Sentencing Law and Policy

"20 Years On, It's Time To Fix The Crime Victims' Rights Act"

The title of this post is the title of this new Law360 essay authored by Bridgette Stumpf. Here are some excerpts:

The Crime Victims' Rights Act, passed in 2004, was intended to require actors in the criminal legal system to provide information to survivors of crime, as well as support to lessen the revictimization many survivors experience from the legal system itself.

Though the law was a good start, it has fallen short in several key ways. As we approach the 20th anniversary of the CVRA this month, it's time to confront what is broken about the law....

Within the criminal legal system, survivors have very little control or options for empowerment, despite efforts to create meaningful inclusion through laws like the CVRA.  Given this reality, criminal legal reform must prioritize the opportunity to ensure survivors know about their options and are connected to actionable support to minimize the negative consequences of trauma.

A new bill would do just that.  The Reinforcing Crime Victims' Rights Act was introduced in late September and is sponsored by Reps. Debbie Wasserman Schultz, D-Fla., and Burgess Owens, R-Utah, with Reps. Jim Costa, D-Calif., and Lois Frankel, D-Fla., serving as original co-sponsors. Proposed amendments to the CVRA would require that survivors are provided with a crime victims' rights card.

Due to the so-called CSI effect — in which many people learn about the criminal legal system through fictitious television shows that solve crimes in less than an hour — many victims of crime believe that the prosecutor is their personal lawyer, even though the goals of the prosecutor and the victim do not always align.

Under the new bill, every crime victim would receive information, in writing, indicating that they have the right to seek independent victims' rights counsel during this process to ensure rights are afforded to them and enforced if violated.  This is an important step to ensure all survivors are receiving the same information.

Additionally, the bill would require more effective oversight of government actors who violate victims' rights.  Those who fail to afford rights to victims will be subject to complaints that carry actual remedies for crime victims.

Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)

Amid serious claims of innocence, Texas Supreme Court halts execution based on legislative subpoena

This local article, headlined "In stunning move, Texas Supreme Court halts Robert Roberson execution in 'shaken baby' case," provides an effective review (with links) of the legal drama yesterday that ultimately halted a closely watched execution date. Here are just some excerpts of just some part of quite a story:

The Texas Supreme Court late Thursday spared Robert Roberson on the night he was set to die by lethal injection, a rare and head-spinning eleventh-hour decision in one of the most controversial death penalty cases in years.

The all-Republican court's decision comes in response to a first-of-its-kind legal maneuver in which a state House committee voted to subpoena Roberson for a hearing scheduled days after his execution date. It could buy Roberson — who was set to become the first American executed for a conviction involving "shaken baby" syndrome at 6 p.m. Thursday — weeks or months to live as court proceedings continue to play out.

The order caps a whirlwind two-day effort from a bipartisan coalition of lawmakers who feverishly fought to keep a man they believe to be innocent from the execution chamber and riveted the nation's attention on Texas' application of the death penalty. 

The House representatives who led the movement expressed relief in a Thursday night joint statement. "For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard," said Reps. Jeff Leach, R-Plano, and Joe Moody, D-El Paso. "And while some courthouses may have failed him, the Texas House has not." 

The drama Thursday took off when Leach and Moody successfully asked a Travis County state District Court to temporarily stay the execution to allow Roberson to answer a summons that the House Committee on Criminal Jurisprudence unanimously approved Wednesday.

The Texas Court of Criminal Appeals shortly thereafter overturned that lower court's approval of the lawmakers' request in a 5-4 decision, and minutes later Leach and Moody filed an emergency motion with the Texas Supreme Court to intervene, arguing the Criminal Appeals Court lacked jurisdiction over a ruling made in a civil court. Leach posted on social media before the state Supreme Court's decision that he was "Praying as if everything depends on God, which it does. But working as if everything depends on us."

The state Supreme Court agreed with the lawmakers, with Justice Evan Young writing in a concurrence that "the underlying criminal-law matter is within the Court of Criminal Appeals’ authority, but the relief sought here is civil in nature, as are the claims that have been presented to the district court."

Roberson's case for a reprieve has drawn widespread support from more than 80 Texas House members as well as from U.S. Supreme Court Justice Sonia Sotomayor, Dr. Phil and others.  After the U.S. Supreme Court rejected a petition to delay the execution around 4 p.m. Thursday, Sotomayor wrote in a statement that "mounting evidence suggests ... Roberson committed no crime at all."  Sotomayor and others have urged Gov. Greg Abbott to grant Roberson a 30-day reprieve, but the governor has remained silent on the case.

Alabama completes execution of mass ax murderer

As reported in this local article, "Alabama executed Derrick Dearman Thursday evening by lethal injection for the brutal killings of five members of his then-girlfriend’s family in Mobile County in 2016. It was the state’s second execution in a span of three weeks."  Here is more:

Court records show he used an ax, a .45 cal. handgun and a shotgun in the massacre at a home in Citronelle, which is about 30 miles north of Mobile.  One of the victims, Chelsea Marie Reed, was five months pregnant.

The execution happened in the death chamber of the William C. Holman Correctional Facility in Atmore, about an hour and a half south of Montgomery.  Dearman had fired his attorneys from the Equal Justice Initiative earlier in the year and asked all appeals on his behalf be halted.  He also mailed letters to Attorney General Steve Marshal and Gov. Kay Ivey asking that his execution proceed....

Alabama is on track to tying the record for most executions in a year at six.  The state is ending the string with back to back to back execution is September, October and November.  In the November execution, scheduled for the Thursday before Thanksgiving, goes forward the state will have conducted three executions in eight weeks.

US Sentencing Commission releases latest data on compassionate release and retroactivity of 2023 criminal history amendment

The US Sentencing Commission today released a number of notable new data runs. Here is how the data is decribed via the email I received this afternoon:

Preliminary FY24 Compassionate Release Data Report

(October 17, 2024)  This data report provides a preliminary analysis of the compassionate release motions filed with the courts and decided through fiscal year 2024.

Retroactivity Data Report on the 2023 Criminal History Amendment

(October 17, 2024)  These data reports cover motions for a reduced sentence pursuant to the retroactive application of Parts A and B of Amendment 821, relating to Criminal History (effective November 1, 2023).

• Retroactivity Data on Part A
• Retroactivity Data on Part B

There is a lot which can and should be said about all these data, and I hope to discuss the compassionate release data in a separate post.  Here I will just note being struck by both the modest and majestic realities of the criminal history amendment retroactivity.  The Commission had estimated that over 18,500 federal prisoners would be eligible for a sentence reduction based on the criminal history amendments being made retroactive.  These latest data runs show than less than half that number have so far been granted a new reduced sentence.  And yet, those numbers still add up to over 8000 fewer years in prison for the beneficiaries of retroactivity.

Exploring originalism and criminal justice at this SCOTUS moment

Cristian Farias has this terrific new essay at Inquest titled "Playing with Originalism: Should advocates looking to unwind our nation’s punitive excesses engage a Supreme Court that set them in motion?". This essay covers a lot of topics and ideas I have been thinking about lately, and topics and ideas at the untersection of originalism and criminal justice that I think merit a lot more attention. I recommend the piece in full, and here are just a few snippets:

In [certain] justices’ vision, text, history, and tradition rule the day, and every manner of law and policy must yield to it.  In this reality, could progressive originalism, as it were, be a tool for justice?...  The current Founding-era fervor among the justices, the thinking goes, could only set things back, since originalist rulings — on abortion, guns, the death penalty, and so much else — have reliably favored unpopular policy positions that conservatives welcome.  One former public defender turned seasoned advocate told me that, at this time, getting issues he cares about in front of the Court is simply a nonstarter: “My job is to keep cases away from the Supreme Court.”

But not everyone is on the same page.  Some advocates simply don’t have the luxury of not pursuing every available legal recourse for clients facing the loss of liberty or worse. If that means a long-shot Supreme Court appeal parsing what words meant nearly 250 years ago, they’ll go for it.  And they’re not the only ones on the broad progressive spectrum willing to engage with originalism on its own terms. A school of progressive legal thought constitutional scholar Jack Balkin calls “living originalism” maintains that the slaveholding Framers purposely left room in the written Constitution for newfangled protections for civil rights, the environment, and other causes that progressives hold dear.  Justice Ketanji Brown Jackson has been known to embrace arguments along these lines, leaving many to wonder if her appointment to the Supreme Court means some version of progressive originalism is here to stay....

Federal public defenders are among those thinking most seriously about how to craft arguments suited to the Supreme Court we have now. In the wake of New York State Rifle & Pistol Association v. Bruen, which in 2022 ruled that judges must in effect use originalism to assess firearm restrictions under the Second Amendment, federal defenders have been at the forefront of challenging a broad array of criminal prohibitions on gun possession....

And in areas where neither originalism nor any other sensible mode of constitutional interpretation guided the justices’ work in decades past, as in those cases [Rachel] Barkow has identified [in her new forthcoming book], the sky may well be the limit.  “I think there’s space for advocates to push the court, and I think they should,” Barkow said.

Fascinating data from Marshall Project's political survey of people in 785 prisons and jails

The Marshall Project has released this new article, headlined "'Trump Remains Very Popular Here': We Surveyed 54,000 People Behind Bars About the Election," reporting the results of their sizeable survey of incarcerated persons.  I recommend the article in full in part because it has lots of interesting data on a lot of topics at the intersection of politics and prisons.  Here are excerpts to provide a bit of an overview:

 In 2020, The Marshall Project’s first-of-its-kind political survey revealed strong support for Trump, shattering a commonly held notion that people behind bars would overwhelmingly support Democrats.  This time around, we wanted to know what people in prison and jail thought about an election that has been cast as a contest between “a prosecutor and a convicted felon.”

More than 54,000 people in 785 prisons and jails in 45 states and the District of Columbia responded. Here is what we found:

• Most respondents said they would vote for Trump, and support was particularly strong among White men. A substantial minority of Black men said they’d vote for Trump, too, if given the chance.
• As previous surveys showed, a large share of people behind bars from all racial backgrounds don’t identify with either major political party — instead identifying as independent....

The Marshall Project partnered with two tablet providers in prisons and jails to conduct this survey. Ultimately, we ran two surveys, asking respondents to answer a few additional questions once Harris became the Democratic nominee. Participation in the survey was voluntary, so it’s important to keep in mind that responses are coming from a self-selecting group of people who may already be politically engaged and following the news....

“I’d say there is a majority of open support for Trump within the inmate population here, especially among the whites,” wrote Enrique Banda-Garcia, a Trump supporter who is incarcerated in Washington State Penitentiary. “And yes, we understand that Republicans are very tough on criminals and even tougher on us during our incarceration, nevertheless, Trump remains very popular here.”...

Some respondents were hopeful that Trump’s experience with the legal system would make him more sympathetic to people behind bars. Donarico Caudle, who is incarcerated in North Carolina, said in an interview that he thought Trump was going to take a look at problems after going through his own trial. “There are things that you see when you look at this legal system that’s dirty,” Caudle said....

Trump’s trial for paying hush money to a porn star before the 2016 election was closely watched by respondents of both parties....  Many respondents who said Trump should be incarcerated cited basic fairness: They were sentenced to prison time for their crimes, so Trump should be, too. “The law should be the great equalizer,” one respondent wrote. “No one should be above another in terms of the range of punishments nor given leniency simply because they’re a certain way (I.e. richer or a celebrity).”

For others, incarceration was a strategic choice. If the former president goes to prison, maybe he would be compelled to make changes when gets out. “Donald Trump needs to see with his own eyes what normal people suffer here in prison, and how unjust is all the laws and the prison system,” one respondent wrote.

Compared to people outside prison, incarcerated survey respondents were more inclined to be lenient toward Trump. Only a third of incarcerated people surveyed thought he should be sentenced to prison for his crimes, compared to about half of people on the outside, according to an Associated Press poll. Even those who disliked Trump cited their feelings about prison being harmful as a reason to oppose his incarceration.

"Grants Pass And The Pathology Of The Criminal Law"

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

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives.  That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.  This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine.  The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law.  The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability.  Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices — neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment.  In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive — and expanding — approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court.  Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping.  Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines — particularly under state constitutions — that more explicitly engage with the agency of unhoused individuals.

Two different stories about two different executions scheduled for tomorrow in two states

I was struck by these notably distinct headlines and subheadlines from USA Today about two executions scheduled for tomorrow in Alabama and Texas:

"'I am guilty:' Alabama inmate Derrick Dearman asks for death sentence to be carried out: Dearman says his death will bring justice to the families of the five people he killed with an ax and a gun, including a pregnant woman. He has also criticized the process that has delayed his death."

"All evidence points to Robert Roberson's innocence. Texas still plans to execute him.: Roberson remains scheduled to die by lethal injection despite evidence indicating he was wrongfully convicted for the death of his 2-year-old daughter Nikki, whom police believed was shaken to death."

I have not followed either of these cases closely, though I do know know many persons beyond the USA Today writers doubt guilt in the Texas case.

Split Nebraska Supreme Court orders Secretary of State to implement new state law enfranchising persons with felony convictions

As report in this NBC News article, the "Nebraska Supreme Court ruled that convicted felons who served their sentences are allowed to vote, after the state's top election official sought to keep them from casting ballots ahead of the Nov. 5 election." Here is more about this ruling:

Nebraska has historically restored the voting rights of former felons two years after they completed the terms of their sentences. Earlier this year, state legislators voted on a bipartisan basis to eliminate the two-year waiting period. Nebraska Attorney General Mike Hilgers later argued that only the state’s board of pardons could restore voting rights, and Nebraska Secretary of State Robert Evnen ordered local registrars to stop letting all people with previous felony convictions vote, arguing the laws enfranchising them were unconstitutional.

On Wednesday, Nebraska's top court disagreed, writing that state officials had not convinced them the law, known as L.B. 20, was unconstitutional. “The Secretary is ordered to remove any disqualification on registration he has imposed that is not contained within L.B. 20 and to comply in all respects with the provisions of L.B. 20,” the state’s high court wrote in an order.

The full ruling in State ex Rel. Spung v. Evnen, 317 Neb. 800 (Neb. Oct. 16, 2024) (available here), is quite lengthy, in part due to many concurring and dissenting opinions. Here is how the per curiam majority opinion for the court gets started:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences.  The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote.  Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately.

"Excessive Force In Prison"

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

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny.  Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force.  This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily.  Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison.  What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated.

This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy.  What drives the inquiry — and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody — is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here.  But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine. 

This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.

New Prison Policy Initiative report, "One Size Fits None: How ‘standard conditions’ of probation set people up to fail"

Writing for the Prison Policy Initiative, Emily Widra has this notable new report titled "One Size Fits None: How ‘standard conditions’ of probation set people up to fail." The report's extended subtitle summarizes its coverage: "Courts and probation agencies impose a standard set of rules on everyone under their supervision, before tacking on any extra restrictions.  Our national review finds these mandatory rules are often unnecessarily burdensome and incredibly vague, making it all too easy to 'fail' at probation and land behind bars."  The full report is worth a full read, and here is how ite gets started (with links from the original):

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation.  All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.”  Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail.  And because the vast majority of people under correctional control are on probation — 2.9 million people, far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration.  Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

A couple more GVRs and lots more cert denials in second full SCOTUS order list of OT 2024

The Supreme Court formally entered its second week of its new term, October Term 2024, with this order list mostly defined by a long list of cert denials.  The order list begins with two new G(ranted), V(acated), R(emanded) cases perhaps of note, with one citing Rahimi and another citing Erlinger. 

Late last week, John Elwood had this long post at SCOTUSblog reviewing relists drawing from the last order list titled "Fourteen cases to watch from the Supreme Court’s end-of-summer "long conference'."  Here was the one sentencing case of particular note from his accounting (which included three other criminal procedure cases among his "cases to watch"):

Last up is Esteras v. United States. In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Esteras is not on the list of cert denials this time around, so that is a case to continue to watch.

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

Noting struggles with case-processing due to prosecutor shortages from coast-to-coast

As the start of this year, Stateline has this article about criminal justice staffing shortages headlined "Shortage of prosecutors, judges leads to widespread court backlogs: The pandemic worsened problems that already had caused state and local court delays."  That article focused particularly on developments in Georgia, New York and Vermont, but some more recent press pieces from a number of states showcase that this is a nationwide problem.  A brand new piece from Alaska, noted below, led me to notice similar tales from multiple states in press pieces from earlier this year:

From Alaska, "Domestic Violence, Child Abuse and DUI Cases Are Being Dismissed en Masse in Anchorage"

From Arizona, "Attorneys raise concerns over slow moving cases, how Pima County Attorney is addressing shortage of prosecutors"

From Indiana, "Prosecutor says Indiana is facing an attorney shortage"

From Maine, "Staffing shortage blamed for lack of prosecutions of crimes in western Maine"

From Michigan, "New state funding not enough to solve shortage of prosecutors, counties say"

From Nebraska, "Rural NE county attorneys, public defenders confront ‘legal desert’ in hiring new lawyers"

From South Carolina, "Thousands await trial in SC on years-old charges. AG proposes way to clear cases"

I have long surmised that government prosecutors and public defenders generally share the privilege of being underpaid and overworked, while both are absolutely essential to the administration of justice in our legal systems.  And I sense these staffing problems are particularly acute in rural areas, especially as new generations of lawyers seem particularly drawn to city life and practice.  What this might mean long term for our criminal justice systems merits watching carefully.

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.