Monday, March 13, 2023

New Mexico seemingly poised to be latest state to elimination juvenile LWOP (after new press report about lost juve LWOPers)

This local press piece, headlined "Proposal to end juvenile life sentences in New Mexico on its way to governor," reports on notable new legislative developments in Land of Enchantment.  Here are some details:

In the early-morning hours Monday, the state House signed off on legislation that would abolish the possibility of a life sentence without parole for someone who committed a serious crime before they turned 18.  It would ensure that juveniles sent to prison would get a parole hearing 15 to 25 years into their sentence, depending on the severity of the underlying conviction.  Release wouldn’t be guaranteed, just a parole hearing.

The proposal picked up more support this year among legislators — following the failure of a similar proposal last year — and is now on its way to the desk of Gov. Michelle Lujan Grisham.  “A lot of meaningful work has happened in people’s hearts this year,” Long said in an interview.

She was in the gallery as the House took up debate on the proposal about 11pm Sunday and adopted the measure at 2:15am Monday, the last approval necessary to send it to the governor.  The House passed the bill on an 37-25 vote.  “Children are works in progress,” said House Majority Leader Gail Chasey, D-Albuquerque, “and we need sentencing options that leave room for their potential to experience positive transformations.”

Republican lawmakers blasted the proposal. Some crimes, they said, are so heinous that a parole hearing shouldn’t even be possible.  Rep. Stefani Lord, R-Sandia Park, said the hearings will reopen trauma for families.  “I don’t see how this is good for grieving parents or our community,” she said....

In the Senate, six Republicans support the bill. But the House vote was along party lines, with Democrats in favor and Republicans opposed. A year ago, the proposal died in the House without reaching the floor for a vote by the full chamber.

This year’s proposal makes changes intended to address the opposition. It establishes a tiered schedule of parole hearings based on the severity of the crime, rather than calling for hearings at 15 years across the board. And this year lawmakers have encountered plenty of advocates in person, including parents speaking about their own children and young adults sharing stories of redemption....

About 75 people would be affected by the bill, according to the American Civil Liberties Union of New Mexico, making them eligible for parole earlier than they would otherwise....  If approved by the governor, New Mexico would become the 27th state to end juvenile life sentences without parole, according to the Sentencing Project, an advocacy group.

Interestingly, ProPublica has this notable recent piece about juvenile LWOPers in New Mexico headlined "New Mexico Has Lost Track of Juveniles Locked Up for Life. We Found Nearly Two Dozen."  Here are short excerpts from the lengthy piece:

Gov. Michelle Lujan Grisham’s office has indicated that she will likely sign the legislation, if it is passed, by early April; it would go into effect this summer. In the meantime, officials in her administration could not answer basic questions about the number of prisoners affected and were unclear about which office is responsible for maintaining that information.

Carmelina Hart, spokesperson for the corrections department, initially sent ProPublica the names of 13 people in New Mexico’s prison system who were sentenced to life as children, which she said was the extent of the cohort. But a disclaimer below the list read, “Due to inconsistencies and mistakes over decades of data entry, as well as ensuing attempts of varying success to fix previous inaccuracies over that time, it is virtually impossible to conclude that all of these data are entirely correct.”...

Hart emphasized that the agency does have records of every person serving in its facilities, and that if the bill becomes law, NMCD will take the appropriate steps to ensure that it is in compliance....

One subset of New Mexico’s juvenile lifers who seem to have been disproportionately forgotten are those serving their time in out-of-state prisons.  Jerry Torres and Juan Meraz, for example, are both in the custody of the New Mexico Corrections Department for crimes they committed as juveniles in the state, yet they are locked up in Arizona — in a for-profit prison operated by the company CoreCivic.

March 13, 2023 in Data on sentencing, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, March 10, 2023

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

March 10, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, March 09, 2023

Texas completes its second execution of the week

As reported in this AP article, "Texas has executed an inmate convicted of the drug-related killings of four people more than 30 years ago, including a woman who was 9-months pregnant."  Here is more:

Arthur Brown Jr., 52, received a lethal injection Thursday evening at the state penitentiary in Huntsville.  He was condemned for the June 1992 slayings, which took place in a Houston home during a drug robbery.  Authorities said Brown was part of a ring that shuttled drugs from Texas to Alabama and had bought drugs from Jose Tovar and his wife Rachel Tovar.

Killed during the drug robbery were 32-year-old Jose Tovar; his wife’s 17-year-old son, Frank Farias; 19-year-old Jessica Quiñones, the pregnant girlfriend of another son of Rachel Tovar; and 21-year-old neighbor Audrey Brown.  All four had been tied up and shot in the head. Rachel Tovar and another person were also shot but survived.

“I don’t see how anybody could have just killed a pregnant woman and then made her suffer so much.  It’s just beyond words,” Quiñones’ older sister, Maricella Quiñones, said before the execution.

Brown was the fifth inmate put to death in Texas this year and the ninth in the U.S.  His execution was the second of two in Texas this week.  Another inmate, Gary Green, was executed Tuesday for killing his estranged wife and her young daughter.  Brown was defiant in his final statement before the lethal injection was administered. “What is happening here tonight isn’t justice," he said. "It’s the murder of another innocent man.”

The U.S. Supreme Court earlier Thursday declined an appeal from Brown’s attorneys to halt the execution.  They had argued that Brown was exempt from execution because he was intellectually disabled, a claim disputed by prosecutors.  The high court has prohibited the death penalty for the intellectually disabled....

One of Brown’s accomplices in the shootings, Marion Dudley, was executed in 2006.  A third partner was sentenced to life in prison. Brown, who was from Tuscaloosa, Alabama, had long maintained another person committed the killings.

Brown’s attorneys had previously filed other appeals that had been rejected by lower courts.  They argued he was innocent and that a witness actually implicated another suspect.  They also claimed Brown’s conviction was tainted by racial bias, alleging one of the jurors decided he was guilty because he was Black.

A judge in Houston on Tuesday denied a request by Brown’s attorneys for DNA testing of evidence that they said could have exonerated their client.  Josh Reiss, chief of the Post-Conviction Writs Division with the Harris County District Attorney’s Office in Houston, called Brown’s last-minute appeals a delay tactic....

Brown was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, five of the inmates have been executed this year.

March 9, 2023 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (8)

Monday, March 06, 2023

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

March 6, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (28)

Friday, March 03, 2023

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

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

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

March 3, 2023 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, March 02, 2023

Sentencing scheduled for morning after jury convicts Alex Murdaugh of murdering his wife and son ... UPDATE: Life sentences imposed

For whatever reasons, I have not been enthralled by the Murdaugh saga and trial in South Carolina.  But, after a swift set of guilty verdicts from the jury tonight, I am intrigued to see the sentencing unfold.  But, this AP article details, it seems that sentencing will unfold Friday morning:

Disgraced South Carolina attorney Alex Murdaugh was convicted of murder Thursday in the shooting deaths of his wife and son in a case that chronicled the unraveling of a powerful Southern family with tales of privilege, greed and addiction.

The jury deliberated for less than three hours before finding Murdaugh guilty of two counts of murder at the end of a six-week trial that pulled back the curtain on the once-prominent lawyer’s fall from grace.

Murdaugh, 54, faces 30 years to life in prison without parole for each murder charge when court is scheduled to reconvene for sentencing at 9:30 a.m. Friday.

I saw another press piece indicating that prosecutors will be seeking LWOP sentences. Given that Murdaugh is 54 years old, the 30-year minimum that is applicable is almost a functional life term.

Any predictions?

UPDATEAs reported in this local article, headlined "Judge sentences Alex Murdaugh to 2 consecutive life sentences for the murders of his wife and son," apparently Murdaugh will not get out of prison even if he comes back to life after he dies while serving the first of his life sentence.  I am not quite sure how to otherwise understand the concept of "consecutive" life sentences, but maybe there is something notable in South Carolina sentencing law that makes it sensible to impose multiple life sentences consecutively.

March 2, 2023 in Offender Characteristics, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (9)

CCJ's Veterans Justice Commission releases "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing"

As highlighted in this prior post, the Council on Criminal Justice last summer launched a new national commission "to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice." This CCJ Commission has released this major policy report today titled "Honoring Service, Advancing Safety: Supporting Veterans From Arrest Through Sentencing." This press release provides some highlights from the full report. Here are excerpts from the press release:

America’s civilian justice system fails to adequately identify veterans, steer them away from prosecution and incarceration, and coordinate or research the effectiveness of programs attempting to support them, the Council on Criminal Justice (CCJ) Veterans Justice Commission said in releasing its first set of recommendations today.

While data-based tools exist to verify a person’s veteran status, only 9 of the nation’s 18,000 law enforcement agencies and 11% of its 3,100 jails report using them, relying instead on veterans to self-identify, the Commission said. But many veterans fail to do so because of shame or fear of losing benefits. Hundreds of jurisdictions now operate specialized Veterans Treatment Courts (VTCs), but participation is often restricted to minor offenses, and just 36 of 2,300 prosecutors’ offices reported operating veteran-specific diversion programs. As a result of these and other holes in the system, veterans miss out on diversion opportunities or treatment targeting the service-related trauma and other conditions that often drive their criminal behavior.

The Commission, which is led by former Defense Secretary and U.S. Senator Chuck Hagel and includes former Defense Secretary and White House Chief of Staff Leon Panetta, issued three recommendations to address these and other challenges confronting veterans at the “front end” of the criminal justice system, from arrest through sentencing:

  • To improve identification of veterans when they come in contact with the justice system, Congress should authorize a study to evaluate the effectiveness of databases that capture veteran status, order necessary improvements, and incentivize their use by local and state agencies....
  • States and the federal government should pass laws expanding or creating opportunities for veterans to avoid arrest, conviction, or incarceration if they complete programs, including VTCs, requiring them to take responsibility for their actions and address issues underlying their criminal offending. The Commission also said courts should be permitted to consider combat exposure and other military experiences a mitigating factor at sentencing, including in cases involving violence.
  • Noting that reliable data on justice-involved veterans is sorely lacking, the Commission recommended that the federal government establish a National Center on Veterans Justice to fund research and identify effective program interventions....

Prior related posts:

March 2, 2023 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, March 01, 2023

Prison Policy Initiative reports on "Women’s Mass Incarceration: The Whole Pie 2023"

Picture1The folks at Prison Policy Initiative has released its latest update in its incarceration pie series with this new report titled "Women’s Mass Incarceration: The Whole Pie 2023" authored by By Aleks Kajstura and Wendy Sawyer. Everyone should click through to see all the great graphics that go with report, and here are parts of text toward the start and at the very end of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experiences with incarceration.  How many women are held in prisons, jails, and other correctional facilities in the United States? Why are they there?  How are their experiences different from men’s?  Further, how has the COVID-19 pandemic changed the number of women behind bars?  These are important questions, but finding those answers requires not only disentangling the country’s decentralized and overlapping criminal legal systems, but also unearthing the frustratingly limited data that’s broken down by gender.

This report provides a detailed view of the 172,700 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control.  We pull together data from a number of government agencies and break down the number of women and girls held by each correctional system by specific offense.  In this updated report, we’ve also gone beyond the numbers, using rare self-reported data from a national survey of people in prison, to offer new insights about incarcerated women’s backgrounds, families, health, and experiences in prison. This report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up....

Most notably, and in stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons.  As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails.  The data needed to explain exactly what happened, when, and why do not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated using the same data sources from year to year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years....

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. This report offers the critical estimate that a quarter of all incarcerated women are unconvicted. But — since the federal government hasn’t collected the key underlying data in almost 20 years — is that number growing? And how do the harms of that unnecessary incarceration intersect with women’s disproportionate caregiving to impact families? Beyond these big picture questions, there are a plethora of detailed data points that are not reported for women by any government agencies, such as the simple number of women incarcerated in U.S. territories or involuntarily committed to state psychiatric hospitals because of justice system involvement.

While more data is needed, the data in this report lends focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

March 1, 2023 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, February 28, 2023

BJS releases interesting data on "Employment of State and Federal Prisoners Prior to Incarceration, 2016"

The Bureau of Justice Statistics today released this new web report presenting data on employment of state and federal prisoners in the 30 days prior to arrest for the offense for which they were incarcerated. The findings are based on data collected in 2016, so are a bit dated. They are still interesting, and here are some of the listed "Key Findings."

February 28, 2023 in Data on sentencing, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, February 27, 2023

SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve

As predicted in this post a couple days ago, sentencing fans now get to turn their attention to the Supreme Court for the next chapter of a fascinating FIRST STEP Act statutory interpretation issue.  Specifically, in this morning's SCOTUS order list, one of the two cases receiving certiorari grants was Pulsifer v. United States.  Here is the (lengthy) question presented as set forth in the defendant's cert petition:

The “safety valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria.  See 18 U.S.C. § 3553(f)(1)–(5).  Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1) (emphasis added).

The question presented is whether the “and” in 18 U.S.C. § 3553(f)(1) means “and,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the “and” means “or,” so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).

Notably, as regular readers know, the circuit split on this issue has deepened to include two more circuits on both sides of the debate.  Federal criminal justice practitioners and sentencing fans certainly will be following this case closely because its resolution will impact thousands of drug defendants sentenced in federal courts every year. But statutory construction gurus (and isn't that everyone) will also surely be interest in the debates this case can present about textualism, plain meaning and the rule of lenity. Stay tuned.

February 27, 2023 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 24, 2023

"The Federal Juvenile System"

The title of this post is the title of this paper authored by Esther Hong and recently posted to SSRN.  Here is its abstract:

With very few exceptions, the federal juvenile system has been ignored by legal scholars since its inception in 1938.  Yet, this understudied system has much to offer in this current age.  It offers a lens to better understand and address the pathologies of excessive prosecutorial power and punitiveness that plague our country’s other criminal and juvenile legal systems.  It also exemplifies and provides insights on limiting the carceral state.

This Article provides a detailed analysis of the federal juvenile system, situates its place in the overall American carceral landscape, and highlights its relevance to contemporary criminal and juvenile law movements.  With only fifty-five youths prosecuted nationwide in the federal juvenile system in 2021, this system stands apart for its relative absence of state carceral reach and its accompanying pathologies.  And by using the federal juvenile system as a foil for the federal criminal system — which grew the carceral state and amplified its harms — one can gain better insight into reducing the reach and attendant pathologies of the carceral state.

February 24, 2023 in Offender Characteristics | Permalink | Comments (0)

Wednesday, February 22, 2023

Fourth Circuit panel joins minority of circuits giving broad reading to FIRST-STEP-amended safety valve provision

I have noted in a handful of prior posts some of the notable circuit rulings concerning the complicated language that Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  A helpful reader made sure I did not miss the latest opinion on this topic, this one coming from a Fourth Circuit panel in US v. Jones, No. 21-4605 (4th Cir. Feb 21, 2023) (available here).  Here is how the opinion starts and concludes:

The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met.  Relevant here, the court must find that the defendant “does not have . . . more than 4 criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense” (the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added).  Cassity Jones has more than four criminal history points but does not have a prior three-point offense or two-point violent offense.  The district court concluded that a defendant must have all three criminal history characteristics to be ineligible for relief and applied the safety valve in sentencing Jones.  The sole issue on appeal is whether the word “and” in § 3553(f)(1) connecting the criminal history characteristics applies conjunctively or disjunctively.  We conclude that “and” is conjunctive and affirm the district court’s decision....

Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch.  And “[t]he [G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at 440.  We cannot “rewrite Congress’s clear and unambiguous text” simply because the Government believes it is better policy for the safety valve to apply to fewer defendants. Id. “The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)).

Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a sentencing court to find that a defendant has all three of the listed criminal history characteristics before excluding a defendant from safety valve eligibility.

Helpfully, a footnote early in the opinion details the circuit split over whether "and" means "and" or "and" means "or" in the context of this FIRST STEP Act revision of the application statute:

The circuits are split on this issue.  Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits.

This split make plain that it is only a matter of time before SCOTUS takes up this matter. And I would hope that SCOTUS would move quickly: according to US Sentencing Commission data, thousands of federal drug defendants each year are being subject to different laws and treated differently at sentencing based on this statutory conflict.

February 22, 2023 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, February 21, 2023

"Severe Mental Illness and the Death Penalty: A Menu of Legislative Options"

The title of this post is the title of this notable new paper authored by Richard J. Bonnie and now available via SSRN.  Here is its abstract:

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders.  The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006.  This brief article focuses primarily on diminished responsibility at the time of the offense, summarizing the reasons why an exclusion for severe mental illness is needed and reviewing the key drafting issues that can be expected to arise in defining the clinical criteria for exclusion.  A key question is whether state trial judges and judges appointed to state appellate courts embrace their constitutionally grounded duties to assure sparing and humane administration of the death penalty.  Assiduous efforts to prevent execution of prisoners with severe mental illness is a necessary element of that judicial assignment.

February 21, 2023 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (3)

A glass-half-empty look at federal compassionate release data since FIRST STEP Act

Extrapolating based on the latest data from the US Sentencing Commission, since passage of the FIRST STEP Act in December 2018, nearly 5000 persons have secured a reduced term of imprisonment for "extraordinary and compelling reasons" pursuant to so-called "compassionate release" motions under 3582(c)(1)(A).  This number, which amounts to an average of roughly 100 sentence reduction grants per month, is a 50-times increase from the average of two such reductions per month in the year before the FIRST STEP Act made it possible for prisoners to get their motions directly to courts.  (COVID is a big part of this story: USSC data show many hundreds of grants each month during the second half of 2020 and first part of 2021; grants have average closer to 50 per month through 2022.)

But while sentence reductions grants are much more common since passage of the FIRST STEP Act, they are still not common.  After all, roughly 400,000 persons have served federal prison sentences over the last five years, so only just over 1% of all federal prisoners have secured relief under 3582(c)(1)(A).  And this new NPR piece, headlined "Frail people are left to die in prison as judges fail to act on a law to free them," stresses data detailing how many are not securing relief.  Here are excerpts:

[D]ata from the U.S. Sentencing Commission shows judges rejected more than 80% of compassionate release requests filed from October 2019 through September 2022. Judges made rulings without guidance from the sentencing commission, an independent agency that develops sentencing policies for the courts.

The commission was delayed for more than three years because Congress did not confirm Trump's nominees and President Joe Biden's appointees were not confirmed until August.  As a result, academic researchers, attorneys, and advocates for prison reform said the law has been applied unevenly across the country. 

Later this week, the federal sentencing commission is poised to hold an open meeting in Washington, D.C. to discuss the problem. They'll be reviewing newly proposed guidelines that include, among other things, a provision that would give consideration to people housed in a correctional facility who are at risk from an infectious disease or public health emergency....

The First Step Act brought fresh attention to compassionate release, which had rarely been used in the decades after it was authorized by Congress in the 1980s.  The new law allowed people in prison to file motions for compassionate release directly with federal courts.  Before, only the director of the Federal Bureau of Prisons could petition the court on behalf of a sick prisoner, which rarely happened....

The number of applications for compassionate release began soaring in March 2020, when the World Health Organization declared a pandemic emergency.  Even as COVID devastated prisons, judges repeatedly denied most requests....  Data suggests decisions in federal courts varied widely by geography.  For example, the 2nd Circuit (Connecticut, New York, and Vermont) granted 27% of requests, compared with about 16% nationally.  The 5th Circuit (Louisiana, Mississippi, and Texas) approved about 10 %. Judges in the 11th Circuit (Alabama, Florida, and Georgia) approved roughly 11% of requests. In one Alabama district, only six of 141 motions were granted — or about 4% — the sentencing commission data shows....

Sentencing commission officials did not make leaders available to answer questions about whether a lack of guidance from the panel kept sick and dying people behind bars.  The new sentencing commission chair, Carlton Reeves, said during a public hearing in October that setting new guidelines for compassionate release is a top priority.

Interestingly this NPR piece, though seemingly about denials of sentence reductions, focuses on a drug offender with stage 4 cancer who did secure compassionate release last year.  I cannot help but wonder if the reporter was not quite able to find a compelling case in which a sentence reduction was denied for a "frail [person] left to die in prison," though I am sure there are such cases.

February 21, 2023 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 15, 2023

Buffalo mass shooter formally sentenced to LWOP in New York state court

Though New York in 1995 brought back the state's death penalty legislatively,  New York's highest court in June 2004 decided that the state's death penalty statute violated the New York Constitution.  Consequently, the harshest sentence that a mass killer in New York can get under state law is life without parole, and this New York Times piece reports on just such a high-profile sentencing today in Buffalo. Here are some details:

The gunman in a racist massacre at a Buffalo supermarket last year was sentenced to life in prison without the chance of parole on Wednesday, after apologizing for his attack amid a torrent of raw emotions from the victims’ families, including one man who lunged at him in court.

“You will never see the light of day as a free man again,” the judge, Susan Eagan, said after reading a statement about the harmful effects of institutional racism and white supremacy, calling it an “insidious cancer on our society and nation.”

The sentence reflected the outcome of a guilty plea to 10 counts of first-degree murder and a single count of domestic terrorism motivated by hate, which carries a penalty of life imprisonment without parole.  Judge Eagan’s sentence came after a brief apology by the gunman, Payton Gendron, who said he was “very sorry” for the attack and blamed online content for the shooting rampage on May 14, in which 10 people were killed, all of them Black, and three people injured. He said he didn’t want to inspire other racist killings....

As Mr. Gendron spoke, a member of the audience began screaming and cursing at him, the second such interruption in an emotionally raw hearing. Earlier, the sentencing was dramatically interrupted and the courtroom cleared after a man lunged at the defendant.  Judge Eagan emptied the courtroom and reconvened the hearing a short time later, pleading for decorum while saying she understood the anger toward the gunman. “We are all better than that,” she said. Before Mr. Gendron heard his sentence, families of the victims testified as to the insurmountable damage done by the attack.

“You are a cowardly racist,” said Simone Crawley, whose grandmother Ruth Whitfield, 86, was killed in the shooting. She asked for accountability for others who aided or turned a blind eye to Mr. Gendron’s growing radicalization....

Zeneta Everhart, whose son Zaire was injured, but survived, said: “The world says you have to forgive in order to move on.  But I stand before you today to say that will never happen.”

Kimberly Salter’s husband, Aaron Salter, a retired Buffalo police officer, did not survive: He was shot and killed in the attack.  Ms. Salter quoted the Bible as she stood just feet from Mr. Gendron, who wore an orange jumpsuit and spectacles. “You will reap,” she said, “what you sow.”...

Mr. Gendron, 19, pleaded guilty in November to the state charges.  He is also charged with federal hate crimes and weapons violations, some of which could carry the death penalty if the Justice Department decided to seek it.  Those charges are still pending....

His video feed of the attack was briefly online, before being shut down by social media companies.  Still, the Buffalo attack remains one of the nation’s deadliest racist shootings, joining a list that includes the killing of nine Black parishioners at a church in Charleston, S.C., in 2015; an antisemitic rampage in Pittsburgh, at the Tree of Life synagogue in 2018 where 11 people were killed; and an attack at a Walmart in El Paso in 2019 in which more than 20 people were killed by a man who had expressed hatred of Latinos.

February 15, 2023 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Thursday, February 09, 2023

Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems

I noted in this post some months ago that the Council on Criminal Justice (CCJ) had launched a new national commission to examine why so many military veterans land in jail and prison and produce recommendations for evidence-based policy changes that enhance safety, health, and justice.  That commission just released its first publication, and it addresses issues that I had not really previously given much thought to, namely who should be called a "veteran." 

Specifically, this new publication authored by Evan Seamone and is titled "Who's a Veteran? Challenges in Defining and Identifying Veteran Status."  Here is how it concludes, which serves to spotlight the importance of this basic issue of definition:

How veteran status is defined varies widely across federal and state governments, as well as criminal justice agencies and programs.  While one might assume that the VA has the primary responsibility to define precisely who should be considered a veteran, the definitional standard has been expanded or narrowed through law and policy over time in states and jurisdictions across the nation.  For the most part, differences in the definition are based on the length of military service, the conditions of service, and how an individual was discharged from service.  As a result of this variation and the ambiguity about who qualifies as a military veteran, veterans’ access to benefits, services, and programs in the community, in courtrooms, and within correctional settings like jails and prisons is confusing and constrained.

The plethora of veteran definitions along with the heavy reliance on self-identification within the criminal justice system may discourage former service members from confirming their status when asked. Some clearly make this choice due to stigma and/or a fear of harassment and loss of benefits.

The complexity in defining and identifying veterans means that programs set up to aid those who served our country when they intersect with the criminal justice system are not reaching all who are eligible.  A clear, universal definition of who is a veteran within the criminal justice system and a better process for independently verifying veteran status would address that gap, ensuring that more people who served in the military and become justice involved can access treatments and services addressing the specific challenges they face.  That, in turn, will help advance safety and justice for all.

February 9, 2023 in Offender Characteristics | Permalink | Comments (0)

Tuesday, February 07, 2023

"Climate Homicide: Prosecuting Big Oil For Climate Deaths"

The title of this post is the title of this notable new article now available via SSRN authored by David Arkush and Donald Braman. Here is its abstract:

Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change.  Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct.  They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators.  And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits.  Today, the climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future.

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide?  Could they be convicted?  In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale.  It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public.  It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this.  Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes — and soon — we may leave future generations with significantly less for the law to protect.

February 7, 2023 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (28)

Saturday, February 04, 2023

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

February 4, 2023 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, February 01, 2023

New Massachusetts bill provides sentence reductions for when "incarcerated individual has donated bone marrow or organ(s)"

The comments to this blog have been, as the kids like to say, "on fire" lately.  And I suspect and hope lots of different folks will have lots of different opinions to share (respectfully) about a new bill introduced in The 193rd General Court of the Commonwealth of Massachusetts.  Specifically, as reported in this Insider article and detailed in the bill available at this link, some legislators in Massachusetts have introduced a proposal that provides a notable new way for incarcerated individual reduce a term of imprisonment.  The headline of the press piece notes the essentials: "A proposed Massachusetts bill would give inmates up to a year off their sentence — if they donate their organs."  Here are more of the particulars:

Forget sentence reductions for good behavior: With a proposed bill making its way through the Massachusetts legislature, inmates could receive up to a year off their jail sentence by donating their organs.

Bill HD.3822, called the "Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program," would allow eligible incarcerated people to receive no fewer than 60 but no more than 365 days off their sentences for donating their marrow or organs. It has not passed through the Massachusetts House of Representatives.

The act, if passed, would create a five-person panel to oversee the implementation of the program, made up of two Department of Corrections officials, an organ donation specialist from a state hospital, and two advocates focusing on organ donation and prisoners' rights. The panel would determine eligibility standards and file reports of annual donations and "estimated life-savings associated with said donations." "There shall be no commissions or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals," the proposed text reads....

State Rep. Judith Garcia, one of the co-sponsors, explained the proposal with an infographic on Twitter, saying the Massachusetts organ donation waiting list has nearly 5,000 people on it, disproportionately impacting Black and Hispanic residents, with no existing path to organ donation for incarcerated people, even if a relative were in need of a donation. The bill would "restore bodily autonomy to incarcerated folks by providing opportunity to donate organs and bone marrow," the graphic read.

"It seems like something out of a science fiction book or horror story," Kevin Ring, president of the nonprofit organization Families Against Mandatory Minimums, told Insider. "It's just this sort of idea that we have this class of subhumans whose body parts [we] will harvest because they're not like us or because they're so desperate for freedom that they'd be willing to do this."

Ring, a former lobbyist who served 20 months in federal prison on public corruption charges as part of the Jack Abramoff lobbying scandal, said he would have considered doing anything to reduce his sentence while he was incarcerated, making the whole thing feel like a coercive idea that "preys on that desperation." "In most state systems, you earn good time credits from participating in programming that is intended to reduce your risk of reoffending, so those things make sense," Ring said, listing examples like drug treatment programs and job training to show initiative and work toward rehabilitation. "Those are things that are at least connected, relevant, to releasing them early. This one seems like it's not, though and it just begs the question, like, how about two years off for a limb, for an amputee? What's going on here? It's dark."

In an email sent to Families Against Mandatory Minimums and reviewed by Insider, a cosponsor of the bill, State Rep. Carlos Gonzalez, told Ring the legislation would "only establish support to those incarcerated and provide guidelines, clarity, and transparency for a potential life-saving voluntary deed."...

Prisoners' Legal Services of Massachusetts, a legal aid group, said in a statement to Insider that the intent behind the bill made sense to try to address issues of racial inequity and the need for organ donation, but didn't appear to be a comprehensive solution due to the risk of coercion....

Ring told Insider he doesn't think it's likely the bill will become law, given an especially negative response to it on social media. "We're in the criminal justice movement, we appreciate that people make mistakes," Ring told Insider. "I can't believe these people are some sort of Frankenstein monsters, I think they just goofed. They're probably well-intentioned, but it's just a disastrous idea."

I am eager to hear all sorts of comments any aspects of this bill, but my first question is whether anyone thinks this proposal would be unconstitutional. I suspect lots of folks may have strong thoughts about whether this bill is good or bad policy, but I would be interested to hear if anyone have a strong constitutional take as well.

February 1, 2023 in Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (4)

Tuesday, January 31, 2023

Sad accounting of 150-year prison term for child-porn possession after 3-year plea deal had been offered

The Miami Herald has this extended and sad review of an 150-year state sentence imposed on a person with schizophrenia who possessed child pornography.  The case provide an example of the "trial penalty" and all sort of other factors that can contribute to extreme prison terms.  The piece is headlined "‘Extreme injustice’: Homeless man with untreated schizophrenia fights 150-year sentence."  I recommended the lengthy article in full and here are excerpts:

The crime that Jared Stephens committed is not in dispute.  The question is whether he should die in prison for it.

On a stormy September day in 2016, Stephens — a former wrestler at Arizona State University who became homeless after years of untreated schizophrenia — walked into a Best Buy in Sweetwater.  He snatched a $399.99 laptop, stuffed other merchandise totaling $157.96 into a brown Publix tote bag and tried to walk out without paying.

Confronted by employees, he resisted, then pulled his own laptop out of a backpack and did something extraordinarily irrational. “Look, I have child pornography!” he declared.  He was telling the truth. Stephens, then 25, marched in and out of the store with his laptop playing a video of child abuse, tilting his computer screen so it was visible to a surveillance camera, according to an arrest report.  He proceeded to lie down between two sets of sliding doors at the store’s entrance, perusing illicit images as shoppers flowed by, until police arrived and hauled him to jail.

That unhinged act sent Stephens on an odyssey through the criminal justice system, resulting in a sentence that has no parallel in local courts for a similar crime: 150 years in state prison — to be followed by a 120-day stint in the Miami-Dade County jail.  The sentence — handed down by Miami-Dade Circuit Court Judge Veronica Diaz in 2018, with a minimum of public explanation — was 147 years longer than the three-year term state prosecutors initially proposed in a plea deal and 129 years longer than the 21-year term the state asked for at sentencing.  It was also dozens of times greater than the typical sentence for possession of child pornography....

Stephens ... made outlandish claims in open court at his criminal trial, asserting he could command African armies and shut off electricity to Russia with the power of his mind.  He largely refused to talk to his lawyers, much less cooperate in his defense. Court-appointed psychologists diagnosed him with schizophrenia... He had also suffered his own shocking trauma as a child — a fact that went unmentioned at his sentencing because he never told his defense lawyers.  Fan Li, a private attorney now representing Stephens, said that courts are ill-equipped to handle people experiencing mental illness, leading to widespread “unjust prosecutions and sentences.”...

Stephens’ presumptive release date is July 4 — Independence Day — 2166, when he would be 175. He did not produce or distribute the illegal images, which would typically lead to a longer sentence.... Had he gone along with the state and accepted a plea deal when it was originally offered, he could have gotten just three years in prison, as well as treatment in a program for “mentally disordered sex offenders.”  That sentence would have been in line with those given to other, similar offenders, according to court documents submitted by his lawyers.

Instead, he chose to fight the case.  State prosecutors responded by upping the charges from one count of child porn possession — with a maximum of five years in prison — to 30 counts, with a maximum of 150 years, based on a forensic analysis that found a cache of illegal images on his computer.

Between 2000 and 2017, Miami-Dade judges decided that nearly one-third of defendants who, like Stephens, possessed child porn — without producing it or passing it around to others — should not be sent to prison, according to data from the Florida Department of Corrections.  Those sent to prison received a median term of three years, according to the data, which was submitted in a court filing by Stephens’ defense team.  Only one other local case resulted in such a lengthy sentence: Adonis Losada, a former performer on the longtime Univision show “Sabado Gigante,” received a 153-year term.  The trial for Losada was later ordered redone, resulting in a sentence slashed by two-thirds.

January 31, 2023 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (83)

Monday, January 23, 2023

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

  • status points;
  • offenders with zero criminal history points; and,
  • simple possession of marijuana offenses.

January 23, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, January 20, 2023

Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

If producers are thinking about developing Season 2 of The Dropout, a legal filing today by federal prosecutors provide some dramatic materials.  This CNN article, headlined "Elizabeth Holmes made an ‘attempt to flee the country’ after her conviction, prosecutors say," provides these details:

Elizabeth Holmes made an “attempt to flee the country” by booking a one-way ticket to Mexico departing in January 2022, shortly after the Theranos founder was convicted of fraud, prosecutors alleged in a new court filing Friday.

Holmes was convicted last January of defrauding investors while running the failed blood testing startup Theranos. In November, she was sentenced to more than 11 years in prison. She has appealed her conviction and does not start her prison sentence until this spring, a waiting period that prosecutors described as “generous” and due to her being pregnant.

The claim that she tried to leave the country last year surfaced as part of a new filing from prosecutors arguing that Holmes should begin serving her prison sentence rather than living on an estate reported to have $13,000 in monthly expenses for upkeep.

In the filing, prosecutors argue Holmes has not shown convincing evidence that she is not a flight risk, as her lawyers have stated, and used the alleged 2022 incident to support their concerns that she could pose such a risk. “The government became aware on January 23, 2022, that Defendant Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the court filing states. “Only after the government raised this unauthorized flight with defense counsel was the trip canceled.”

The filing adds that prosecutors anticipate Holmes will “reply that she did not in fact leave the country as scheduled” but said “it is difficult to know with certainty” what she would have done “had the government not intervened.” Now, in the wake of her sentencing, prosecutors say “the incentive to flee has never been higher” and Holmes “has the means to act on that incentive.”...

The court filing includes an email from one of Holmes’ attorneys to the prosecution, claiming that the travel reservation was made before the verdict. In the email, Holmes’ attorney claims the former Theranos CEO hoped the verdict would be different and that she would be able to make this trip to attend the wedding of friends in Mexico.

In an earlier court filing, Holmes’ attorneys argued for her release from custody pending appeal, saying she was not a flight risk or a threat to the community. Holmes has been ordered to turn herself into custody on April 27, 2023, at which point her prison sentence will begin.

“There are not two systems of justice – one for the wealthy and one for the poor – there is one criminal justice system in this country,” prosecutors stated in the filing. They argue that “under that system, the time has come” for Holmes to answer for her crimes.

Some prior related posts:

January 20, 2023 in Celebrity sentencings, Offender Characteristics | Permalink | Comments (101)

Wednesday, January 18, 2023

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

January 18, 2023 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (34)

Wednesday, January 11, 2023

Prison Journalism Project taking a deep dive into "The Graying of America’s Prisons"

The Prison Journalism Project, which aspires to bring "transparency to the world of mass incarceration from the inside and training incarcerated writers to be journalists," this week is debuting a new "special project on America’s graying prison system."  This introductory article is fully titled "The Graying of America’s Prisons: In a first-of-its-kind project, PJP contributors chronicle the now ubiquitous experience of growing old behind bars."  This article starts, and sets the tone for the special project, in this way (links from the original):

Prison makes an awful elderly care facility, yet more prisons are rapidly becoming just that.

Thanks in large part to longer prison sentences and decreasing rates of parole, the number of incarcerated people 55 and older has climbed from 48,000 to 160,000 over the last two decades. 

In 2019, this age cohort made up 63% of state prison deaths for the first time since figures were tracked, according to the most recent data available. 

That’s why Prison Journalism Project is debuting a special project on America’s graying prison system.  Over the coming weeks, we’ll publish stories every Tuesday and Thursday from incarcerated writers that chronicle different facets of growing old behind bars. We will collect the stories below as they appear on the website.  Eric Finley brings us the first essay in the series, in which he explains the explosion of older people inside the Florida Department of Corrections. 

In the weeks to come, writers Mithrellas Curtis and Chanell Burnette will share stories on the legal battle for adequate senior health care inside their Virginia prison.

January 11, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Just for Kids? How the Youth Decarceration Discourse Endorses Adult Incarceration"

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

This article lays bare three interrelated and previously overlooked pitfalls of calls to reduce or abolish youth incarceration.  First, despite their anti-carceral semblance, such calls persistently portray the overwhelming majority of people in trouble with the law — namely, adults — as incorrigible, blameworthy, and therefore as deserving of punishment and imprisonment.  Second, this ageist rhetoric often disregards adult vulnerability.  Thus, despite adults’ greater medical vulnerability to the COVID-19 disease, it is youth whom some organizations singled out or even called to prioritize for release from prisons during the coronavirus pandemic.  Third, at the heart of the youth decarceration discourse are essentialist assumptions about youth, which rest on questionable science and downplay the socially constructed dimension of age differences.  All three pitfalls epitomize a dual fault of the child rights discourse more broadly, as evidenced in other contexts: repeatedly lending legitimacy to punitiveness and apathy toward adults while also working to the detriment of children.  Doubtless, there are compelling arguments against penal confinement, but it is only decarceration across the age spectrum that can truly challenge carceral thinking — and ageism.

January 11, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, January 10, 2023

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

Cover_mj-possession-2023This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

  • The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
  • The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
  • Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
  • As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

  • In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
  • The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
  • Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
  • Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

January 10, 2023 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (33)

Thursday, January 05, 2023

Quite a remarkable account of one January 6 rioter's sentencing story

The Washington Post has this very lengthy piece telling a remarkable story about the life and history of one of the January 6 rioters and where his sentencing fit in.  The piece is fully titled "Prison or mercy? A Jan. 6 rioter weighs his sins and confronts his fate. Eight years before he stormed the Capitol, Jake Peart acted with ‘unfathomable’ grace. A judge must decide if it matters." The long piece is worth the time, and here is part of its start:

Nearly 18 months had passed since he stormed the U.S. Capitol and sought to halt the inauguration of a duly elected president. Now the time had come for the federal government to pass judgment on Jake Peart.

The sentencing hearing was taking place via video, a necessity given the sheer number of defendants — more than 950 and counting — who, like Peart, had been charged with crimes related to the riot.

Alone in his living room and free from custody as he awaited sentencing, Peart listened as a federal prosecutor summarized his offense: The 47-year-old real estate agent, husband and father of five had blown past police officers being “attacked violently,” the blaring of alarms and the smell of tear gas emanating from the seat of American democracy. Once inside the Capitol, he had banged on a broken piece of furniture, yelling, “This is our house!”...

Peart was one of thousands of American citizens who on Jan. 6, 2021, sought to overturn the 2020 election on behalf of an angry and defeated President Donald Trump. Collectively, the mob’s actions were “egregious, outrageous, dangerous,” the judge told Peart, calling them “a direct attack on the rule of law and democracy as we know it.”

But each of the insurrectionists in the Capitol that day was also an individual. And so before the judge delivered his decision, he described a letter in Peart’s case file from a woman who in 2013 was driving home drunk from a bar when she struck and killed Peart’s 28-year-old sister. “A truly remarkable letter,” the judge called it.

In it, Andrea Milholm Jung described how the “mercy and love” that Peart had shown her after the accident and while she was in prison had helped her to find redemption. “Put yourself in Mr. Peart’s shoes and ask yourself if you would do the same,” she wrote to the judge. “It is a question I ask myself every single day.”

Peart sat quietly in his leather chair, his Bible at his side, awaiting his fate. From his window he could see the soaring peaks of southern Utah’s red-rock desert mountains.

The entire hearing had lasted a little more than an hour and now boiled down to just a few difficult questions: Was Peart truly repentant? Did he grasp the severity of his crime? Did he deserve prison or mercy?

January 5, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (12)

Monday, January 02, 2023

Missouri scheduled to execute transgender woman

The first US execution in a new year is always notable, but the execution that Missouri has scheduled for Tuesday, January 3 is noteworthy for a variety of reasons.  The headline of this AP piece provides the basics: "Transgender woman’s scheduled execution would be US first."  Here are more of the details:

Unless Missouri Gov. Mike Parson grants clemency, Amber McLaughlin, 49, will become the first transgender woman executed in the U.S.  She is scheduled to die by injection Tuesday for killing a former girlfriend in 2003.  McLaughlin’s attorney, Larry Komp, said there are no court appeals pending.

The clemency request focuses on several issues, including McLaughlin’s traumatic childhood and mental health issues, which the jury never heard in her trial.  A foster parent rubbed feces in her face when she was a toddler and her adoptive father used a stun gun on her, according to the clemency petition.  It says she suffers from depression and attempted suicide multiple times.

The petition also includes reports citing a diagnosis of gender dysphoria, a condition that causes anguish and other symptoms as a result of a disparity between a person’s gender identity and their assigned sex at birth.  “We think Amber has demonstrated incredible courage because I can tell you there’s a lot of hate when it comes to that issue,” her attorney, Larry Komp, said Monday.  But, he said, McLaughlin’s sexual identity is “not the main focus” of the clemency request.

Parson’s spokesperson, Kelli Jones, said the review process for the clemency request is still underway.

There is no known case of a transgender inmate being executed in the U.S. before, according to the anti-execution Death Penalty Information Center.  A friend in prison says she saw McLaughlin’s personality blossom during her gender transition.

Before transitioning, McLaughlin was in a relationship with girlfriend Beverly Guenther.  McLaughlin would show up at the suburban St. Louis office where the 45-year-old Guenther worked, sometimes hiding inside the building, according to court records.  Guenther obtained a restraining order, and police officers occasionally escorted her to her car after work.

Guenther’s neighbors called police the night of Nov. 20, 2003, when she failed to return home. Officers went to the office building, where they found a broken knife handle near her car and a trail of blood.  A day later, McLaughlin led police to a location near the Mississippi River in St. Louis, where the body had been dumped.

McLaughlin was convicted of first-degree murder in 2006.  A judge sentenced McLaughlin to death after a jury deadlocked on the sentence.  A court in 2016 ordered a new sentencing hearing, but a federal appeals court panel reinstated the death penalty in 2021....

The only woman ever executed in Missouri was Bonnie B. Heady, put to death on Dec. 18, 1953, for kidnapping and killing a 6-year-old boy.  Heady was executed in the gas chamber, side by side with the other kidnapper and killer, Carl Austin Hall.

Nationally, 18 people were executed in 2022, including two in Missouri.

Though McLaughlin status as potentially the first transgender woman to be executed is what is making headlines, the fact she was sentenced to death by a judge rather than a jury is also noteworthy.

UPDATE: As detailed in this CNN piece, Missouri's Governor denied McLaughlin's clemency request and the first execution in the US in 2023 was completed in the early evening of January 3:

McLaughlin, 49, and her attorneys had petitioned Republican Gov. Mike Parson for clemency, asking him to commute her death sentence. Aside from the fact a jury could not agree on the death penalty, they say, McLaughlin has shown genuine remorse and has struggled with an intellectual disability, mental health issues and a history of childhood trauma.

But in a statement Tuesday, Parson’s office announced the execution would move forward as planned. The family and loved ones of her victim, Beverly Guenther, “deserve peace,” the statement said. “The State of Missouri will carry out McLaughlin’s sentence according to the Court’s order,” Parson said, “and deliver justice.”...

“McLaughlin was pronounced dead at 6:51 p.m.,” the Missouri Department of Corrections said in a written statement. A spokesperson did not say if McLaughlin had a final statement.

January 2, 2023 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (4)

Saturday, December 17, 2022

"Unconstitutional Punishment Categories"

The title of this post is the title of this article authored by William W. Berry III now available via SSRN. Here is its abstract:

Two terms ago, the Supreme Court decided Jones v. Mississippi, in which it upheld but arguably narrowed its Eighth Amendment categorical bar on the imposition of mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court held that the Eighth Amendment did not require a fact-finding prerequisite to the imposition of JLWOP sentences.  The opinion, however, did not speak to the question of whether other categories of JLWOP sentences might violate the Eighth Amendment.

Indeed, the Court has identified six categories of capital punishment that the Eighth Amendment proscribes: (1) mandatory death sentences; (2) executions of juveniles; (3) executions of intellectually disabled defendants; (4) executions for certain felony murder crimes; (5) executions for the crime of adult rape; and (6) executions for the crime of child rape.  The Court has extended some of the categorical punishment bars to JLWOP, covering three of the unconstitutional capital punishment categories — mandatory JLWOP sentences, JLWOP sentences for adult rape, and JLWOP sentences for child rape.

The open question is whether the other three unconstitutional death penalty categories under the Eighth Amendment also apply to JLWOP sentences.  This Article explores that doctrinal gap. While the Court’s decision in Jones v. Mississippi suggests that it is not eager to expand the scope of Eighth Amendment generally and the scope of JLWOP in particular, the Court has never explicitly concluded that JLWOP is fundamentally different from the death penalty for purposes of the Eighth Amendment.  And if the death penalty and JLWOP are the same for Eighth Amendment purposes, applying the remaining unconstitutional death penalty categories to JLWOP would not be expanding the doctrine, but simply completing it.  This Article argues that the Court should take that step if presented with the opportunity.

December 17, 2022 in Offender Characteristics, Who Sentences | Permalink | Comments (2)

Thursday, December 08, 2022

Ohio Supreme Court splits over ineffectiveness of counsel who "failed to explain neonaticide" at sentencing

The Ohio Supreme Court today issued an notable split decision that ultimately rules that a notable defendant had received ineffective assistance of counsel when sentenced to life without parole in a sad case of neonaticide.  The ruling in State v. Weaver, Slip Op. No. 2022-Ohio-4371 (Oh. Dec. 8, 2023) (available here) is very well summarized at the start of this official court summary:

The Supreme Court of Ohio has ordered a new sentencing hearing for a former college student sentenced to life in prison for the murder of her newborn baby in the bathroom of her sorority house.  In 4-3 decision, the Supreme Court ruled that Emile Weaver received ineffective assistance of counsel when her lawyer failed to explain neonaticide, which is the murder of an infant within 24 hours of birth, at her sentencing hearing and how neonaticide is “not considered a premeditated act” but rather an act “within the context of extreme panic.”

The decision reversed the Fifth District Court of Appeals, which found the Muskingum County Common Pleas Court did not abuse its discretion by denying Weaver’s claim that her counsel was ineffective.  Weaver filed a petition for postconviction relief, alleging that her lawyer failed to present a complete explanation of neonaticide during sentencing which could have led to a less severe punishment.  The same judge who sentenced Weaver to life in prison without the possibility of parole denied her petition.  The trial judge discredited an expert witness who tried to explain Weaver’s condition.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that the trial judge demonstrated an arbitrary and unreasonable attitude toward the evidence of neonaticide and pregnancy-negation syndrome. “Not only did the trial court misunderstand the evidence pertaining to neonaticide and pregnancy-negation syndrome, but it demonstrated a willful refusal to consider such evidence,” Chief Justice O’Connor wrote.

The Court remanded the case to the trial court with instructions that another trial judge conduct the sentencing.  Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine wrote that Weaver’s lawyer was not ineffective for failing to explain why she would commit neonaticide.  He noted that Weaver’s defense at trial was that she did not kill her baby, but rather that the baby died of natural causes.  Expecting the defense to explain how Weaver suffered from pregnancy negation would undermine the argument that she did not kill the baby, he concluded.  Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion.

Here are the basic details of the crimes as decribed by in the majority opinion:

In the fall of 2014, Weaver returned as a sophomore to Muskingum University in New Concord, Ohio, where she lived in a campus sorority house.  After Weaver visited a wellness center to obtain birth control, the center reached out to her to let her know that she was pregnant, but Weaver testified that she had never looked at or read the message from the center.  Weaver also testified that she did not “completely” believe that she was pregnant, because she did not show the normal signs of pregnancy — specifically, she did not (1) gain weight, (2) have morning sickness or exhaustion, or (3) stop menstruating.  Throughout her pregnancy, Weaver consistently denied that she was pregnant when either her sorority sisters or other people asked, and she never told her mother.  At trial, Weaver explained that she had lied about her pregnancy because she was scared, “felt like [she] had no one,” and was “worried about * * * getting in trouble.”  Weaver did, however, discuss her pregnancy with her boyfriend — whom she had a “rocky relationship” with — and he encouraged her not to tell anyone.  Weaver described him as “controlling and judgmental,” as well as “abusive.”

On April 22, 2015, believing that she was having a bowel movement, Weaver went to the sorority-house bathroom.  Shortly thereafter, she realized that she was in labor and silently, without assistance, delivered the baby into the toilet. Later that day, two sorority members discovered the baby in a trash bag lying next to the sorority house.

December 8, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

New Sentencing Project report covers "Why Youth Incarceration Fails: An Updated Review of the Evidence"

Via email, I learned of this lengthy new report from The Sentencing Project titled "Why Youth Incarceration Fails: An Updated Review of the Evidence."  Here is the start of the report's executive summary:

Though the number of youth confined nationwide has declined significantly over the past two decades, our country still incarcerates far too many young people.

It does so despite overwhelming evidence showing that incarceration is an ineffective strategy for steering youth away from delinquent behavior and that high rates of youth incarceration do not improve public safety.  Incarceration harms young people’s physical and mental health, impedes their educational and career success, and often exposes them to abuse.  And the use of confinement is plagued by severe racial and ethnic disparities.

This publication summarizes the evidence documenting the serious problems associated with the youth justice system’s continuing heavy reliance on incarceration and makes recommendations for reducing the use of confinement. It begins by describing recent incarceration trends in the youth justice system.  This assessment finds that the sizable drop in juvenile facility populations since 2000 is due largely to a substantial decline in youth arrests nationwide, not to any shift toward other approaches by juvenile courts or corrections agencies once youth enter the justice system. Most youth who are incarcerated in juvenile facilities are not charged with serious violent offenses, yet the United States continues to confine youth at many times the rates of other nations.  And it continues to inflict the harms of incarceration disproportionately on Black youth and other youth of color -- despite well-established alternatives that produce better outcomes for youth and community safety.

December 8, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, November 17, 2022

"Assessing the Status of Minors in Possession: Marijuana Versus Alcohol"

The title of this post is the title of this new article available via SSRN authored by Mitchell F. Crusto, Jillian Morrison and Laurel C. Taylor.  (Disclosure: this paper was supported by a grant from the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.)  Here is its abstract:

The legalization and decriminalization of marijuana at state level has an impact on adult use, as well as on use by minors. In many jurisdictions, minor use and possession of marijuana is regulated much like that of alcohol.  This paper examines the statutory language of laws regulating possession of marijuana by minors across states in which marijuana is legalized, decriminalized, and illegal.  From there, data was collected to look at the arrest rates for minors in three case study jurisdictions.  The purpose of this comparison was to reveal how laws criminalizing minors in possession of marijuana are carried out as reflected in the arrest rates of reporting jurisdictions. 

Overall marijuana arrests for minors in possession decreased from 2018 to 2020 across every state case example provided.  Additionally, based on the case examples provided in those states that decriminalized marijuana, arrests for juveniles were lower overall than those with legalized or illegal status.  While further analysis is needed, the study found positive results, noting that states across the board appear to be decreasing arrest rates for marijuana possession, and more and more states are looking to alcohol violation statutes to craft their marijuana violation statutes for minors.  Accordingly, the public shift in thinking about marijuana appears to be impacting the practicalities of drafting statutes and mandating arrests for the better: to create a less hostile approach with less punitive impact on minors.

November 17, 2022 in Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

Tuesday, November 15, 2022

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

Prior related post:

November 15, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

Sunday, November 13, 2022

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

November 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (9)

Saturday, November 12, 2022

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

November 12, 2022 in Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 11, 2022

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

Veterans-original_cropThe question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

November 11, 2022 in Clemency and Pardons, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 09, 2022

"Set up to Fail: Youth Probation Conditions as a Driver of Incarceration"

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

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision.  Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions.  The orders rely on standardized terms on youth probation condition forms.  This is the first scholarly Article to excavate original youth probation condition forms.  It relies on data from 17 different urban and rural jurisdictions across the United States, including the five largest, and provides both a descriptive and perscriptive analysis of the problems with the design and execution of probation conditions.

Based on my analysis of hundreds of youth probation conditions in these different jurisdictions, I argue that standard youth probation conditions are part of a youth probation system that is structurally flawed in its design and execution, and that probation conditions that lack an adolescent framework cause real harm to youth and their families — particularly those who are most vulnerable, especially youth of color.  Simultaneously, youth probation systems concentrate power in probation officers, granting them inordinate discretionary power.  Although youth probation is viewed as the ideal alternative to detention, I argue that youth probation in its current structure is a driver of incarceration — that should be viewed as part of a carceral state — in need of thoughtful re-imagination: perhaps even abolition.

November 9, 2022 in Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Tuesday, November 08, 2022

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

November 8, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (3)

Thursday, October 27, 2022

"Taking stock of incarcerated military veterans: a review of (and guide for) research"

The title of this post is the title of this interesting new research published in Criminal Justice Studies and authored by Matthew W. Logan, Erika J. Brooke, Mark A. Morgan & Andrea R. Hazelwood. Here is its abstract:

The sociodemographic backgrounds of inmates are essential for understanding their prison experiences and the extent to which they cope with incarceration and recidivate upon release.  The notion that military veterans might fare differently from other groups in the correctional system has existed for decades; yet scholars have only recently begun to focus on the effects that prior service has on metrics of prison adjustment and beyond. Increased emphasis on the prison experiences of military veterans necessitates a review of the studies published to date.

In the current study, we take stock of the empirical research conducted on incarcerated veterans by systematically reviewing all articles published online between 2000 and 2022 . Overall, we find little evidence to support the view that veteran status confers any specific benefits or vulnerabilities during incarceration or following release. However, given the limitations of the studies reviewed, we address several methodological concerns regarding the study of former service members and provide directions for future research.

October 27, 2022 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Wednesday, October 26, 2022

Federal judge gives "real break" due to defendant's autism with home confinement sentence (when prosecutors urged nearly 5 years)

I have not been following closely or blogging about some of the latest sentencing of the January 6 rioters.  But this latest story from Politico, headlined "Jan. 6 rioter gets probation not prison after judge finds autism played a role; U.S. District Court Judge Trevor McFadden concluded that severe mental illness significantly mitigated ‘the blameworthiness’ of the defendant," struck me as worth noting.  Here are the basics:

A Jan. 6 rioter who wielded a hatchet and smashed two windows with a flagpole will serve no jail time, a federal judge ruled Wednesday, finding that Asperger’s syndrome made him susceptible to the influence of the mob.

Nicholas Rodean of Frederick, Md., attempted to address U.S. District Court Judge Trevor McFadden Wednesday and visibly struggled to complete thoughts and sentences while explaining and apologizing for his Jan. 6 conduct. At one point, he clutched his head in frustration.

McFadden ultimately chose to sentence Rodean to 240 days of home confinement.  But he said he was convinced that Rodean’s severe mental illness significantly mitigated “the blameworthiness of your conduct.”

It was an unexpected turn for a defendant whose health struggles were largely discussed under seal during his nearly two-year criminal case. Rodean was charged on Jan. 11, 2021 for his role in the Capitol breach.  McFadden found him guilty during a bench trial in July of shattering two Capitol windows with a flagpole, as well as other crimes associated with breaking into the building and disrupting congressional proceedings....

Rodean’s attorney, Charles Burnham — who also represents Donald Trump associates Jeffrey Clark and John Eastman in ongoing Jan. 6 matters — said Rodean had become fixated on politics during the pandemic, when he was isolated and without his typical support structure. He said Rodean was particularly susceptible to the influence of “assertive male figures” like Trump. And once inside the Capitol, he added, Rodean was similarly drawn in by Chansley, who commanded the attention of the crowd that day.

Rodean’s parents sat in the courtroom during the sentencing proceedings, and his sister Kimberly addressed McFadden, during which she expressed worry that prison would devastate her brother’s mental health and sideline his newly successful dog-walking business.  “Autistic people do not fare well in prison,” she said.

But it was Rodean’s own statement to the judge that appeared to be most affecting. For nearly 15 minutes, Rodean struggled to articulate his conduct on Jan. 6, describing how he consumed an intense amount of media about the 2020 Black Lives Matter protests that, at times, led to rioting. On Jan. 6, he took an Uber to the Stop the Steal rally at which Trump appeared, and then marched along with the crowd. Someone then handed him an object that he used to smash the two windows that had already been struck by other rioters.

“I am really sorry about breaking the window,” he said. “I am really sorry about other crimes that I did.”

“Are you ever going to do anything like this again?” McFadden asked him.

“No,” Rodean replied.

A day earlier, McFadden sentenced Jan. 6 defendant Hunter Seefried to 24 months in prison for similarly joining the early breach of the building and engaging in the same standoff with police outside the Senate chamber.

Prosecutors had initially recommended a 57-month sentence for Rodean.  “There is no indication that he holds any regrets regarding his participation in the riot that day,” the Justice Department wrote in a sentencing recommendation filed last week.

But in his own sentencing memo, Burnham urged McFadden to consider Rodean’s mental health and a doctor’s evaluation that found prison would be uniquely dangerous for his client.

Burnham said Rodean is susceptible to being taken advantage of, easily triggered by loud noises and other stimuli and would likely be put in protective custody by corrections officials who may not have the training for someone with Asperger’s syndrome — forcing him into prolonged periods of isolation.  “We submit that Nicholas’ ‘history and personal characteristics’ make this a unique case among the hundreds of prosecutions to come out of that day,’ Burnham wrote.

October 26, 2022 in Offender Characteristics, Who Sentences | Permalink | Comments (2)

Monday, October 24, 2022

Michigan school shooter Ethan Crumbley pleads guilty to all counts with sentencing next year

As reported in this AP piece, a "teenager pleaded guilty Monday to terrorism and first-degree murder in a Michigan school shooting that killed four students and may be called to testify against his parents, who’ve been jailed on manslaughter charges for their alleged role in the tragedy."  Here is more with an emphasis on sentencing dynamics:

Ethan Crumbley, 16, pleaded guilty to all 24 charges, nearly a year after the attack at Oxford High School in southeastern Michigan.  In the gallery, some relatives of the victims wept as assistant prosecutor Marc Keast described the crimes.  “Yes,” Crumbley replied, looking down and nodding in affirmation, when asked if he “knowingly, willfully and deliberately” chose to shoot other students.

The prosecutor’s office said no deals were made ahead of Monday’s plea. A first-degree murder conviction typically brings an automatic life prison sentence in Michigan, but teenagers are entitled to a hearing where their lawyer can argue for a shorter term and an opportunity for parole.

“We are not aware of any other case, anywhere, in the country where a mass shooter has been convicted of terrorism on state charges,” Oakland County Prosecutor Karen McDonald said.

The teenager withdrew his intent to pursue an insanity defense, and repeatedly acknowledged under questioning by Judge Kwame Rowe that he understands the potential penalties.

His parents, James and Jennifer Crumbley, are jailed on charges of involuntary manslaughter, accused of making the gun accessible to their son and ignoring his need for mental health treatment. Ethan Crumbley’s lawyer, Paulette Michel Loftin, said it’s possible he could be called upon to testify against them   She said they’re under a no-contact order, and he has not spoken to his parents.  Parents have rarely been charged in school shootings, though the guns used commonly come from the home of a parent or close relative....

Sheriff Michael Bouchard told reporters Monday that Ethan Crumbley still had 18 rounds of ammunition when he was arrested. “It’s my belief he would have fired every one of those had he not been interrupted by deputies going immediately in,” said Bouchard who also called Ethan Crumbley “a twisted and evil person.” “I hope he gets life without parole,” the sheriff added. “He has permanently taken lives away from four lovely souls and he’s permanently affected many, many more.”

Prosecutors earlier this year disclosed that Ethan Crumbley had hallucinations about demons and was fascinated by guns and Nazi propaganda.  “Put simply, they created an environment in which their son’s violent tendencies flourished.  They were aware their son was troubled, and then they bought him a gun,” prosecutors said in a court filing....

In addition to the counts of first-degree murder and terrorism causing death, Ethan Crumbley admitted guilt to seven counts of assault with intent to murder and 12 counts of possessing a firearm in the commission of a felony.

The judge set Feb. 9 for the start of hearings to determine if he’ll be sentenced to life without parole or get a shorter sentence due to his age, and a chance at release. His lawyers will be able to argue a variety of mitigating circumstances, including family life and mental health.  Prosecutors didn’t signal in court if they will argue for a no-parole sentence.

October 24, 2022 in Offender Characteristics, Offense Characteristics | Permalink | Comments (3)

Sunday, October 23, 2022

"A Second Look for Children Sentenced to Die in Prison"

The title of this post is the title of this new piece now available via SSRN authored by Kathryn Miller.  Here is its abstract:

Scholars have championed “second look” statutes as a decarceral tool.  Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences.  This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing.  Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public safety.  While resentencing and even releasing these individuals would not directly result in mass decarceration, it would serve as a litmus test for expanding second look statutes to adults convicted of violent crimes — the very group for whom meaningful decarceral efforts must ultimately be aimed.

The Essay also argues that second look legislation has the potential to redress two specific sentencing problems common to cases involving children: the inability to accurately assess an individual’s capacity for change and racially discriminatory sentencing outcomes.  To redress these problems, and to avoid reflexive impositions of original sentences, this Essay recommends three critical additions to juvenile second look statutes: automatic eligibility for resentencing at age twenty-five, jury resentencing, and inadmissibility of the defendant’s original sentence.

October 23, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1)

Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 17, 2022

Feds urging six months' imprisonment and $200,000 fined for Steve Bannon as punishment following his convictions for criminal contempt of Congress

As detailed in this extended ABC News piece, the "Justice Department is asking a federal judge to sentence Steve Bannon, adviser to former President Donald Trump, to six months in prison and make him pay a $200,000 fine for his conviction on two counts of criminal contempt of Congress, according to a new court filing." Here is more of the basics:

Bannon was found guilty in July of defying a subpoena from the House select committee investigating the Jan. 6 attack on the U.S. Capitol.  He had been subpoenaed by the Jan. 6 panel for records and testimony in September 2021.

Bannon is set to be sentenced on Friday at the D.C. courthouse by federal judge Carl Nichols at 9 a.m.  His lawyers are expected to submit their own sentencing memo Monday.

The Government's 24-page sentencing memorandum is available at this link, and it starts this way:

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.  The Committee sought documents and testimony from the Defendant relevant to a matter of national importance: the circumstances that led to a violent attack on the Capitol and disruption of the peaceful transfer of power. In response, the Defendant flouted the Committee’s authority and ignored the subpoena’s demands.  The Defendant, a private citizen, claimed that executive privilege—which did not apply to him and would not have exempted his total noncompliance even if it had—justified his actions.  Then, on the eve of trial, he attempted an about-face, representing to the Committee that former President Donald J. Trump had waived executive privilege and freed the Defendant to cooperate.  But this proved a hollow gesture; when he realized that his eleventh-hour stunt would not prevent his trial, the Defendant’s cooperative spirit vanished.  Despite the removal of the only purported barrier to his compliance, to this day the Defendant has not produced a single document to the Committee or appeared for testimony.  For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

UPDATE: Steve Bannon has also today submitted his sentencing memorandum, which can be found at this link. Here is its starting "summary":

The ear of a sentencing judge listens for the note of contrition. Someone was convicted. Did they learn their lesson? This case requires something more. It involves larger themes that are important to every American. Should a person be jailed when the caselaw which sets forth the elements of the crime is outdated? Should a person be jailed for the doing the exact same thing that was done by the highest law enforcement officers in this country, yet they received no punishment? Should a person who has spent a lifetime listening to experts – as a naval officer, investment banker, corporate executive, and Presidential advisor – be jailed for relying on the advice of his lawyers? Should a person be jailed where the prosecutor declined to prosecute others who were similarly situated – with the only difference being that this person uses their voice to express strongly held political views? If the answer to any of these questions is no, then a sentence of probation is warranted. Because we believe that the answer to each of these questions is no, we respectfully ask this Court to impose a sentence of probation, and to stay the imposition of sentence pending appeal.

October 17, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (5)

Thursday, October 13, 2022

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

October 13, 2022 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Tuesday, October 11, 2022

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

October 11, 2022 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Thursday, October 06, 2022

"Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People"

The title of this post is the title of this new article available via SSRN and authored by Tessa Bialek and Margo Schlanger.  Here is its abstract:

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deaf-blind, speech disabled, or otherwise disabled in ways that affect communication.  Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling, for persons with disabilities.  Correctional entities must confront these challenges; persons with communication disabilities are overrepresented in jails and prisons and the population continues to grow.  Federal antidiscrimination law obligates jails and prisons to avoid discrimination, promote integration, and ensure effective communication.  This requires adequate resources and preparation, joined by a shift in policy, practice, and values: to meet their antidiscrimination obligations, jails and prisons must offer choice, flexibility, and individuation well beyond what is typical in carceral environments. This white paper offers a starting point for such efforts.

October 6, 2022 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Monday, October 03, 2022

A sadder Pennsylvania variation on Going in Style with elderly, ill, repeat bank robber

GoingHollywood has now twice made the movie Going in Style about a group of elderly gentlemen facing who decide to become bank robbers when facing hard financial times.  I recall getting a big kick out of the 1979 version of the movie as a kid, and I did not think quick as much about the 2017 version as an adult.  This movie came to my mind upon reading this local sad press piece, headlined "Pa. man says he robbed bank to stay in prison, not be an imposition to family," about a recent Pennsylvania state sentencing:

A 60-year-old man says he robbed a bank in Lycoming County so he would remain in jail and not burden the family with whom he has not had contact in 30 years with his medical bills. Robert A. Jones, after pleading guilty to a robbery charge Monday, told county Judge Ryan Tira his health is declining.

The judge expressed concern about Jones’ mental health but proceeded to sentence him to 45 to 90 months in state prison in accordance with the plea agreement. Restitution of $2,000 also was ordered.

Police recovered $3,000 of the $5,000 taken in the Sept. 6 robbery when Jones was arrested the next day at the halfway house in the Harrisburg area where he was living. When authorities confronted with a search warrant, Jones is alleged to have responded: “I have nothing to hide, this is my final chapter.” He was within two months of being released from the halfway house, it was noted in court.

“It’s an unfortunate situation,” his public defender Howard B. Gold said. “He prefers to spend the remaining years of his life in state prison.” Tira said he could not relate to Jones’ decision. Jones had been paroled on June 28, 2021, from the 15- to 30-year robbery sentence imposed in 2008 in Lackawanna County. He claimed when arrested last month he had robbed two dozen banks since the 1990s. Records confirm numerous charges in state and federal courts.

The Sept. 6 robbery was at the Jersey Shore State Bank office in Jersey Shore. The robber was wearing a surgical mask and a yellow rain jacket when he handed a note to a teller that stated, “this is a robbery” and then told her to “just remember your training.” He was handed $5,000 in $100, $50 and $20 bills and then left the bank.

Jones was observed on surveillance video running away from the bank and while cutting through a parking lot removing a yellow jacket. Shortly after he disappeared, a 1999 Toyota Camry appeared and a video showed a yellow object in the back seat. The license plate was visible so police were able to determine the car was owned by Jones....

Surveillance video showed Jones removing a black bag from the Camry in the halfway house parking lot and taking it inside. He was wearing clothing similar to that of the robber. Found inside the vehicle, police said, was a yellow rain jacket, beige colored hat, medical mask and more than $3,000 in currency.

Jones told Tiadaghton Valley Regional Police Officer Justin Segura this was the end of the road, it was a call for help and he had no intent to harm anyone in the bank, the arrest affidavit states. The state Parole Board has lodged a detainer against Jones so could face more court action.

October 3, 2022 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Thursday, September 29, 2022

Spotlighting again the decarceral success of the CARES Act

Because it is often so very easy to notice and spotlight government failings in the crime and punishment arena, it is nice to have opportunities to highlight government successes in this world.  So, though I have noted before the great data about the success of persons released from federal prison early under the CARES Act, I am happy to see Molly Gill talking up this data in this new Washington Post opinion piece headlined "Thousands were released from prison during covid. The results are shocking."  Here are excerpts:

We are keeping many people in prison even though they are no danger to the public, a jaw-dropping new statistic shows. That serves as proof that it’s time to rethink our incarceration policies for those with a low risk of reoffending.

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release....

The Cares Act policy teaches us that many of our prison sentences are unnecessarily lengthy. People who commit crimes should be held accountable, and that might include serious time in prison. Many of the people released to home confinement had years or even decades left to serve on their sentences. But they changed in prison and are no longer a danger to others, as the new data confirms.

Releases to home confinement were also focused on two groups of people who pose little to no risk to public safety: the elderly and the ill (i.e., those most likely to face serious covid complications). Study after study confirms that people become less likely to reoffend as they get older. America’s elderly prison population is growing rapidly, because of our use of lengthy prison terms.

People with serious chronic illnesses or physical disabilities are another group who can be safely released from long sentences. They are not dangerous, but their increased medical needs make them exponentially more expensive to incarcerate. Taxpayers aren’t getting much public safety bang for their buck when we incarcerate bedridden people.

The federal Cares Act home confinement program should inspire similar programs across the country. Virtually all states have programs available to release elderly or very sick people from prison, but they are hardly used and should be expanded. States should also give people serving the longest sentences a chance to go back to court after 10 or 15 years and prove that they have changed and can be safely released.

The data is in. It shows that we can thoughtfully release low-risk people from prison with supervision and not cause a new crime wave. At a time when crime is going up in so many cities and towns, we cannot afford to waste money or resources keeping those who no longer need to be in prison locked up.

Prior related posts:

September 29, 2022 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, September 27, 2022

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.

September 27, 2022 in Data on sentencing, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)