Friday, July 30, 2021

Provocative new empirical paper claims to identify the "most discriminatory" federal sentencing judges

Via Twitter, I was altered to this notable new empirical paper by multiple authors titled "The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants."  The paper's title alone likely explains why I describe it as provocative, and this abstract provides more context about the paper's contents:

In the aggregate, racial inequality in criminal sentencing is an empirically well- established social problem. Yet, data limitations have made it impossible for researchers to systematically determine and name the most racially discriminatory federal judges.  The authors use a new, large-scale database to determine and name the observed federal judges who impose the harshest sentence length penalties on Black and Hispanic defendants.  Following the focal concerns framework, the authors (1) replicate previous findings that conditional racial disparities in sentence lengths are large in the aggregate, (2) show that judges vary considerably in their estimated degrees of racial discrimination, and (3) list the federal judges who exhibit the clearest evidence of racial discrimination.  This list shows that several judges give Black and Hispanic defendants double the sentences they give observationally equivalent white defendants.  Accordingly, the results suggest that holding the very most discriminatory judges accountable would yield meaningful improvements in racial equality.

The "new, large-scale database" used for this study is this JUSTFAIR data source published online last year.  I have not previously blogged about the JUSTFAIR data because I have never been sure of its representativeness since the source says it includes nearly 600,000 cases over a recent 18-year period (from 2001 to 2018), but more than twice that number of persons have been sentenced in federal courts during that span.  I fear I lack the empirical chops to know just whether to be reasonably confident or highly uncertain about the JUSTFAIR data, and that broader concern colors my thinking about this provocative new paper's claims that the authors have been able to identify the "most racially discriminatory federal judges."

I would love to hear from readers with strong empirical backgrounds about whether this new paper effectively demonstrates what it claims to identify.  I am initially skeptical because the the two judges labelled "most discriminatory" come from the same federal judicial district and only a few districts are among those that have all the identified "discriminatory" judges.  That reality leads me to wonder if case-selection realities, rather than "discrimination," may at least in part account for any observed racial differences in sentencing outcomes.  Relatedly, when I dig into the local data at the JUSTFAIR data site, the judges identified in this new paper as the "most discriminatory" do not seem to have anywhere close to the most racially disparate rates of above/below guideline sentencing outcomes even within their own districts.

In short, without a much better understanding of the empirics at work here, I am not confident about what this new empirical paper is claiming.  But I am confident that I would like to hear from readers as to what they think about this provocative new paper on an always important topic.

July 30, 2021 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, July 14, 2021

"Criminalizing Migration"

The title of this post is the title of this notable short paper now available via SSRN authored by César Cuauhtémoc García Hernández.  Here is its abstract:

Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity.  Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies.  The presidency of Donald Trump augmented this trend and brought it to public attention.  But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants.  Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.

July 14, 2021 in Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Tuesday, July 13, 2021

BJS reports on "Alcohol and Drug Use and Treatment Reported by Prisoners"

The Bureau of Justice Statistics has released this new report, titled "Alcohol and Drug Use and Treatment Reported by Prisoners: Survey of Prison Inmates, 2016," which explores drug and alcohol use among prisoners before they were imprisoned their participation in drug and alcohol treatment programs since admission to prison.  Here are "Highlights" appearing on the report's first page:

And here are just a few of the "Other key findings" that also caught my eye:

July 13, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Thursday, July 08, 2021

District Judge cites "severe remorse" among reasons to give Michael Avenatti (way-below-guideline) sentence of 30 months in federal prison

This NBC News piece reports that "Michael Avenatti, the brash attorney who had been a leading foe of then-President Donald Trump, was sentenced Thursday to 30 months in prison for a brazen, botched scheme to extort athletic apparel giant Nike out of up to $25 million." Here is more about this high-profile sentencing:

That sentence was much lower than the nine years that was the bottom of the sentencing range suggested by federal guidelines, and not anywhere close to “a substantial” prison term sought by federal prosecutors for the California lawyer.

“I alone have destroyed my career, my relationships and my life. And there is no doubt I need to pay,” Avenatti, 50, tearfully told Manhattan federal court Judge Paul Gardephe before he was sentenced. “I am truly sorry for all of the pain I caused to Mr. Franklin and others,” Avenatti said, referring to his former client Gary Franklin, an amateur basketball coach.

Avenatti’s sentencing came more than three years after he gained widespread fame, and infamy, for his bombastic representation of porn star Stormy Daniels, who received a $130,000 hush money payment from Trump’s then-personal lawyer Michael Cohen before the 2016 presidential election to keep her quiet about claims she had sex with Trump years before he ran for the White House.

Daniels is one of several former Avenatti clients that he is charged with swindling in two other separate federal prosecutions, one of which is due to begin next week in California.

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon. Avenatti’s lawyers had asked for a sentence of just six months....

At his trial next week, Avenatti is accused of crimes that include defrauding clients out of millions of dollars. One of those clients was a mentally ill paraplegic. Avenatti next year is due back in Manhattan federal court to be tried on charges related to allegedly swindling Daniels, out of $300,000 in proceeds for a book she wrote.

July 8, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, June 29, 2021

Interesting split Fourth Circuit panel debate while upholding resentencing to 52 years for violent offenses by 15-year-old

A helpful reader made sure I did not miss the interesting discussion of sentencing practices and outcomes by a Fourth Circuit panel yesterday in US v. Friend, No. 20-4129 (4th Cir. June 28, 2021) (available here). The first paragraph of the majority opinion sets the terms:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case.  Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result.  United States v. Friend, 755 F. App’x 234 (4th Cir. 2018).  These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

And here is a key passage from the majority's extended discussion and the concluding sentiments of the majority (cites removed):

But to sum it up, it is clearly permissible for a sentencing court to weigh the gravity of the offense or the impact a defendant’s crimes have had on a community and to vindicate that community’s interest in justice.  That after all, is the reason a defendant is before the court.  An exclusive focus on one factor impermissibly vitiates the requisite individualized consideration.  On the other hand, for appellate courts to micromanage sentencings and demand a district court assign equal weight to each § 3553(a) factor would also disregard a sentencing’s individualized inquiry and toss our deferential abuse-of-discretion review to the winds.  Ultimately, defendant’s disagreement with the district court’s weighing of the sentencing factors is not enough to find the sentence procedurally unreasonable....

To find this sentence unreasonable would displace the discretion that district judges possess in setting sentences. We are a court of appellate review, not a panel of appellate sentencers. District courts are granted exceptional discretion in sentencing for a reason.  They view the full criminal tableau first-hand, and they weigh the conflicting evidence and competing arguments. Their choices are not easy. When a court abuses its discretion, it is this court’s duty to correct the error. But when a district court is responsive to our mandates and reasonably exercises its sentencing power, we must respect its judgment.  So we do here.

Writing in dissent, Judge Floyd explains at length why he sees matters differently. His opinion starts this way:

At the age of fifteen, Philip Bernard Friend and various members of his family committed a series of extremely serious crimes.  Nobody disputes the severity of those offenses or the irreparable harm that Philip visited upon the lives of his victims and their families.  But this appeal tests the legality of the district court’s imposition of a fifty-two year sentence on a juvenile offender.  Today, the majority declares Philip’s half-century sentence procedurally and substantively reasonable.  Because I cannot agree with the majority’s conclusion on either score, I respectfully dissent.

June 29, 2021 in Assessing Miller and its aftermath, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1)

Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin

This new local press piece, headlined "Derek Chauvin Closing In On Federal Plea Deal, Sources Tell WCCO," reports on an unsurprising but still interesting development in the legal sagas around George Floyd's killing.  Here are the details:

Multiple sources tell WCCO that federal prosecutors are in talks with former Minneapolis Police officer Derek Chauvin about a possible plea deal.  They say Chauvin is close to reaching a deal, and that is what he was likely referring to when he made a cryptic comment to the family of George Floyd during his sentencing last week.

“Due to legal matters, I’m not able to give a full formal statement … I give my condolences to the Floyd family, there’s gonna be some other information in the future that will be of interest and I hope these will give you some peace of mind,” Chauvin said prior to his sentencing.

Sources suggest Chauvin was likely referring to a plea deal in the federal case against him.  As part of a possible plea deal Chauvin would have to publicly explain what he did to Floyd and why.  That was, of course, the question that Floyd’s brother poignantly asked of Chauvin at the sentencing....

Sources tell WCCO that, as part of the plea, Chauvin could get a 20- to 25-year sentence, which he would serve at the same time as the state sentence, and that he would serve his time in federal not state prison....

Former Hennepin County Chief Public Mary Moriarity says Chauvin has to be thinking about the swift guilty verdict in the state case, and that may be giving him more incentive to try to negotiate a plea deal.  “That is because, in federal court, there would be a substantial difference between what he would receive if he went to trial and was convicted versus what he would get if he pled guilty, and as they say take responsibility for his actions,” Moriarity said.

It’s important to remember an earlier plea deal involving the feds in late May 2020 collapsed at the 11th hour.  The U.S. Attorney’s Office declined to comment, and WCCO also did not hear back from Ben Crump, the Floyd family attorney, or Eric Nelson, the attorney for Chauvin.

It is, of course, entirely right that Chauvin is far more likely to get a lower sentence (and to be able to cap his sentencing exposure) if he enters into a federal plea deal rather than going to trial on pending federal civil rights charges.  But, unlike in the Minnesota system where there is a strong presumption of release after a defendant serves 2/3 of an imposed prison term, in the federal system the norm is service of at least 85% of imposed prison time.  So if Chauvin's federal deal led to the imposition, say, of "only" a 20-year term, he should still expect to serve a full 17 years, whereas his 22.5-year prison term in the state system could lead to his release in "only" 15 years.

That said, this "release math" is only one part of the equation for Chauvin and his lawyers as they consider a federal plea deal.  I suspect Chauvin, for a variety of reasons, would much rather spend his considerable time in the federal prison system than in state prison.  Also, it is interesting to speculate whether and how a federal plea could impact any appeals Chauvin has planned for his state convictions and sentence.  And, not to be overlooked, there are distinct "second look" or "early release" mechanisms in state and federal systems that could prove significant in the future (which, in turn, makes them relevant now for plea negotiations).

Prior related posts:

June 29, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, June 28, 2021

Colorado Supreme Court rules mandatory lifetime sex offender registration violates the Eighth Amendment's prohibition on cruel and unusual punishment

A helpful reader made sure I saw an interesting ruling, handed down today by a 6-1 vote, from the Colorado Supreme Court in People in the Interest of T.B., 2021 CO 59 (Colo. June 28, 2021) (available here).  Here is how the majority opinion starts:

T.B. committed two sexual offenses as a minor — the first when he was eleven years old and the second when he was fifteen.  Because he was twice adjudicated delinquent for unlawful sexual behavior, the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S. (2020) (“CSORA”), requires T.B. to register as a sex offender for the remainder of his natural life.  Now an adult, T.B. seeks review of the juvenile court’s denial of his petition to deregister, arguing that CSORA’s mandatory lifetime sex offender registration requirement for offenders with multiple juvenile adjudications violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  We agree.

Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.  But a wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different.  Minors have a tremendous capacity to change and reform.  As such, mandating lifetime sex offender registration for juveniles without providing a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment.  Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand with instructions to order a new hearing on T.B.’s petition to deregister.

As the T.B. opinion notes, the Ohio Supreme Court has issued a similar ruling some years ago and top courts in Pennsylvania and New Jersey have found due process problems with mandatory juve sex offender registration.  As the T.B. opinion also notes, the Colorado General Assembly recently passed a bill to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications, so the state likely will not have an interest in pursuing any appeal of this ruling.

June 28, 2021 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, June 26, 2021

Noting efforts to limit LWOP for young adults older than 18

This recent AP piece, headlined "Cases challenge no-parole terms for young adult killers," reports on various efforts in various jurisdictions to extend limits on LWOP sentences for young persons older than 18.  Here are excerpts:

U.S. Supreme Court rulings and state laws in recent years have limited or banned the use of life sentences without the possibility of parole for people who commit crimes as juveniles because of the potential for change.  Now, research showing that the brain continues to develop after 18 is prompting some states to examine whether to extend such protections to young adults...

Washington state’s high court earlier this year abolished automatic life without parole sentences given to people for murders committed as 18- to 20-year-olds.  Courts in Washington can still sentence young adult offenders to life with no chance at parole, but only after first considering whether their youth justifies a lesser punishment.

A new Washington, D.C., law allows those under the age of 25 at the time of their crime to apply for a new sentence after 15 years, said Josh Rovner, who works on juvenile justice issues for The Sentencing Project.  And bills introduced in Connecticut and Illinois would get rid of life without parole sentences for people who commit crimes as young adults, Rovner said....

Boston’s progressive top prosecutor, Suffolk County District Attorney Rachael Rollins, agrees there needs to be a change — though not as drastic as defense attorneys would like. Even so, Rollins took the unusual step this year of signing a brief in the case against Robinson to push for an end to mandatory life without parole for those who committed killings between 18 and 20.

She argues in court documents that the studies the defense points to are flawed, and that while it is “undisputed” that the brain continues to develop into early adulthood, “there is an absence of direct evidence linking these anatomical changes to specific behaviors.”  Rollins said she will urge the Supreme Judicial Court to follow Washington State and rule that those young adults must get a special sentencing hearing to consider their youth before punishments can be handed down. She said they should be ordered to die in prison in only “extremely egregious” circumstances — if the judge finds them to be “irretrievably depraved.”

June 26, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 24, 2021

First person taken of Ohio death row based on new statute precluding capital punishment for those with "serious mentally illness"

In this post back in January, I reported on the new Ohio statute precluding the death penalty for those with "serious mentally illness."  Today I can report, with the help of this local article, that this law has now moved one person off Ohio's death row: "A Columbus man sentenced to death in 1999 for the murder of his ex-girlfriend and her father has become the first inmate in Ohio removed from death row under a new state law that bans the execution of the seriously mentally ill."  Here are more interesting details:

The death sentence of David L. Braden, 61, was vacated last week by a Franklin County judge, who resentenced him to life without parole.

The county prosecutor's office and the state public defender's office agreed that Braden, at the time of his crime, met the criteria for serious mental illness under the new Ohio law, which went into effect April 12.  Both sides prepared an order that was signed by Common Pleas Judge Colleen O'Donnell.

Ohio was the first state to create such a law, thus Braden is also the first death-row inmate in the nation "to be removed from death row because of a statutory prohibition against executing people with a serious mental illness," said Robert Dunham, executive director of the Death Penalty Information Center.

The Virginia legislature was close to approving a similar law late last year, Dunham said, but instead banned the death penalty in March, becoming the 23rd state to do so.

The Ohio law, House Bill 136, was overwhelmingly approved by the state House in June of last year and by the state Senate in December.  Gov. Mike DeWine signed the measure in January and it became law 90 days later.

The law designates certain mental illnesses, including schizophrenia and bipolar disorder, as qualifying disorders if the condition "significantly impaired the person's capacity to exercise rational judgment in relation to his or her conduct" or "to appreciate the nature, consequences or wrongfulness" of the conduct.  The law applies not only to current and future capital cases, but provides the possibility of postconviction relief for those already on death row who can establish that they qualified as seriously mentally ill at the time of their offense.

While prosecutors have the option to oppose such petitions and request a hearing before a judge, Janet Grubb, Franklin County first assistant prosecuting attorney, said a careful review of information from Braden's appellate attorneys made such a challenge unnecessary.  "We saw enough during the exchange of information to conclude that a reasonable fact-finder in our court would determine that this individual qualified under the statute," said Grubb, who signed the order on behalf of Prosecutor Gary Tyack's office.

Tyack, who was elected in November, had no involvement in the decision, Grubb said.  Because Tyack served on the 10th District Court of Appeals for one of Braden's appeals, he had a conflict of interest that required Grubb to serve as prosecutor on the matter.  "Gary was completely walled off" from discussions about Braden's petition, Grubb said.

Braden was 39 when he was convicted by a Franklin County jury in May 1999 of fatally shooting Denise Roberts, 44, and Ralph "Bud" Heimlich, 83, at the home they shared on Barthel Avenue on the East Side on Aug. 3, 1998.  Testimony established that Braden and Roberts were seen arguing in a parking lot outside her workplace earlier in the day.  A man matching his description was seen fleeing the victims' home after neighbors heard gunshots.

All of Braden's appeals over the years, including one heard by the Ohio Supreme Court, have been rejected, although a case in federal court was still pending. Kathryn Sandford, an assistant state public defender who has handled Braden's appeals since his conviction, said the federal case will be dismissed as a result of the agreed order signed by O'Donnell.

Sandford and Steve Brown, a fellow assistant state public defender, filed the petition outlining Braden's qualifications for the serious-mental-illness designation. They included the findings of a psychologist who determined that Braden suffered from "paranoid schizophrenia with delusions" before committing the murders.

Since the early to mid-1990s, they wrote, a brother and sister-in-law testified that Braden had made statements about being a prophet of God, while friends attested to his paranoia and alarming personality changes. Since the beginning of his incarceration, Braden has been treated with anti-psychotic medication to control his psychotic symptoms, according to his attorneys.

A psychologist testified during the sentencing phase of Braden's trial that he was mentally ill, but the jury recommended a death sentence, which was imposed by then-Common Pleas Judge Michael H. Watson....

As part of the prosecutor's office review of Braden's petition, it was required by a separate state law to contact the family of the victims to inform them of the request, Grubb said. "The survivor we met with understood the position we were in," she said. "I think she reluctantly accepted that this was something that made sense on multiple levels."

June 24, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 23, 2021

Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)

This local article, headlined "Indiana woman to plead guilty in Capitol riot wrote reports on 'Schindler's List,' more," provides the interesting backstory leading up the scheduled sentencing of one person prosecuted for involvement in the Capitol riot on January 6. Here are some details:

A Bloomfield woman will plead guilty this week for her role in the U.S. Capitol riot after appealing to the court that she has learned from her participation from movies and books such as "Schindler's List" and "Just Mercy."  Anna Morgan-Lloyd has agreed to plead guilty to one of her pending federal charges in the Jan. 6 insurrection in exchange for three years probation, $500 in restitution and community service.

The 49-year-old attended what initially began as a rally with her friend Dona Sue Bissey — also federally charged in the riot.  Bissey, whose case is still pending, is scheduled to appear in court July 19.

In a letter to the judge, Morgan-Lloyd apologized for entering the U.S. Capitol and said she feels “ashamed” about how the march that day turned violent.  She attached movie and book reports to her letter, summarizing “Schindler’s List” and “Just Mercy.” Her attorney recommended them, she said, to learn “what life is like for others in our country.”...

Bissey and Morgan-Lloyd referred to Jan. 6 as the “most exciting day” of their lives in Facebook posts, tagging one photo inside the Capitol building.  The FBI arrested the two women in late February, making them among six Hoosiers criminally charged in the aftermath of the insurrection.

Court records show the Acting U.S. Attorney has agreed to the plea, calling Morgan-Lloyd’s participation a serious violation of the law, but noted she did not engage in physical violence or destroy government property.  “To be clear, what the Defendant initially described as “the most exciting day of (her) life” was, in fact, a tragic day for our nation — a day of riotous violence, collective destruction, and criminal conduct by a frenzied and lawless mob,” Acting U.S. Attorney Channing Phillips wrote in court records.

The U.S. listed Morgan-Lloyd’s apparent remorse, no prior criminal history and cooperation with law enforcement after her arrest as some of the reasons for the government’s acceptance of the plea agreement.

This extended HuffPost piece, headlined "A Lawyer For Jan. 6 Defendants Is Giving Her Clients Remedial Lessons In American History," provides additional details on this defendant and the valuable efforts of her defense attorney to turn her prosecution into a "teachable moment."  I recommend this piece in full, and here is an excerpt: 

This week, Morgan-Lloyd will become the first of nearly 500 defendants arrested in connection with the Jan. 6 attack on the U.S. Capitol to face sentencing. She wants a judge to know she’s changed, and her book report-style filings are meant to illustrate that growth. “I’ve lived a sheltered life and truly haven’t experienced life the way many have,” Morgan-Lloyd wrote to the judge. “I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.”

The remedial social studies program that Morgan-Lloyd is following was created by her D.C.-based lawyer, H. Heather Shaner....  Shaner is one of many D.C. lawyers assigned to represent Capitol defendants who can’t afford their own attorneys, as guaranteed by the U.S. Constitution and as laid out in the Criminal Justice Act.

In addition to representing her clients in court, Shaner has seized an opportunity to try and educate them on the history their teachers glossed over.  Shaner regularly sends her clients who are incarcerated pretrial books to read: “They’re a captured audience, and it’s life-changing for a lot of them.”  But she decided to take an even more intensive approach with her Capitol clients, who were part of another ugly, historical event in American history.

“Reading books and then watching these shows is like a revelation,” Shaner told HuffPost. “I think that education is a very powerful tool ... So I gave them book lists and shows that they should watch.” In addition to Morgan-Lloyd, Shaner represents Capitol defendants Annie Howell, Jack Jesse Griffith (aka Juan Bibiano), Israel Tutrow and Landon Kenneth Copeland, a veteran with post-traumatic stress disorder who had a major episode during a virtual hearing in his case and cursed out everyone on the call. (Copeland, who was filmed assaulting officers at the Capitol on Jan. 6 and is facing the most serious accusations of any of Shaner’s Capitol clients, was ordered to undergo a competency evaluation and remains in custody.)

Shaner said her clients had poor educations and knew very little about the country.  Her two female clients took to the task with zeal, Shaner said, and got library cards for the first time in their lives.  “Both my women are like, ‘I never learned this in school. Why don’t I know about this?’” Shaner said.  (A couple of the male clients weren’t quite as eager students, she said. “The men are very much like ‘Oh, I’ll get to it.’”  But she said some of her male clients have been doing some self-education.)

Here are some links to some of the court filings discussed above:

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 22, 2021

Strong extended coverage of modern drug war dynamics from NPR

As noted in this prior post, a number of media outlets ran a number of solid articles about the purported 50th anniversary of the start of the modern "war on drugs."  Valuably, NPR has gone deeper into this multifaceted topic through an extended series of effective pieces.  I have already flagged a few of these segments in prior posts, but I thought it useful to round-up and recommend all that I have now seen here:

June 22, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Monday, June 21, 2021

Lots of GVRs (especially to Fifth Circuit) on latest SCOTUS order list

In this prior post following the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, I asked "How many federal prisoners might now be serving illegal sentences after Borden?".  Though that question may never get a precise answer, today's Supreme Court order list has a bunch of Borden GVRs which showcases which circuits will be most busy with the Borden fallout.

Specifically, by my count, the Borden GVRs come from the Fifth Circuit (16 of them!), the Sixth Circuit (two), the Tenth Circuit (two), and the Eleventh Circuit (one).  There is also a very long list of cert denials in the order list, so I would guess that not everyone pressing an ACCA claim secured a GVR.  (And, of course, there are surely many folks serving Borden-iffy ACCA sentences who did not have pending cert petitions.)

As always, I welcome input on whether any of these GVRs or denials are surprising or noteworthy (or other Borden application news).  

Prior related posts:

June 21, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

Notable recent commentary on links between lead exposure and crime rates

Long-time readers may recall that I have long been intrigued by the (often under-discussed) social science research that suggests lead exposure levels may better account for variations in crime rates than just about any other single variable.  In an number of older posts (linked below), I have flagged some articles on this topic, and I have always been eager to note work by researcher Rick Nevin and others who have been eager to put a spotlight on the lead-exposure-crime-link evidence. 

This week, interestingly, I have seen not only some new work by Rick Nevin on this topic, but also by another notable empiricist.  Here are links to the new pieces:

From Jennifer Doleac via the Niskanen Center, "Research Roundup: Lead Exposure Causes Crime"

From Rick Nevin at Juvenile Justice Information Exchange, "Lead Exposure’s Link to Crime Should Shape Criminal Sentencing, Early Release"

From Rick Nevin at his website, "Why are prisons “getting Whiter”?"

I will close here by just quoting one paragraph from the start of the first of these pieces by Jennifer Doleac:

Below, I summarize the latest evidence on the effects of lead exposure on criminal behavior.  Given the tremendous cost of crime to society, investing more in lead remediation to protect children from the dangerous effects of this toxin would be an extremely cost-effective strategy to improve public safety, and one that deserves bipartisan support.

Some prior related posts from this blog:

June 16, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Sunday, June 13, 2021

Youth, gender, mental illness, abuse, co-defendant disparity all part of Tennessee capital case perhaps nearing an execution date

This new lengthy article in the Knoxville News Sentinel, headlined "How young is too young for a death sentence? Christa Pike fights move to set execution date," discusses a remarkable case from the Volunteer State. I could imagine spending an entire semester discussing this case with students because it engages so many sentencing issues, and here are just some of the particulars:

What's the difference between being 17 years old and being 18? In Christa Gail Pike's case, her lawyers say, the difference is a death sentence.

The state wants to set an execution date for Pike, now 45 and the only woman on Tennessee's death row.  She was 18 years old when she and two other participants in a Knoxville job program for troubled teens killed Colleen Slemmer in a remote spot on the University of Tennessee's agriculture campus.

Pike, her boyfriend Tadaryl Shipp and fellow Job Corps student Shadolla Peterson lured Slemmer, 19, to campus the night of Jan. 12, 1995.  Once there, Slemmer was beaten, cut and bludgeoned to death with a rock.  Pike kept a piece of her skull as a souvenir. Investigators identified a love triangle between Pike, Shipp and Slemmer as the motive for the crime.

Only Pike received a death sentence for her role in the killing.  Peterson cooperated with investigators and walked away with probation.  Shipp was 17 — too young to be put to death.  He's serving a life sentence and will be eligible for parole in 2028.

Pike's legal team cites that difference in a new court filing asking the Tennessee Supreme Court to delay her execution — or recommend it be stopped altogether.  "Mr. Shipp was 17 years old at the time of Ms. Slemmer’s death. Christa Pike was 18.  That is the difference between a death sentence and parole eligibility in 2028," reads the filing signed by defense attorneys Stephen Ferrell and Kelly Gleason.  "That difference cannot be equated with increased maturity or brain development. Christa was not more mature or more responsible than Mr. Shipp."

The Tennessee Attorney General's Office is asking the high court to set an execution date for Pike, contending she has exhausted her appeals. But Pike's defense team says it's still too soon.  They've lodged several arguments, including one centered on her mental illness and youth at the time of the crime.

A jury condemned Pike in March 1996.  Nine years later, the U.S. Supreme Court abolished the juvenile death penalty in the landmark case Roper v. Simmons....  The court drew the line at 18, but Pike's attorneys argue its logic should extend beyond that. They point to scientific research that the brain isn't fully developed until after age 20 and that there's no way to differentiate between the brains of young people.

"There is thus no justification for a drastic differentiation in punishment between a 17-year-old offender and an 18-year-old offender," the filing reads. "And the question is an important one, for Christa Pike was eligible for the death penalty in this case and her co-defendant, Tadaryl Shipp, was not."

The lawyers paint Shipp — not Pike — as the ringleader of the group. Shipp was violent and controlling, they write, while Pike was suffering from undiagnosed bipolar disorder and brain damage after a childhood filled with sexual and physical abuse. Her mother drank while she was in the womb, and she was twice raped as a child.

"It is also significant that, in addition to her youth, Christa Pike was also brain damaged and severely mentally ill at the time of her offense," the filing reads.  "Thus, practical effects of the immaturity that would be inherent in the brain of any eighteen-year-old were magnified by other problems that adversely affected Christa’s developing brain."

Courts have shot down similar arguments in Pike's case before....  The U.S. Supreme Court declined to take up the case last year.  Pike's attorneys now are asking the Tennessee Supreme Court to recommend that Gov. Bill Lee commute Pike's sentence to life with or without the possibility of parole.  At the very least, they're asking for more time so a psychologist can examine Pike in prison and so the Inter-American Commission on Human Rights can finish investigating whether Pike's human rights have been violated.

Lee could grant Pike clemency but has not done so for any other death-row inmate since he was inaugurated in January 2019.  The state has executed four men since then, including Nicholas Sutton, a Morristown man who killed four people and turned his life around on death row.

Pike has had additional legal troubles while in prison.  In 2004, she was convicted of attempted murder for nearly strangling a fellow inmate with a shoestring.

Pike would be the first woman Tennessee has executed in over 200 years, her attorneys say, and the first person it's put to death "in the modern era" who was a teenager at the time of the crime.

June 13, 2021 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, June 10, 2021

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Functional life sentence finally becomes actual life (with eligibility for parole) sentence for person serving longest on death row

Because I love sports statistics and trivia (especially baseball, of course), I cannot avoid being intrigued by records and data even in the much-less-fun world of sentencing.  Consequently, this AP story caught my eye this morning under the headline, "Longest serving death row inmate in US resentenced to life."  Unsurprisingly, the story behind the statistic is fascinating: 

The longest serving death row inmate in the U.S. was resentenced to life in prison on Wednesday after prosecutors in Texas concluded the 71-year-old man is ineligible for execution and incompetent for retrial due to his long history of mental illness.

Raymond Riles has spent more than 45 years on death row for fatally shooting John Thomas Henry in 1974 at a Houston car lot following a disagreement over a vehicle. He is the country's longest serving death row prisoner, according to the Death Penalty Information Center.

Riles was resentenced after the Texas Court of Criminal Appeals ruled in April that his “death sentence can no longer stand” because jurors did not properly consider his history of mental illness. Riles attended his resentencing by Zoom from the Polunsky Unit in Livingston, which houses the state’s death row inmates.  He said very little during the court hearing....

In a statement, Harris County District Attorney Kim Ogg said Riles is incompetent and “therefore can’t be executed.” “We will never forget John Henry, who was murdered so many years ago by Riles, and we believe justice would best be served by Riles spending the remainder of his life in custody of the Texas Department of Criminal Justice,” Ogg said.

During his time on death row, Riles has been treated with heavy antipsychotic medications but was never deemed mentally competent to be executed, according to prosecutors and his attorneys.  He had been scheduled for execution in 1986 but got a stay due to competency issues.  While Riles spent more than 45 years on death row in Texas, prisoners in the U.S. typically spend more than a decade awaiting execution, according to the Death Penalty Information Center.

[District Judge Ana] Martinez was not able to resentence Riles to life in prison without parole because it was not an option under state law at the time of his conviction. Riles’ new sentence means he is immediately eligible for parole.  The Texas Board of Pardons and Paroles will automatically conduct a parole review in his case, [Riles’ attorney Jim] Marcus said.

The district attorney’s office as well as Henry’s family have indicated they will fight any efforts to have Riles released on parole. “Mr. Riles is in very poor health but, if the Board of Pardons and Paroles sees fit to grant parole, he has family with the capacity to care for him,” Marcus said.

A co-defendant in the case, Herbert Washington, was also sentenced to death, but his sentence was overturned, and he later pleaded guilty to two related charges. He was paroled in 1983.

When Riles was tried, state law did not expect jurors to consider mitigating evidence such as mental illness when deciding whether to choose the death sentence. The U.S. Supreme Court ruled in 1989 that Texas jury instructions were unconstitutional because they didn’t allow appropriate consideration of intellectual disability, mental illness or other issues as mitigating evidence in the punishment phase of a capital murder trial.

But Riles’ case remained in limbo because lower courts failed to enforce the Supreme Court’s decision until at least 2007, according to his attorneys. That then gave Riles a realistic chance to prevail on this legal issue, but it wasn’t until recently that he had contact with attorneys who were willing to assist him, his lawyers said.

While prosecutors argued at Riles’ trial that he was not mentally ill, several psychiatrists and psychologists testified for the defense that he was psychotic and suffered from schizophrenia. Riles’ brother testified that his “mind is not normal like other people. He is not thinking like other people.”

While the Supreme Court has prohibited the death penalty for individuals who are intellectually disabled, it has not barred such punishment for those with serious mental illness, according to the Death Penalty Information Center. In 2019, the Texas Legislature considered a bill that would have prohibited the death penalty for someone with severe mental illness. The legislation did not pass.

June 10, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, June 08, 2021

Bureau of Justice Statistics releases "Capital Punishment, 2019 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with data on the administration of capital punishment in the United States through the end of 2019. As I have noted before, though BJS sometimes provides the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report still provides notable and clear statistical snapshots about the death penalty, and the document sets out these initial "highlights":

June 8, 2021 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)

Saturday, June 05, 2021

"Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases"

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

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors.  This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence.  This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday?  Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions.  This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.

This Note proceeds in three parts. Part I sets the stage for studying the Supreme Court’s juvenile sentencing jurisprudence. It takes a step back in order to orient the landmark trilogy of cases — Roper, Graham, and Miller — within the broader legal framework of criminal and juvenile justice. It is broken into three subcategories.  Subpart (A) briefly explains the principal justifications for punishing criminality.  After better understanding why we punish altogether, Subpart (B) analyzes why juveniles should be punished differently from adults.  This is explored very briefly from a historical, political, and legal perspective.  Subpart (C) explains in what circumstances juveniles in the justice system are treated like adults and why, again from a historical, political, and legal perspective.  Part II examines how the Supreme Court limited in some measure the punishments that can be meted out to juveniles, even if being sentenced within the adult criminal justice system.  Roper, Graham, and Miller are explored in detail, as well as some of the preceding cases that paved the road to these landmark rulings, and some subsequent cases.  Part III analyzes how judges should implement the guidance given by the Supreme Court in these cases.  The analysis will trace Josue Portillo’s case but its implications apply across the field of juvenile justice.

June 5, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, June 02, 2021

In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison

As detailed in this CBS News piece, the parties in the case of Minnesota v. Chauvin are making very different sentencing requests:

Derek Chauvin asked a judge to sentence him to a term of probation or a shorter prison term than suggested by Minnesota guidelines in a sentencing memorandum filed Wednesday.  The memo cites Chauvin's lack of previous criminal history, his previous work as a police officer and the risk he could be victimized in prison as factors the judge should consider as he weighs a sentence.

But in another memorandum filed Wednesday, prosecutors asked for a sentence of 30 years for the convicted former Minneapolis officer, a term they said would "properly account for the profound impact of [Chauvin's] conduct on the victim, the victim's family, and the community."...

Last month, Judge Peter Cahill found "aggravating factors" exist that allow for him to sentence Chauvin to a term longer than the suggested 15 years. Cahill agreed with prosecutors that four such factors exist: that Chauvin committed a crime in front of a child, that Chauvin acted with particular cruelty, that he acted as part of a group, and that he abused his position of trust and authority as a police officer.  Cahill found that Chauvin acted with particular cruelty because he killed Floyd slowly despite Floyd's pleas that he couldn't breathe.  Floyd was "begging for his life and obviously terrified by the knowledge that he was likely to die" but Chauvin "objectively remained indifferent to Floyd's pleas," Cahill wrote.

Wednesday, prosecutors said the aggravating factors support their recommendation of double the 15-year upper end of the sentencing range, or 30 years.  Chauvin, they said, "brutally murdered Mr. Floyd, abusing the authority conferred by his badge."  "His actions traumatized Mr. Floyd's family, the bystanders who watched Mr. Floyd die, and the community. And his conduct shocked the Nation's conscience," the prosecution's memo read. "No sentence can undo the damage [Chauvin's] actions have inflicted.  But the sentence the Court imposes must hold [Chauvin] fully accountable for his reprehensible conduct."

But in the defense memo, Chauvin's attorney Eric Nelson asked Cahill to discount his finding that aggravating factors apply, and rule instead that mitigating factors allow either for a term of probation or a shorter sentence than guidelines suggest.  Nelson asked the judge to "look beyond" his findings to Chauvin's "background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system."

Nelson said that Chauvin has been "painted as a dangerous man," but argued that "behind the politics, Mr. Chauvin is still a human being."  He cited Chauvin's 19-year history with the Minneapolis police department, several on-the-job commendations and the support of his family and friends.  "In spite of his mistakes, Mr. Chauvin has demonstrated that he has a capacity for good and that he has the discipline to consistently work toward worthwhile goals," the memo reads.

The defense memo says Chauvin, 44, has been diagnosed with heart damage and that he may be likely to die at a younger age like other ex-law enforcement officers.  It also says Chauvin may be more likely to be victimized in prison because he was convicted as a police officer, pointing to the fact that he is being segregated from the general prison population before his sentencing over safety concerns.  It also says Chauvin has no previous criminal convictions and complied with pre-trial release conditions and court procedures. "Throughout these proceedings, and in the face of unparalleled public scorn and scrutiny, Mr. Chauvin has been very respectful to the judicial process, the Court, and the State," the memo said.

These new sentencing filings are available at these links:

Prior related posts:

June 2, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Tuesday, June 01, 2021

Arnold Ventures releases detailed reports from multi-year community initiatives on Data-Driven Justice

Via this new press release, today "three pilot sites, Arnold Ventures, and the National Association of Counties publish findings and recommendations from a multi-year initiative aimed at using data and community coordination to better align resources to respond to people with complex health and social needs." Here is more from the release:

Arnold Ventures is proud to release the final reports from Data-Driven Justice (DDJ). These documents include a DDJ Insights brief that provides an overview of the pilot initiative and recommendations to policymakers, and an updated DDJ Playbook that provides detailed implementation guidance — a suite of materials that will help communities, both in the DDJ network and across the country, better respond to their most vulnerable residents. The three DDJ pilot test sites — Middlesex County, Massachusetts, Johnson County, Iowa and the City of Long Beach, California — are also releasing their final reports.

DDJ is a project of the National Association of Counties (NACo) and AV that aims to help local jurisdictions use data to better align resources to respond to people with complex health and social needs, particularly those who are frequent utilizers of justice, health, and human services systems....

These reports are key for practitioners and stakeholders charged with introducing DDJ in their own communities to gain insights into the details and processes behind implementation.  They will be especially helpful in demonstrating how DDJ can improve outcomes for frequent utilizers in communities starting with little to no capacity to share, integrate, and analyze data.

The lessons from the three pilot sites are incorporated into two overarching documents: the Insights Report, by AV, and a Playbook, by AV and NACo.

The Insights report presents an overview of the DDJ Pilot Site Initiative.  It reflects on the successes and challenges of the pilot initiative and provides recommendations for policymakers who seek to sustain and scale similar efforts. It is intended for use by the DDJ Network communities, funders, and policymakers interested in sustaining and scaling similar efforts to the pilot initiative.

The DDJ Playbook outlines step-by-step how communities and governments can use data and coordinate across criminal justice, behavioral health, and service providers to better align resources to respond to people with complex health and social needs for communities, and apply these lessons to community-specific contexts.

It can be used to inform DDJ Network communities and communities nationwide, provide recommendations for policymakers and funders, provide key insights into data analysis and integration, and further resources to explore and learn about how to improve outcomes for frequent utilizers through data integration and analysis.

June 1, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics | Permalink | Comments (0)

Thursday, May 27, 2021

"What's the right age for juvenile criminals to be considered adults? Advocates and some states push it past 20."

The title of this post is the headline of this notable recent lengthy Des Moines Register piece. Here are excerpts:

Four years ago, juvenile justice advocates celebrated a huge win: North Carolina ended its status as the last state in the nation that automatically considered anyone 16 years old or older an adult in the criminal justice system.  When North Carolina raised the age to 18, the change was more than a dozen years in the making.  Now, advocates are setting their sights — and their desired age limit — higher.

And they're winning.  Vermont, Massachusetts, Connecticut and Illinois raised or are looking to increase the age of juvenile jurisdiction through age 20 or created separate courts or parole allowances for those ages 18 to 25.  Similar bills have moved or are being considered in California, Colorado, Washington, D.C., and Florida.  Backed by evidence of racial disparities, court cases and research showing a person’s brain isn’t fully developed until at least 25, states see kids as kids and emerging adults as not fully developed and still prone to immature behavior.

“We've really seen a reversal of the trend in the ’90s, which was to treat more children as adults — sort of the ‘adult crime and adult time’ mindset,” said Karen Lindell, senior attorney with the Juvenile Law Center.  Studies showed minors sentenced in the adult system not only committed more crimes upon release than peers in the juvenile system but also engaged in more serious crimes, Lindell said.

U.S. Supreme Court rulings struck down the death penalty for juveniles and ended mandatory life without parole in all but homicide cases — then for all crimes.  Faced with the research and those rulings, state officials started looking at trends showing juvenile crime rates were plummeting.  In 2019 — the latest year data is available — minors accounted for the fewest arrests in nearly 40 years, roughly 700,000, according to the U.S. Department of Justice.  The biggest drops in juvenile crime were over the past 10 years — a 58% drop overall and a 40% falloff in violent crime.  By comparison, the department said violent crime among adults was down 7%.

Forty-seven states automatically charge those under 18 as juveniles for all but the most serious offenses, such as murder or sexual assault.  Michigan and Missouri joined the list over the past year.  Michigan is working on the Holmes Youthful Trainee Act, which would give people ages 17 to 23 the chance to wipe even felonies from their records.  "No state should want to be the last jurisdiction to automatically prosecute and sentence youth under 18 as adults," said Lael Chester, director of the Emerging Adult Justice Project at Columbia University’s Justice Lab.

Officials in the remaining three states — Georgia, Wisconsin and Texas — have considered bumping the cutoff age to 18.  All three states set the age at 17.  It's not just the ceiling for juvenile jurisdiction being raised: The floor is being lifted as more states increase the age at which minors can first enter the juvenile system. Massachusetts set the floor at age 12. Illinois lifted it to 14.

As on most state-level changes, states look to their peers for guidance, said Anne Teigen, the program director for juvenile justice at the National Conference of State Legislatures.  Other state lawmakers are looking at Vermont.  That state set the age of juvenile jurisdiction through age 18 last year, and that limit will increase to 19 in July 2022 and 20 in 2024.  Vermont started moving in the direction of raising the age in 2016, when then-Gov. Peter Shumlin, a Democrat, signed a law enabling anyone 21 or younger charged with a nonviolent crime to be eligible for juvenile offender status....

Recently, Illinois lawmakers have debated a bill that would raise the age for juvenile consideration to those under 21 and separately, a measure to reintroduce parole to the state  — something that was ended in 1978.  Illinois, like other states, says adulthood begins at 21 for alcohol and tobacco use, so the same age should be applied to criminal behavior, said state Sen. Laura Fine, a Democrat.  "Their brains are not fully developed," Fine said. "And if you put yourself in their position, think of what you did when you were 18. A lot of people were lucky because they did stupid things, and they didn't get caught."

Many law enforcement organizations oppose the move, and the bill, which won early support, stalled as lawmakers worked on other major criminal justice changes, such as getting rid of cash bail.  "We think that what people do when they're 20 or 21 is quite a bit different from what people do when they're 13 and 14.  And the kinds of opportunities that we give to 13- and 14-year-olds seem rather appropriate most of the time," said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, which opposes the measure....

If the Illinois bill becomes law, Columbia University's Chester said, it could swing other states in that direction.  “Illinois would be the second state to move in that direction, but it would be a big deal," Chester said. "As momentous as Vermont is, it's a very small state.  And I think the bigger states, having Illinois with a very large population — the big city of Chicago — that is more influential on the national stage.”

May 27, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, May 24, 2021

Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel

As detailed in this website, candidate Joe Biden pledged to "Eliminate the death penalty" if elected.  But many months into his presidency, it appears that Prez Biden's Department of Justice is continuing to actively defend the application of the death penalty in at least on high-profile case.  Specifically, as detailed in this local article, tomorrow a Fourth Circuit panel will hear arguments on Dylann Roof's appeal of his conviction and death sentence with DOJ apparently seeking to defend that punishment.  Here are the basics:

Defense lawyers will advance arguments Tuesday on up to 20 issues in the U.S. 4th Circuit Court of Appeals in Richmond as to why Dylann Roof was wrongfully convicted and sentenced to the death penalty in 2017 after a weeks-long trial. They will ask the court to vacate both the conviction and the death penalty.

Those arguments will be countered by a team of prosecution appellate lawyers from the U.S. Department of Justice. They seek to uphold the conviction and sentence.

Roof, 27, who grew up in Columbia, was sentenced to death in January 2017 by U.S. Judge Richard Gergel after a jury found him guilty of 18 death eligible federal hate-crimes and firearms charges. In a subsequent proceeding to determine sentence, the same jury ruled Roof deserved the death penalty. Judge Gergel then pronounced the sentence.

Evidence at Roof’s trial, which included his own writings and selfie photos and videos, portrayed him as a self-described white supremacist who wanted to start a race war by killing African-Americans. To implement his plan, Roof traveled to Charleston in June 2015, entered a prayer meeting at an African American church and executed nine Black churchgoers, including beloved Democratic state Sen. Clementa Pinckney.

“Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty” will be considered, according to a description about the case on the Fourth Circuit’s web site.

Roof’s purported mental illness and inability to be his own lawyer — casting aside an active defense role by David Bruck, one of the nation’s most experienced death penalty lawyers — is a major feature of Roof’s defense....

“Though Roof’s mental state was the subject of two competency hearings, and five experts found him delusional—findings swiftly dismissed by the court, in its rush to move the case along—jurors never heard any of that evidence. Instead, prosecutors told them Roof was a calculated killer with no signs of mental illness. Given no reason to do otherwise, jurors sentenced Roof to death. Roof’s crime was tragic, but this Court (the 4th Circuit) can have no confidence in the jury’s verdict,” the defense brief on the case says....

Prosecutors will argue that Judge Gergel’s rulings in both the guilt or innocence, as well as the penalty, phases of the trial were correct. “(Judge Gergel) did not clearly err in finding Roof competent to stand trial. The finding was supported by expert testimony and was not arbitrary or unwarranted,” the prosecutors’ brief said. “Roof’s right to self-representation was correctly defined and properly protected.”

“No error occurred at the penalty phase,” the prosecutors wrote. “The death penalty was not plainly erroneous based on Roof’s age or mental condition. Finally, Roof’s convictions rest on sound legal and constitutional grounds.”

Interestingly, though this appeal is technically being considered by the Fourth Circuit, no Fourth Circuit judge will actually be hearing the appeal. The press article explains:

The judges on the panel are Judge Duane Burton of the 8th Circuit Court of Appeals; Kent Jordan of the 3rd Circuit Court of Appeals; and Senior Judge Ronald Gilman of the 6th Circuit Court of Appeals. Usually, judges on a panel are chosen from the full 4th Circuit, which has 15 judges. However, 4th Circuit Judge Jay Richardson of Columbia was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.

I welcome reader comment on the (interesting?) metaphysical question of whether an appeal in the Fourth Circuit heard by no Fourth Circuit judges is really a Fourth Circuit appeal.  (I also wonder if there will have to be an additional 12 judges appointed by designation in order to properly consider any en banc petition that might follow a ruling from this panel.)

A few of many prior related posts:

May 24, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

"Objective Punishment"

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

The article addresses the question whether the punishment, besides fitting the crime, should also fit the criminal.  A widely accepted principle of proportionality declares the worse the crime, the worse the punishment.  But how should punishment severity be measured? 

Specifically, when the severity of a punishment is being evaluated for the purpose of fitting the crime, should idiosyncratic features of the offender be taken into account?  Should a person suffering from claustrophobia get a shorter sentence because incarceration will be harder on him?  Should being assaulted while incarcerated result in a shorter sentence because the actual incarceration was more harsh than expected?  Should the foreseeable consequences of incarceration — losing a particularly high paying job or getting badly desired publicity — be considered in sentencing?

The article argues, contrary to some recent scholarship, for an “objective theory” of punishment, according to which such idiosyncratic features of offenders are irrelevant to the determination of the punishment deserved, but may be considered as part of multi-valued scheme for managing social resources generally.

May 24, 2021 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, May 19, 2021

"The Origins of the Superpredator: The Child Study Movement to Today"

The title of this post is the title of this notable new report from the Campaign for the Fair Sentencing of Youth.  Here is its introduction:

The 1995 superpredator narrative is often called out as the impetus for our nation's harmful sentencing policies for Black children.  After all, 75 percent of all kids sentenced to life without parole (JLWOP) were sentenced in the 90s or later, and 70 percent of this population are kids of color (60 percent Black).  But the pseudo-scientific, unsubstantiated, and racialized superpredator theory is actually part of an American tradition of deeming some children something other than children.

The term superpredator first appeared in a publication by American political scientist John J. DiIulio, Jr. in 1995. DiIulio predicted that a wave of teenagers driven by "moral poverty" numbering in the tens of thousands would soon be on the streets committing violent crime. These "hardened, remorseless juveniles" were framed in the article as a pressing "demographic crime bomb."  DiIulio's narrative used racist tropes to further stoke fear — broadly attributing "moral poverty" to "Black inner-city neighborhoods" and families and specifically and repeatedly calling attention to gang violence and "predatory street criminals" among "Black urban youth." 

Five years later, DiIulio renounced the superpredator theory, apologizing for its unintended consequences.  While Dilulio predicted that juvenile crime would increase, it instead dropped by more than half.  Conceding that he made a mistake, Dilulio regretted that he could not “put the brakes on the super-predator theory” before it took on a life of its own.

Despite his later distancing from the idea, DiIulio's terminology spread like wildfire through major news outlets and academic circles.  Coming just a few years after headlines using "wilding" and "wolf pack" to describe five teenagers convicted and later exonerated of raping a woman in Central Park, the rhetorical dehumanization of youth suspected of violence was not new, but DiIulio's coining of "superpredator" lent new credibility and energy.  The superpredator myth reinforced and sought to legitimize longstanding fears of Black criminality, disguised as developmental science and resting on pseudo-scientific assumptions that certain children are not children at all.

While the widespread adoption and popularization of DiIulio's rhetoric and the broader tough on crime atmosphere of the 1990s is instructive in examining our extreme sentencing policies, it is important to place them in the context of our long history of only regarding some children as worthy of protection.  This report highlights the superpredator theory as one manifestation of a longstanding practice in which policymakers, lawyers, and academics classify children on the basis of moral and racial beliefs.  These classifications permit racially biased perceptions of deviance to replace chronological age as the defining characteristic of youth.

This report takes as its jumping off point the Child Study movement of the 19th century, which had long lasting impact on the contours of academic inquiry and the American legal system.  The Child Study movement itself was of course rooted in a deeply racist culture, profoundly influenced by the justifications used to uphold slavery and Jim Crow, and with its own ideological predecessors dating back to the Enlightenment of the 18th century.

May 19, 2021 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, May 18, 2021

Idaho delays scheduled execution for terminally ill condemned man to allow for commutation hearing

As reported in this new AP piece, a "scheduled June execution for an Idaho man who is dying of terminal cancer has been canceled so the state’s Commission of Pardons and Parole can consider whether to commute his sentence."  Here are a few details:

Gerald Ross Pizzuto Jr. was scheduled to die by lethal injection on June 2 in connection with the 1985 murders of two people at a remote Idaho County cabin.  On Tuesday, the Idaho Commission of Pardons and Parole granted Pizzuto’s request for a commutation hearing, and attorneys for the state and Pizzuto agreed that the execution should be stayed until the hearing is concluded.  The hearing will be held in November, the commission said....

Pizzuto, 65, has terminal bladder cancer, diabetes and heart disease and is confined to a wheelchair.  He’s been on hospice care since 2019, when doctors said he likely wouldn’t survive for another year....

Court records show Pizzuto’s life was marred by violence from childhood.  Family members offered gruesome testimony that Pizzuto was repeatedly tortured, raped and severely beaten by his stepfather and sometimes by his stepfather’s friends, and he sustained multiple brain injuries.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money.  He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Pizzuto is one of eight people on Idaho’s death row.  Idaho has executed three people since capital punishment was resumed nationwide in 1976.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhodes was executed in 2011 and Richard Albert Leavitt was executed in 2012.

May 18, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 14, 2021

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” Judge Latrice Westbrooks wrote. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

May 14, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, May 13, 2021

"Representing juvenile lifers: do attorneys in parole hearings matter?"

The title of this post is the title of this new article authored by Stuti Kokkalera and just published online in the Journal of Crime and Justice.  Here is its abstract:

Courts and scholars have advocated for the right to legal representation in the parole process. The state examined in this study qualified that juvenile lifer parole candidates have the right to an attorney at their initial parole board hearing.  Data drawn from written decisions issued by the state parole board were analyzed to determine the association between having an attorney and type of legal representation on two parole outcomes: (1) whether a candidate was granted or denied parole, and (2) length of interval terms, that is, number of years that a candidate waits for another hearing.  While having an attorney at the hearing was not related to both outcomes, type of representation was associated with interval terms.  Hearings with appointed (non-retained) attorneys were associated with reduced odds of a maximum interval term, while having retained attorneys was related to higher odds of a maximum interval term.  Hence, state efforts to provide counsel are necessary since their presence is significantly associated with the ultimate time served by juvenile lifer candidates.  Findings support the need for more comparative research across states as well as the inclusion of other parole-eligible populations.

May 13, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 10, 2021

On fleek and spicy: "Millennials Commit Less Crime Than Prior Generations"

Though my effort to use millennial terminology in the title of this post is surely sus, I wanted to take a high-key approach to spilling the tea about some notable new crime research.  This UT press release has the headline that I quoted in the title of this post, but the published new research discussed in the press release is titled "How Cohorts Changed Crime Rates, 1980–2016."  This article is authored by William Spelman and appears in the Journal of Quantitative Criminology (2021). Here is its abstract:

Objective

Identify the effect of differences in criminal activity among birth cohorts on crime rates over time. Determine the extent to which cohort effects are responsible for nationwide crime reductions of the last thirty years.

Methods

Use a panel of state age-arrest data and frequently used economic, social, and criminal justice system covariates to estimate a proxy or characteristic function for current period effects.  Combine these results with national age-arrest data to estimate nationwide age, current period, and birth cohort effects on crime rates for 1980–2016.

Results

Criminal activity steadily declined between the 1916 and 1945 birth cohorts. It increased among Baby Boomers and Generation X, then dropped rapidly among Millennials, born after 1985. The pattern was similar for all index crimes. Period effects were mostly responsible for the late 1980s crack boom and the 1990s crime drop, but age and cohort effects were primarily responsible for crime rate reductions after 2000. In general, birth cohort and current period effects are about equally important in determining crime rates.

Conclusions vPolicies aimed at reducing delinquency among young children may be more effective in the long run than current policies aimed at incapacitation, deterrence, and opportunity reduction. 

May 10, 2021 in National and State Crime Data, Offender Characteristics | Permalink | Comments (1)

Thursday, May 06, 2021

Covering some interesting developments in some Capitol riot prosecutions

I have previously noted that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  And today I noticed a bunch of recent press pieces with interesting accounts of certain parts of this federal case processing story for certain defendants.  Here are links and headlines:

From BuzzFeed News, "They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway."

From CNN, "Justice Department preps plea deals for rioters from viral video of cops trapped in Capitol tunnel"

From Law & Crime, "Federal Appeals Court Upholds Decision to Keep Proud Boy Behind Bars Ahead of Trial for Pepper Spraying Police"

From NBC News, "FBI still after 'worst of the worst' in Capitol riot as new arrests come at steady pace"

From the New York Times, "‘There Was a Big Battle in Here’: Lawyers Tour Capitol as a Crime Scene"

Prior related posts:

May 6, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, May 03, 2021

Another round of early (mostly critical) commentary on Jones

I shared in this post some of my first thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here), and then I rounded up a few days later in this post some notable initial critical commentary.  Just over a week later, I have seen a number of additional notable takes on the ruling, and here is another abridged round up: 

From Andrew Cohen, "Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison"

From Brandon Garrett, "Justices' Life Sentence Ruling Is A Step Back For Youth Rights"

From Jack Karp, "Jones Marks Shift In High Court's Juvenile Justice Rulings"

From Marc Levin, "Supreme Court Puts Onus on Lawmakers to Provide Second Chances for Kids"

From Christine Sarteschi and Daniel Pollack, "Life Without Parole for Minors: The Supreme Court and the Statistics"

From Kent Scheidegger, "Dumping a Dishonest Precedent Less Than Honestly — Part I"

From Beth Schwartzapfel, "Supreme Court Conservatives Just Made It Easier to Sentence Kids to Life in Prison"

Some prior recent related posts:

UPDATE: I just noticed this notable observation from Kent Scheidegger over at Crime & Consequences concerning action by the Justices in related cases via the May 3 order list:

The U.S. Supreme Court released its regular Monday orders list today.  Not surprisingly, there were several wake-of-Jones orders in cases that had been on hold for that decision.  Oklahoma v. Johnson, No. 19-250, and United States v. Briones, No. 19-720, were sent back for reconsideration.  These were cases where the lower court decided in an under-18 murderer’s favor based on a broad interpretation of Montgomery v. Louisiana.  Cases where the lower court ruled against the defendant based on a narrow interpretation of Montgomery were simply denied, including Newton v. Indiana, No. 17-1511, and Garcia v. North Dakota, No. 19-399.

May 3, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 02, 2021

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (8)

Tuesday, April 27, 2021

Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

As reported in this AP piece, headlined "Juvenile lifer who set precedent sentenced to life again," a high-profile juvenile murderer was sentenced yet again to life in prison without parole despite having helped win a Supreme Court ruling reversing his original LWOP sentence. Here are the details:

Evan Miller was just 14 when he committed the slaying that sent him to prison. In reviewing his case, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles — saying judges and juries should consider the special factors of youth — a decision that eventually led to inmates across the country getting a chance at release.

But Miller will not get that chance. A judge on Tuesday handed down a second life sentence without possibility of parole.

Lawrence Circuit Judge Mark Craig ruled that Evan Miller, despite being a young teen when he committed his crime, met the legal criteria to be sentenced to life in prison without the chance of parole. Craig said the severity of Miller’s crime outweighed the mitigating factors of Miller’s age and his abuse-filled childhood that the defense argued made him deserving of an opportunity of a chance to get out of prison some day. Craig said a sentence of life without the possibility of parole was the “only just sentence” over the lesser punishment of life with a chance of parole after 30 years.

Miller was 14 in 2003 when he and another teen beat Cole Cannon with a baseball bat before setting fire to his trailer, a crime for which he was originally sentenced to a mandatory life sentence. Before handing down the sentence, Craig repeated the line that Miller was attributed with saying before he delivered a final blow to Cannon: “I am God. I’ve come to take your life.” Craig said those were some of “the most chilling words I have heard.”

Craig said he was not convinced Miller could be rehabilitated and noted that Miller was the primary aggressor in the slaying. “Had you not made the decisions that night, Mr. Cannon, in my view, would still be alive,” Craig said. “You showed cunning, not clumsy, rash thinking.”

Miller, now 32, appeared during the hearing, which was conducted virtually, by video link from an office at the Alabama prison where he is incarcerated. He did not visibly react as the sentence was read.

The Supreme Court in 2012 ruled in Miller’s case that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In the 2012 opinion in Miller’s case, justices ordered that judges and juries should consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”...

While other juvenile lifers across the country have seen their sentences reduced because of Miller’s case and a later ruling that made the decision retroactive, his own case had lingered without a decision until Tuesday. At an earlier resentencing hearing, Miller’s lawyers cited his childhood of physical abuse and neglect and argued that at 14, his brain was not fully developed....

Alabama Attorney General Steve Marshall said the judge, “restored the punishment that is fitting for Evan Miller’s wicked actions.” “When Evan Miller robbed and savagely beat his neighbor, setting fire to the man’s trailer and leaving his incapacitated victim to die a horrible death, he earned a well-deserved sentence of life in prison without parole,” Marshall said in a statement.

April 27, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Friday, April 23, 2021

A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts:

1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing.  Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed  the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller.  But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states. 

2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues.  For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere).  But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over.  Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.

3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens).  Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied.  If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.

4.  Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder.  A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner.  Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice.  The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.

April 23, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 22, 2021

SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi

I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term.  I hope to comment later today.

UPDATE Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021).  Here is how Justice Kavanaugh's opinion for the Court begins

Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.  In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18.  The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller.  Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.  And Jones says that the trial judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents.  In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence.  Id., at 483.  And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument.  We affirm the judgment of the Mississippi Court of Appeals.

Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:

Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480).  Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient.  A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  Miller, 567 U.S., at 480.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).

Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11.  Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none.  Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19.  The Court is fooling no one.  Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

April 22, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, April 21, 2021

Split Eleventh Circuit panel rejects equal protection challenge to illegal reentry guideline

Yesterday the Eleventh Circuit handed down an interesting split panel opinion in US v. Osorto, No. 19-11408 (11th Cir. April 20, 2021) (available here). These paragraphs from the start of the majority opinion provides a flavor for the issues and the court's holding:

Defendant-Appellant Juan Carlos Osorto was convicted of illegal reentry after the 2016 Guidelines went into effect.  Because he had committed other offenses both before his original deportation and after it, but before his current illegal-reentry offense, he received offense-level increases under both subsections 2L1.2(b)(2) and (3).  He now challenges both subsections as violations of, among other things, his equal-protection rights.  Osorto (and the Dissent) argue that these guidelines, which apply to only illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice — once in the offense level and a second time in the Guidelines’ criminal-history calculation. Meanwhile, Osorto contends, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations.  So in Osorto’s view, subsections 2L1.2(b)(2) and (3) unlawfully discriminate against noncitizens.

We disagree.  First, Osorto’s challenge to § 2L1.2(b)(2) is foreclosed by our binding precedent in the form of Adeleke.  Second, Osorto (and the Dissent) consider the wrong universe of individuals.  Subsections 2L1.2(b)(2) and (3) do not apply to all noncitizens convicted of any crime in the United States; rather, they apply to only those noncitizens who both have illegally reentered the United States and have been convicted of other crimes.  This is important because, third, through § 1326(b), Congress has determined that illegally reentering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred.  The challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b).  Fourth, Congress has entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and appropriately punishes culpability and risk of recidivism — the interests the Sentencing Commission cited in issuing the challenged guidelines. Finally, subsections 2L1.2(b)(2) and (3) are rationally related to the Commission’s stated interests in issuing them.  So after careful consideration, and with the benefit of oral argument, we must uphold the guidelines at issue and affirm Osorto’s sentence.

Here is part of the start of the dissenting opinion by Judge Martin:

Mr. Osorto challenges Guideline § 2L1.2(b)(3) on equal protection grounds.  This Guideline makes for tougher sentences for defendants who commit a designated offense after reentering the United States without authorization.  See USSG § 2L1.2(b)(3).  This list of designated offenses does not include the offense of unauthorized reentry itself.  See id. Meanwhile, a defendant is already punished for both the unauthorized reentry and any other offense that leads to the increased punishment imposed by § 2L1.2(b)(3) on account of the calculation of a defendant’s criminal history under the Sentencing Guidelines.  See USSG § 4A1.1(b).  The result is that any offense committed after unauthorized reentry is double-counted for noncitizens in their Guideline calculation based on little more than their immigration status.  Sentencing Guideline § 2L1.2(b)(3) therefore subjects noncitizen defendants to more severe punishment than citizens who commit the same crime.  Mr. Osorto argues that this more severe punishment imposed upon him because he is a noncitizen violates his Fifth Amendment right to equal protection of the laws.  U.S. Const. Amend. V; see United States v. Windsor, 570 U.S. 744, 774, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws”).  I believe he is right.

April 21, 2021 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Tuesday, April 20, 2021

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Sunday, April 18, 2021

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 09, 2021

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 04, 2021

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Thursday, April 01, 2021

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Four notable new short reports on prison populations from the Bureau of Justice Statistics

I received this press release this morning pointing me to a number of new notable publications. Here is the text of the release, with links to the materials:

The Department of Justice’s Bureau of Justice Statistics today released Time Served in State Prison, 2018.  This report presents findings on the time served by prisoners released from state prison in 2018, including the length of time served by most serious offense and the percentage of sentence served.  Findings are based on data from BJS’s National Corrections Reporting Program, which is an annual voluntary data collection of records on prisoners submitted by state departments of corrections.

BJS also released three briefs: Veterans in Prison, Parents in Prison and Their Minor Children, and Disabilities Reported by Prisoners. The brief on veterans describes their demographics, offenses, sentence length, military branch and combat experience.  The brief on parents provides demographic information about prisoners who have at least one minor child and the number of minor children reported by parents in prison.  The brief on disabilities details statistics about demographics and types of disabilities reported by prisoners.  The findings are based on data collected in the 2016 Survey of Prison Inmates, a survey conducted through face-to-face interviews with a sample of state and federal prisoners.

Time Served in State Prison, 2018 (NCJ 255662) by BJS Statistician Danielle Kaeble

Veterans in Prison: Survey of Prison Inmates, 2016 (NCJ 252646) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Parents in Prison and Their Minor Children: Survey of Prison Inmates, 2016 (NCJ 252645) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Disabilities Reported by Prisoners: Survey of Prison Inmates, 2016 (NCJ 252642) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

The Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for collecting, analyzing and disseminating reliable statistics on crime and criminal justice in the United States. Doris J. James is the acting director.

March 30, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 29, 2021

New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"

This local press piece from Boston reports on new local empirical work that is likely to garner a lot of attention around the nation. The press article is titled "Study finds not prosecuting misdemeanors reduces defendants’ subsequent arrests," and it discusses at length the findings in this new Working Paper (also here) titled "Misdemeanor Prosecution" authored by Amanda Agan, Jennifer Doleac and Anna Harvey. Here is the abstract of the Working Paper:

Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.

And here is part of the discussion from the press piece highlighting why this is research could prove so potent:

A study examining the effect of declining to prosecute lower-level nonviolent offenses — a signature policy adopted by Suffolk District Attorney Rachael Rollins that has drawn both praise and scorn — suggests the approach leads to significantly less future involvement by those defendants in the criminal justice system.

The new study, which looked at cases handled by the Suffolk County DA’s office going back to 2004, found that those defendants not prosecuted for lower-level misdemeanor cases were 58 percent less likely to face a criminal complaint over the following two years than those who faced prosecution for similar charges. 

The analysis, which is the first of its kind to rigorously evaluate a policy being embraced by reform-minded prosecutors across the country, provides striking evidence that steering defendants, particularly first-time offenders, away from prosecution and a criminal record can reduce their chances of cycling back into the legal system.

The findings, being released on Monday by the National Bureau of Economic Research, are likely to bring heightened attention to the question of how best to deal with lower-level offenses, an issue that has become a controversial topic among law enforcement officials and advocates who say prosecution of these cases exacts an enormous toll on poor and minority communities without enhancing public safety....

“We think this is pretty compelling evidence of beneficial effects from not prosecuting,” said Anna Harvey, a professor of politics at New York University, who led the research along with Amanda Agan, an economist at Rutgers University, and Jennifer Doleac, an economist at Texas A & M University.  The higher rates of new criminal complaints among those who did face prosecution for lower-level charges, on the other hand, mean “we may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” write Harvey and her colleagues....

Alexandra Natapoff, a professor at Harvard Law School who has extensively studied the prosecution of misdemeanor offenses, said the study “gives empirical teeth to just how costly and counterproductive low-level misdemeanor arrests and court criminal convictions can be.”  Natapoff, author of the 2018 book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, said we have paid far too little attention to the harmful impact on individuals and communities of prosecuting misdemeanors, which account for 80 percent of all criminal cases in the US.  “These cases that we treat as chump change, in fact, are destroying lives, and destroying families, and undermining the economic wellbeing of communities thousands of times over every day,” Natapoff said in a recent video explainer on the reach of misdemeanor convictions.

Miriam Krinsky, executive director of Fair and Just Prosecution, a group formed in 2017 to work with reform-minded DAs, called the study an affirmation of the changing approach to prosecution underway in a number of major cities.  “We are seeing a new normal among elected prosecutors who, like DA Rollins, share a view that we have prosecuted too many individuals who can be better addressed by treatment or support through a public health lens,” she said.  “It’s incredibly significant to see research like this that proves the value of the new thinking and the paradigm shift that’s taking place.”

March 29, 2021 in National and State Crime Data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, March 18, 2021

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

March 18, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, March 15, 2021

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, March 11, 2021

Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court's Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington's state constitutional prohibition of "cruel punishment").  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing....

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.

March 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 08, 2021

Prisons as first frontier of the welfare state in The Last Frontier state

The nickname of the state of Alaska is The Last Frontier, which inspired the title of this post about this local article headlined "Alaska now spends more on prisons than its university system, and the gap is widening."  Here are excerpts explaining what I mean by the post title (with my emphasis added):

Alaska is now spending more on prisons than its state university, a reversal of the state’s longtime practice, and the gap would widen under a draft budget being considered by the state legislature.

Since 2015, when adjusted for inflation, Alaska has cut by 22.4% the amount it spends on the operations of all state agencies combined.  The Alaska Department of Corrections is the only agency whose inflation-adjusted budget has grown during that period.

Sen. Click Bishop, R-Fairbanks, called the current situation “sad.”  Bishop is co-chairman of the Senate Finance Committee, which on Thursday held a hearing that questioned whether the Legislature and governor have reached the limit of budget cuts they can make without significant changes to state law.

Though state spending (not including the Permanent Fund Dividend) has declined by almost half from its peak in 2015, most reductions came early in that period.  The cuts of the past two years have been almost entirely erased by inflation and other annual cost increases....

The budgets for the University of Alaska and the state prison system illustrate the problems now faced by the Legislature and governor.  In 2019, the governor signed an agreement with the University of Alaska Board of Regents that called for three years of budget cuts.  Though the Alaska Legislature was not party to the agreement, it has followed it so far.

At the time, the university system received $327 million from the portion of the budget paid for with revenue from the Permanent Fund and taxes. In the budget under consideration now by the Legislature, the university is slated to receive just $257 million.

One month before signing the university agreement, Dunleavy signed a bill that rolled back prior prison reform legislation.  That prior legislation, known as Senate Bill 91, had encouraged alternatives to prison, such as electronic monitoring, halfway houses and supervised release.

SB 91 reduced prison costs, but many Alaskans believed it was contributing to an increase in property crime and pushed for its repeal.  Since then, the budget of the Alaska Department of Corrections has grown from $291 million in 2019 to $345 million in the plan now being considered by the Legislature.

Much of that increase is due to increases in spending on inmate healthcare and rehabilitation, budget documents show. Department officials told a legislative panel last month that 65% of Alaska’s prison inmates are mentally ill, 80% have some kind of substance abuse disorder, and 65% have reported some kind of traumatic brain injury. Almost one in four inmates is positive for Hepatitis C.

Several hundred inmates were released from custody to relieve prison crowding during COVID-19, but the department now projects a continued rise in the state’s prison population, estimating that by June 2025, more than 4,900 Alaskans will be in prison.  As of February, more than half of the state’s prison population consisted of people who were awaiting trial, not those who had been sentenced.

I share the view that this situation is "sad" with more money now to be spent by Alaskans to cage its citizens than to provide higher education. And it is especially interesting to read that the increased prison spending is mostly for "healthcare and rehabilitation," which likely includes some educational programming, and that the majority of Alaskan prison inmates are mentally ill and/or have substance abuse disorder and/or a serious brain injury.  As is likely true in many states, Alaska is spending more and more monies on prisons in order to tend to its most vulnerable populations, though only after they get involved with the criminal justice system (while other welfare programs like higher education get cut in order to provide welfare services to the incarcerated).

March 8, 2021 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)