Friday, November 26, 2021

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

Payne, who is being held in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

November 26, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Sunday, November 21, 2021

Detailing "Mellowed Federal Enforcement" and other federal stories from Marijuana Law, Policy & Reform

In a recent post over at Marijuana Law, Policy & Reform, I have already noted a new essay, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition" that I had the pleasure of co-authoring with my colleague Alex Fraga.  The forthcoming short piece is now up on SSRN, and here is part of its abstract:

Over [a] quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses. Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

In addition to welcoming feedback on this short piece, I also figure it would be useful to highlight a few additional posts with other recent coverage of federal reform issues and dynamics over at MLP&R:

November 21, 2021 in Data on sentencing, Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Friday, November 19, 2021

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

November 19, 2021 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

"How families respond to the collateral consequences of incarceration and prisoner reentry"

The title of this post is the title of this new article authored by Brittany Hood and Shytierra Gaston in the journal Family Relations. Here is its abstract:

Objective

The goal of this research was to investigate the ways in which families respond to the collateral consequences of incarceration and reentry.

Background

Although scholars have extensively documented the collateral consequences of mass incarceration for individuals, far less attention has been paid to families, particularly the adult relatives of incarcerated or formerly incarcerated persons who are the primary social support agents.

Method

The current study draws from 24 in-depth, semistructured interviews with the parents, siblings, romantic partners, and other relatives of formerly incarcerated persons in an urban, mid-sized Midwestern city.  We employed a multistage qualitative analysis.

Results

The analysis revealed 10 stress-induced responses among families.  These responses largely involved individuals' self-reliance on their personal efficacy, some reflecting maladaptive responses, while having limited external or formal supports on which to rely when facing strains from familial incarceration.

Implication

Findings suggest that the significant socioeconomic and psychological tax families pay when supporting a justice system–involved relative compromises their well-being.  This study has the potential to inform treatment, research, practices, and policies involving families that are affected by incarceration.

November 19, 2021 in Collateral consequences, Offender Characteristics | Permalink | Comments (0)

Wednesday, November 17, 2021

Notable Sentencing Project fact sheet on "Parents in Prison"

The Sentencing project today released this short fact sheet titled simply "Parents in Prison" that provides key facts on parents in prison and policies that impede their ability to care for their children when released. Here is how it starts:

Half of imprisoned people in the United States are parents of minor children who are under age 18: 47% in state prisons and 57% in federal prisons.  Most imprisoned parents of minor children are fathers (626,800 fathers, compared to 57,700 mothers).  But a higher proportion of imprisoned women (58%) than imprisoned men (47%) have minor children.  Between 1991 and 2016, the latest year for which national data is available, the number of fathers in prison increased 48% and the number of mothers increased 96%.  This brief examines trends in parental incarceration, strains on families, missed opportunities for interventions, as well as recent reforms.

November 17, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) finally granted parole at age 75

Henry Montgomery back in 2016 won in the US Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively. But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.   Montgomery was in February 2018 denied parole as detailed in this post, and he was denied parole again in April 2019 as detailed in this post.  But I am pleased to now be able to report that the third time was a charm for Montgomery as reported in this UPI piece headlined "Longtime inmate and key figure in juvenile sentence reforms finally wins parole." Here are some of the details:

A Louisiana man who's spent the vast majority of his life in prison for killing a sheriff's deputy when he was a minor almost 60 years ago -- and whose case has been instrumental in freeing hundreds of inmates who were sentenced to life for crimes as juveniles -- is finally getting his chance to walk free.

Henry Montgomery on Wednesday appeared at his third hearing before a Louisiana parole board. The first two turned him down.  The third gave him his freedom after 57 years behind bars.

For years, advocates have said Montgomery is serving an unconscionably long sentence for a crime he committed as a minor, in spite of state Supreme Court rulings that determined that life sentences for juveniles amount to "cruel and unusual punishment."...

Montgomery was 17 when he shot and killed East Baton Rouge Paris Deputy Charles Hurt in 1963, after the lawman caught him skipping school. He's now 75. He was initially sentenced to death, but that sentence was overturned in 1966 when the Louisiana Supreme Court ruled that he did not receive a fair trial. After a retrial, he was sentenced to life without parole.

Montgomery has been locked up in the Louisiana State Penitentiary, known as "Angola" after the former plantation that occupied the area. "Through his personal growth, maturity, and maintenance of an excellent record of conduct while in prison, Henry proves daily that he is no longer the 17-year-old child he was in 1963," Marshan Allen, national policy director of Represent Justice, said in a tweet before Wednesday's decision....

Montgomery's case was at the center of a legal fight that went all the way to the U.S. Supreme Court, and resulted in a ruling that's allowed nearly 1,000 people who were sentenced to life without parole as a juvenile to be freed....

At his first two parole hearings -- in 2018 and 2019 -- he was denied release. At both hearings, two of the three board members voted to grant him his release from prison and one voted to keep him imprisoned. At the time, parole decisions had to be unanimous. Earlier this year, however, Louisiana changed its law to require only a majority vote if an inmate meets certain conditions -- meaning Montgomery would be freed if he got another 2-1 vote in his favor.

The dissenting voter who voted against releasing Montgomery in 2019 said that he hadn't presented enough programs in prison. But Andrew Hundley, one of the people who was released as a result of Montgomery vs. Louisiana and director of the Louisiana Parole Project, said that Angola did not offer such programs for decades of his sentence. "It was the most violent prison in America.  There wasn't this idea of rehabilitation and that prisoners should take part in programming to rehabilitate themselves," he told The Atlantic. "That culture didn't exist and there weren't programs. You just woke up every day trying not to get killed."

Hundley added that he's felt like it's his "life's work" to get Montgomery and others like him out of prison. "Henry was in prison 18 years before I was born. And I've been home five and a half years now."

November 17, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 15, 2021

Noting the SCOTUS "state of capital punishment" without discussing the state of capital punishment

Adam Liptak has this notable new New York Times "Sidebar" piece headlined "In Death Penalty Cases, an Impatient Supreme Court; Recent rulings, including one turning down a death row inmate’s request supported by the prosecution, offer telling glimpses of the state of capital punishment."  Here are excerpts (with a bit of emphasis added):

Two weeks ago, on the same day it heard arguments about the future of abortion rights in Texas, the Supreme Court turned down an appeal from a federal prisoner facing execution.  The move was in one sense routine, as the court has grown increasingly hostile to arguments made by death row inmates.   This became apparent in the final months of the Trump administration, when, after a hiatus of 17 years, the federal government executed 13 inmates.  “Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in a dissent at the time.

The court’s impatience was also evident last week at an argument over whether an inmate’s pastor could pray with and touch him in the death chamber.  Several conservative justices expressed dismay at what they said was last-minute litigation gamesmanship in death penalty cases.

Still, the case the court turned down two weeks ago was exceptional, providing a telling glimpse of the state of capital punishment in the United States.  The court rejected the inmate’s petition even though the prosecution agreed that his case deserved a fresh look.  In an 11-page dissent, Justice Sotomayor, joined by Justices Stephen G. Breyer and Elena Kagan, said the majority had crossed a new bridge. “To my knowledge, the court has never before denied” such relief “in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt,” Justice Sotomayor wrote.

The case concerned Wesley P. Coonce Jr., who was serving a life sentence for kidnapping and carjacking when he helped murder another prisoner in the mental health ward of a federal prison.  A murder committed by an inmate already serving a life sentence is a capital crime, and he was sentenced to death.  Lawyers for Mr. Coonce asked the justices to return his case to an appeals court for reconsideration of his argument that he could not be executed because he was intellectually disabled.  There had been, the lawyers wrote, an important new development that could alter the appeals court’s analysis....

While the majority did not explain its thinking, a 2014 dissent from Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, provided a hint. Justice Alito wrote that the meaning of the Eighth Amendment should not be determined by “positions adopted by private professional organizations.”  The majority may also have thought that the Biden administration had its own tools to address Mr. Coonce’s case, notably by granting him clemency.

As the title of this post is meant to highlight, I am struggling a bit to see how the denial of cert by SCOTUS in Coonce serves as a "glimpse of the state of capital punishment in the United States."  For starters, the state of capital punishment in the United States is largely one of modern desuetude.  As detailed in this DPIC fact sheet, in 1999 there were 279 death sentences imposed and 98 executions; in 2019 there were 24 death sentences imposed and 22 executions.  Moreover, I am pretty sure Coonce still can have his death sentence reviewed via a 2255 motion and perhaps via other means, so maybe the case really is a "glimpse" into the various means capital defendants have to get their claims reviewed.

Moreover, as highlighted by the clemency point, what this case really shows to me is that the Biden Administration would rather push for courts to take people off death row rather than do it on their own.  After all, if lawyers in the Justice Department have genuinely concluded that Coonce is intellectually disabled, their constitutional oath would seemingly call for them to ask for Prez Biden to moved him off death row since the Eighth Amendment precludes an execution of someone intellectually disabled.  That DOJ is merely urging here a "fresh look" strikes me far more as a "glimpse" into the state of the Biden Administration's actions on capital punishment.

November 15, 2021 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Thursday, November 11, 2021

Making the case for criminal justice reform as a way to honor those who served on Veterans Day

Jason Pye has this potent and personal Hill commentary headlined "Veterans fought for our freedom: To return the favor, fight for criminal justice reform."  I recommend the piece in full, and here are excerpts:

One way veterans deal with their problems is by self-medicating through alcohol and drugs.  This wasn’t an issue in our home, but given the pain that was so apparent in my father, I understand all too well why veterans disproportionately struggle with addiction.  Alcohol and prescription or illicit drug abuse often lead to entanglements in our broken criminal justice system, and instead of healing these men and women, incarceration simply adds to their trauma.  In the criminal justice reform movement, we advocate for alternatives to incarceration for sick people — those with addiction and mental health issues who are better served with treatment, counseling and rehabilitative services. 

recent report showed 8 percent of people incarcerated at the state level, and more than 5 percent incarcerated at the federal level, are military veterans, constituting a disturbing 107,400 current or former members of America’s armed forces behind bars.  More than one in 10 veterans have been diagnosed with a substance use disorder, so it should come as no surprise that nearly 30 percent of the veterans in federal prison are there for drug convictions.

At the state level, veterans’ courts, more diversion and treatment options and expanded reentry services have led to better outcomes for many veterans. But we must do more, especially for communities of color that are sending a greater number of young people into military service.

In Congress, a bill called the EQUAL Act is stalled in the Senate after receiving a rare and overwhelming bipartisan 361-to-66 vote in the House of Representatives.  This bill would eliminate the shocking 18-to-1 sentencing disparity between crack and powder cocaine, perhaps the worst vestige of injustice in America’s drug policy.

During Military Families Appreciation Month and on Veterans Day, my hope is that we can view criminal justice, and particularly drug policy reforms, through the lens of those who have served our country.   I’ll be pushing for the EQUAL Act to honor my father, Lamar Pye, and the tens of thousands of other military veterans who suffered severe trauma, many of whom are left alone to struggle with addiction and the consequences of America’s archaic, unfair, counterproductive drug policies.  

These men and women fought for our freedoms. Now it’s time for us to fight for theirs.

Regular readers know I have often blogged about the intersection of veterans' issues and criminal justice on Veterans Day.  For example, this day has always seemed to me a good day for some focused advocacy for clemency for veterans, as I suggested in these prior posts:

Disappointingly, 10 months into his Presidency, Prez Biden has not yet granted clemency to a single person yet, so I doubt we will see him grant clemency to any veterans today.  But a recent US Sentencing Commission report (discussed here) indicates that over 10,000 veterans are serving time in federal prisons now and tens of thousands more have federal criminal records.  It is a darn shame that no Prez has had the wisdom and the courage to try to start a tradition of clemency grants to honor veterans on this special day. 

I will continue to honor this day and those who serves by highlighting issues at the intersection of military service and criminal justice, as I have in a number of prior posts: 

November 11, 2021 in Offender Characteristics | Permalink | Comments (2)

Wednesday, November 10, 2021

Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another

Two new Politico articles provide updates on the latest sentencing news from the prosecution of persons involved in the January 6 Capitol riot.  Here are links and excerpts:

"N.J. man hit with toughest sentence yet in Jan. 6 attack":

A federal judge on Wednesday imposed the most serious sentence yet in connection with the Jan. 6 Capitol riot, ordering a New Jersey man to serve almost three-and-a-half years in prison for punching a police officer in the face during the melee.

Scott Fairlamb, 44, a former MMA fighter and gym owner, is the first defendant charged with assaulting an officer during the attack to face sentencing. The judge, Royce Lamberth, said he expected Fairlamb’s 41-month sentence would end up lower than others also facing charges for assaulting police that day.

That’s because Fairlamb was the first to plead guilty to such an assault and, despite initially celebrating the attack, has since expressed remorse that both prosecutors and Lamberth himself described as “genuine.”

Some of many prior related posts:

November 10, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 08, 2021

"Resurrecting Arbitrariness"

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

What allows judges to sentence a child to die in prison?  For years, they did so without constitutional restriction.  That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders — the “permanently incorrigible.”  By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it shut.

Rather than restrict the discretion of a judge to throw away the key in sentencing child defendants, the Court in Jones increased that discretion.  It recast Miller as a purely procedural decision that only required a barebones “consideration” of a defendant’s “youth and attendant circumstances” to fulfill its mandate of individualized sentencing. Jones further held that judges need not engage in any formal factfinding before sentencing a child to die in prison, which renders these sentences nearly unreviewable.  This article argues that, through these two jurisprudential moves, Jones created conditions that will maximize arbitrary and racially discriminatory sentencing outcomes nation-wide, resembling the unconstitutional death sentences of the mid-twentieth century.

This article is the first to comprehensively analyze Jones, contending that the decision represents an embrace of unfettered discretion in the sentencing of children facing life without parole.  Given the Supreme Court’s gutting of the Eighth Amendment, I contend that state solutions are the way forward.  I propose that states join the national trend of abandoning life without parole sentences for children.  Short of abolishing the sentence, I offer three procedural interventions.  First, states should enact “genuine narrowing” requirements that establish criteria designed to limit eligibility for life without parole sentences for children to the theoretical “worst of the worst.”  While inspired by the narrowing requirement in capital sentencing, “genuine narrowing” relies on meaningful and concrete criteria that seek to achieve the mandate of Miller that such sentences be uncommon.  Second, states should require jury sentencing, which ensures that sentences will be imposed by multiple, and typically more diverse, voices than what currently occurs with judicial sentencing.  Third, states should go beyond merely telling sentencers to take youth into account in their sentencing decisions, but should instead inform them that the characteristics of youth are “mitigating as a matter of law,” and when pre-sent, must weigh against an imposition of life without parole.

November 8, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?

The question in the title of this post is prompted by this recent AP article, headlined "Prosecutors seek 44 months in 1st sentence for riot violence," previewing a notable sentencing scheduled for this coming Wednesday. Here are the basics:

Federal prosecutors on Wednesday recommended a prison sentence of nearly four years for a New Jersey gym owner who is on track to be the first person sentenced for assaulting a law enforcement officer during the riot at the U.S. Capitol.

Scott Fairlamb’s sentencing, scheduled for next Wednesday, could guide other judges in deciding the appropriate punishment for dozens of other rioters who engaged in violence at the Capitol that day.

Prosecutors said Fairlamb, one of one of the first rioters to breach the Capitol, incited and emboldened other rioters around him with his violent actions....

If U.S. District Judge Royce Lamberth adopts the Justice Department’s recommendation for a 44-month prison term, Fairlamb’s sentence would be the longest for a rioter.  An 8-month prison term is the longest sentence among the nearly two dozen rioters who have been sentenced so far.  A man who posted threats connected to Jan. 6 but didn’t storm the Capitol was sentenced to 14 months in prison.

Defense attorney Harley Breite said during an interview Wednesday that he intends to ask Lamberth to sentence Fairlamb to the time he already has served in jail, allowing for his immediate release.  Fairlamb has been jailed since his Jan. 22 arrest at his home in Stockholm, New Jersey....

Fairlamb, a 44-year-old former mixed martial arts fighter, owned Fairlamb Fit gym in Pompton Lakes, New Jersey.  He is the brother of a Secret Service agent who was assigned to protect former first lady Michelle Obama, according to defense attorney Harley Breite.

Fairlamb picked up a police baton as he joined the mob that broke past a line of police officers and breached the Capitol, according to prosecutors. A video showed him holding the collapsible baton and shouting, “What (do) patriots do? We f——— disarm them and then we storm the f——— Capitol!”  After he left the building, Fairlamb shoved and punched a Metropolitan Police Department officer in the face, an attack captured on video by a bystander.  The officer said he didn’t suffer any physical injuries, according to prosecutors.

Fairlamb pleaded guilty to two counts, obstruction of an official proceeding and assaulting the police officer.  The counts carry a maximum of more than 20 years in prison, but sentencing guidelines calculated by the court’s probation department recommend a term of imprisonment ranging from 41 to 51 months.  Lamberth isn’t bound by any of the recommendations....

Fairlamb’s social media accounts indicated that he subscribed to the QAnon conspiracy theory and promoted a bogus claim that former President Donald Trump would become the first president of “the new Republic” on March 4, prosecutors wrote.  QAnon has centered on the baseless belief that Trump was fighting against a cabal of Satan-worshipping, child sex trafficking cannibals, including “deep state” enemies, prominent Democrats and Hollywood elites.

Some of many prior related posts:

November 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Friday, November 05, 2021

"Specialization in Criminal Courts: Decision Making, Recidivism, and Re-victimization in Domestic Violence Courts in Tennessee"

The title of this post is the title of this new paper now available via SSRN authored by Aria Golestani, Emily Owens and Kerri Raissian. Here is its abstract:

Local governments increasingly rely on “specialized” or “problem solving” courts as a way to improve the provision of criminal justice.  Using administrative data on misdemeanor DV cases between 2000 and 2006, we exploit the arbitrary courtroom assignment of low-income defendants to evaluate the social impact of specialized domestic violence courts in the General Sessions Court of Metropolitan Nashville and Davidson County, Tennessee.  We find that, compared to traditional court, defendants assigned to specialized court are less likely to be convicted, but no more likely to be charged with a future crime 1 to 3 years later.  This offender-focused measure of recidivism masks a potentially important increase in safety.  Police records suggest that victims in cases assigned to specialized court are less likely to be involved in a future domestic incident.  Conditional on future police involvement, these same victims appear to be more willing to cooperate with police and prosecutors.

November 5, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, November 04, 2021

Should veteran status justify reducing or increasing the sentences of January 6 rioters?

The question in the title of this post is prompted by this lengthy new AP piece headlined "Feds seek tougher sentences for veterans who stormed Capitol."  The piece merits a full read, and here are excerpts:

During his 27 years in the U.S. Army, Leonard Gruppo joined the Special Forces, served in four war zones and led a team of combat medics in Iraq before retiring in 2013 as a lieutenant colonel.

During his six minutes inside the U.S. Capitol on Jan. 6, Gruppo joined a slew of other military veterans as a mob of pro-Trump rioters carried out an unparalleled assault on the bastion of American democracy.  He’s among dozens of veterans and active-service members charged in connection with the insurrection.

Now, cases like his are presenting a thorny question for federal judges to consider when they sentence veterans who stormed the Capitol: Do they deserve leniency because they served their country or tougher punishment because they swore an oath to defend it?

The Justice Department has adopted the latter position. In at least five cases so far, prosecutors have cited a rioter’s military service as a factor weighing in favor of a jail sentence or house arrest.  Prosecutors have repeatedly maintained that veterans’ service, while commendable, made their actions on Jan. 6 more egregious....

Prosecutors’ arguments about rioters’ military service didn’t sway one of the first judges to hear them — at Gruppo’s sentencing hearing last Friday.  “I don’t view his military service that way. I just can’t bring myself to do that,” Chief U.S. District Judge Beryl Howell said before sentencing Gruppo to two years of probation, including 90 days of house arrest....

In most criminal cases, judges typically view a defendant’s military service as a mitigating factor that favors leniency, said James Markham, a professor of public law and government at the University of North Carolina at Chapel Hill.  But he recognizes how the Justice Department could conclude that rioters with military experience should be held to a higher standard than those without it.  “It’s obviously not related to their military service directly, but it’s also not entirely conceptually unrelated that somebody who is a veteran or had military service could be viewed as having a more refined understanding of the importance of civilian control and electoral stability,” said Markham, a lawyer and Air Force veteran.

More than 650 people have been charged in the Jan. 6 attack. Some of the rioters facing the most serious charges, including members of far-right extremist groups, have military backgrounds.  A handful of riot defendants were on active duty, including an Army reservist who wore a Hitler mustache to his job at at a Navy base.

More than 100 riot defendants have pleaded guilty, mostly to misdemeanors punishable by a maximum of six months of incarceration. Two dozen had been sentenced as of Friday.  At least three of the sentenced defendants are veterans, according to an Associated Press review of court records.

In September, U.S. District Judge James Boasberg sentenced Air Force veteran Derek Jancart to 45 days in jail for joining the riot.  Prosecutors had sought a four-month jail sentence for Jancart, an Ohio steelworker....  Another Air Force veteran, Thomas Vinson, was sentenced on Oct. 22 to five years of probation.  Prosecutors had recommended three months of house arrest for Vinson, a Kentucky resident who served in the Air Force from 1984 through 1988....

At least two other rioters who served in the military are scheduled to be sentenced in the coming days.  Prosecutors have recommended two months in jail for Boyd Camper, who served in the U.S. Marines from 1987 to 1990...  Prosecutors are seeking two months of house arrest for Air Force veteran Jonathan Ace Sanders Sr., who is scheduled to be sentenced on Thursday. 

Some of many prior related posts:

November 4, 2021 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, November 01, 2021

Some notable dissents and a statement together with SCOTUS criminal justice cert denials

The merits cases scheduled to be argued before the Supreme Court this week on topics like abortion and gun rights are rightly getting a lot of attention.  But the week has started with this order list in which Court has 5+ pages listing cases on which certiorari has been denied.  In three cases involving criminal-law related issues, some Justices penned statements concerning these denials.  Via How Appealing, here are the basics with links:

In Simmons v. United States, No. 20-1704, Justice Sonia Sotomayor issued a statement, in which Justice Elena Kagan joined, respecting the denial of certiorari.

In Coonce v. United States, No. 19–7862, Justice Sotomayor issued a dissent, in which Justices Stephen G. Breyer and Kagan joined, from the denial of certiorari.

And in American Civil Liberties Union v. United States, No. 20–1499, Justice Neil M. Gorsuch issued a dissent, in which Justice Sotomayor joined, from the denial of certiorari.

The lengthiest and most notable of these separate opinions is in the Coonce case, where Justice Sotomayor starts her 11-page dissent this way:

Petitioner Wesley Paul Coonce, Jr., was convicted in federal court of murder. Facing the death penalty, he argued that his execution would violate the Eighth Amendment because he has an intellectual disability.  See Atkins v. Virginia, 536 U. S. 304 (2002).  The District Court denied Coonce’s Atkins claim without a hearing, the jury sentenced him to death, and the Eighth Circuit affirmed.

In denying Coonce relief without a hearing, the courts relied on the definition of intellectual disability by the American Association on Intellectual and Developmental Disabilities (AAIDD), which then required that an impairment manifest before age 18.  It is undisputed that Coonce’s impairments fully manifested at age 20.  After Coonce petitioned for certiorari, the AAIDD changed its definition to include impairments that, like Coonce’s, manifested before age 22.

The Government urges us to grant certiorari, vacate the judgment below, and remand (GVR), conceding that it is reasonably probable that the Eighth Circuit would reach a different result on reconsideration given the significant shift in the definition that formed the basis of its opinion. Instead, the Court denies certiorari.  Because Coonce is entitled to a hearing on his Atkins claim, and because our precedents counsel in favor of a GVR, I respectfully dissent.

One of many notable aspects of this case is highlighted by this observation in the dissent:

In light of the above, the material change in the AAIDD’s leading definition of intellectual disability plainly warrants a GVR.  To my knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.

I believe the defendant in this case will still be able to bring a 2255 motion, so the Justices voting to deny cert may be content to have these "execution competency" issues addressed in that setting. But Justice Sotomayor closes her dissent explaining why that seems to her insufficient:

I can only hope that the lower courts on collateral review will give Coonce the consideration that the Constitution demands. But this Court, too, has an obligation to protect our Constitution’s mandates. It falls short of fulfilling that obligation today. The Court should have allowed the Eighth Circuit to reconsider Coonce’s compelling claim of intellectual disability, as both he and the Government requested. I respectfully dissent.

November 1, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 28, 2021

"Federal Offenders Who Served in the Armed Forces"

Cover_armed-forcesThe title of this post is the title of this fascinating new report from the US Sentencing Commission released today.  This USSC webpage provides this overview and key findings:

The Department of Veterans Affairs estimates that there are more than 19 million Americans who are veterans. Over 10,000 veteran offenders were in the custody of the Federal Bureau of Prisons at the end of 2019, accounting for almost six percent of all BOP inmates.

This report provides an analysis of the relatively small number of veterans each year who are sentenced for a federal felony or Class A misdemeanor offense, most often committed well after they left military service.  In particular, the report examines federal offenders with prior military service who were sentenced in fiscal year 2019, the crimes they committed, and an assessment of whether that prior service was given special consideration at sentencing.

Key Findings

  • In fiscal year 2019, 4.4 percent of all U.S. citizens sentenced in the Federal courts for a felony or Class A misdemeanor had served in the military.  For these offenders, the average length of time between separation from the military and the sentence for the federal offense was 23 years.

  • The most common crime type committed by both veteran offenders and citizen offenders overall was drug trafficking (25.0% and 37.6%, respectively).  Veteran offenders, however, committed child pornography offenses more than four times as often as citizen offenders overall, 11.6 percent compared to 2.7 percent, and sex abuse offenses more than twice as often, 6.7 percent compared to 2.4 percent.

  • The sentences imposed on veteran offenders and citizen offenders overall were similar in terms of type of sentence imposed and average sentence imposed.  For veteran offenders, 79.2 percent received a sentence of imprisonment compared to 83.9 percent of all citizen offenders, and the average sentence for veteran offenders was 64 months compared to 62 months for all citizen offenders.

  • Although veteran offenders were more likely to be sentenced below the applicable guideline range (38.9% received a downward variance compared to 31.8% of all citizen offenders), military service does not appear to have a significant influence on the sentences imposed.  The court specifically cited an offender’s military service as a reason for the sentence imposed in only 15.0 percent of cases involving veteran offenders.

  • When the court did cite an offender’s military service as a reason for the sentence, it was almost always for service that the military had characterized as honorable.

  • Only two other offender characteristics were correlated with sentences where a court cited the offender’s military service as a reason.  Two-thirds (66.9%) of the offenders whose military service was cited by the court indicated that they had some history of mental health problems, compared to 51.1 percent for veteran offenders generally.  Also, more than half (54.8%) of the offenders whose service was cited by the court had served in a combat zone, compared to 22.6 percent for all veteran offenders.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

BJS releases "Federal Justice Statistics, 2019" with immigration and drugs dominating federal dockets

Via email this morning I learned of the release of this notable new data report from the Bureau of Justice Statistics titled simply "Federal Justice Statistics, 2019."  The email summarized the report this way:

This report, the 33rd in an annual series which began in 1979, provides national statistics on the federal response to crime. It describes case processing in the federal criminal justice system for fiscal year 2019, including—

  • investigations by U.S. attorneys
  • prosecutions and declinations
  • convictions and acquittals
  • sentencing
  • pretrial release
  • detention
  • appeals
  • probation and parole
  • prisons.

Findings are based on BJS’s Federal Justice Statistics Program (FJSP).  The FJSP collects, standardizes, and reports on administrative data from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts, Executive Office for U.S. Attorneys, Federal Bureau of Prisons, and U.S. Sentencing Commission.

Covering a period from Oct. 1 2018 to Sept. 30, 2019, this report captures the last full yearly snapshot of the federal criminal justice system before COVID hit in early 2020.  And, though federal data always reveal that the modern federal justice system is focused particularly on immigration and drug cases, these new data from the report still paint a notable picture of our federal criminal justice system in operation while highlighting how arrest patterns and sentencing patterns diverge for the two biggest crime categories:

During FY 2019, 8 in 10 federal arrests were for immigration, drug, or supervision violations (165,123). Immigration (117,425 arrests) was the most common arrest offense in FY 2019.  More than half (57%) of federal arrests involved an immigration offense as the most serious arrest offense.  The next most common arrest offenses were for drug offenses (12% of all arrests) and supervision violations (11%)....

In FY 2019, a total of 58,886 federally sentenced persons were admitted to federal prison.  Of these, 45,425 entered federal prison on U.S. district court commitments.  Another 13,461 persons were returned to federal prison for violating conditions of probation, parole, or supervised release, or were admitted for a reason other than a U.S. district court commitment.  In FY 2019, 21,075 persons entered federal prison for drug offenses, most of whom (15,574, or 74%) had been sentenced to more than 1 year.

In 2009 and 2019, most people in federal prison were serving time for a drug offense.  Persons with a drug offense as the most serious commitment offense made up 47% of the prison population at fiscal year-end 2019, down from 53% at fiscal year-end 2009.  Persons serving time for a weapon offense increased from 15% of the prison population in 2009 to 19% in 2019.  Persons serving time for a violent offense remained at 6% in 2009 and 2019, and persons serving time for an immigration offense decreased from 12% in 2009 to 6% in 2019.

October 28, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Friday, October 22, 2021

Oregon Gov uses clemency power to give certain juve offenders opportunity for parole after non-retroactive statutory reform

As reported in this HuffPost piece, "Oregon Gov. Kate Brown (D) commuted the sentences of dozens of people convicted of crimes they committed as kids on Wednesday, potentially reducing their prison time by hundreds of years and marking major progress in a broader reform effort that recognizes people who committed crimes before they were adults have a unique capacity for change." Here is more (with links from the original):

Brown’s clemency order lists more than 70 people who committed crimes before they were 18 years old and are serving sentences of 15 years or more in prison.  They were selected because they were excluded from a 2019 juvenile justice reform bill that dramatically changed the way the state punishes people who commit crimes when they are kids.  Those individuals, many of whom were previously facing life sentences — some without the chance of parole — now have the opportunity to petition the state’s Board of Parole and Post-Prison Supervision for release after 15 years in prison.  Brown instructed the board to consider each individual’s age and immaturity at the time of the crime and whether they have subsequently shown maturity and rehabilitation.
The clemency order excludes individuals who are serving sentences for crimes they later committed as adults and those who have a release date of 2050 or later — although these individuals can still petition the governor for clemency.

The governor’s move comes months after a HuffPost story about Kipland Kinkel, one of Oregon’s most infamous juvenile offenders, and the ways his high-profile case has been used to justify extreme sentencing for other people who committed crimes when they were kids.  In 1998, when Kinkel was 15 years old and experiencing symptoms of a severe undiagnosed mental illness, he killed his mother, his father, two students at his school, and wounded 25 others.  He was sentenced to nearly 112 years in prison without the chance of parole.

With a projected release date of 2110, Kinkel is not part of Brown’s clemency order.  The 2050 cutoff in Brown’s order appears to be designed specifically to exclude him, although it does impact a handful of other people....

Brown’s clemency action is an effort to correct some of the sentencing inequities created by the state legislature with the non-retroactive reform bill....  Juvenile justice reform advocates praised Brown’s decision to give a second chance to people who have grown up and dramatically changed since the time of their crimes....

Brown outlined her clemency plan in a September letter to Oregon’s Department of Corrections in which she requested a list of names of people in its custody for crimes they committed as juveniles who were sentenced before S.B. 1008 went into effect and who met a set of criteria. 

“SB 1008 takes into account the fact that these youth are capable of tremendous transformation,” Brown wrote in the letter, citing the fact that many who commit crimes during their youth complete college degrees and treatment programs while in youth custody before they even age into adult prison. “For these reasons, I have no doubt that the above-referenced list will be comprised of many individuals who have demonstrated exemplary progress and considerable evidence of rehabilitation, and who — unfairly — did not benefit from the effects of SB 1008.”

Brown’s juvenile clemency plan is two-pronged, according to the September letter.  One part involves providing clemency that enables individuals who are serving a sentence of 15 years or more to get a parole board hearing — which she did on Wednesday.  The second part involves reviewing the sentences of people who were under 18 at the time of their crime and who will have served 50% of their sentences by next December.

For the roughly 200 people in that group, the governor’s office “will engage in an individualized review process to determine whether the youth has made exemplary progress and if there is considerable evidence of rehabilitation, as well as taking into account input from the [district attorney] and victims, if any,” Merah wrote in an email. “If the Governor determines that a commutation is warranted, the youth will be granted a conditional release.”  Both parts of Brown’s clemency plan exclude individuals who are currently in prison for a conviction they subsequently committed as adults.

October 22, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 21, 2021

Notable (re)sentencing of another former Minnesota police officer for another notable homicide

Though not anywhere as high-profile as the conviction and sentencing of Derek Chauvin, another Minnesota police officer was just subject to state sentencing (actually a resentencing) for homicide. This local article, headlined "Judge resentences ex-officer Mohamed Noor to almost 5 years on manslaughter count," reports on an interesting sentencing process and outcome. Here are excerpts:

Former Minneapolis police officer Mohamed Noor received a new sentence of 4 3/4 years on Thursday for his manslaughter conviction after the state's high court overturned the more serious murder conviction for the 2017 shooting of an Australian woman who had called to report a possible crime.

Noor, who turned 36 Wednesday, was resentenced by Judge Kathryn Quaintance on second-degree manslaughter because the Minnesota Supreme Court set aside his third-degree murder conviction last month.  The decision vacated a prison term of 12 1/2 years Noor was already serving on the murder count for shooting Justine Ruszczyk Damond.

Quaintance, in sentencing Noor to the high end as suggested by state sentencing guidelines, said she wasn't surprised Noor has been a model prisoner, but he had fired his gun across the nose of his partner, endangering a bicyclist and others in the neighborhood on a summer evening.  "These factors of endangering the public make your crime of manslaughter appropriate for a high end sentence," she said.

Noor has served 29 1/12 months since he entered prison in May 2019.  With credit for time served, Noor would be scheduled for release after serving 2/3 of his sentence, meaning he must serve another 8 1/2 months. He is likely to be released next May.

Assistant Hennepin County Attorney Amy Sweasy read a statement from Maryan Heffernan, the victim's mother, who was watching from Australia.  The family sought the maximum for Noor. "We should expect complete accountability from our public institutions and their staff," Heffernan's statement said.  The longest sentence would send a message to police "that we require respect for their badges," Heffernan's statement said.  "We will be outraged if the court is unwilling to respect the will of the people and demand that justice be heard, be seen and be done."

The victim's fiance Don Damond appeared via Zoom and took a different tact, saying the Supreme Court's decision, "Does not diminish the truth which was uncovered during the trial.  The truth is that Justine should be alive." Damond said his comments should not be construed that he wasn't still grieving, but his departed wife "lived a life of love, she modeled a life of joy for all and she stood for forgiveness."

"Given her example, I want you to know that I forgive you Mohamed," he said. "All I ask is that you use this experience to do good for other people.  Be the example of how to transform beyond adversity.  Be an example of honesty and contrition. This is what Justine would want."

Second-degree manslaughter is punishable by up to 10 years in prison, but state sentencing guidelines recommend a term between about 3 1/3 and 4 3/4 years in prison for defendants with no criminal history, such as Noor.  The presumptive term is four years, according to the guidelines.

In her comments, Sweasy asked for the maximum, noting this will be the only time a police officer will be sentenced for this offense.  "By every measure ... this is worse-than-typical for a second-degree manslaughter case," Sweasy said, adding that Noor wore the badge of Minneapolis police officer, a social contract that provides privilege to use deadly force to protect other civilians.

Noor's attorney, Thomas Plunkett, said Noor was young and had overreacted. "He was operating with the mistaken belief that he needed to protect his partner," Plunkett said, adding that Noor had wanted to make the world better and chose a career as a police officer to bridge the gap between the police, the justice system and the Somali-immigrant community.

In prison, he was an award-winning inmate for his commitment and respect to others.  Plunkett requested a sentence at the low end of the guidelines, 3 1/3 years.  There is little doubt that Mr. Noor's time in prison was "more punitive" than anyone could have imagined before the pandemic, Plunkett said.  In Noor's brief comments, he said he was "deeply grateful" for Damond's forgiveness and "deeply sorry" for the family's loss. Of Damond, Noor said, "I will take his advice and be a unifier."

Plunkett had asked the judge to give Noor credit for time he's already served in prison and to place him on supervised release, which typically requires regular check-ins with the Minnesota Department of Corrections (DOC), regular drug and alcohol testing, and restrictions on certain activities.  It can also include electronic home monitoring.  Violations of such terms can result in a defendant being sent back to prison.

Defendants in Minnesota must serve 2/3 of their prison term before becoming eligible for supervised release.  Noor entered prison on May 2, 2019 and was first sentenced in June 2019.  He originally served his time in administrative segregation at Oak Park Heights prison in Minnesota, but was transferred on July 11, 2019 to facility in North Dakota for his own safety.

October 21, 2021 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, October 14, 2021

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

  • More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
  • Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
  • Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
  • In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
  • People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
  • 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
  • In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

October 14, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Sunday, October 10, 2021

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

Incarceration_byrace_2019The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

October 10, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 06, 2021

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, October 05, 2021

Missouri completes execution of inmate who claimed to be intellectually disabled

As reported in this NBC News piece, "Missouri on Tuesday executed Ernest Johnson, despite claims by his attorney and death penalty opponents that he had an intellectual disability and killing him violated the Constitution." Here is more:

Johnson, 61, who was convicted in the murders of three convenience store employees almost three decades ago, was executed by lethal injection at a state prison in Bonne Terre. He was pronounced dead at 6:11 p.m. local time, a spokeswoman for the state department of corrections said.

Pope Francis, two members of Congress and former Democratic governor Bob Holden were among those who spoke out against the execution.

On Monday Gov. Mike Parson, a Republican, denied Johnson clemency and said the state would carry out the execution. The U.S. Supreme Court denied an application for a stay of execution Tuesday.

In a filing to the high court Tuesday, Johnson's legal team reiterated IQ tests have indicated he had the intellectual capacity of a child and wrote that there would be "no tangible harm" if his execution was delayed while questions over whether lower courts had "constitutionally considered" his disability were further explored.

As revealed in this SCOTUS order, no Justices dissented from the denial of a stay and denial of cert before the execution.

October 5, 2021 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (7)

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 04, 2021

Pope Francis among those urging Missou Gov to grant clemency to offender scheduled to be executed tomorrow ... UPDATE: Gov denies clemency

As detailed in this new AP article, "Pope Francis has joined the chorus of people calling on Missouri Gov. Mike Parson to grant clemency to a death row inmate who is set to be executed for killing three people during a 1994 convenience store robbery."  Here is more:

In a letter last week, a representative for Pope Francis wrote that the pope “wishes to place before you the simple fact of Mr. Johnson’s humanity and the sacredness of all human life,” referring to Ernest Johnson, who is scheduled to be executed at 6 p.m. Tuesday at the state prison in Bonne Terre, about 50 miles south of St. Louis.

Parson, a Republican, has been considering whether to reduce the 61-year-old Johnson’s sentence to life in prison without the possibility of parole.  Johnson’s attorney, Jeremy Weis, said executing him would violate the Eighth Amendment to the U.S. Constitution, which prohibits executing intellectually disabled people.  He said multiple IQ tests and other exams have shown that Johnson has the intellectual capacity of a child. He also was born with fetal alcohol syndrome and in 2008, he lost about 20% of his brain tissue to the removal of a benign tumor.

Racial justice activists and two Missouri members of congress — Democratic U.S. Reps. Cori Bush of St. Louis and Emmanuel Cleaver of Kansas City — have also called on Parson to show mercy to Johnson, who is Black.

The Missouri Supreme Court in August refused to halt the execution, and on Friday, it declined to take the case up again. Weis and other attorneys for Johnson on Monday asked the U.S. Supreme Court for a stay of execution.  “This is not a close case — Mr. Johnson is intellectually disabled,” they wrote in their court filing.

Johnson admitted to killing three workers at a Casey’s General Store in Columbia on Feb. 12, 1994 — manager Mary Bratcher, 46, and employees Mabel Scruggs, 57, and Fred Jones, 58.  The victims were shot and attacked with a claw hammer. Bratcher also was stabbed in the hand with a screwdriver....

Johnson was sentenced to death in his first trial and two other times.  The second death sentence, in 2003, came after the U.S. Supreme Court ruled that executing the mentally ill was unconstitutionally cruel.  The Missouri Supreme Court tossed that second death sentence and Johnson was sentenced for a third time in 2006.

If the execution takes place as scheduled, it would be the seventh in the U.S. this year but the first not involving either a federal inmate or a prisoner in Texas.  The peak year for modern executions was 1999, when there were 98 across the U.S.  That number had gradually declined and just 17 people were executed last year — 10 involving federal prisoners, three in Texas and one each in Georgia, Tennessee, Alabama and Missouri, according to a database compiled by the Death Penalty Information Center.

UPDATE: This AP piece reports that the Missouri Gov was unmoved:

Missouri Gov. Mike Parson on Monday declined to grant clemency to death row inmate Ernest Johnson, despite requests for mercy from the pope, two federal lawmakers and thousands of petition signers.

October 4, 2021 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Saturday, October 02, 2021

"Financial Health and Criminal Justice: The Stories of Justice-Involved Individuals and Their Families"

The title of this post is the title of this notable new report from the Financial Health Network. Here is how its introduction gets started:

The United States has the highest prison and jail population, and the highest incarceration rate, in the world.  In 2020, approximately 2.3 million Americans were incarcerated, and, every year, over 10 million people are arrested or charged with crimes.  While these numbers are staggering in their size, they are made up of individuals — each with a unique and complicated human story, each with a family or social network impacted by their involvement in the criminal justice system.  The consequences of involvement with the U.S. criminal justice system run deep and wide — socially, physically, psychologically, and financially — often lasting well beyond release, and usually impacting more than just the individual arrested or incarcerated.  In addition, the criminal justice system disproportionately impacts people from low-income communities and communities of color.

The Financial Health Network presents a look into some of these lives, with particular focus on how their financial health affects their ability to navigate the criminal justice system, and how that system affects their financial health once they’re able to re-enter society.  In partnership with the University of Southern California’s (USC) Center for Economic and Social Research, we collected stories directly from 36 individuals impacted by this system, and learned how navigating the criminal justice system impacts the financial health of justice-involved individuals and their families.  These individuals and their families must traverse a complex and expensive set of processes, whether they’re managing the initial financial shock of arrest and detainment, juggling associated financial obligations, searching for limited employment opportunities upon release, or handling the added expenses or lost income of having a family member who is incarcerated.  Through all this, these individuals and their families often rely on their social networks to get by.

The following five briefs examine the experiences of individuals and their families as they manage the multiple costs of pretrial, incarceration, and re-entry, as well as the challenges associated with securing income, employment, and accessing financial services upon their release.

October 2, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Thursday, September 30, 2021

US Sentencing Commission releases big new report on "Recidivism of Federal Offenders Released in 2010"

Cover_2021-recidivism-overviewAs I have said repeatedly over the last three years, it is has been great to see that the US Sentencing Commission can continue to do a lot of needed and important data analysis even as its policy work it necessarily on hiatus due to a lack of confirmed Commissioners.  The latest example was released today in this form of this big new report titled "Recidivism of Federal Offenders Released in 2010."  This USSC webpage provides an overview of the report along with a bunch of "Key Findings," some of which are reprinted below:

Overview

This report is the first in a series continuing the Commission’s research of the recidivism of federal offenders. It provides an overview of the recidivism of federal offenders released from incarceration or sentenced to a term of probation in 2010, combining data regularly collected by the Commission with data compiled from criminal history records from the Federal Bureau of Investigation (FBI).  This report provides an overview of recidivism for these offenders and information on key offender and offense characteristics related to recidivism.  This report also compares recidivism outcomes for offenders released in 2010 to federal offenders released in 2005. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders. The final study group of 32,135 offenders satisfied the following criteria:

  • United States citizens;
  • Re-entered the community during 2010 after discharging their sentence of incarceration or by commencing a term of probation in 2010;
  • Not reported dead, escaped, or detained;
  • Have valid FBI numbers that could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records).

Key Findings

  • The recidivism rate remained unchanged for federal offenders released in 2010 compared to offenders released in 2005 despite two intervening major developments in the federal criminal justice system: the Supreme Court’s decision in Booker and increased use of evidence-based practices in federal supervision....
  • For offenders who were rearrested, the median time to arrest was 19 months. The largest proportion (18.2%) of offenders were rearrested for the first time during the first year following release. In each subsequent year, fewer offenders were rearrested for the first time than in previous years. Most offenders in the study were rearrested prior to the end of supervision terms....
  • Assault was the most common (20.7%) offense at rearrest.  The second most common offense was drug trafficking (11.3%), followed by: larceny (8.7%), probation, parole, and supervision violations (8.1%), and administration of justice offenses (7.5%).
  • Combined, violent offenses comprised approximately one-third of rearrests; 31.4 percent of offenders were rearrested for assault (20.7%), robbery (4.5%), murder (2.3%), other violent offense (2.3%), or sexual assault (1.6%).
  • Similar to findings in its previous studies, the Commission found age and Criminal History Category (CHC) were strongly associated with rearrests....  Combined, the impact of CHC and age on recidivism was even stronger.  During the eight-year follow-up period, 100 percent of offenders who were younger than 21 at the time of release and in CHC IV, V, and VI (the most serious CHCs) were rearrested.  In contrast, only 9.4 percent of offenders in CHC I (the least serious CHC) who were aged 60 and older at release were rearrested.
  • Offenders sentenced for firearms and robbery offenses had the highest rearrest rates during the eight-year follow-up period, with 70.6 percent and 63.2 percent, respectively.  In contrast, offenders sentenced for fraud, theft, or embezzlement had the lowest rearrest rate (35.5%).

September 30, 2021 in Detailed sentencing data, National and State Crime Data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Sunday, September 26, 2021

Washington Supreme Court rules 46-year minimum term for juve murderer "unconstitutional de facto life sentence"

The Supreme Court of the State of Washington issued an interesting opinion regarding juvenile sentencing rules late last week in State v. Haag, No. 97766-6 (Wash. Sept. 23, 2021) (available here). Here is how the majority opinion in Haag gets started:

It is well established that “children are different from adults” for sentencing purposes.  State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017).  When a child commits the crime of aggravated first degree murder, the federal and state constitutions, the enactments of our legislature, and our case law demand that such a child be treated differently from an adult.  Here, this body of law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he committed at the age of 17.  In 2018, at a Miller-fix resentencing conducted pursuant to RCW 10.95.030, the resentencing court expressly found that “Haag is not irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings (Jan. 19, 2018) at 25.  Yet the court resentenced Haag to a term of 46 years to life; the earliest that he could be released is at the age of 63.  Id. at 27.  Haag sought review in this court, arguing that the trial court erroneously emphasized retribution over mitigation and that his sentence amounts to an unconstitutional de facto life sentence.  We agree.

We hold that the resentencing court erred because it gave undue emphasis to retributive factors over mitigating factors. We also hold that Haag’s 46-year minimum term amounts to an unconstitutional de facto life sentence.  We reverse and remand for resentencing in accordance with this opinion.

September 26, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 07, 2021

Noting that, with fewer executions, those on death row are growing even older

This new piece at The Crime Report authored by Maria DiLorenzo, which is titled "Growing Old on Death Row," highlights that many of those on death row these days are really serving a sentence of "a long confined aged" life behind bars.  Here are excerpts:

In the 36 years that David Carpenter has been on death row at San Quentin State Prison in California, his routine has rarely changed. He awakens early in the morning and exercises, despite suffering from arthritis, in the cramped space of his single-bunk cell before eating breakfast.  Three days a week, he has access to a yard outside.

Once a month he attends a church service, one of the few activities that allows him time out of his cell, aside from medical appointments and visiting with friends and family, which he used to do regularly prior to COVID restrictions that have made the prison more isolated.  But most of the time, he stays inside his cell, which he’s grateful he does not have to share with anyone else. “I control my lights,” he tells The Crime Report in an interview via snail mail.  “I have my 15-inch color television.  I can go to sleep when I want to at night, take a nap during the day, and write letters and read when I want to.  I have the freedom in a single cell that I would not have in a two-man cell.”

At the age of 91, there’s one other thing he can be grateful for.  In 2019, California Gov. Gavin Newsom suspended capital punishment. As long as Newsom remains governor, executions will not occur, which has effectively given Carpenter a lease on life.  He is keenly aware of the irony.  “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year,” he acknowledged in his note to The Crime Report. “If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

In 1984, Carpenter, also known as The Trailside Killer, was sentenced to death for shooting and killing two women.  Then, in 1988, he was found guilty of murdering five women, raping two others, and attempting to rape a third.  He was later tried and convicted of two additional murders and an attempted murder....

Carpenter, now one of the oldest individuals awaiting execution in the U.S., belongs to a growing segment of the prison demographic. In 2019, according to the Death Penalty Information Center, some 574 prisoners on death row in the U.S. were aged 60 or over. In 1996 that figure was just 39....

Some 1,200 of the 2,800 inmates awaiting execution are aged 50 and over.  Demographic trends suggest that over-50 population will increase, as America’s death rows are increasingly transformed into high-cost homes for senior citizens....  [A]s courts scrutinize details of appeals, men and women condemned to death are not only growing old, but becoming afflicted with dementia or other disabling diseases of age.  Since 2000, 11 death row inmates ranging in age from 65 to 77 have been executed.  Some, according to scholars.org, ‘were disabled, demented, or both.”

And as more states reject or sidestep capital punishment, the issue of what do with aging prisoners on death row presents a dilemma with moral, constitutional and economic dimensions.  Some critics argue that keeping ailing and enfeebled individuals behind bars―some with no memory of the crime they are in for ― is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But it also raises questions about whether a system in which capital punishment is invariably accompanied by a long appeals process that leaves people to grow old on Death Row makes sense. “One way is just to substitute life without parole for death,” Fox told The Crime Report. “You keep them off the street, which is the desire that people have, and keep them in prison longer… I understand that people are worried about the cost, (but) death row trials are very expensive. They’re longer, they have more witnesses, more experts.”

It is not quite right to say that Texas executes people shortly after they are found guilty.  This website listing the next eight Texas execution dates (one of which is tomorrow) reveals that all eight of these condemned men have been on death row for more than a decade and a few have been there for a quarter century or longer.  Still, with California having over 700 persons on its death row, while not having completed a single execution in over 15 years, it is fitting that someone like The Trailside Killer from the Golden State is the featured focal point for a discussion of aging on death row.

September 7, 2021 in Data on sentencing, Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (2)

Wednesday, September 01, 2021

Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6

This recent AP article, headlined "Records rebut claims of unequal treatment of Jan. 6 rioters," provides a valuable and interesting accounting of some of the federal criminal accountability that has followed various riots in recent times.  Here are excerpts:

An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.

The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more....

To be sure, some defendants have received lenient deals. At least 19 who have been sentenced across the country got no prison time or time served, according to the AP’s review. Many pleaded guilty to lower-level offenses, such as misdemeanor assault, but some were convicted of more serious charges, including civil disorder.

In Portland, Oregon — where demonstrations, many turning violent, occurred nightly for months after a white Minneapolis police officer killed Floyd — about 60 of the roughly 100 cases that were brought have been dismissed, court records show.  Most of those defendants received deferred resolution agreements, under which prosecutors promise to drop charges after a certain amount of time if the defendant stays out of trouble and completes things like community service.  Some Jan. 6 defendants have complained it’s unfair they aren’t getting the same deals.

But President Joe Biden’s Justice Department has continued the vast majority of the racial injustice protest cases brought across the U.S. under Trump and has often pushed for lengthy prison time for people convicted of serious crimes.  Since Biden took office in January, federal prosecutors have brought some new cases stemming from last year’s protests.

Conservatives have sought to equate the attack on the Capitol with the Black Lives Matter protests, accusing Democrats of being hypocrites for not denouncing the violence after Floyd’s death as loudly as the Jan. 6 insurrection.  And some Republicans have seized on the handling of the protest cases in Portland to suggest that the Jan. 6 defendants are being politically persecuted.

That has not been borne out when comparing the sentences that federal judges have given to Jan. 6 defendants and those who are accused of crimes during the protests against police brutality across the country.  Only a handful of the nearly 600 people who’ve been charged in the insurrection have received their punishments so far, and just three people have been sentenced to time behind bars.  The vast majority of the most serious cases — involving those accused of assaulting police officers or conspiring to block the certification of Biden’s victory — remain unresolved.

Some of many prior related posts:

September 1, 2021 in Booker in district courts, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Thursday, August 19, 2021

"Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse"

The title of this post is the title of this new article on SSRN authored by Paul Robinson and Lindsay Holcomb. Here is its abstract:

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ.  There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome.  On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense.  In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account.  Should our assessment of an offender’s criminal liability be adjusted for their cultural background?  Their religious beliefs?  Their past life experiences?  The pedophilic tendencies they have always had but usually suppressed?

The question of how much to individualize the criminal liability judgment is not peripheral or unusual but rather common in a wide range of formal criminal law doctrines including, for example, the culpability requirements of recklessness and negligence, the mitigation of provocation and its more modern form of extreme emotional disturbance, and the excuse defenses of mistake as to a justification, duress, and involuntary intoxication.  Indeed, it turns out that the problem of individualizing factors is present, if often obscured, in all criminal law doctrines of culpability, mitigation, and excuse.

The Article reviews the appeal of criminal law adhering to a purely objective standard, where the problem of the individualizing factors is sought to be avoided altogether. But the resulting stream of injustices has forced most jurisdictions to adopt a partially individualized standard in some cases involving some doctrines.  But this leaves the jurisdiction’s criminal law in an awkward and unstable state.  Without a guiding principle for determining which individualizing factors are to be taken into account under what circumstances, the law is inevitably unprincipled and internally inconsistent. And without guidance, different decision-makers inevitably come to different conclusions in similar cases.  The Article proposes a solution to the individualizing factors puzzle and a statutory codification that would provide guidance in the adjudication of the many cases in which the issue arises.

August 19, 2021 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, August 18, 2021

Second Circuit panel reverses 48-month (way-below-guideline) sentence as substantively unreasonable for abused woman who provided material support to ISIS

Regular readers know I do not blog much these days about federal sentence reasonableness review because there are not that many blogworthy opinions.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and all but a few dozen involve miscalculation of the guideline range.  The government rarely appeals, though it has a much better success rate in the relatively few appeals it brings each year. 

In one particular (and relatively rare) categories of cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  This category is terrorism cases, and a Second Circuit panel added another example in this category with its ruling today in US v. Ceasar, No. 19-2881 (2d Cir. Aug. 18, 2021) (available here).  Federal sentencing fans will want to review this 53-page opinion in detail, but here is the opinion's introduction:

It is undisputed that beginning in or around January 2016, the defendant-appellee, Sinmyah Amera Ceasar, conspired to provide material support to the Islamic State of Iraq and Syria ("ISIS"), in violation of 18 U.S.C. § 2339B(a). Using social media and the encrypted messaging application Telegram, Ceasar expressed her support for ISIS, encouraged others to join ISIS abroad, and helped individuals in the United States contact ISIS members overseas. The overseas ISIS members then facilitated U.S.-based ISIS supporters' travel to ISIS-controlled territory. Ceasar herself intended to travel to ISIS territory by way of Sweden, where she planned to marry another ISIS supporter. In November 2016, Ceasar was arrested at New York's John F. Kennedy International Airport on her way to Sweden via Turkey. Following her arrest, Ceasar entered into a cooperation agreement with the government in which she pleaded guilty to one count of conspiracy to provide material support to a foreign terrorist organization. In April 2018, the United States District Court for the Eastern District of New York granted her presentence release.

While on presentence release, Ceasar reoffended.  Despite the fact that the conditions of her release explicitly prohibited her from contacting individuals or organizations affiliated with foreign terrorist groups, Ceasar obtained a laptop computer, recreated pseudonymous social media accounts, and resumed contacting or attempting to contact several individuals known to be supporters of ISIS or other extremist groups.  The FBI, investigating Ceasar's conduct, found that she had intentionally deleted incriminating communications and had instructed others with whom she had been in contact to do the same.  The bond underlying her presentence release was revoked, and she was remanded pending sentencing. When the FBI interviewed Ceasar about her conduct while on presentence release, she made a significant number of false and misleading statements....

Mental health professionals who met with and treated Ceasar characterize her conduct as a misguided search for community stemming from a lifetime of sexual, physical, and emotional abuse and neglect.  Beginning in her childhood, Ceasar's father sexually abused her.  At age 13, she entered the foster care system and was abused or neglected in each home in which she was placed.  While Ceasar has never been legally married, she entered into three successive so-called "religious marriages" with older men, beginning when she was 16.  In each of those marriages, her husband physically or emotionally abused her.  Ceasar was diagnosed with complex post-traumatic stress disorder as a result of the abuse and trauma she endured.

Ceasar faced a Sentencing Guidelines range of 360 to 600 months' imprisonment.  Prior to sentencing, the district court ordered the government and Ceasar to provide expert witness testimony or other materials to assist in its sentencing determination.  The district court held a multiday sentencing hearing at which two government and three defense experts testified as to Ceasar's involvement with and support of ISIS and whether she would be likely to reoffend. 

The district court concluded that the advisory Guidelines range was "excessively harsh" and varied downward from it dramatically.  The court found that Ceasar was motivated by the abuse and trauma she suffered most of her life, and that she needed educational and mental health support in lieu of a long prison sentence.  On June 26, 2019, despite the Guidelines minimum of 360 months, the court imposed a 46-month sentence on Ceasar for the Material Support Offense, one month for the Obstruction Offense, and one month for committing an offense while on presentence release, pursuant to 18 U.S.C. § 3147, all to run consecutively for a total term of 48 months' imprisonment.  Because she had been in custody from the time of her arrest in November 2016 until she was granted presentence release in April 2018, and was then remanded to custody on July 19, 2018 (following her violation of the conditions of her presentence release), Ceasar served only 13 additional months from the time of sentencing (June 26, 2019) until she was released from prison on July 28, 2020. 

The government appealed on substantive reasonableness grounds, arguing that the district court abused its discretion by considering Ceasar's need for rehabilitation to the exclusion of other sentencing factors, and that this mitigating sentencing factor could not bear the weight assigned to it. The government further argues that Ceasar's sentence was shockingly low compared with other sentences imposed for similar crimes. 

We are not without sympathy for Ceasar, but we are constrained to agree with the government. We conclude that the district court placed more emphasis on Ceasar's need for rehabilitation than that sentencing factor could bear, and failed adequately to weigh section 3553(a) factors that balance the needs and circumstances of an individual defendant against, among other things, the goals of protecting the public, deterring criminal behavior, and engendering respect for the law. We further conclude that in comparison with sentences for similar terrorism crimes, Ceasar's sentence of 48 months' imprisonment was shockingly low and unsupportable as a matter of law. We therefore vacate the judgment of the district court and remand for resentencing.

Prior posts on similar reasonableness ruling:

August 18, 2021 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, August 17, 2021

"Can Restorative Justice Conferencing Reduce Recidivism? Evidence From the Make-it-Right Program"

The title of this post is the title of this new NEBR working paper authored by Yotam Shem-Tov, Steven Raphael and Alissa Skog. Here is its abstract:

This paper studies the effect of a restorative justice intervention targeted at youth ages 13 to 17 facing felony charges of medium severity (e.g., burglary, assault).  Eligible youths were randomly assigned to participate in the Make-it-Right (MIR) restorative justice program or to a control group in which they faced criminal prosecution.  We estimate the effects of MIR on the likelihood that a youth will be rearrested in the four years following randomization.  Assignment to MIR reduces the likelihood of a rearrest within six months by 19 percentage points, a 44 percent reduction relative to the control group.  Moreover, the reduction in recidivism persists even four years after randomization.  Thus, our estimates show that juvenile restorative justice conferencing can reduce recidivism among youth charged with relatively serious offenses and can be an effective alternative to traditional criminal justice practices.

August 17, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, August 16, 2021

En banc Third Circuit upholds 65-year juvenile sentence in Grant more than three years after bold panel ruling

In this post way back in April 2018, I noted a remarkable Third Circuit panel opinion in US v. Grant, addressing the application of Eighth Amendment limits on juvenile sentences while vacating  a 65-year federal prison term for a 16-year-old offender.  Among other points, the original split panel opinion in Grant held that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  But six months later, as detailed in this October 2018 post, the active judges voted for rehearing en banc in Grant upon the government's petition and the original opinion and judgment were vacated. 

Now, nearly three years later, the en banc Third Circuit has finally ruled in favor of the government US v. Grant, No. 16-3820 (3d Cir. Aug. 16, 2021) (available here).  Here is how the en banc majority opinion in Grant now starts:

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile.  The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines.  Parole is unavailable to those convicted of federal crimes, so the sentence effectively condemned Grant to die in prison — with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460, which held that the Eighth Amendment permits a life-without-parole (“LWOP”) sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender’s youth at the time of the offense.  Later, the Court made Miller retroactive to cases on collateral review.  Montgomery v. Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability.  The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant’s total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not.  But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant’s youth at the time of his offenses. And that is what he received. So we will affirm Grant’s 65-year sentence.

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts.  But Grant did not preserve this argument, and the District Court’s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

This opinion was a long time coming no doubt in part because the en banc court likely was eager to await the Supreme Court's latest pronouncement on the application of Miller. Recall that SCOTUS granted cert in the Malvo case to address the proper retroactive application of Miller way back in March 2019, though only finally spoke on this topic in the replacement Jones v. Alabama case this past April.  Unsurprisingly, this Grant ruling leans heavily on Jones, and seeing how Jones is being applied in this context provides one reason for sentencing fans to check out this new ruling.

But hard-core Eighth Amendment fans will want to make sure they also check out some of the additional opinions, particularly a 15-page concurrence authored by Judge Hardiman and joined by three other judges.  That opinion attacks the Supreme Court's “evolving standards of decency” test for having a history "marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People." And it concludes this way:

The story of the evolving standards of decency test — from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land — has created more problems than it has solved.  Its inscrutable standards require judges to eschew the law as written in favor of moral sentiment.  The only constant is that more and more laws adopted by the People’s representatives have been nullified.  And the People have no practical way to reverse this contrived ratchet.
This Court, relying on a careful review of the Supreme Court’s Eighth Amendment precedents, reaches the right conclusion for the right reason.  But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of elastic constitutionalism?  As Chief Justice Roberts cautioned nine years ago: there is “no discernable end point.”

August 16, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Wednesday, August 11, 2021

New Minnesota law provides for prison alternatives for veterans involved in lower-level offenses

In a number of prior posts (some linked below), I have spotlighted discussions and debates over whether and how past military service can and should be brought to bear at sentencing.  Against that backdrop, I was intrigued to see this local report on a new state law headlined "Minnesota officials laud Veterans Restorative Justice Act as an 'opportunity to have another path'."  Here are the particulars:

Minnesota veterans that commit a criminal offense as a result of a service-related condition could be granted a pathway to restitution without jail time under a measure approved by the Legislature and signed into law by Gov. Tim Walz....

The so-called Veterans Restorative Justice Act sets up alternate courses through the criminal justice system for veterans that struggle with injuries, substance abuse, post-traumatic stress disorder, military sexual trauma or chemical exposure.  Veterans facing lower-level offenses would be eligible to be placed on probation and complete rehabilitation and county programming rather than going to jail.  And those who completed their rehabilitation and treatment requirements could see their charges wiped away under the program.

Veterans courts allow for similar opportunities in certain parts of the state, but the law will make those options available statewide, the law's supporters said.  "This is an opportunity for those veterans that are having those difficulties with the reintegration to have some help and assistance, something other than just going to jail, this gives them an opportunity to have another path," Department of Veterans Affairs Commissioner Larry Herke said.

Jeff Johnson, a Ramsey County Veterans Court graduate, said completing the treatment and rehabilitation programs required through the specialty court helped him reacclimate to civilian life after 24 years of active duty service. "When I got out, I'll be honest with you, even though I grew up here in Minnesota ... I felt like a Martian. It takes a lot of adjustment to figure out the society I hadn't participated in in 24 years," Johnson said. "(Veterans Court) is not a place where a veteran gets his or her life back, not in the least. They get a new life."

Advocates spent years attempting to pass the proposal in St. Paul before the divided Legislature agreed to advance it earlier this year.  And both Democrats and Republicans on Tuesday commended the veterans advocacy organizations for keeping up the push to get the proposal through the Statehouse.

Some (of many) prior related posts:

August 11, 2021 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, August 02, 2021

"Power to the People: Why the Armed Career Criminal Act is Unconstitutional"

The title of this post is the title of this notable new article authored by Rachel Paulose and now available via SSRN.  Here is its abstract:

In our constitutional democracy, it is the people who hold ultimate power over every branch of government, including authority over the judiciary through the jury trial guarantee of the Sixth Amendment.  However, the traditional view of recidivist statutes, including the federal Armed Career Criminal Act (“ACCA”), exempts the fact of a defendant’s prior convictions from the Sixth Amendment jury trial promise.  Specifically, prosecutors and federal judges have removed from juries and given to sentencing judges the power to determine prior crimes that enhance a defendant’s sentence under the ACCA by labeling a recidivist finding a sentencing factor rather than an element of the offense.

In this article, I argue the recidivist statute exemption, primarily exercised in federal law through the vehicle of Almendarez-Torres v. United States, violates the Constitution; defies the Court’s revived focus on the jury trial right through the Apprendi v. New Jersey line of cases requiring any fact that increases a defendant’s sentencing range to be found by the jury or admitted by the defendant at the guilty plea; and disregards the Court’s due process focus in the Taylor v. United States line of cases prohibiting factfinding under the ACCA.

I present my theory by examining the ACCA’s different occasions clause, a lesser known but potent provision that in theory imposes the ACCA’s mandatory minimum sentence of fifteen years only when recidivist crimes are “committed on occasions different from one another.”  In practice, judges impose the different occasions clause by engaging in complex judicial factfinding at sentencing by a lower preponderance of the evidence standard regarding the who, what, when, where, and why of prior crimes.  Judges who label the different occasions clause a sentencing factor rather than an element of the offense act in disregard of the jury trial right, due process guarantee, and legislative intent of the ACCA.  I argue that the Constitution requires the ACCA different occasions clause to be decided by a jury beyond a reasonable doubt in a bifurcated trial.  Judicial removal of the different occasions clause from jury scrutiny dramatically illustrates why a new approach enforcing the Sixth Amendment jury trial right to the ACCA different occasions clause is long overdue.

August 2, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

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 (3)

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)