Friday, June 17, 2022

"Free-World Law Behind Bars"

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

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, 'free-world' regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

June 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, June 16, 2022

Bipartisan group of House members introduce bill to allow judges to reduce sentences to "protect the constitutional right to trial"

This press release from the office of Representative Victoria Spartz reports on a notable new bill seeking to address concerns with so-called "trial penalties."  Here is the text of the release:

U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues Reps. Hakeem Jeffries (NY-08), Kelly Armstrong (ND-AL), Karen Bass (CA-37), Morgan Griffith (VA-09), Cathy McMorris Rodgers (WA-05), Guy Reschenthaler (PA-14), and David Trone (MD-06). This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

“Our Founding Fathers provided for trial by jury in our Constitution as a safeguard of our liberties,” said Rep. Spartz.“This constitutional right is essential to protect against the tyranny of government and the police state.”

Approximately 97% of defendants subject to federal charges plead guilty, up from nearly 85% in the early 1990s. Despite their constitutional right to trial, defendants face steep mandatory minimum sentences if they choose to exercise this right—driving defendants into one-sided plea negotiations.

“Throughout my time as a district judge, I saw the extreme disparities between sentences offered in plea deals and sentences given to those who went to trial. Americans shouldn’t face drastically different judicial outcomes when exercising their constitutional rights,” said Rep. Reschenthaler. “The Right to Trial Act will address the trial penalty sentencing disparity and ensure our judicial system reflects the spirit of the Sixth Amendment.”

The ‘Right to Trial Act’ seeks to temper these incentives by granting federal courts the authority to impose sentences, in some circumstances, below established statutory minimums.

The full text of the bill, which runs only three pages, is available here. The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial."

June 16, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

"Letting Offenders Choose Their Punishment?"

The title of this post is the title of this new paper now available via SSRN and authored by Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi. Here is its abstract:

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options.  We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes.  We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. 

Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare.  We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions.  After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

June 16, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

New issue of Brooklyn Law Review examines "The Role of the 'Victim' in the Criminal Legal System"

I just recently came across online the latest issue of the Brooklyn Law Review, and it is now high on my summer reading list. The abstract of the Foreword to the issue, penned by Kate Mogulescu, provides this context:

On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system.  Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process?  Where does the issue of victimization emerge, how is it received and what should the system’s response be?  Who gets a voice?  And when?  Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy?  The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion and interrogate the way the legal system recognizes, or fails to recognize, those who have experienced harm.

And here is a list of all the articles in this issue:

Giving Meaning to the Apostrophe in Victim[’]s Rights by Margaret Garvin

Should Victims’ Views Influence Prosecutors’ Decisions? by Bruce A. Green and Brandon P. Ruben

Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence by Tamara Rice Lave

Protecting the Constitution While Protecting Victims: Challenges to Pro Se Cross-Examination by Katharine L. Manning

Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses by Anna Roberts

What Are Victim Impact Statements For? by Susan A. Bandes

Parole, Victim Impact Evidence, and Race by Alexis Karteron

Rotten Social Background and Mass Incarceration: Who Is a Victim? by Steven Zeidman

The Victim/Offender Overlap and Criminal System Reform by Cynthia Godsoe

June 16, 2022 in Procedure and Proof at Sentencing, Recommended reading, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, June 15, 2022

Notable new ACLU report on prison labor in the United States

This ACLU press release provides a summary of this notable new report from the ACLU and the University of Chicago Law School Global Human Rights Clinic concerning prison labor in the US.  Here is a excerpt:

The first-of-its-kind report, Captive Labor: Exploitation of Incarcerated Workers, examines the use of prison labor throughout state and federal prisons in the U.S. and highlights how incarcerated workers’ labor helps maintain prisons and provides vital public services.  Captive Labor also calls for far-reaching reforms to ensure prison labor is truly voluntary and that incarcerated workers are paid fairly, properly trained, and able to gain transferable skills. 

“The United States has a long, problematic history of using incarcerated workers as a source of cheap labor and to subsidize the costs of our bloated prison system,” said Jennifer Turner, principal human rights researcher with the ACLU’s Human Rights Program and primary author of the report. “Incarcerated workers are stripped of even the most minimal protections against labor exploitation and abuse. They are paid pennies for their work in often unsafe working conditions even as they produce billions of dollars for states and the federal government. It’s past time we treat incarcerated workers with dignity. If states and the federal government can afford to incarcerate 1.2 million people in prisons, they can afford to pay them fairly for their work.”

Key findings include:

  • Nearly two thirds (65 percent) of incarcerated people report working behind bars — amounting to roughly 800,000 workers incarcerated in prisons.
  • More than three quarters of incarcerated workers surveyed (76 percent) report facing punishment — such as solitary confinementdenial of sentence reductions, or loss of family visitation — if they decline or are unable to work. 
  • Prison laborers are at the mercy of their employers.  They have no control over their work assignments, are excluded from minimum wage and overtime protections, are unable to unionize, do not receive adequate training and equipment, and are denied workplace safety guarantees despite often dangerous working conditions.
  • As a result, 64 percent of incarcerated workers surveyed report worrying about their safety while working; 70 percent say they received no formal job training; and 70 percent report not being able to afford basic necessities like soap and phone calls with prison labor wages. 
  • Incarcerated workers produce at least $2 billion in goods and $9 billion worth of prison maintenance services annually, but this number is not closely tracked and is likely much higher. 
  • Yet, most states pay incarcerated workers pennies per hour for their work. Seven state prison systems (Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas) pay nothing for the vast majority of prison work.  Other states pay on average between 15 and 52 cents per hour for non-industry jobs.  Prison laborers often see up to 80 percent of their paycheck withheld for taxes, “room and board” expenses, and court costs.
  • More than 80 percent of prison laborers do general prison maintenance, which subsidizes the cost of our bloated prison system. Other tasks represent less than 10 percent of work assignments, including: public works projects (like road repair, natural disaster assistance, forestry work, and maintenance of parks, schools, and government offices); state prison industries, agricultural work, and coveted private company work assignments. 

June 15, 2022 in Prisons and prisoners | Permalink | Comments (1)

"Evaluating the cumulative impact of indigent defense attorneys on criminal justice outcomes"

The title of this post is the title of this new article recently published in the Journal of Criminal Justice.  The piece is authored are Madhuri Sharma, Lisa Stolzenberg and Stewart J. D'Alessio, and here is its abstract:

This study utilizes meta-analysis to synthesize estimates of the impact of public defenders and assigned counsel on the severity of imposed legal sanction at several decision points encountered by criminal defendants as they progress through the criminal justice system.  While public defenders and assigned counsel have some notable effects on specific court outcomes such as pretrial detention and sentencing, the meta-analysis results show that they are just as successful overall as private attorneys in representing their clients' interests.  The defendant's indigent status most likely explains why the clients of public defenders and assigned counsel may sometimes confront more severe sanctioning because the effects of pretrial confinement reverberate throughout the entire criminal justice system.  The frequently observed deleterious consequences associated with pretrial confinement have engendered repeated calls to eliminate cash bail in determining pretrial release.

June 15, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Nothing for sentencing fans as SCOTUS resolves six more cases (and increases end of Term drama)

With its usual end-of-Term rush, the Supreme Court issued five more opinions and a dismissal (DIG) this morning.  But no blockbusters or sentencing rulings were among the cases resolved today, and I do not believe there will be any more opinion days until next Tuesday (June 21). 

As I have suggested in prior posts, few should be surprised that the Second Amendment case and the abortion case (Bruen and Dobbs) have not yet been released.  I am expecting both the very last week of the Term.  But I am struck that a number of criminal/sentencing cases argued months ago have not yet been resolved.  I am now almost starting to expect something really notable could be coming in cases like US v. Taylor, and Concepcion v. US and Ruan v. US.  

Stay tuned.

A few prior related posts:

June 15, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 14, 2022

"Recidivism And Federal Bureau Of Prisons Programs Vocational Program Participants Released In 2010"

The title of this post is the title of this new report form the US Sentencing Commission.  This USSC webpage provides this basic overview and "Key Findings":

This report is the sixth in a series continuing the Commission’s study of the recidivism of federal offenders released in 2010. In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) vocational programs while incarcerated.  The study examines whether completion of vocational programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010.  The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Vocational Program Participants were offenders who participated in one of the following programs:

Occupational Education Program (OEP)

  • The first group comprises 7,310 offenders who participated in at least one OEP vocational or technical training course.
  • OEP offers a variety of programs where participants can take courses in vocational and occupationally oriented areas for the purpose of obtaining marketable skills.

Federal Prison Industries (FPI)

  • The second group comprises 5,082 offenders who participated in FPI.
  • FPI provides offenders with work simulation programs and training opportunities through the factories it operates at BOP facilities.

Occupational Education Programs (OEP)

  • Although the recidivism rate for offenders who completed an OEP course was lower than that of offenders who did not participate in an OEP course (48.3% compared to 54.1%), the difference in their recidivism rates was not statistically significant after controlling for key offender and offense characteristics such as criminal history category, age at release, gender, and crime type.

Federal Prison Industries (FPI)

  • Although the recidivism rate for offenders who participated in FPI was higher than that of offenders who did not participate in FPI (55.0% compared to 52.0%), the difference in recidivism rates was not statistically significant after controlling for key offender and offense characteristics, such as criminal history category, age at release, gender, and crime type.

NOTE: This study focuses solely on recidivism reduction and is not meant to analyze whether other program goals were achieved.

June 14, 2022 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Latest issue of FSR examines "Federal Community Supervision"

M_fsr.2022.34.5.coverThe June 2022 issues of the Federal Sentencing Reporter, which is now available online here, seeks to shine a bright light on the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  As an editor FSR, I can say all the editors were deeply grateful for LawProf Jacob Schuman’s extraordinary efforts and expertise in envisioning and shepherding this issue from start to finish.  This terrific issue includes a dozen original articles, and Prof Schuman's introductory essay, titled "One Nation under Supervision," sets the tone at the outset this way: 

This Special Issue of Federal Sentencing Reporter asks whether the federal criminal justice system can reconcile the dueling purposes of community supervision: public safety and rehabilitation.  While the federal government is neither as vast nor as powerful as the Almighty, it does supervise over 100,000 people serving terms of probation, parole, and supervised release.  Combined with the approximately 25,000 federal criminal defendants on pretrial release and diversion, the total population under federal supervision equals the number of people in federal jails and prisons.  While U.S. Probation and Pretrial Services offers an array of transitional services, and nearly a quarter of the defendants under federal supervision receive judiciary-funded drug treatment, judges also revoke supervision in approximately a third of all cases, imposing an average eleven-month prison sentence and accounting for 15% to 20% of all federal sentencings.  A term of supervision offers help and support, yet the threat of revocation imposes a significant liability, offering a mixed blessing for federal criminal defendants.

The last time FSR dedicated an Issue to federal community supervision was in 1994.  Almost thirty years later, the population under federal supervision has nearly tripled.  At the same time, innovative reentry courts and other approaches to supervision have sprung up in federal districts across the country.  In 2019, the Supreme Court struck down for the first time a provision of the supervised release statute as violating the jury right, splitting 4-1-4 on the reasoning and revealing deep divisions among the justices about the law of community supervision.  The time is ripe to reflect on these developments and chart the future of community supervision in the federal criminal justice system.

Here is a list of the terrific articles and authors in this great new FSR issue

One Nation Under Supervision by Jacob Schuman

“Breach of Trust” and U.S. v. Haymond by Fiona Doherty

The Reconstruction of Federal Reentry by Scott Anders, Jay Whetzel

The Burden of Criminal Justice Debt in Federal Community Supervision by Laura I Appleman

Rethinking Supervised Release Discovery with an Eye Toward Real “Fundamental Fairness” by Alison K. Guernsey

A Tale of Two Districts: Supervised Release in the District of Arizona and the Northern District of California by Elisse Larouche, Jon M. Sands, August Sommerfeld

Reenvisioning Success: How a Federal Reentry Court Promotes Desistance and Improves Quality of Life by Maya Sosnov, Leslie Kramer

The Judicial Role in Supervision and Reentry by Jacob Schuman

What’s Missing? The Absence of Probation in Federal Sentencing Reform by Cecelia Klingele

Reducing the Federal Prison Population: The Role of Pretrial Community Supervision by Christine S. Scott-Hayward, Connie Ireland

COVID-19 Vaccination as a Condition of Federal Community Supervision by Nila Bala

Building a Fair and Just Federal Community Supervision System: Lessons Learned from State and Local Reform Efforts by Miriam Krinsky, Monica Fuhrmann

June 14, 2022 in Procedure and Proof at Sentencing, Recommended reading, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Could the EQUAL Act get passed as part of some kind of "omnibus" federal marijuana reform bill?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Interestingly enough, a non-marijuana item might also be part of the deal in the works: the EQUAL Act to end the federal sentencing disparity between crack and powder cocaine, which experts say has exacerbated racial disparities in the criminal justice system. That legislation has passed the House in standalone form and has substantial bipartisan support in the Senate. “These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

Given that I am not especially bullish on the likelihood that significant marijuana reform making it through the current Congress, I am not especially keen on the idea of tethering crack sentencing reform to marijuana reform.  But, given that the EQUAL Act seems to be stalled in the Senate (despite more than 10 GOP co-sponsors), maybe this new marijuana talk is good news for the prospects of sentencing reform.  Notably, this recent Hill commentary by Marc Levin, headlined "Bipartisan drug sentencing reform isn’t a pipe dream," argues that the EQUAL Act could still "receive a rare bipartisan embrace."  Whether with a side of weed or on its own, I sure hope the EQUAL Act gets to the desk of the President as soon as possible.

A few of many prior posts on the EQUAL Act:

June 14, 2022 in Drug Offense Sentencing, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences | Permalink | Comments (13)

Monday, June 13, 2022

Fascinating new AP accounting of all sentences given to January 6 rioters so far

Fittingly, with the House's on-going January 6 committee hearings, the Associated Press has this new article reviewing in some detail the nearly 200 sentences so far given to January 6 riot defendants.  I recommend the piece, and its cool interactive graphics, in full.  Here are excerpts:

As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising from the attack....

[U.S. District Judge Tanya] Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.  Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.

Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.

Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far.  While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.

“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,” he added.

In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol.  Prosecutors did not seek jail time for either, noting their lack of a criminal record. Chutkan sentenced Bissey to 14 days in jail.  A different judge sentenced Bissey’s friend to probation....

But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years [when prosecutors sought more than four], noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.  Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.  “When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”...

Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.

Some of many prior related posts:

June 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (16)

Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases?

Images (5)The Supreme Court this morning handed down an order list and five new opinions (partially blogged here and here).  Though the Court issued a number of opinions on criminal (or criminal-adjacent) procedural issues, we did not today get a ruling in any of the six notable cases that I flagged in this post last week.  As of this writing, SCOTUS has 24 more argued cases to resolve this Term, and there will be additional opinions released on Wednesday morning.  (If five opinions per day becomes the new normal for the Justices, the Court could wrap the current Term by the end of this month with just two "opinion days" during each of the last two weeks of June.)

Most Court watchers have long expected the "biggest" cases, such as the Second Amendment case and the abortion case (Bruen and Dobbs) to not be released until the very end of the Term.  But two "little" sentencing-related cases are also taking a very long time to come out.  US v. TaylorNo. 20-1459, which concerns the definition of a "crime of violence" for application of a 924(c) sentencing enhancement, was argued more than sixth months ago during the Court's December sitting.  And Concepcion v. USNo. 20-1650, which concerns proper resentencing considerations in a crack offense resentencing under Section 404(b) of the FIRST STEP Act, was argued nearly five months ago during the Court's January sitting.  Only very high-profile cases are still outstanding from the December sitting other than Taylor, and Conception is the only case from the January sitting now still unresolved.

The standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions.  And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the "standard" ideological lines.  Justice Gorsuch, of course, tends to vote in favor of (non-capital) criminal defendants more than most of his conservative colleagues and Chief Justice Roberts and Justice Kavanaugh also can be somewhat more pro-defendant in some settings.

Notably, the SCOTUSblog accounting of who has written which majority opinions so far indicates that neither Justice Gorsuch nor Justice Kavanaugh has authored a majority opinion from the January sitting; we might reasonably expect (though cannot be certain) that one of those two was tasked with authoring the Court's opinion in Conception.  Cases from the December sitting are harder to game out because a few more are still unresolved; but since Justice Alito apparently had Dobbs, Justices Breyer, Kagan, Gorsuch and Kavanaugh are those so far without majority opinions from the December sitting and one of them might reasonably be expected to be authoring the Court's opinion in Taylor.

Of course, this analysis is all just tea-leaf-reading and speculation.  We could get other opinion authors or unanimous opinions or who knows what from the Court (especially given that various statutory construction and sentencing jurisprudence doctrines could be brought to bear in these cases).  But, especially within a Term generating so much news from other cases, I am tempted to start speculating that Taylor and/or Conception could prove to be sleeper cases.   (I cannot help but note that 18 years ago around this time, I started speculating about whether Blakely v. Washington might be a brewing blockbuster.  I will be truly shocked if either Taylor or Conception gets anywhere close to the jurisprudential earthquake of Blakely, but I find myself growing ever more eager to see what's what in these sentencing cases.)

Anyone else have speculations or thoughts about these lingering sentencing cases (or any other aspect of the eventful SCOTUS Term now winding down)?

June 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Distinctive 6-3 SCOTUS majority extends reach of "dual-sovereignty" exception to Double Jeopardy Clause in Denezpi v. US

The Supreme Court this morning handed down a criminal procedure decision in Denezpi v. US, No. 20–7622 (S. Ct. June 13, 2022) (available here), with this uncommon 6-3 combination of Justices:

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined as to Parts I and III.

Here is how Justice Barrett's opinion for the Court gets started:

The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements.  Thus, a person can be successively prosecuted for the two offenses without offending the Clause.  We have dubbed this the “dual-sovereignty” doctrine.

This case presents a twist on the usual dual-sovereignty scenario.  The mine run of these cases involves two sovereigns, each enforcing its own law.  This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after having separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe).  Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns.

We disagree.  By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign.  So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.

Here is how Justice Gorsuch's dissent gets started:

Federal prosecutors tried Merle Denezpi twice for the same crime. First, they charged him with violating a federal regulation.  Then, they charged him with violating an overlapping federal statute.  Same defendant, same crime, same prosecuting authority.  Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case.  How can that be?  To justify its conclusion, the Court invokes the dual-sovereignty doctrine.  For reasons I have offered previously, I believe that doctrine is at odds with the text and original meaning of the Constitution. See Gamble v. United States, 587 U.S. ___, ___ (2019) (dissenting opinion) (slip op., at 1).  But even taking it at face value, the doctrine cannot sustain the Court’s conclusion.

June 13, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Justice Sotomayor pens lengthy dissent from denial of cert in Texas capital case that has previously led to SCOTUS per curiam reversal

Almost exactly two years ago, the Supreme Court issued a per curiam decision in Andrus v. Texas (discussed here) in which the Court felt compelled to find that "Andrus’ counsel provided constitutionally deficient performance under Strickland," but then remanded so Texas courts could "address the prejudice prong of Strickland in the first instance."  This case resulted in another notable opinion today, making this otherwise new SCOTUS short order list much longer.  Specifically, Justice Sotomayor authored a 25-page dissent from denial of certiorari, which was joined by Justices Breyer and Kagan.  Here is how it starts:

A state habeas court recommended vacating petitioner Terence Andrus’ death sentence after an 8-day hearing that uncovered a plethora of mitigating evidence that trial counsel had failed to investigate or present.  The court held that Andrus had received ineffective assistance of counsel at the punishment phase of his trial. See Strickland v. Washington, 466 U.S. 668 (1984).  The Court of Criminal Appeals of Texas reversed; this Court summarily vacated and remanded. See Andrus v. Texas, 590 U.S. ___ (2020) (per curiam).

This Court held that counsel had rendered constitutionally deficient performance.  That conclusion was based on an “apparent ‘tidal wave’” of “compelling” and “powerful mitigating evidence” in the habeas record, none of which counsel presented to the jury. Id., at ___, ___, ___ (slip op., at 9, 11, 18).  The Court also found counsel ineffective for several specific failures to investigate and rebut the State’s case in aggravation. Id., at ___–___ (slip op., at 13–16).  The Court remanded to allow the Texas court to evaluate in the first instance whether, in light of the Court’s holding as to deficient performance, Andrus had shown prejudice under Strickland.

On remand, the Court of Criminal Appeals, in a divided 5-to-4 decision, failed to follow this Court’s ruling.  Instead of properly weighing the habeas evidence as a whole, the Texas court concluded that Andrus failed to establish prejudice (and therefore denied habeas relief) based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance.  As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.

I agree with the dissenting judges below. Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.  The Court, however, denies certiorari. I would summarily reverse, and I respectfully dissent from the Court’s failure to do so.

June 13, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, June 12, 2022

Iowa Supreme Court refuses to extend Eighth Amendment juve mandatory LWOP prohibition to murder committed days after 18th birthday

As reported in this Des Moines Register article, the Iowa Supreme Court issued an interesting ruling refusing to extend an Eighth Amendment right protecting juvenile murderers. Here are the basics:

Two Iowans who were sentenced to life in prison for murders committed when they were teenagers must stay incarcerated, the Iowa Supreme Court ruled on Friday. Lawyers for the Des Moines men claimed they should not have been sentenced to adult standards because the crimes were committed when they were 18 and 19 years old. Two Iowa Supreme Court decisions rejected claims that sentencing very young adults to adult sentences constitutes cruel and unusual punishment.

Building on U.S. Supreme Court precedent, the state court has previously held that youth who commit crimes before they turn 18, even first-degree murder, cannot be sentenced to life in prison without parole. But once someone turns 18, Friday's rulings held, they face the full penalties prescribed by law.

The two cases both involve Des Moines men who've been fighting for decades to overturn their convictions and sentences for murder. In one case, the defendant was only five days past his 18th birthday at the time of the offense. James Dorsey, who was convicted of the 1984 murder of Juanita Weaver during a home invasion, argued that modern medical and social science shows the brain does not fully mature until age 25.

Justice Christopher McDonald, who wrote both majority opinions, acknowledges that the 18th birthday might be an arbitrary place to draw a line, but said a line must be drawn somewhere. He noted many areas outside criminal law where turning 18 triggers new rights and responsibilities....

In the second case, Fernando Sandoval was 19 in 2004 when he shot and killed two men during a fight outside a Des Moines bar. He was convicted in 2006 and sentenced to life in prison, and has brought multiple unsuccessful appeals and petitions for postconviction relief....

The only dissenter in both cases was Justice Brent Appel, the sole Democratic appointee on the court. Appel wrote in Dorsey's case that he would not "simply extend the categorical rule ... prohibiting life-without-possibility-of-parole sentences to young adults," but instead that such cases should be treated as other states treat death sentences, requiring an "individualized assessment" by the court whether the defendant truly merits lifelong detention....

Iowa law mandates life without parole for anyone convicted of first-degree murder, except for juveniles, who may be eligible for parole.

The full ruling in Dorsey v, Iowa, No. 19–1917 (Iowa June 10, 2022), is available at this link and here is how the majority opinion begins:

Petitioner James Dorsey shot and killed a woman when he was eighteen years and five days old. He was found guilty of murder in the first degree and was sentenced to a mandatory term of life in prison without the possibility of parole.  Dorsey contends this sentence violates his state constitutional right to be free from “cruel and unusual punishment.” Iowa Const. art. I, § 17.  He argues the state constitution prohibits imposing a mandatory punishment on a young adult offender and instead requires the district court to hold an individualized sentencing hearing before imposing any sentence. He further argues his life sentence without the possibility of parole is grossly disproportionate to the crime. For the reasons expressed below, we affirm Dorsey’s sentence.

Here is how the lengthy dissent by Judge Appel wraps up:

While an offender under the age of eighteen may be entitled to a categorical exclusion from a life-without-possibility-of-parole sentence, I would hold that an individual older than eighteen might be subject to life without possibility of parole provided that the state can make the necessary showing of incorrigibility to support the sentence.

Because of the confluence of the mitigating factors of youth and the harshness of the penalty, I would apply a different version of the gross proportionality test than has traditionally been applied under the federal caselaw. Instead, in the context of a youthful offender facing life without possibility of parole, the state should be required to show that the individual offender is so incorrigible that even considering a parole-based release at a later date is out of the question.  This heightened sense of proportionality is necessary because of the potent combination of potential mitigating factors and the irreversible and severe nature of the underlying punishment.  This extension of individualized determinations is a small but necessary evolution of our current law.

June 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 11, 2022

Oklahoma Attorney General requests execution schedule for 25 death row inmates

Oklahoma, as detailed in this official accounting, has 42 men and one woman on their death row.  And, as reported in this CNN article, the state's Attorney General has now asked for execution dates for more than half of them.  The headline of the CNN piece is "Oklahoma AG requests execution schedule be set for 25 inmates following ruling on lethal injection protocol," and here are excerpts:

Four days after a federal court ruled against death row inmates arguing Oklahoma's lethal injection protocol is cruel and unusual, the state's attorney general asked for more than two dozen executions to be scheduled.

Executions in Oklahoma are scheduled by the state Court of Criminal Appeals.  The motion from Attorney General John O'Connor requests executions take place every four weeks, starting no earlier than late August in order to give the Department of Corrections time to prepare.

Federal judge Stephen P. Friot ruled Monday in a long-running case the state's lethal execution drug combination does not violate the Eighth Amendment guarantee against cruel and unusual punishment.  Attorney Jennifer Moreno told CNN on Tuesday the plaintiffs are considering an appeal, saying the state's protocol "creates an unacceptable risk that prisoners will experience severe pain and suffering."

The attorney general is asking for 25 prisoners to be scheduled for execution.  One prisoner, Wade Greely Lay, is scheduled to have a jury trial next May to determine whether he is competent to be executed, and O'Connor says his execution date should be delayed until after the trial is concluded.

If the Oklahoma Court of Criminal Appeals schedules execution dates along the lines requested by the state AG, there could be executions scheduled in the Sooner State every single month from August 2022 through August 2024. 

Prior recent related post:

June 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics"

The title of this post is the title of this new essay by Thomas Ward Frampton just published in the Harvard Law Review.  Here is its abstract:

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse.  But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a “spectral force haunting abolitionist thought . . . as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.”  This Essay offers two main contributions: it (1) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of “the dangerous few,” highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning “the dangerous few.”

June 11, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, June 10, 2022

Intriguing clemency news emerges from January 6 committee's first public hearing

This Politico piece reports on the intriguing clemency-related news that emerged from last night's January 6 committee public hearing. Here is how the piece starts:

Rep. Scott Perry of Pennsylvania, as well as multiple other Republican lawmakers, contacted the White House in the weeks after Jan. 6, 2021, to seek presidential pardons for their roles in attempting to overturn the presidential election results, the Jan. 6 select committee revealed Thursday in its prime-time hearing on the Capitol attack.

“Rep. Scott Perry … has refused to testify here,” Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said as she opened its case to the American public. “As you will see, Representative Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election”

The new details surfaced during the panel’s first public hearing, as the bipartisan committee launched the unveiling of its findings of a yearlong investigation into the insurrection. It’s the first of a string of hearings scheduled in the coming weeks that are set to paint a picture of a carefully planned and orchestrated attack on American democracy.

This news, in addition to leading to speculation about the other members of Congress who sought a pardon from Prez Trump in January 2021, must prompt questions about what crimes these folks thought they committed and exactly what behavior led then to worry about criminal prosecution by the US Department of Justice.

June 10, 2022 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (10)

Thursday, June 9, 2022

"The Efficacy of Prosecutor-led, Adult Diversion for Misdemeanor Offenses"

The title of this post is the title of this recent paper authored by Viet Nguyen now available via SSRN. Here is its abstract:

Criminal records can produce collateral consequences that affect access to employment, housing, and other outcomes. Adverse collateral consequences may be particularly acute for adults with limited professional capital and social networks.  In recent years, there has been an expansion of prosecutor-led diversion programs that attempt to curb the effect of collateral consequences.  However, the expansion of diversion programs may lead to net-widening if these programs simply substitute for cases that would have otherwise been dismissed.

This study assesses the impact of an adult, misdemeanor diversion program on long-term recidivism outcomes and the future amount of court-imposed fees and sanctions.  The misdemeanor diversion program reduced reconviction rates but produced a short-term net-widening effect by drawing in defendants whose cases would normally have been dismissed. The net-widening effects were curtailed over the longer term as the program significantly increased expungement rates. The results were driven by younger defendants.  Implications of this study for theories of criminal desistance and policies around expunging criminal records are discussed.

June 9, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Incarcerated LGBTQ+ Adults and Youth"

The title of this post is the title of this new report from The Sentencing Project. Here is how the document starts:

This fact sheet examines the criminalization and over-incarceration of LGBTQ+ adults and youth.  The LGBTQ+ population is comprised of people with non-heterosexual identities — those who are lesbian, gay, bisexual, and others — and people with non-cisgender identities — those who are trans and gender non-conforming.  LGBTQ+ adults are incarcerated at three times the rate of the total adult population.  LGBTQ+ youth’s representation among the incarcerated population is double their share of the general population.

LGBTQ+ people experience high rates of homelessness, poverty, unemployment, discrimination, and violence — factors which drive their overrepresentation in the criminal legal system. In both adult and youth facilities, imprisoned LGBTQ+ people face physical, sexual, and verbal harassment and abuse, as well as a lack of gender-affirming housing, clothing, personal hygiene products, medical care, and mental health treatment.  To help alleviate these harms, states and the federal government should repeal laws that criminalize LGBTQ+ people, limit the use of solitary confinement, mandate access to gender-affirming health care in correctional facilities, and invest in drug and mental health treatment and reentry programs for LGBTQ+ youth and adults

June 9, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Notable coverage of supposed "new breed" of prison consultants

I have been following the federal criminal justice system for the better part of 30 years, and throughout there have always been various types of experts who seek to help defendants with sentence mitigation and preparation for prison (especially in the white-collar universe where greater resources are available to pay for these kinds of services).  Still, every now and again, the press seems eager to make much of the phenomenon of so-called "prison consultants" as, for example, in a 2020 Town & Country  piece, "Inside the World of Prison Consultants Who Prepare White Collar Criminals to Do Time." 

The New York Times has long been keen on the prison consultant beat as evidenced by older articles like a 2009 piece headlined "Consultants Are Providing High-Profile Inmates a Game Plan for Coping" and a 2012 piece headlined "Making Crime Pay."  This week, the Gray Lady has this very long piece in this genre appearing in its magazine under this full headline "Want to Do Less Time? A Prison Consultant Might Be Able to Help. For a price, a new breed of fixer is teaching convicts how to reduce their sentence, get placed in a better facility — and make the most of their months behind bars."  Though I am not sure why prison consultants are now described as a "new breed of fixer," I am sure this lengthy article is still worth a full read.  Here are excerpts: 

After a prominent felon is sentenced, a spate of stories often appear about these backstage fixers for the wealthy, consultants who can help get a client into prisons that one might prefer — say, a prison that has superior schooling or CrossFit-level gyms or lenient furlough policies or better-paying jobs or other refined specialties.  The federal prison in Otisville, N.Y., for example, is also known as “federal Jewish heaven” because of its good kosher food (decent gefilte fish, they say, and the rugelach’s not bad).  When those Varsity Blues parents were busted for paying backdoor operatives to engineer their kids’ college admissions, it was also reported that many hired prison consultants to game out the aftermath.

[Justin] Paperny’s business is a natural market outgrowth of a continuing and profound shift in America’s judicial system.  Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial).  In 2021, 98.3 percent of federal cases ended up as plea bargains.  It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses.  What people like [Hugo] Mejia have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn.  So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame....

On television, the journey to prison is nearly instantaneous: a jump cut to a slamming cell door. But in the real world, it’s a set of steps, routine bureaucratic actions that involve interviews, numerous forms to complete and dates with officials. A lawyer is your legal guide to staying out of prison, but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed....

One of the first things Paperny advises a client like Mejia to do is to stop [minimizing the offense], especially before sentencing.  You pleaded guilty already.  You did it.  Own it — because the vamping will almost certainly annoy any judge or civil servant who hears it, and you’ll wind up with a much longer sentence.  That’s arguably the most crucial piece of advice that Paperny provides to his clients, for the simple reason that when you’re going to prison, you have to formally tell your story to all kinds of people.

The storytelling officially begins a few weeks after a guilty plea (or a conviction by trial) in a sit-down interview with a law-enforcement officer whose specialty is writing up a pre-sentencing report, which will be given to the presiding judge.  The descriptions of the crime come largely from the plea agreement, which is, naturally, centered on the proposition that you are a heinous criminal and a moral fugitive.  Think of a Wikipedia biography that tells the story of the worst moment of your life, with everything else about you salted away in footnotes.  This is what the sentencing judge will read before deciding precisely how long you will be confined — and it’s a story that will follow you throughout your stay with the state.

“They call the pre-sentencing report the Bible in prison, because it is one of the first things a case manager or counselor will rely upon,” Paperny said. “It will influence early release, your half-house time, your bunk, your job and so on.”

June 9, 2022 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, June 8, 2022

Senate conducts hearing for nominees for US Sentencing Commission

Four weeks ago, as discussed here, Prez Biden finally made nominations to the US Sentencing Commission.  Due to a lack of commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for 3.5 years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  But, now moving relatively swiftly, the US Senate Judiciary Committee today held a confirmation hearing for Prez Biden's seven USSC nominees.

Here is a link to the hearing, which runs about two hours and has a number of interesting elements.  Hard-core federal sentencing fans will likely consider the full hearing worth watching.  For a quick review, FAMM's Shanna Rifkin provided this live tweeting of the hearing, which captures some of the highlights.  And here is a round-up of some press coverage:

From Bloomberg Law, "Sentencing Commission Vetting Echoes GOP Grilling of Jackson"

From Law360, "Senate Panel Considers Long-Awaited Sentencing Noms"

From Reuters, "Biden's sentencing panel noms vow to implement criminal justice reform law"

There was some sharp questioning of a few of the nominees, especially from some GOP Senators, and Senator Josh Hawley seemed to indicate that he would not support at least one of the nominees.  But the overall tenor of the hearing suggested that this slate of nominees had considerable support from the Committee and is on a path to eventual confirmation.

Though this hearing means we are one step closer to having a functional US Sentencing Commission, it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees.  I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.

June 8, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Arizona completes its second execution in 2022 for crime committed 35 years prior

As reported in this local article, the "state of Arizona executed Frank Atwood by lethal injection Wednesday at the state prison in Florence. Atwood, 66, was sentenced in 1987 for the kidnapping and murder of an 8-year-old girl in Pima County, Vicki Lynne Hoskinson."  Here is more:

Atwood was the the second man put to death by the state after the botched 2014 execution of Joseph Wood led to court action that resulted in a seven-year moratorium.  “Today marks final justice for our daughter Vicki Lynne.  Our family has waited 37 years, eight months and 22 days for this day to come,” Debbie Carlson, Vicki Lynne's mother, said while choking back tears during the media briefing following the execution. “Vicki was a vibrant little girl with an infectious laugh and a smile that would melt your heart."

Atwood was sedated at 10:10 a.m. and was pronounced dead at 10:16 a.m., media witnesses said....  Approximately 40 people were present during Atwood’s execution — among them Carlson and Rachel Atwood, Frank Atwood’s wife.  According to media witness Bud Foster, Atwood's priest was in the execution room with him — a first for the state. He added that this execution was "probably the most peaceful" he has witnessed.

Clarence Dixon was executed on May 11 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University.

On Wednesday morning, the United States Supreme Court denied Atwood’s request for a stay of execution.  Attorneys for Atwood filed numerous legal challenges alleging both choices for the method of execution — lethal injection or the gas chamber — were unconstitutional, and would cause Atwood an excruciating amount of pain.

Atwood is in a wheelchair and suffered from a spinal condition, and his attorneys said restraining him to a gurney would exacerbate the condition and result in unbearable pain. The state responded to those concerns by agreeing to provide a device that would brace Atwood while on the gurney.

While Atwood proposed the use of nitrogen gas as his preferred method of execution, the courts ruled the Arizona Department of Correction's protocols using cyanide were acceptable, and said Atwood did not have that choice.

Atwood was successful in getting the department to change its policy regarding the presence of spiritual advisers. Atwood converted to become Greek Orthodox while in prison. His spiritual adviser, Father Paisios, told the Arizona Board of Executive Clemency in May that he was certain Atwood had experienced a "complete transformation of life,” and such a conversion cannot be feigned.  Paisios said the authenticity of Atwood's faith was to a degree that he had not seen among hundreds of others who had come to him. He said Atwood “unfailingly followed my instructions" and kept to a daily routine of prayer.

June 8, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

SCOTUS limits reach of Bivens actions against federal government in Egbert v. Boule

Via a vote on usual "partisan" lines, the Supreme Court this morning in Egbert v. Boule, No. 21-147 (S. Ct. June 8, 2022) (available here), reversed a lower court ruling allowing a Bivens suit to move forward against a Border Patrol agent.  Though not exactly about sentencing, I suspect criminal justice fans may be interested in what was the only opinion handed down by SCOTUS today.  Here is how Justice Thomas's opinion for the Court begins:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment.  Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.  See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012); Ziglar v. Abbasi, 582 U.S. ___ (2017); Hernández v. Mesa, 589 U S. ___ (2020).  Nevertheless, the Court of Appeals permitted not one, but two constitutional damages actions to proceed against a U. S. Border Patrol agent: a Fourth Amendment excessive-force claim and a First Amendment retaliation claim.  Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.

The rulings comes with an interesting short concurrence that seems to call for overturning Bivens. And Justice Sotomayor, joined by Justices Breyer and Kagan, issues a partial dissent that starts this way:

Respondent Robert Boule alleges that petitioner Erik Egbert, a U. S. Customs and Border Patrol agent, violated the Fourth Amendment by entering Boule’s property without a warrant and assaulting him. Existing precedent permits Boule to seek compensation for his injuries in federal court. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Ziglar v. Abbasi, 582 U.S. 120 (2017).  The Court goes to extraordinary lengths to avoid this result: It rewrites a legal standard it established just five years ago, stretches national-security concerns beyond recognition, and discerns an alternative remedial structure where none exists. T he Court’s innovations, taken together, enable it to close the door to Boule’s claim and, presumably, to others that fall squarely within Bivens’ ambit.

Today’s decision does not overrule Bivens.  It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.  I therefore dissent from the Court’s disposition of Boule’s Fourth Amendment claim.  I concur in the Court’s judgment that Boule’s First Amendment retaliation claim may not proceed under Bivens, but for reasons grounded in precedent rather than this Court’s newly announced test.

June 8, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

San Francisco voters recall progressive prosecutor Chesa Boudin by a large margin

As polls had suggested they would, voters in a supposedly progressive city yesterday voted overwhelmingly to recall a high-profile progressive prosecutor. This local piece, headlined "Voters oust Chesa Boudin as San Francisco district attorney," provides the details and some context:

Voters recalled District Attorney Chesa Boudin on Tuesday, ending a brief and tumultuous experiment with embedding San Francisco’s staunch progressive values in The City’s top law enforcement position.  Initial results showed 60% of ballots cast in favor of recalling Boudin, with 40% opposed.

The effort to recall Boudin catalyzed voter frustration over property crime and what proponents alleged was leniency in the way serious crimes are prosecuted.  "This is not a message to the rest of the country, but to take care of our community ... it's really making sure you have balance around the idea of progressive reform and safety.  They are one in the same, and we got off track,” recall organizer Andrea Shorter said.

Boudin’s defenders framed the recall as an effort backed by Republicans that misled voters about the realities of crime rates in San Francisco. Addressing supporters on Tuesday, Boudin provided his theory for the crushing defeat at the polls. "The right wing billionaires outspent us three to one. They exploited an environment in which people are appropriately upset and they created an electoral dynamic where we were literally shadowboxing," Boudin said.  "Voters were not asked to choose between criminal justice reform and something else. They were given the opportunity to voice their frustration and their outrage and they took that opportunity.”

The recall movement rode a wave of broader discontent among city voters. Although Boudin became the face of San Franciscans' anger, public polling has shown voters disapprove of the jobs done by the Board of Supervisors, Mayor London Breed and the Police Department.  Less than four months ago, voters recalled three school board members.

It might take another election to discern whether voters rejected Boudin’s guiding principles or Boudin himself, who was elected in 2019 with less of a mandate than a modest margin in another low-turnout contest.  Boudin defeated establishment-favorite Suzy Loftus with 50.8% of the vote in the final round of ranked-choice voting. Though Tuesday’s election saw no shortage of think pieces written by out-of-town media outlets in recent days, it’s unclear what lessons to take from a low-turnout election.

Though Boudin’s approval rating proved abysmal in a recent poll commissioned by The Examiner, his broader philosophies — including sending low-level offenders to diversion programs instead of jail — still scored highly among San Franciscans....  In an effort to upend and rebuild the criminal justice system, Boudin increasingly relied on diversion programs to resolve criminal cases instead of lengthy jail sentences.  The son of left-wing radical parents who served long jail sentences for their role in a botched fatal robbery, Boudin spoke often about the negative consequences of incarceration.

With the exception of homicides, violent crime has remained near historic lows.  Property crime has been mixed under his tenure — larcenies and robberies are down since 2018 while motor vehicle thefts and burglaries are up — but Boudin has abdicated responsibility for that fact, arguing that much of what has happened in the last two years is a result not of his office’s work but of the pandemic.

Boudin’s opponents, who coalesced around his recall shortly after his election, argued his policies have made San Francisco less safe, his office is rife with turnover and that the interests of crime victims had been pushed aside in the name of his cause.  Rather than jump to cite crime data, proponents of the recall leaned heavily on individual stories. There was 6-year-old Jace Young, whose 17-year-old killer was convicted of murder in juvenile court.  Critics of Boudin, including Jace’s father, wanted the juvenile tried as an adult to secure a longer jail sentence, but Boudin refused.  There was 84-year-old Vicha Ratanapkadee, who was pushed to his death by a man Boudin later described as having a “temper tantrum,” enraging the DA’s critics.

More broadly, recall proponents tapped into frustrations felt by San Franciscans tired of smash-and-grab robberies and a sense of lawlessness in The City.  “The condition of the streets are getting intolerable. I know it’s not all his fault because of the pandemic, but it’s because he refuses prosecution that crime has been further encouraged,” Kevin Wakelin, who lives near City Hall, told The Examiner. “There are so many car break-ins, house break-ins and stolen bicycles.  No one can afford a brand new bicycle every other week but that truly happens to some of us, and it’s terrible.  He (Boudin) needs to take responsibility for that.”...

Boudin’s recall leaves a vacancy that will be up to the mayor to fill. Crucial to her decision is the fate of Proposition C, which failed.  Prop. C would have, among other reforms to the recall process, prohibited a person appointed to a vacancy created by a recall from seeking election to the same post in the upcoming election. Put more clearly, Prop. C would have prevented whomever Breed appoints from seeking election to a full term in the following election.  Had Prop. C passed, it would have effectively limited the potential pool of candidates to those who have no interest in seeking the job long-term.

Supervisor Catherine Stefani, an ally of Breed’s and former deputy district attorney in Contra Costa County, has been floated as a potential candidate to replace Boudin. Brooke Jenkins, a former prosecutor who quit under Boudin’s tenure, has been a leading face of the recall movement.  She, too, could be under consideration for the post. Breed will be responsible for making the appointment after the election results are certified.

A lot can be said, and a lot surely will be written, about this outcome and what it may mean for the progressive prosecutor movement and criminal justice reform more generally.  For now, I will be content to just note that, when it comes to elected politics, perception can often matter a whole lot more than policy.  This may be a trite and obvious point, but it surely helps explain why "individual stories" may resonate with voters in San Fran and elsewhere a lot more than data runs or policy statements.

June 8, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (21)

Tuesday, June 7, 2022

Split Ohio Supreme Court rules defendant's profane outburst after getting 22 year sentence could not justify increase to 28 years

This local press report, headlined "Judge can’t increase sentence for defendant who cussed him out, Ohio Supreme Court says," reports on a notable ruling today from the Ohio Supreme Court. Here are the highlights from the article:

A Lake County judge was wrong to tack six years onto the prison sentence he gave defendant after the man called the judge a “racist a-s b----h” in court, the Ohio Supreme Court ruled Tuesday.

Lake County Common Pleas Court Judge Eugene Lucci initially sentenced Manson Bryant to 22 years in prison in March 2019 after a jury convicted him of aggravated burglary and aggravated robbery.  But after Bryant, whose attorneys asked for a sentence similar to a co-defendant’s 12-year sentence, launched into a profanity-laden tirade against Lucci, the judge said that Bryant lacked remorse for his crimes and imposed the maximum sentence of 28 years.

The Ohio Supreme Court in a 4-3 decision held that Byrant’s statements were not related to the crimes for which he was being sentenced and therefore could not legally factor into Lucci’s sentencing decision.  The state’s high court overturned a unanimous 11th District Court of Appeals decision upholding the 28-year sentence and reinstated the original 22-year sentence.  “If a defendant’s outburst or other courtroom misbehavior causes a significant disruption that obstructs the administration of justice, that behavior may be punishable as contempt of court,” Justice Melody Stewart wrote in the majority opinion....

Justices Patrick Fischer and Patrick DeWine signed onto Justice Sharon Kennedy’s dissenting opinion that said that a judge’s determination as to whether a defendant shows remorse is not an appealable issue.

The full opinion in State v. Bryant, No. 2020-0599, 2022-Ohio-1878 (Ohio June 7, 2022), is available at this link and is worth a full read.  Here is how the opinion of the court gets started:

In this discretionary appeal from a judgment of the Eleventh District Court of Appeals, we consider whether the appellate court erred by affirming the trial court’s judgment increasing appellant Manson Bryant’s prison sentence by six years in response to Bryant’s reaction to the length of a previously imposed prison sentence. We hold that the Eleventh District erred, and we reverse the judgment affirming the trial court’s judgment increasing Bryant’s sentence. If a defendant’s outburst or other courtroom misbehavior causes a significant disruption that obstructs the administration of justice, that behavior may be punishable as contempt of court. See R.C. 2705.01. The behavior, however, may not result in an increased sentence for the underlying crime.

And here is how the dissent gets started:

This case is not about vindictive sentencing. While it may be about that issue in the minds of the majority, that is not the issue this court accepted. The only question this court accepted is whether a defendant’s in-court outburst “is punishable as contempt of court, but does not provide a lawful basis for increasing the defendant’s sentence.” Majority opinion, ¶ 16.

The correct answer to that question is: it depends. It depends on the in-court outburst.

When a defendant has an in-court outburst during a sentencing proceeding, and the defendant’s statements not only relate directly to a sentencing finding that the trial court made pursuant to R.C. 2929.12 but also negate support for that finding, the trial court is not limited to simply holding that defendant in contempt of court. The trial court is permitted to consider that in-court outburst in sentencing: here, the in-court outburst directly related to whether appellant, Manson Bryant, had displayed genuine remorse for committing various crimes or whether he was just pretending to have remorse with the hope of receiving a more lenient sentence. See R.C. 2929.12(D)(5). And under this court’s holding in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, neither this court nor the court of appeals has the authority to review Bryant’s increased sentence. Because the majority holds differently, I dissent.

June 7, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Some headlines and discussions of crime research catching my eye

Thanks to a number of forces, perhaps most notably rising homicide rates and recent salient mass shootings, crime is getting a lot of attention from media outlets big and small.  Valuably, some of this attention include reviews of research, and these piece in that vein recently caught my attention:

From Bloomberg by Justin Fox, "New York City Is a Lot Safer Than Small-Town America: Rising homicide rates don’t tell the whole story. When you dig deeper into data on deaths, you'll find the more urban your surroundings, the less danger you face."

From Phys.org by Oxford University Press, "New study shows welfare prevents crime, quite dramatically"

From Vital City by Jennifer Doleac & Anna Harvey, "Stemming Violence by Investing in Civic Goods: Evidence suggests that investments in summer jobs, neighborhood improvements and services can reduce crime."

From Vox by Miranda Dixon-Luinenburg, "How to prevent gun deaths without gun control: Can summer jobs and mental health care save lives?"

June 7, 2022 in National and State Crime Data | Permalink | Comments (3)

Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol

As reported in this AP article, a "federal judge in Oklahoma on Monday ruled the state’s three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case."  Here is more from the press report:

Judge Stephen Friot’s ruling followed a six-day federal trial earlier this year in which attorneys for 28 death row inmates argued the first of the three drugs, the sedative midazolam, is not adequate to render an inmate unable to feel pain and creates a risk of severe pain and suffering that violates the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

“The prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court,” Friot wrote, citing three earlier rulings on the death penalty. He continued: “The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court.”

Jennifer Moreno, one of the attorneys for the death row inmates, said they are still assessing their options for an appeal to the 10th U.S. Circuit Court of Appeals in Denver. “The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” Moreno said in a statement.

Oklahoma Attorney General John O’Connor said in a statement that the state effectively proved that both the lethal injection drugs and the state’s execution protocols are constitutional. “The Court’s ruling is definitive: The plaintiffs in this case ‘have fallen well short’ of making their case, and midazolam, as the State has repeatedly shown, ‘can be relied upon … to render the inmate insensate to pain,’” O’Connor said. “My team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.”...

The state has carried out four lethal injections since October that Oklahoma’s former Solicitor General Mithun Mansinghani said during closing arguments “are definitive proof that the protocol works as intended.” Oklahoma resumed lethal injections in October with the execution of John Grant, who convulsed on the gurney and vomited before being declared dead. Since then, three more executions were carried out without noticeable complications.

The 45-page ruling of the federal district court is available at this link.  This ruling serves as yet another example of the extra difficulties that death row prisoners have in prevailing on execution protocol challenges since the Supreme Court's April 2019 ruling in Bucklew v. Precythe,139 S. Ct. 1112 (2019).  And yet, no doubt in part because of the COVID pandemic, there have still been fewer annual average state executions in the three years since Bucklew than in any other period in the last forty years.

June 7, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, June 6, 2022

"'How Much Time Am I Looking At?': Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts"

The title of this post is the title of this recent article authored by Walter Gonçalves and available via SSRN. Here is its abstract:

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing.  The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions.  Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread.  Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers — the most prevalent defendants in federal court.

This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs.  The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible.  This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case.  It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

June 6, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Noting the notable modern shift away from prosecuting (and thus sentencing) juveniles as adults

This new AP article, headlined "In historic shift, far fewer teens face adult US courts," highlights a modern criminal procedure trend that is fundamentally a sentencing story.  Here are some details:

David Harrington spent a tense eight months in a Philadelphia jail when he was a teenager — the result of a robbery charge in 2014 that automatically sent his case to the adult court system under state law.  Only 16 at the time, he said he got into fights and spent time in isolation.  He missed his sophomore year in high school and the birth of his child.  He was facing five to 10 years in prison.  He was on a path, he said, toward more trouble with the law.

“I think if I would have stayed in the adult system, I would have came home probably a little worse,” said Harrington, now 24, who works as an advocate for young offenders.  “I would have came home (after) listening to the ways on how to get better at ... certain illegal things, and I would have came home and been doing nonsense.”  Instead, he was able to convince a judge to send his case down to juvenile court.  He spent a month in a juvenile detention center before a judge found he did take part in the robbery and sent him home under house arrest, probation and a $3,000 restitution order.  He was allowed to see his family and friends and finish high school.

Harrington’s case from 2015 is indicative of a significant shift away from the “get tough” philosophy of the 1980s and ’90s for youth offenders, which has resulted in far fewer children being prosecuted in U.S. adult courts. That has meant second chances for untold thousands of youths.  Data reported to the FBI each year by thousands of police departments across the country shows the percentage of youths taken into custody who were referred to adult courts dropped from 8% in 2010 to 2% in 2019.  The percentage dropped to 1% in 2020, although that year’s data is considered unusual because of the coronavirus pandemic, which closed many courts.

Instead, more teenagers are being sent to juvenile courts or community programs that steer them to counseling, peer mediation and other services aimed at keeping them out of trouble. The shift has been mostly supported by law enforcement officials around the country.  But some worry that leniency has emboldened a small number of young criminals, including in Connecticut, where state lawmakers passed legislation to clamp down on youth crime.

States around the country have been raising the age of adult criminal responsibility to 18 for most crimes. Only three states — Georgia, Texas and Wisconsin — continue to prosecute every 17-year-old in adult courts, according to The Sentencing Project, a Washington-based group that advocates for minimal imprisonment of youth and adults.  The “raise the age” movement has been spurred by research showing teens’ brains haven’t yet fully developed key decision-making functions.  Other studies show locking young people up in adult systems can be harmful — physically and psychologically — in addition to putting them at more risk to commit more crimes....

In a country where an estimated 250,000 minors were charged as adults each year in the early 2000s, the number dropped in 2019 to about 53,000, according to the nonprofit National Center for Juvenile Justice in Pittsburgh.  That corresponds with a general decrease in crime across the country, including a 58% drop in youth arrests between 2010 and 2019, according to Justice Department estimates.  In 2019, an estimated 696,620 youths were arrested....

Harrington works for the Youth Art & Self-Empowerment Project, a Philadelphia group that provides art, music and other programs in jail for teenagers charged as adults and advocates against prosecuting them in adult court.  He is involved in efforts to repeal the law that automatically sent him to adult jail.  “You’d rather be at a juvenile facility getting the proper care and treatment there,” he said. “The juvenile system ... it’s better because you’re able to go home and be with your family.”

Some officials, however, including lawmakers and police chiefs, argue aspects of the reform have gone too far.  In Connecticut, the death of a pedestrian who was struck and killed in New Britain last year by a stolen car driven by a repeat teenage offender sparked calls by police officials and Republican state lawmakers to pass tougher youth crime laws — including more detention for repeat offenders.

I describe these developments as fundamentally a sentencing story because the decision to prosecute a young offender in adult or juvenile court is ultimately a decision over whether to subject that offender to the more rehabilitative-oriented sentencing philosophy and processes of juvenile courts or to the more punitive realities of adult court systems and sentencing structures.

June 6, 2022 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term

Entering the current Supreme Court Term last fall (the term known as October Term 2021), the sentencing case that garnered the most attention was US v. TsarnaevNo. 20-443, concerning the lawfulness of the Boston Marathon Bomber's death sentence.  And, at that time, the sentencing case that I thought could be most impactful was Wooden v. US, No. 20-5279, concerning application of the Armed Career Criminal Act.  The Term also started with arguments scheduled on two potential landmark cases significantly implicating a range of criminal justice issues: New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, concerning the reach and application of the Second Amendment, and Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning when and how abortions may be criminalized.

Fast forward eight months and SCOTUS activity and jurisprudence appears ever more uncertain, in part because we now know that soon-to-be-Justice Ketanji Brown Jackson will be replacing soon-to-retire Justice Stephen Breyer and in part because we still do not know who leaked a draft majority opinion in Dobbs and how that might be impacting the Court's work.  We did get (predictable?) opinions in Tsarnaev (a win for the government) and Wooden (a win for the defendant), and a few more notable criminal justice issues were added to the SCOTUS docket. 

As we head now into the traditional finishing month of the SCOTUS Term, and especially because the Justices handed down only three civil opinions this morning, I figured it would be useful to review the considerable number of criminal cases still pending at the Supreme Court.  Here, with help from SCOTUSblog, are the big undecided criminal cases in my sights:

From the November sitting

Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

From the December sitting

Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
U.S. v. TaylorNo. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

From the January sitting

Concepcion v. U.S.No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

From the February sitting

Ruan v. U.S.No. 20-1410 [Arg: 03.1.2022]
Issue(s): Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

From the April sitting

Nance v. WardNo. 21-439 [Arg: 04.25.2022]
Issue(s): (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

This list of a half-dozen cases I am eagerly awaiting does not provide a complete accounting of all the criminal-law-relevant matters still on the SCOTUS docket from this Term.  But it does comprise those cases that I think should likely be of greatest interest to sentencing fans.  (And, with roughly 30 cases left to be decided, this list comprises about 20% of what's now left for the Court to resolve.) 

Since the start of the Term, I figured we should not expect to see Bruen or Dobbs decided before the very last week of the Term.  But the fact that cases like Taylor and Conception are still pending strikes me as an interesting signal that something consequential (and divided) may be afoot in these cases.  But SCOTUS tea-leaf reading is always fraught, and perhaps this year it would be wise to just predict that everything is unpredictable.

June 6, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, June 5, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 4, 2022

Notable (Pyrrhic?) victory under California Racial Justice Act for double murderer getting LWOP

A couple of years ago in this post, I noted the enactment of the California Racial Justice Act and suggested it could have a significant impact depending upon how it was applied by judges in the state.  I have not followed closely subsequent litigation over the CRJA's application, but this week I did see this local report on a notable ruling under the headline "O.C. district attorney violated Racial Justice Act in double murder case, judge finds."  Here are the basics:

An Orange County Superior Court judge ruled Friday that Dist. Atty. Todd Spitzer violated the Racial Justice Act when he made comments about the dating habits of Black men while discussing a double murder case.

However, Judge Gregg Prickett stopped short of imposing any sanctions that would have reduced Jamon Buggs’ sentence.  The appropriate remedy in the case — seeking life without the possibility of parole rather than the death penalty — had already been applied by the district attorney’s office, Prickett said.

The Racial Justice Act, passed in 2020, prohibits prosecutors from seeking or obtaining a criminal conviction or imposing a sentence based on race, ethnicity or national origin.  “The defendant has received what the statute would say was the appropriate remedy for the violation,” Prickett said.  “The court does not find that it would be in the interest of justice to dismiss enhancements, special circumstances or reduce charges.”

Buggs, who was convicted of murder in May for fatally shooting a man and woman inside a Newport Beach condominium, allegedly in a jealous rage, was sentenced by Prickett to life in prison without the possibility of parole....  During a roughly two-week trial, Buggs’ attorneys argued that he killed Darren Partch, 38, and Wendi Miller, 48, in the heat of passion, fueled by what they described as a toxic relationship between Buggs and his ex-girlfriend, Samantha Brewers....

The case had been mired in controversy since Spitzer made racist comments about the dating habits of Black men during an October staff meeting on whether to pursue the death penalty against Buggs.  At the meeting, Spitzer told prosecutors that he knows “many Black people who get themselves out of their bad circumstances and bad situations by only dating white women,” according to a memo written by then-prosecutor Ebrahim Baytieh, who attended the meeting.

Spitzer has said allegations of “any racial animus or bias against the defendant are baseless and quite frankly offensive.”  Buggs is Black, while Buggs’ ex-girlfriend and Miller are both white. Spitzer has alleged that Baytieh wrote the memo in retaliation because Spitzer had initiated an investigation of him related to another murder case....

Prosecutors argued in court Friday that the defense failed to provide a preponderance of evidence that Spitzer’s comments negatively affected Buggs’ case. Denise Gragg, one of Buggs’ defense attorneys, said Spitzer’s comments were an example of “the oldest bias that exists” regarding Black men and white women. She added that Spitzer has not acknowledged his comments as biased.

“If you can’t even recognize that is a bias, how can you assure yourself or us that there were not decisions made in this case or not made in this case that were influenced by that bias?” she asked. “Justice is not just done from the jury box,” she added. “It’s done from the back halls; it’s done in chambers…. That is the place where this case was damaged.”

A quick Google search did not turn up any reports or data on how the California Racial Justice Act has been applied or adjudicated so far.  I continue to suspect the CJRA could have a variety of notable impacts (especially if it were to ever be made retroactive). But the accurate statement that many criminal justice decisions get made in "back halls," and the broader challenge of identifying and crafting remedies for problematic discretionary decision-making, necessarily means the impact of the CJRA may prove hard to fully gauge or assess.

June 4, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, June 3, 2022

What following the science might mean in when it comes to the actual laboratories of criminal justice

This interesting new Hill commentary, authored by Michael Kusluski and headlined "An easy win for criminal justice reform: Independent crime labs," highlights just one not so sexy, but still very important frontier for criminal justice reform. I recommend the full piece, and here are excerpts:

The 2009 National Academy of Sciences’ report on crime labs identified 13 areas for improvement.  While significant progress has been made, action on one recommendation has languished: to remove all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.

Most crime labs still operate under law enforcement control. Discussions of potential bias, however, distract from the larger problem: that police and prosecutors’ offices are simply not qualified to operate forensic laboratories.

The real issue is not bias but the delivery of good science.  Most publicly funded forensic laboratories (even those with a civilian lab director) ultimately report to individuals with no background in science.  This control may be as simple as setting budgets and priorities, but often involves setting policies and procedures.  In many jurisdictions, reserving crime scene (or even laboratory) positions for police personnel — no science degree required — still exists.  While some critics worry that forensic scientists could have their opinion swayed in one case or another, decisions are being made by nonscientists who influence millions of cases annually....

There is precedent for independent crime labs.  Medical examiners’ laboratories have always operated separately from the police.  The state forensic laboratories in Virginia and Alabama have been independent for decades.  A number of quasi-governmental and private (mostly DNA) forensic labs operate around the country, processing backlogged or specialty evidence.

The independent public crime labs that do exist typically enjoy department-level status rather than the bureau- or division-level status they would have under police departments.  Several jurisdictions (mostly municipalities) have opted to transition their police labs to independent agencies in recent years.  Unfortunately, they have often waited until the crime lab was in trouble or the jurisdiction was strapped for cash.

Because most forensic analyses take place at the state and local level, these changes will largely depend on state legislators, who may be reluctant to appear anti-police.  But the American National Standards Institute-National Accreditation Board (ANAB), which accredits most crime labs in the United States could require labs to move toward independence, forcing legislators to act.  Similarly, the Bureau of Justice Assistance (BJA) could withhold future funding for labs that are not independent.  Since forensic labs have become accustomed to federal funding for overtime and backlog reduction, this would be an effective incentive for change.

June 3, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"'Tough Talking' Sacramento District Attorney Presides Over Homicide And Violence Surge While 'Liberal' San Francisco Enjoys Major Decreases"

Image-fullNext week brings a high-profile recall vote on San Francisco's District Attorney Chesa Boudin, an election that many have come to view as a referendum on the progressive prosecutor movement. Because I consider all "movements" in the criminal justice reform space to be dynamic and erratic, I rarely think any one local vote itself reshapes the reform landscape.  But I still understand why this vote is getting considerable attention, and lots of politicians and pundits will surely see lots of lessons from the outcome of this interesting bit of local criminal justice democracy.  

Against that backdrop comes this notable new report from the Center on Juvenile and Criminal Justice.  Here is the report's introduction:

San Francisco has seen major decreases in crime amid progressive reforms, while nearby Sacramento is seeing a homicide and violence surge under the leadership of a conservative prosecutor whose policies feature high rates of incarceration.  Sacramento District Attorney Anne Marie Schubert has positioned herself as the state’s leading “tough-on-crime” candidate as she criticizes progressive San Francisco DA Chesa Boudin and seeks to unseat California’s reform-minded Attorney General Rob Bonta (Hooks, 2021; Schubert, 2022).  Yet DA Schubert’s tenure has coincided with increased homicide and violent crime, lesser declines in property crime, and above average rates of homicide and violent crime for urban Sacramento than in San Francisco.  Schubert’s “tough on crime” rhetoric and policies have not delivered lower or falling crime rates.

This analysis compares crime trends during Schubert’s conservative prosecutorial term in office (2015- present) with those of San Francisco’s progressive prosecutors (George Gascón and Chesa Boudin) during a key period in California’s criminal justice reform era.  If talking “tough on crime” and incarcerating more people actually reduced crime, we would expect to see a much bigger decline in crime and a lower crime rate in Sacramento than in San Francisco.  In fact, the opposite is the case. San Francisco has sustained larger crime declines and achieved lower rates of violent crime than the City of Sacramento since 2014.

The figure reprinted here is only one of a number of graphics from the report seeking to provide a broad view of crime rates and trends in two nearby (but very different) California cities. According to the report, the data show that "violent crime rates have risen an average of 9% in Sacramento while falling an average of 29% in San Francisco from 2014-2021, a period that spans the tenures of DA Schubert and San Francisco's progressive DA’s."  Here are some more data points from the report as highlighted on this CJCJ webpage:

June 3, 2022 in National and State Crime Data, Who Sentences | Permalink | Comments (14)

Thursday, June 2, 2022

Another federal judge gives Michael Avenatti another below-guideline sentence, as he gets now 48 months for defrauding Stormy Daniels

In what is becoming almost a summer tradition, disgraced lawyer Michael Avenatti was sentenced by a federal judge below the federal sentencing guidelines today.  Sentencing fans may recall that last July Avenetti got a way-below-guideline 30-month sentence for extorting Nike (details here).  Today was judgment day for defrauding Stormy Daniels, as Reuters reports and as excerpted here:

Michael Avenatti, the brash California lawyer who took on then-President Donald Trump, was sentenced on Thursday to four years in prison for defrauding his best-known former client, the porn actress Stormy Daniels.  A federal jury convicted Avenatti in February of wire fraud and aggravated identity theft after a two-week trial, agreeing with prosecutors that he embezzled nearly $300,000 in book proceeds intended for Daniels.

U.S. District Judge Jesse Furman imposed the sentence in federal court in Manhattan, calling Avenatti's conduct "brazen and egregious."  But he said guidelines calling for Avenatti, 51, to serve a sentence of five or six years were "unreasonable," in part due to Avenatti's prior successful legal career.

Avenatti, who appeared in court wearing prison garb and ankle shackles, recounted a string of legal victories he had secured for clients he called "underdogs," and disputed prosecutors' assertion that he took on Daniels as a client to gain a national platform for himself.  "No one else had the guts to take her case," Avenatti said before Furman handed down his sentence, speaking from the courtroom lectern with a U.S. marshal standing beside him.  "I believed we could take down a sitting U.S. president who was the biggest threat to our democracy in modern times."

Daniels, whose given name is Stephanie Clifford, is known for receiving $130,000 from Trump's former lawyer Michael Cohen, in exchange for remaining quiet before the 2016 presidential election about sexual encounters she says she had with Trump, which he has denied.

Avenatti vowed to appeal the guilty verdict in the Daniels case.... He had already been serving a 2-1/2-year sentence stemming from his 2020 federal conviction for trying to extort millions of dollars from Nike Inc. He has appealed that conviction.

Eighteen months of the Daniels sentence will run concurrent with the Nike sentence, meaning Avenatti faces a combined five years in prison. He is still charged in California with stealing millions of dollars from other clients.

Prosecutors had recommended that Avenatti receive a "substantial" prison term in the Daniels case, including a mandatory two-year term for identity theft. Avenatti, who represented himself during the trial, proposed a three-year sentence, with one year running concurrent with his Nike sentence.

June 2, 2022 in Booker in district courts, Celebrity sentencings, White-collar sentencing | Permalink | Comments (1)

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

June 2, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

"Gentlewomen of the Jury"

The title of this post is the title of this notable paper recently posted to SSRN authored by Vivian Rotenstein and Valerie P. Hans. (The recent verdict in a high-profile state civil trial with a small, mostly male jury perhaps makes this research especially timely.) Here is the paper's abstract:

This Article undertakes a contemporary assessment of the role of women on the jury.  In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.”  Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service.  Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles.  We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases.  We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury.

After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service.  Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

June 2, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, June 1, 2022

John Hinckley, Prez Reagan's would-be assassin in 1981, due to be fully released this month 40 years after being found not guilty by reason of insanity

As reported in this new AP article, "John Hinckley, who shot President Ronald Reagan in 1981, is “no longer a danger to himself or others” and will be freed from all restrictions this month, a federal judge said Wednesday, capping Hinckley’s four-decade journey through the legal and mental health systems."  Here is more:

U.S. District Court Judge Paul L. Friedman said in September that he would free Hinckley from all remaining restrictions on June 15 as long as Hinckley continued to do well living in the community in Virginia as he has for years.  At a hearing Wednesday in Washington which Hinckley did not attend, Friedman noted Hinckley has continued to do well, and the judge made no changes to his plans for full freedom from court oversight.

“He’s been scrutinized.  He’s passed every test. He’s no longer a danger to himself or others,” Friedman said at a hearing that lasted about an hour.  Friedman devoted much of the hearing to talking about the “long road” of the case, which he was randomly assigned two decades ago, the third judge to be involved in the case.  He noted that Hinckley, who turned 67 on Sunday, was profoundly troubled when he shot Reagan but that he had been able to get mental health help.  Hinckley has shown no signs of active mental illness since the mid-1980s, the judge noted Wednesday, and has exhibited no violent behavior or interest in weapons.

Hinckley was confined to a mental hospital in Washington for more than two decades after a jury found him not guilty by reason of insanity in shooting Reagan.  Starting in 2003 Friedman began allowing Hinckley to spend longer and longer stretches in the community with requirements like attending therapy and restrictions on where he can travel.  He’s been living full-time in Virginia since 2016, though still under restrictions.  Some of those include: allowing officials access to his electronic devices, email and online accounts; being barred from traveling to places where he knows there will be someone protected by the Secret Service, and giving three days’ notice if he wants to travel more than 75 miles (120 kilometers) from his home in Virginia.

Prosecutors had previously opposed ending restrictions, but they changed their position last year, saying they would agree to Hinckley’s release from conditions if he continued to show mental stability and follow restrictions.  Prosecutor Kacie Weston said in court Wednesday that the government believes the case “has demonstrated the success that can come from a wraparound mental health system.”  She noted Hinckley has expressed a desire to continue receiving mental health services even after he is no longer required to do so, and said the government wishes “him success for both his sake as well as the safety of the community.”  Hinckley’s longtime lawyer, Barry Levine, said the case had “started with a troubled young man who inflicted great harm” and but that, in the end: “I think we have salvaged a life.”...

Reagan recovered from the March 30, 1981, shooting, but his press secretary, James Brady, who died in 2014, was partially paralyzed as a result.  Secret Service agent Timothy McCarthy and Washington police officer Thomas Delahanty were also wounded.  Reagan died in 2004.

In the 2000s, Hinckley began, with the judge’s approval, making visits to his parents’ home in Williamsburg, Virginia.  His father died in 2008, but in 2016 he was given permission to live with his mother full time.  Still, he was required to attend individual and group therapy sessions, was barred from talking to the media and could only travel within a limited area. Secret Service would also periodically follow him.  Hinckley’s mother died in 2021. He has since moved out of her home. In recent years, Hinckley has made money by selling items at an antique mall and by selling books online.

June 1, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Robina Institute releases big new report on "American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size"

American_prison-release_systems_page_coverThe Robina Institute of Criminal Law and Criminal Justice today released this great big new report titled ""American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size."  Here are excerpts from this important report's introduction:

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant.  The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards.  To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing.  When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases.

From a systemic perspective, indeterminacy can be seen as the field of play in which back-end officials with time-served discretion exercise their powers.  The larger the field — the greater the degree of indeterminacy — the greater the whole-system impact of back-end decisions.  Indeterminacy builds up cumulative effects over hundreds and thousands of cases. In systems with high degrees of indeterminacy, a substantial amount of control over prison population size is located at the back end of the system.  In many states, back-end officials have more to say about prison numbers than sentencing courts.

For those concerned about mass incarceration, serious attention should be paid to the prison-release frameworks at the back ends of America sentencing systems.  These are varied and are often highly complex.  In each state, it is important to consider the institutional structure for release decisions, how and by whom time-served discretion is currently being exercised, and the range of possibilities for future changes in existing decision patterns.  Not all, but a large portion of the nation’s prison policy is implicated. In recent years, much of the mass incarceration debate has been focused on “front-end” decisionmakers such as courts and prosecutors.  For a comprehensive slate of possible reforms, equal attention must be directed to the back end.

This project offers new conceptual tools to better understand and compare the wide range of prison-release systems across America.  We hope this will allow state officials to see their own systems in new perspective, and may shine a spotlight on policy options that would otherwise go unseen.

June 1, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 31, 2022

"Sounds of Silence: A Thematic Analysis of Victim Impact Statements"

The title of this post is the title of this new paper now available via SSRN and authored by Tali Gal and Ruthy Lowenstein Lowenstein lazar.  Here is its abstract:

Victim Impact Statement (VIS) is a legal document which crime victims submit to court as part of the sentencing stage, informing the court about the harms they have suffered.  VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing.  At the same time, their use raises concern about defendants’ due process rights. 
The Article argues that VIS make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims.  Using a thematic analysis of 25 VISs which were submitted to Israeli criminal courts by victims of sexual, physical and property offenses as well as by relatives of homicide victims, the Article identifies four types of functions that VISs play for the victims who submit them.  VISs were used to portray the offense as a life-changing event; to describe the hardships of the criminal justice process; to transform the victim into 'more than just a name’; and to deliver a message or request.  By bringing this content to the courtroom, the statements expanded the legal discourse and created an integrated therapeutic-legal discourse, which was accepted and formally acknowledged by the justice system.  The openness of the legal system to accept and acknowledge exogenous content that is not required by law, even if indirectly, suggests a need to rethink the social function of the court for victims and communities.  It is possible that the courts may be more inclusive of and more attentive to non-legal narratives, emotional expression, and interpersonal connectedness than it is generally believed.

May 31, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 30, 2022

Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits

In this post from the start of this year, I flagged Walter Pavlo's discussion of nettlesome issues surrounding implementation of various parts of the FIRST STEP Act. Issues raised in that prior piece are reviewed anew in this new Palvo piece in Forbes headlined "First Step Act Inaction Keeps Federal Inmates In Prison." Here is how the piece gets started:

The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.

According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.

May 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, May 29, 2022

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

May 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Saturday, May 28, 2022

Supreme Court of Canada declares all LWOP sentences unconstitutional as "degrading in nature and thus intrinsically incompatible with human dignity"

As this press article details, "Canada’s supreme court has ruled that life sentences without the chance of parole are both “cruel” and unconstitutional, in a landmark decision that could give more than dozen mass killers who committed “inherently despicable acts” the faint hope of release in the future." Here is more from the press piece about Friday's ruling:

The court unanimously determined on Friday that sentencing killers to lengthy prison terms with little hope of freedom risked bringing the “administration of justice into disrepute”.

The closely watched case centred on the fate of Alexandre Bissonnette, the gunman who killed six worshippers at a mosque in Québec City in 2017, but the court’s decision will possibly have consequences for at least 18 others who are serving multiple life sentences.

In Canada, those serving a life sentence for first-degree murder are eligible to apply for parole at 25 years. But in 2011, the Conservative government gave justices the ability to hand out consecutive sentences, rather than concurrent blocks of 25 years.

In the case of Bissonnette, the 27-year-old pleaded guilty to six counts of first-degree murder and six counts of attempted murder in 2018, after he entered the Islamic Cultural Centre in Québec City with a semi-automatic rifle and pistol, opening fire on worshippers. The prime minister, Justin Trudeau, called the act a “terrorist attack”.

Drawing on the 2011 provision, Crown prosecutors asked a judge to impose a parole ineligibility period of 150 years, the harshest sentence ever handed down in Canada since the abolition of the death penalty. Prosecutors said Bissonnette should serve 25 consecutive years for each of the six people he murdered.

The sentencing judge instead ruled Bissonnette would have the chance of parole at 40 years. That decision was overturned in 2020 by Quebec’s court of appeal, which ruled unanimously that Bissonnette should have a chance of parole at 25 years. Bissonnette, now 32, will be eligible to apply for parole in his 50s.

The ruling of the court applies retroactively to 2011 and could affect at least 18 others whose parole eligibility exceeds 25 years, even those who have exhausted their appeals. In some cases, people have been handed a 75-year wait period before being able to apply for parole....

Acknowledging the heinous crimes of those serving multiple life sentences, Chief Justice Richard Wagner wrote that the ruling “must not be seen as devaluing the life” of innocent victims. “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”

The full ruling in R. v. Bissonnette, 2022 SCC 23 (Canada May 27, 2022), is available here.  Here is just one of many notable passages: 

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.  The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system.  A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity.  Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them.  Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

To review, then, in Canada it is unconstitutional to impose functional life without parole sentences on even mass murderers, wheres in the United States many thousands of persons (and mostly persons of color) have been sentenced in recent decades to LWOP terms for federal drug offenses.

May 28, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Friday, May 27, 2022

Helping to spread a federal sentencing "message" for a "corruption superspreader"

I always find it is interesting when judges in relatively low-profile cases talk about "sending a message" at sentencing, and I suppose I should try to make a habit of helping judges spread the messages they hope to be sending.  To that end, here I will flag this recent sentencing story out of Chicago headlined "‘You were a corruption superspreader’: Judge sentences ex-state Rep. Luis Arroyo to 57 months in prison in bribery case involving sweepstakes machine bill."  Here are excerpts:

Saying he needed to send a message on the cost of public corruption, a federal judge on Wednesday sentenced former state Rep. Luis Arroyo to nearly five years in federal prison for trying to bribe a state senator to help with legislation expanding the shadowy world of sweepstakes gambling machines.

Rejecting a defense plea for probation, U.S. District Judge Steven Seeger railed against Arroyo’s “dirty” conduct, saying in a lengthy speech that he sold out an already corruption-weary public and committed a “frontal assault on the very idea of representative government.”

“You were a corruption superspreader,” Seeger said near the end of a nearly four-hour hearing at the Dirksen U.S. Courthouse.  “The public did not get what they deserved.  They voted for an honest representative, and what they got was a corrupt politician.”

Arroyo’s lawyers had maintained that a prison sentence for the longtime Chicago Democrat would do nothing to stop the state’s seemingly intractable corruption problem and would be akin to “draining Lake Michigan with a spoon.”

But the judge took particular umbrage with attempts to downplay what Arroyo did, and at one point asked defense attorney Michael Gillespie specifically about the spoon comment.  “What does that mean?” the judge asked.  ”What am I supposed to do with that?”  As Gillespie fumbled for an answer, Seeger interrupted in a stern voice: “Maybe judges need a bigger spoon.”

Arroyo, 67, entered a blind guilty plea in November to one count of honest services fraud, a move that came without an agreement with prosecutors on what sentencing recommendations should be made to the judge.  The 57-month term imposed by Seeger was above the four years in prison recommended by prosecutors on Wednesday....

Arroyo resigned his seat shortly after he was arrested in 2019 on the bribery charges. A superseding indictment later added new wire and mail fraud charges against Arroyo and also charged James T. Weiss with bribery, wire fraud, mail fraud and lying to the FBI....

The case centers on the largely uncharted world of sweepstakes machines, sometimes called “gray machines,” for which Arroyo was moonlighting as a lobbyist.  The machines allow customers to put in money, receive a coupon to redeem for merchandise online and then play electronic games like slot machines.... According to the 15-page indictment, Weiss paid bribes to Arroyo beginning in November 2018 in exchange for Arroyo’s promotion of legislation beneficial to Weiss’ company, Collage LLC, which specialized in the sweepstakes machines....

In his remarks, Seeger said it was clear that Arroyo was a devoted family man and “a pillar of his community,” but chastised him repeatedly for trying to downplay the severity of his corrupt acts. The judge also noted that while there was no evidence of any other crimes committed in the wiretapped conversations, Arroyo certainly knew the language of corruption and seemed to be “in familiar territory.”

“I need to make sure that the message gets out that public corruption isn’t worth it,” Seeger said. “For whatever reason, that message isn’t getting through.”

May 27, 2022 in Booker in district courts, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 26, 2022

Air Force Court of Criminal Appeals decides court martialed prisoner cannot seek compassionate release in military courts

A helpful reader altered me to an interesting ruling this week from the US Air Force Court of Criminal Appeals in In re Kawai, Misc. Dkt. No. 2022-02 (AFCCA May 25, 2022) (available here). Here is how the opinion gets started:

On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).  This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response.  We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.

Here is a key portion of the ruling:

The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022).  Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004).  Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.).  Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

May 26, 2022 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Spotlighting the messiness of AEDPA more than a quarter century later

The Supreme Court's ruling earlier this week on the limits of federal habeas review (basic here, commentary here) has folks talking a bit more about the legal mess that is AEDPA.  The folks at The Marshall Project now have this new review under this full headline: "The 1990s Law That Keeps People in Prison on Technicalities: How the Supreme Court expanded the most important law you’ve never heard of."  Here are some excerpts (with links from original):

Earlier this week, the Supreme Court told Arizona prisoner Barry Jones that even though four federal judges agreed he may well be innocent of the 1994 murder that sent him to death row, the high court couldn’t overturn his conviction or stop Arizona from executing him. (Jones had argued he was hindered by poor lawyering at multiple stages of his case.)

In a 6-3 decision on Monday, in a case titled Shinn v. Martinez Ramirez, the conservative justices said they couldn’t do anything about it, because of one wonky law passed by Congress in 1996 and signed by then-President Bill Clinton. Misleadingly called the Antiterrorism and Effective Death Penalty Act, the law was created during the tough-on-crime ‘90s, to keep violent prisoners from getting released on what politicians called technicalities. But now, experts say the law actually keeps innocent people in prison on technicalities — and most of the cases it affects have nothing to do with terrorism or capital punishment.

In these cases, the importance of finality outweighs any claims the prisoners might make, the court’s conservative majority said. “Serial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law,’” Justice Clarence Thomas wrote.

While many judges and prosecutors complain about the length of the appeals process, these days there are few defenders of the 1996 law — other than state attorneys general who prosecute appeals in federal courts. “Lots of people are stuck,” said Christina Mathieson, director of the National Habeas Institute, which advocates for prisoners in these cases. “The gates to the federal courts are closed.”

Here are five things you should know about the law known as AEDPA (“ed-puh”):

  1. It was created after the Oklahoma City bombing....

  2. The law makes it harder for many prisoners to win appeals....

  3. The law was intended to speed up death row appeals, but failed....

  4. It doesn’t just affect terrorism and death penalty cases....

  5. It makes federal courts less powerful....

May 26, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 25, 2022

Former reality star Josh Duggar sentencing to just over 12.5 years in federal prison for child pornography offense

In this post last week, I spotlighted the sentencing submission of the parties in a high-profile federal sentencing and asked "what federal sentence for former reality star Josh Duggar after child pornography convictions?".  I noted that the prosecution was asking for the statutory max of 20 years (and they said the guideline range was 30 to life), while Duggar asked for a sentence of five years.  The post generated a lot of thoughtful comments, and atomicfrog predicted "a sentence in the 10-12 year range."  That was pretty close, as this new BuzzFeed News piece explains in its headline: "Josh Duggar Has Been Sentenced To 12.5 Years In Prison Over Child Sexual Abuse Materials."

Though not discussed at length in the BuzzFeed piece, I surmise from this People article that the sentencing judge here may not have adopted all of the guideline enhancements pursued by the Government.  Here is a snippet:

Prosecutors had asked that he serve the maximum sentence of 20 years in prison, while Duggar’s defense team had asked for five. “Duggar has a deep-seated, pervasive, and violent sexual interest in children,” Assistant US Attorney Dustin Roberts wrote in a sentencing memo.

Both Duggar's wife, Anna, and father, Jim Bob, were in court in Fayetteville on Wednesday for the sentencing.

On Tuesday, District Judge Timothy Brooks issued a 29-page opinion rejecting Duggar's plea for a new trial. "There is no merit to Mr. Duggar’s argument in favor of acquittal," the judge wrote....

After a lengthy hearing Wednesday in which he heard a number of objections from the defense, the judge sentenced Duggar to 151 months in prison.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

Prior related posts:

May 25, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (7)

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

May 25, 2022 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)