenced Thursday for flouting a House Jan. 6 committee subpoena. U.S. District Judge Amit Mehta sentenced Navarro to four months in prison and ordered him to pay a fine of $9,500." Here is more:

That's two months shorter than the six prosecutors had sought, but Mehta drastically reduced the whopping $200,000 fine sought by the Justice Department.   

A former adviser to the president on trade and manufacturing policies, Navarro was convicted in September of two counts of contempt of Congress for defying a subpoena for documents and a deposition from the House select committee investigating the Jan. 6, 2021, riot at the U.S. Capitol. The subpoena required Navarro to appear and produce documents in February 2022, and sit for a deposition in March 2022, but Navarro refused to provide the materials and testify. As a private citizen, he was indicted on June 2, 2022....

Mehta on Thursday had gone through a tedious recounting of the sentencing guidelines and came to the conclusion that there is a "zero to six months range," of imprisonment in this case, as well as a fine range of $500 to $9,500. Sentencing guidelines are only a suggestion, and the judge could have sentenced Navarro to a longer sentence if he saw fit.

At the sentencing hearing, Navarro spoke in his own defense, saying he defied the subpoena because he believed in "good faith" that Trump had invoked executive privilege. "When I received that congressional subpoena, the second, I had an honest belief that the privilege had been invoked, and I was torn. Nobody in my position should be put in conflict between the legislative branch and the executive branch. Is that the lesson of this entire proceeding? Get a letter and a lawyer? I think in a way it is," Navarro said. "I am disappointed with a process where a jury convicted me, and I was unable to provide a defense, one of the most important elements of our justice system."

Navarro's defense attorney said the court of appeal will determine if executive privilege applies. The judge noted how in citing executive privilege, another White House adviser, Kellyanne Conway "had an (DOJ Office of Legal Counsel) OLC opinion she could rely on," but Navarro had no such opinion and didn't hire representation.

"I have a great deal of respect for your client and what he accomplished and that makes it more disappointing," Mehta said, also noting that Mark Meadows, who also faced a Jan. 6 committee subpoena, "produced documents, produced texts, he didn’t testify, but at least he did something." ...

Prosecutors had asked the judge to sentence Navarro to six months behind bars and impose a $200,000 fine. The Justice Department has previously noted that each count of contempt of Congress carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of up to $100,000....

Navarro was the second Trump aide to face contempt of Congress charges. Former White House adviser Steve Bannon was convicted of two counts and was sentenced to four months behind bars, though he has been free while appealing his conviction.

January 25, 2024 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (30)

Latest CCJ accounting covers "Crime Trends in U.S. Cities: Year-End 2023 Update"

The Council on Criminal Justice (CCJ) today released its latest accoutning of modern crime trends through this new report titled "Crime Trends in U.S. Cities: Year-End 2023 Update."   This CCJ press release about the report provides an useful short summary in its title: "Homicide, Gun Assaults, Most Other Violent Crimes Fall in U.S. Cities but Remain Above Pre-Pandemic Levels."   Here is more from the report's overview:

This study updates and supplements previous U.S. crime trends reports by the Council on Criminal Justice (CCJ) with data through December 2023. It examines monthly rates at which 12 offenses are reported to law enforcement in 38 American cities. The 38 cities are not necessarily representative of all cities in the United States. The data used to measure the crime trends are subject to revision by local jurisdictions and often differ somewhat from other published data.

The number of homicides in the 32 study cities providing homicide data was 10% lower — representing 515 fewer homicides — in 2023 than in 2022.

Looking at other violent offenses, there were 3% fewer reported aggravated assaults in 2023 than in 2022 and 7% fewer gun assaults in 11 reporting cities.  Reported carjacking incidents fell by 5% in 10 reporting cities but robberies and domestic violence incidents each rose 2%.

Among property crimes, reports of residential burglaries (-3%), nonresidential burglaries (-7%), and larcenies (-4%) all decreased in 2023 compared to 2022.  The number of drug offenses increased by 4% over the same period.

Motor vehicle theft, a crime that has been on the rise since the summer of 2020, continued its upward trajectory through 2023.  There were 29% more reported motor vehicle thefts in 2023 than in 2022.  Most violent offenses remained elevated in 2023 compared to 2019, the year prior to the outbreak of COVID and the widespread social unrest of 2020.  There were 18% more homicides in the study cities in 2023 than in 2019, and carjacking has spiked by 93% during that period.

Property crime trends have been more mixed.  There were fewer residential burglaries and larcenies and more nonresidential burglaries in 2023 than in 2019.  Motor vehicle thefts more than doubled (+105%) during this timeframe, while drug crimes fell by 27%. A dashboard of all crime rates and percent changes from 2019 to 2020, 2021, 2022, and 2023 is located at the end of this report.

Overall, crime rates are largely returning to pre-COVID levels as the nation distances itself from the height of the pandemic, but there are notable exceptions.  While decreases in homicide in the study cities (and many other cities) are promising, the progress is uneven and other sources of crime information, including household surveys of violent victimization, indicate higher rates and more pronounced shifts than reports to law enforcement agencies....

Even in cities where homicide has returned to pre-2020 levels, it is still intolerably high, with some 20,000 lives lost to intentional violence last year. Other trends, such as motor vehicle theft and carjacking, also merit significant attention.  Motor vehicle theft, for instance, is considered a “keystone” crime because stolen vehicles are often used in the commission of a robbery, drive-by shooting, or other violent offense.  For these reasons and to achieve long-term reductions, local, state, and federal governments, along with communities and industries, must invest in evidence-based crime prevention efforts.

January 25, 2024 in National and State Crime Data | Permalink | Comments (0)

"The Carceral Home"

The title of this post is the title of this recent paper just posted to SSRN and authored by Kate Weisburd. Here is its abstract:

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory.  In practice, a range of modern institutions that target private life — from public housing to child welfare — have turned the home into a routinely surveilled space.  Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.”  Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information.  While prisons have always been treated in the law as sites of punishment and diminished privacy, homes have not.  Yet in the carceral home people have little privacy in the place where they presumptively should have the most.  If progressive state interventions are to continue, some amount of home surveillance is surely inevitable.  But these trends raise a critical, underexplored question: When the home is carceral, what is, or should be, left of the home as a protected area?

This Article addresses that question.  Descriptively, it draws on a fifty-state analysis of court supervision rules to reveal the extent of targeted invasions of intimate life in the name of rehabilitation or an alternative to prison, rendering the home a highly surveilled space.  Normatively, it argues that allowing this state of affairs with no corresponding adaptations in legal doctrine is untenable.  With the home no longer sacred and no limiting principle to take its place, millions of people are left with no meaningful protection from government surveillance, even (or especially) in their home.  Left unchecked, the carceral home further entrenches the precise racial, economic, disability, and gender inequities that often inspire reform efforts. Instead, as this Article recommends, privacy and security must be recognized as positive entitlements separate from physical homes.

January 25, 2024 in Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (8)

January 24, 2024

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

January 24, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (28)

Rounding up an array of mid-week reads

A busy week and upcoming travel means I have lacked time to blog about a number of recent press pieces and commentary catching my eye.  So, as is my wont, I will try to cover a lot make up for limited time with a mid-week round-up post.  As always, I welcome comments on which of these stories might merit additional attention:

From Bloomberg Law, "Esformes Retrial Confronts Questions About Power of Commutation"

From Cal Matters, "As California closes prisons, the cost of locking someone up hits new record at $132,860"

From Filter Magazine, "Call It 'Overcrowding,' Not 'Understaffing,' and Fix It With Parole"

From GBH, "Five years after landmark criminal justice reform, prison racial disparities widen in Mass."

From The Nation, "Jails Are Closing Across America. Why?"

From Politico Magazine, "An ‘Execute-Them-At-Any-Cost Mentality’: The Supreme Court’s New, Bloodthirsty Era"

From the Sandusky Register, "Ohio unlikely to execute more prisoners anytime soon"

From Slate, "The Surprising Downside of a Criminal Justice Trend Reformers Might Think They Love"

From Variety, "Sundance: High-Profile Filmmakers Take Aim at U.S. Criminal ‘Justice’ System"

From the Wall Street Journal, "The Death Penalty Makes a Comeback"

January 24, 2024 in Recommended reading | Permalink | Comments (1)

Notable data on the huge number of LWOP sentences in Louisiana

Death penalty practices in general, and individual death sentences in particular, garner a lot of attention in the US.  I understand how a wide array of salient capital issues and cases keeps these matters "evergreen" in legal and political discourse, even though I have long worried about capital cases and concerns problematically crowding out other matters of broader consequence.  (Many years ago, I wrote up some of these worries with a Supreme Court focus in an article titled "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'."  Notably, for a host of reasons, the SCOTUS capital docket has shrunk considerably since I penned that piece in 2008.)

These concerns came to mind for me upon seeing this new Sentencing Project fact sheet titled "Life in Prison Without Parole in Louisiana."  The LWOP data in this document struck me in part because of how much attention was given in 2023 to possible clemency hearings for the 57 persons on Louisiana's death row after outgoing Gov John Bel Edwards said he opposed capital punishment (see some prior posts here and here.)  Gov Edwards got some attention, as detailed here, for commuting over 100 LWOP sentences, though seemingly the bulk of national advocacy and attention was given to a few dozen capital murders rather than the few thousand serving LWOP often for lesser crimes.  The start of the data brief documents the Pelican State's massive LWOP population:  

Louisiana’s share of people serving life without parole (LWOP) ranks highest per capita nationally and in the world. More than 4,000 Louisianans are serving sentences of life without the possibility of parole, amounting to 15% of this state’s prison population.  Between 1995 and 2020, the state added an average of 110 people each year to its total count of life-sentenced individuals.

A major driver behind the large share of people serving LWOP is the state’s automatic imposition of this sentence after conviction for second degree murder, making it one of only two states to impose LWOP in such instances.  Louisiana’s second degree murder statute includes felony murder and drug induced homicide offenses; these cases often include instances where the charged individual was not the direct perpetrator of the killing, nor intended to commit it, though they participated in an underlying felony related to the victim’s death.  It is important to note that felony murder laws such as that in Louisiana are not associated with a significant reduction in felonies nor have they lowered the number of felonies that become deadly.  These crime types are infrequently subject to LWOP sentences elsewhere, much less mandatorily imposed.  But in Louisiana, LWOP in response to second degree murder is both authorized and mandatory.

To provide a bit more perspective on these numbers, there are roughly twice as many persons serving LWOP sentences just in Louisiana than there are persons on death row throughout the United States.  (The Sentencing Project has calculated in prior reports that there are, roughly speaking, about 100 persons serving some form of a life sentence in the US for every person on death row.)

January 24, 2024 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

January 23, 2024

Unsurprisingly, en banc Fifth Circuit seeming chilly toward notion that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last summer a split Fifht Circuit panel ruled in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and this Bloomberg Law report on today's en banc oral argument certainly does not change my prediction:

Conservatives on the US Court of Appeals for the Fifth Circuit seemed skeptical of ruling for convicted felons seeking to declare a lifetime voting ban in Mississippi cruel and unusual punishment under the US Constitution.  Republican appointees on the New Orleans-based court at the en banc argument on Tuesday raised the implications of finding that permanent disenfranchisement of the right to vote is cruel and unusual, and how it could create issues in other contexts.

And some judges suggested that the issue is one for legislators, not the court.  Judge Kyle Duncan, a Donald Trump appointee, said that if the same arguments were presented to the Mississippi Legislature, they may “have a lot of purchase, but we are a court of law.”

Judge Edith Jones, a Ronald Reagan appointee who was the lone dissenting vote on the circuit panel whose ruling was reviewed en banc, asked about people convicted of crimes like murder and rape regaining the right to vote.

Judge James Ho, another Trump appointee, asked how far a ruling finding a deprivation of the right to vote is a cruel and unusual punishment could stretch into other issues. Ho suggested that a court ruling that found depriving someone of the right to vote falls under the Eighth Amendment could be raised in other contexts, like a felon’s right to possess a gun or challenges to prison sentences. “If it’s cruel and unusual to deprive felons of one right, it could apply to other rights,” Ho said.

The Mississippi Constitution states that certain felons can’t vote for the rest of their lives, unless two-thirds of each house of the Legislature reinstates the right on an individual basis. A trial court in Mississippi rejected most of the claims by felons, who had completed their sentences, in a pair of class action suits challenging the ban, but said one claim challenging the process to restore voting rights could go to trial. The divided three-judge Fifth Circuit panel ruled in August that the plaintiffs lacked standing to challenge the way voting rights are restored, but that permanently depriving felons of the right to vote was a “cruel and unusual punishment.”

Judge Stephen Higginson, appointed by Barack Obama, questioned Mississippi Solicitor General Scott Stewart about whether the provision is a qualification to vote, or a punishment. Stewart said “nothing on the face” of the provision itself “shows a punitive intent.” Stewart said that voting is “not just a right, it’s a responsibility.” He said that the Supreme Court has already found that states can disenfranchise felons, and that Mississippi had determined that people convicted of certain crimes should not be able to make governing decisions for other citizens....

The en banc Fifth Circuit in 2022 rejected another challenge to the Mississippi voting ban, that alleged it violated the U.S. Constitution’s Equal Protection Clause.

Prior related posts:

January 23, 2024 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Another FIRST STEP Act sentence reduction for last of "Newburgh Four" defendants involved in "FBI-orchestrated conspiracy"

In this post six months ago, I flagged US District Judge Colleen McMahon's notable opinion in US v. Williams, in which she explained why she was reducing the sentences of three of the "Newburgh Four" defendants using her authority under the FIRST STEP Act's revisions to 18 USC § 3582(c)(1)(A).  The other shoe dropped late last week in this matter, as reported in this AP piece headlined "Judge orders release of ‘Newburgh Four’ defendant and blasts FBI’s role in terror sting."  Here are excerpts from the press account:

U.S. District Judge Colleen McMahon on Friday granted James Cromitie, 58, compassionate release from prison six months after she ordered the release of his three co-defendants, known as the Newburgh Four, for similar reasons. The four men from the small river city 60 miles (97 kilometers) north of New York City were convicted of terrorism charges in 2010.

Cromitie has served 15 years of his 25-year minimum sentence. The New York-based judge ordered Cromitie’s sentence to be reduced to time served plus 90 days.

Prosecutors in the high-profile case said the Newburgh defendants spent months scouting targets and securing what they thought were explosives and a surface-to-air missile, aiming to shoot down planes at the Air National Guard base in Newburgh and blow up synagogues in the Bronx. They were arrested after allegedly planting “bombs” that were packed with inert explosives supplied by the FBI.

Critics have accused federal agents of entrapping a group of men who were down on their luck after doing prison time.

In a scathing ruling, McMahon wrote that the FBI invented the conspiracy and identified the targets. Cromitie and his co-defendants, she wrote, “would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.” “The notion that Cromitie was selected as a ‘leader’ by the co-defendants is inconceivable, given his well-documented buffoonery and ineptitude,” she wrote.

Cromitie was bought into the phony plot by the federal informant Shaheed Hussain, whose work has been criticized for years by civil liberties groups. McMahon called him “most unsavory” and a “villain” sent by the government to “troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.”

Judge McMahon's full opinion in US v. Cromitie, 09 CR 558-01 (CM) (SDNY Jan. 19, 2024), is available at this link. Here is just one notable passage in an opinion filled with notable passages:

Nothing could be more certain than the fact that Cromitie and his codefendants would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.  See United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).  Then Chief Judge Jacobs, who would have overturned Cromitie's (and only Cromitie's) conviction on entrapment grounds, said it best: "It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do.  The government agent supplied a design and gave it form, so that the agent rather than the defendant inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets. He had to, because Cromitie was comically incompetent, possibly the last candidate one would pick as the agent of a conspiracy." Id. at 230.

Had the Government not contrived its elaborate sting operation, it is highly likely that Cromitie would have lived out his life in Newburgh, quite possibly cycling in and out of jail for a string of petty offenses, but never committing a crime remotely like the ones for which he has been sitting in a federal penitentiary for 15 years.  My misgivings about how the Government ensnared and then arranged things so that these men could be charged with crimes that carried a 25 year mandatory minimum factored significantly in my decision not to sentence them to more than the mandatory minimum (their Guideline, predictably, was life).  I was fully aware, at the time the sentence was imposed, that it did not accord with the so-called "parsimony clause" in 18 U.S.C. § 3553(a); as noted above, I said so.

Prior related post:

January 23, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

January 22, 2024

"Policing Substance Use: Chicago's Treatment Program for Narcotics Arrests"

The title of this post is the title of this recent paper I just came across on SSRN authored by Ashna Arora and Panka Bencsik. Here is its abstract:

In the United States, law enforcement officers serve as first responders to most health crises, allowing them to connect many more individuals to treatment services than other government actors, a fact that has come into increasing focus due to the opioid epidemic.  In response, police departments across the country have begun to divert individuals that possess narcotics away from arrest and towards treatment and recovery.  Evidence on whether these programs are able to engender meaningful change — initially by increasing participation in substance use treatment, and eventually by reducing the likelihood of continued drug use and criminal justice involvement — remains limited.

This paper aims to shed light on the potential of these programs by exploiting the eligibility criteria for and staggered rollout of narcotics arrest diversion in Chicago between 2018 and 2020 using a triple difference framework.  We find that the program reaches individuals with medically diagnosed substance use disorders, increases connections with substance use treatment, and reduces subsequent arrests.  We conclude that Chicago’s drug diversion program is able to simultaneously reduce the reach of the criminal justice system, expand the number of individuals with substance use disorders connected with treatment, and improve public safety.

January 22, 2024 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Supreme Court grants cert to take another look at capital case of Richard Glossip

Almost exactly nine years ago, on January 23, 2015 to be precise, the Supreme Court granted certiorari in Glossip v. Gross to consider whether Oklahoma's execution methods complied with the Eighth Amendment.  The Supreme Court's ruling for the state in the 2015 version of Glossip did not fully resolve execution jurisprudence, and it also did not lead to Oklahoma executing Richard Glossip.  Nearly a decade later, as detailed in this new SCOTUS order list, the Supreme Court is going to take a look at the substance of Glossip's capital conviction and sentence in a case now titled Glossip v. Oklahoma.

The Glossip cert petition this time around presented this set of questions:

1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

Intriguingly, the SCOTUS cert grant today adds a question (and suggests it could be down one Justice for the case):

In addition to the questions presented, the parties are directed to brief and argue the following question: Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. Justice Gorsuch took no part in the consideration or decision of this motion and this petition.

January 22, 2024 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

January 21, 2024

Is Alabama going to be able to go forward with an historic execution this week?

Alabama has an execution scheduled for January 25 that would be historic in two ways: (1) it would be the first execution using nitrogen gas, and (2) it would be the first modern execution of a conemned prisoner whose execution failed in a previous attempt.  Though Kenneth Eugene Smith is continuing to litigate in a effort to preclude his unique execution, I am (not-too-confidently) expecting his execution will go forward.  Here is an abridged round-up of press pieces about this scheduled execution:

From the AP, "Alabama plans to carry out first nitrogen gas execution. How will it work and what are the risks?"

From CBS News, "Alabama readies never-before-used execution method that some veterinarians won't even use for pets"

From Courthouse News Service, "Federal panel hears appeal of pending nitrogen hypoxia execution"

From Fox News, "Minister attending nitrogen gas execution of Alabama prisoner asks state for extra safety precautions"

From The Marshall Project, "Vomiting, Seizures, Stroke: What Could Happen in the First Nitrogen Execution in the U.S."

From Popular Mechanics, "This Man Survived One Execution. Now, Alabama Will Try to Kill Him Again—With Nitrogen Gas."

January 21, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

"Heterogeneous Impacts of Sentencing Decisions"

The title of this post is the title of this empirical paper authored by Andrew Jordan, Ezra Karger and Derek Neal now available as a National Bureau of Economic Research (NEBR) Working Paper.  Here is the paper's abstract:

We examine 70,581 felony court cases filed in Chicago, IL, from 1990–2007.  We exploit case randomization to assess the impact of judge assignment and sentencing decisions on the arrival of new charges.  We find that, in marginal cases, incarceration creates large and lasting reductions in recidivism among first offenders.  Yet, among marginal repeat offenders, incarceration creates only short-run incapacitation effects and no lasting reductions in the incidence of new felony charges.  These treatment-impact differences inform ongoing legal debates concerning the merits of sentencing rules that recommend leniency for first offenders while encouraging or mandating incarceration sentences for many repeat offenders.  We show that methods that fail to estimate separate outcome equations for first versus repeat offenders or fail to model judge-specific sentencing tendencies separately for cases involving first versus repeat offenders produce misleading results for first offenders.

January 21, 2024 in Data on sentencing, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)

Detailing what follows historic Massachusetts ruling on life sentences for young adults

I noted here the ruling from earlier this month by the Massachusetts Supreme Judicial Court, Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), holding that article 26 of the Massachusetts Declaration of Rights precluded imposition of a life without parole sentence on any offender under age 21.  It seems that this ruling could impact hundreds of prisoners, and the aftermath of Mattis is discussed in this lengthy press piece headlined "What happens now that Massachusetts has banned life without parole for emerging adults?".  Here are excerpts:

Prison advocates, attorneys and state officials are gearing up to help the estimated 200 prisoners now eligible for parole since a landmark decision last week by the Massachusetts Supreme Judicial Court raised the minimum age to 21 before people could be sentenced to life without parole.

The Committee for Public Counsel Services, the state’s public defender agency, says it is working with the Parole Board to identify prisoners who are newly eligible to be considered for release as the agency prepares at least 40 attorneys to represent them.

Attorney Ruth Greenberg, who represented the defendant Sheldon Mattis in the first-in-the-nation case, says the decision provides solace to prisoners who committed crimes between the age of 18 and 20 who were anticipating spending their entire lives behind bars. “People who were entirely without hope, who have reformed themselves, now have an opportunity to return to the world to show the Parole Board what they've done and who they really are, and that they are better than they were on their worst day,” Greenberg told GBH News....

Officials from the Committee for Public Counsel Services say prisoners impacted by the decision fall into two categories: people who are immediately eligible for parole, because they’ve already served enough time; and those who now can hope for the possibility of release sometime in the future.

If the person's offense occurred before July 25, 2014, their sentence will now be life with the possibility of parole after 15 years. If their offense occurred on or after that date, their sentence will be life with the possibility of parole after between 20 and 30 years. The decision requires Superior Court judges to resentence each prisoner.

Mara Voukydis, director of the Parole Advocacy Unit at CPCS, said the agency’s role is to make sure that the people impacted by the decision have a trained attorney to represent them. Voukydis says she’s been in touch with the Department of Correction and the Parole Board for months in anticipation of the decision. The Parole Board is tasked with calculating people’s parole eligibility dates. Voukydis says this is “complicated work,” because some people have consecutive sentences.

At that point, the public defender agency will assign attorneys based on people’s parole eligibility dates. Lisa Newman-Polk, an attorney who expects to represent some of these new clients, says older prisoners will likely get priority. “They [CPCS] want to get the oldest and longest-serving prisoners assigned counsel first and then kind of work downwards towards the youngest people,” she said....

Advocates say the Parole Board has experience in gearing up, following the 2013 decision that first prohibited life without parole to juvenile defenders. “I do think that anyone that wants a hearing will have a hearing as promptly as possible,” she said. "I'm just not clear what that actually means.”...

Tim McGuirk, spokesperson for the Parole Board, said board members are focused on public safety. “The Massachusetts Parole Board is currently reviewing the decision and is committed to fulfilling its responsibilities under the law,” he said. “Parole is granted when the Board determines that an individual can serve the remainder of their sentence in the community without violating the law, and that their release is not incompatible with the welfare of society.”

January 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)