Wednesday, January 25, 2023

"From Causal Mechanisms to Policy Mechanisms: Why Did Crime Decline and What Lessons Can Be Learned from It?"

The newest issue of the American Journal of Criminal Justice has a bunch of new interesting articles on criminal justice reform.  The title of this post is the title of this article from the issue authored by John K. Roman.  Here is its abstract:

Criminology has not systematically identified the cause or causes of perhaps the most seminal event in crime and justice of the last half century: the crime decline of the 1990s. This paper uses a causes-of-effects analysis to infer the mechanisms of the crime decline.  This is not a purely academic exercise — there has been a large increase in violence, particularly gun violence at the beginning of the 2020s.  Identifying the mechanisms of the last crime decline can inform the development of contemporary strategies.  Here, two classes of crime decline causes are proposed: mechanisms that are endogenous to the criminal law system and mechanisms that are exogenous to it.  The latter class includes impacts of changes in macroeconomics, consumer behavior, and public interest policy where positive externalities that arose from those factors contributed to the crime decline.  A descriptive effect of causes analysis suggests that these exogenous mechanisms contributed disproportionately to the crime decline as compared to endogenous mechanisms. Further, consumer behavior and public interest externalities are well aligned with potential policy levers and particularly salient to current and future efforts to reduce crime and violence prospectively.  The analysis suggests that efforts to improve public safety require policies that fall outside of traditional criminal justice approaches.

January 25, 2023 in National and State Crime Data | Permalink | Comments (3)

Tuesday, January 24, 2023

"Glass Box Artificial Intelligence in Criminal Justice"

The title of this post is the title of this notable new paper available via SSRN authored by Brandon Garrett and Cynthia Rudin. Here is its abstract:

As we embrace data-driven technologies across a wide range of human activities, policymakers and researchers increasingly sound alarms regarding the dangers posed by “black box” uses of artificial intelligence (AI) to society, democracy, and individual rights.  Such models are either too complex for people to understand or they are designed so that their functioning is inaccessible.  This lack of transparency can have harmful consequences for the people affected.  One central area of concern has been the criminal justice system, in which life, liberty, and public safety can be at stake.  Judges have struggled with government claims that AI, such as that used in DNA mixture interpretation, risk assessments, facial recognition, and predictive policing, should remain a black box that is not disclosed to the defense and in court.  Both the champions and critics of AI have argued we face a central trade-off: black box AI sacrifices interpretability for predictive accuracy.

We write to counter this black box myth.  We describe a body of computer science research showing “glass box” AI that is interpretable can be more accurate.  Indeed, criminal justice data is notoriously error prone, and unless AI is interpretable, those errors can have grave hidden consequences.  Our intervention has implications for constitutional criminal procedure rights.  Judges have been reluctant to impair perceived effectiveness of black box AI by insisting on the disclosures defendants should be constitutionally entitled to receive.  Given the criminal procedure rights and public safety interests at stake, it is especially important that people can understand AI.  More fundamentally, we argue that there is no necessary tradeoff between the benefits of AI and the vindication of constitutional rights. Indeed, glass box AI can better accomplish both fairness and public safety goals.

January 24, 2023 in Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

Different approaches to death penalty administration from different governors

When it comes to the administration of the death penalty, governors tend to have a huge (and outsized?) role at the state level.  Historically, that role has been exercised through grants of executive clemency, though it can also shape in various ways how death sentencing operates or how executions are conducted.  With the start of a new year, I have seen a number of notable new stories about a number of governors seeking to impact how their states approach capital punishment.

From the AP, "Arizona executions on hold amid review ordered by governor":

Arizona’s attorney general has put a hold on executions in the state until the completion of a review of death penalty protocols ordered by the new governor due to the state’s history of mismanaging executions.

The review ordered Friday by Gov. Katie Hobbs, Arizona’s first Democratic governor since 2009, came as the state’s new Democratic attorney general, Kris Mayes, withdrew her Republican predecessor’s request for a warrant to execute a convicted killer who initially asked to be executed but later backed out of that request.  While Hobbs’ order didn’t declare a moratorium on the death penalty, Mayes will not seek court orders to execute prisoners while the review is underway, said Mayes spokesperson Richie Taylor.

From the Nashville Scene, "Bill Lee Tries to Keep Lethal Injection Alive: Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions":

In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process....

On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions.

From Florida Politics, "Gov. DeSantis calls for juror ‘supermajority’ to suffice in death penalty cases":

Gov. Ron DeSantis started out his week with the Florida Sheriff’s Association (FSA), where he discussed his desire to allow juries to administer the death penalty via a supermajority vote, rather than requiring unanimity.  “Fine, have a supermajority. But you can’t just say one person (can decide against the death penalty). So maybe eight out of 12 have to agree? Or something. But we can’t be in a situation where one person can just derail this,” DeSantis said at the group’s winter conference in St. Johns County, discussing death penalty verdicts left unachieved because of a rogue juror.

DeSantis told the FSA Monday that he wants a “supermajority” to constitute a sufficient vote count for execution. The pitch comes in the wake of the Parkland killer not getting the death penalty because of what DeSantis called one person’s “idiosyncratic” approach to the proceedings, though there ultimately were three votes not to execute the murderer.

January 24, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Monday, January 23, 2023

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

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

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

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

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

Justice Gorsuch dissents from denial of cert in "civil" tax case involving Excessive Fines challenge

The new SCOTUS order list released this morning appears to relist again (re-relist?) the set of acquitted conduct cases that I have been following closely (some background here and here).  In addition to that notable news, the order list also including an intriguing short dissent from the denial of cert in Toth v. US, a case involving a woman who failed to disclose a foreign bank account being "assessed a civil penalty of $2.1 million — half of the balance of Ms. Toth’s account — plus another $1 million in late fees and interest."   The First Circuit turned back an Excessive Fines challenge, and Justice Gorsuch explained why he found this troublesome (with some cites removed): 

It held that the Constitution’s protection against excessive fines did not apply to Ms. Toth’s case because the IRS’s assessment against her was “not tied to any criminal sanction” and served a “remedial” purpose.

This decision is difficult to reconcile with our precedents. We have recognized that the Excessive Fines Clause “traces its venerable lineage” to Magna Carta and the English Bill of Rights. Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 4–5).  We have held that “[p]rotection against excessive punitive economic sanctions” is “‘fundamental’” and “‘deeply rooted in this Nation’s history and tradition.’” Id., at ___ (slip op., at 7).  And all that would mean little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of fixing a “civil” label on the fines it imposes and declining to pursue any related “criminal” case.  Far from permitting that kind of maneuver, this Court has warned the Constitution guards against it.  See Austin v. United States, 509 U. S. 602, 610 (1993) (“[T]he question is not, as the United States would have it, whether [a monetary penalty] is civil or criminal, but rather whether it is punishment.”)....

Nor is a statutory penalty beneath constitutional notice because it serves a “remedial” purpose. Really, the notion of “nonpunitive penalties” is “a contradiction in terms.” United States v. Bajakajian, 524 U. S. 321, 346 (1998) (Kennedy, J., dissenting).  Just take this case.  The government did not calculate Ms. Toth’s penalty with reference to any losses or expenses it had incurred.  The government imposed its penalty to punish her and, in that way, deter others.  Even supposing, however, that Ms. Toth’s penalty bore both punitive and compensatory purposes, it would still merit constitutional review.  Under our cases a fine that serves even “in part to punish” is subject to analysis under the Excessive Fines Clause.  Austin, 509 U. S., at 610 (emphasis added).

Ms. Toth and her amici identify still more reasons to worry about the First Circuit’s decision.  They say it clashes with the approach many other courts have taken in similar cases.  Pet. for Cert. 18–25 (collecting cases).  They observe that it incentivizes governments to impose exorbitant civil penalties as a means of raising revenue. Id., at 25–30.  And they contend that it is difficult to square with the original understanding of the Eighth Amendment.  Brief for Professor Beth A. Colgan as Amicus Curiae on Pet. for Cert. 4–13.  For all these reasons, taking up this case would have been well worth our time.  As things stand, one can only hope that other lower courts will not repeat its mistakes.

January 23, 2023 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Sunday, January 22, 2023

Warranted or unwarranted disparity?: noting different punishments for disrupting different government branches

This lengthy new NBC News piece shines a spotlight on the notable, but arguably justified, disparity between how disruptive protesters at Congress and at the Supreme Court are punished.  The full headline for the piece highlights its essentials: "Protesting against Congress may get you a $50 fine. Disrupting the Supreme Court is a different story. Protesters disrupting oral arguments can face at least a night in jail and a criminal conviction."  Here are some excerpts:

When Emily Paterson was arrested for protesting abortion law changes during a Supreme Court hearing in November, she spent the night in jail and now has a criminal conviction on her record. Across the street, Jack Murphy met a different fate when she did something similar in the Senate chamber three years earlier: She paid a $50 fine and was released a few hours later.

Such is the differing nature of punishment for nonviolent protesters during official proceedings in Washington, with the Supreme Court, which has its own police department, viewed as being tougher than the Capitol Police, which has jurisdiction over the Capitol and its surrounding campus, which borders the Supreme Court building.

It’s a sore point for Mark Goldstone, a lawyer who regularly represents Washington protesters. Supreme Court protesters are treated “more harshly” in a couple of different ways, he said, referring only to those participating in nonviolent protests and not violent attacks like the Jan. 6 assault on the Capitol. On Capitol grounds, the police “process you and release you,” Goldstone said, while at the Supreme Court, “you are going to spend the night in jail" and likely face prosecution....

Those familiar with Washington protests point to some possible reasons protesters are treated differently.  One is that the Capitol Police has a lot more protesters to deal with, sometimes needing to process hundreds of people quickly.  In contrast, although protests outside the Supreme Court building are common, it is relatively unusual for people to disrupt court proceedings inside the courtroom.

There are also inherent differences between the two institutions.  Congress is where democratically elected representatives meet and a place where members of the public have a right to express their views.  The high court, meanwhile, is not directly accountable to the people and likes to see itself as nonpolitical.  As such, there may be a desire to crack down on protesters to help maintain that image.  The respective police departments have different legal powers too, which could affect how they resolve cases.

As I see it, protesters who disrupt SCOTUS oral arguments are generally likely to be a lot more disruptive to the functioning of SCOTUS, and be more harmful and disrepectful to the lawyers who have prepared for months for 30 minutes of time to represent their clients before the Justice, than protesters in Congress.  Of course, as the events of January 6, 2021 should remind us, some protesters can be very disruptive of the work on Congress.  But the practicalities of the functioning of different branches, not some notion of political "image," seems to me to make the disparity here more warranted than unwarranted.  But perhaps others have distinct views.

January 22, 2023 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Friday, January 20, 2023

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

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

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

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

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

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

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

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

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

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

Some prior related posts:

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

Rounding up some recent notable reads

A busy week has left me behind on both my reading and blogging on various sentencing and punishment law and policy topics.  So I will try to do a bit of catch up through this round up:

From ABC News, "Alabama extends time for executions, ends automatic review"

From the AP, "Explainer: Biden inaction, mixed signals on death penalty"

From CNN, "Oklahoma’s attorney general says ‘the current pace of executions is unsustainable’ and wants to space them out"

From the FAMM Foundation, "Proposed BOP Rule Will Hurt Struggling Families"

From The Guardian, "Texas prisoners continue hunger strike in protest against solitary confinement"

From the Marshall Project, "How an Illicit Cell Phone Helped Me Take College Courses from Prison"

From Nonprofit Quarterly, "What the US’ Mass Incarceration Regime Costs Black Women"

From Reason, "Sentencing Commission Proposes Restricting Judges' Use of Acquitted Conduct"

From Rick Nevin, "Update: Continuing trend toward zero youth incarceration"

From Spectrum News NY1, "Path to Power: Hakeem Jeffries' push to reform the criminal justice system"

As always, I welcome reader comments on which of these stories or others may merit additional blog time.  It has been fun to see a more active comment space lately, and I hope that always will include readers highlighting new stories or worthwhile reading. 

January 20, 2023 in Recommended reading | Permalink | Comments (5)

Thursday, January 19, 2023

"The Problem with Capital Pleas"

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

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.

January 19, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, January 18, 2023

Encouraging big-city homicide trends to close 2022 and start 2023

In this post at mid-year 2022, I flagged this AH Datalytics webpage's "YTD Murder Comparison" Dashboard that collects homicide data from police reports in nearly 100 big cities.  I noted in that post that, after significant increases in homicides throughout the US in 2020 and 2021, it was encouraging that the dashboard then showed that nearly two-thirds of big cities were reporting  homicide declines in 2022 relative to 2021 and that nationwide murders in large cities were down overall more than 2% at mid-year 2022.  Fast-forward six months, and there is more encouraging homicide data coming from big cities.

Specifically, with nearly all police data for 2022 collected, this dashboard as of this evening indicates that nearly two-thirds of all big cities reported that homicides wre down in 2022 relative to 2021 and that the total nationwide murders in large cities were down overall nearly 5% at by year end 2022.  Of course, these reported homicide declines for 2022 follow notably high homicide rates in many locales in 2021, and we still have a long way to go to get back to pre-pandemic homicide levels.

Still, these data are encouraging, and the downward trends in homicides in our nation's largest cities for all of 2022 may be carrying over to the start of 2023.  Specifically, based on the dashboard data and (linked) police reports, we see:

Chicago homicides down 13% in 2022 and down another 17% in first two weeks of 2023

Los Angeles homicides down 5% in 2022 and down another 39% in first two weeks of 2023

New York City homicides down 11% in 2022 and down another 12% in first two weeks of 2023

Philadelphia homicides down 9% in 2022 and down another 43% in first two weeks of 2023

Of course, these four very big cities are not fully representative of what may be going on with homicides nationwide as 2023 gets started, and homicide trends in the first two weeks of January could change in many ways in the weeks and months ahead.  Still,  these encouraging data reinforce my hope that surging homicides in 2020 and 2021 were mostly a pandemic era phenomenon and that lower homicide rates may soon be more common. 

January 18, 2023 in National and State Crime Data | Permalink | Comments (22)

En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

January 18, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 17, 2023

California working to clear condemned inmates from death row

This recent NPR piece, headlined "California says it will dismantle death row. The move brings cheers and anger," provides an interesting overview of the state of California's death penalty as it seeks  to clear the nation's largest (and largely dormant) death row.  I recommend the full piece, and here are excerpts:

California this week pushed ahead with controversial efforts to dismantle the largest death row system in America.

Under Gov. Gavin Newsom, the state is moving to make the transfer of condemned inmates permanent and mandatory after what the state's Department of Corrections and Rehabilitation (CDCR) calls a successful pilot program that voluntarily moved 101 inmates off death row into general population prisons across the state....

After a 45-day public comment period and a public hearing in March, the state hopes to start moving all 671 death row inmates – 650 men and 21 women — into several other prisons across the state with high-security units. Some prisoners will be able to get jobs or cellmates if they are mainstreamed into the general prison population.

The CDCR says the move allows the state "to phase out the practice of segregating people on death row based solely on their sentence." No inmates will be re-sentenced and no death row commutations offered, officials say.

Technically, the death penalty still exists in California. Prosecutors can still seek it. But no one has been put to death in the state in 17 years. And in 2019, Newsom imposed a moratorium on executions and he closed the death chamber at San Quentin, the decrepit and still heavily used 19th century prison overlooking San Francisco Bay.

Those who get prison jobs — as clerks, laundry or kitchen helpers – will see 70 percent of their pay go to victims' families, as required under Proposition 66. That 2016 voter-passed initiative amended California's Penal Code to require death-sentenced inmates to work and pay restitution....

But death penalty proponents and victims' rights advocates are frustrated and angry. "To hear this news is devastating," says Sandra Friend. She described feeling victimized all over again. Her 8-year-old son Michael Lyons was making his way home from school in Yuba City, Calif., in 1996 when he was abducted and sodomized by serial killer Robert Boyd Rhoades, who dumped the child's body in a riverbed....

In part, California's death penalty reforms grew out of 2016's Prop. 66, which promised to speed up the time between a death sentence and an execution. The successful ballot measure also required condemned prisoners to work and pay restitution. Now death penalty proponents accuse Newsom of exploiting a lesser-known section of Prop. 66 for his own ideological and political purposes.

"The governor has taken loopholes and nuances in the law and used them to give criminals — the worst criminals — a break," says Michael Rushford, president of the conservative Criminal Justice Legal Foundation. "To start mainstreaming people like Tiequon Cox, who killed an entire family in Los Angeles after going to the wrong address to do a gang hit, is an abandonment of justice. Injecting politics into criminal justice and public safety is insane. It's unjust, unfair and it's stupid."...

In California, Sandra Friend says it's outrageous that killers like Rhoades may "get rewarded," as she puts it, with expanded work options, even a cellmate. "For him to be able to leave death row and go into a cushier prison, having maybe possibly a cellie, having a job, is terrifying because he is the worst of the worst. He is a monster," she says.

State officials underscore that inmate transfers and their housing will depend on the specific facts of each inmate. "Their housing would depend on their individual case factors, and it's what the multidisciplinary teams will be evaluating," says CDCR spokeswoman Vicky Waters.... The state hopes to permanently empty California's death row by this fall, a CDCR official says.

Friend vows to fight the effort. A public hearing on the issue is scheduled in Sacramento for March 8. "I'm definitely going to make Michael's voice heard," she says, "because he's the one that is getting lost in all of this."

January 17, 2023 in Death Penalty Reforms, Prisons and prisoners, Who Sentences | Permalink | Comments (9)

DC Council overrides DC mayor's veto of significant criminal justice reform bill

As reported in this new Washington Post piece, the "D.C. Council on Tuesday voted to override Mayor Muriel E. Bowser’s (D) veto of a major overhaul of the city’s criminal code, which city lawmakers had unanimously approved in November despite concerns from court and law enforcement leaders." Here is more from the press report:

Lawmakers voted 12-1 to override Bowser’s veto of the bill, with Trayon White Sr. (D-Ward 8) breaking from the rest of the council.  Council member Charles Allen (D-Ward 6), who chaired the public safety committee when the legislation passed, said lawmakers “stand at the finish line of a 16-year process that would make significant improvements and modernize an outdated criminal code from another era.”...

The bill would, among other things, eliminate most mandatory minimum sentences, allow for jury trials in almost all misdemeanor cases, and reduce the maximum penalties for offenses such as burglaries, carjackings and robberies.  Law enforcement leaders had expressed concern that it could burden an already stretched court system and would send the wrong message to residents at a time when the city is struggling with gun violence.

“This bill does not make us safer,” Bowser wrote in a letter to Council Chairman Phil Mendelson (D), announcing her veto. Lawmakers shot back Tuesday that the bill was a necessary reform of the city’s outdated criminal code, and they took direct aim at the mayor’s criticism, which they said could be used as fodder for members of Congress who can block city legislation.  Republicans in the House have already threatened to target the measure. But resolutions disapproving D.C. legislation must pass both chambers and be signed by the president.  Democrats have a narrow majority in the Senate....

Allen, who chaired the public safety committee when the bill was passed, and Brooke Pinto (D-Ward 2), the new public safety chair, said in a joint statement beforehand that the criminal code was “more equitable and just” but that they were open to consideration of further amendments before it was fully implemented.  Officials who support the code revisions have stressed the law would not take effect for three years to give police, courts and other groups time to prepare.  “There is simply too much good in this bill to abandon all of that work, and without any backup plan from the mayor,” Pinto said Tuesday.

Council member Brianne K. Nadeau (D- Ward 1) called the mayor’s veto a “distraction,” given that the council would override it.  “This is political theater to create a perpetual scapegoat whenever there are issues in the future,” Nadeau said. “Do not believe the hype.  The council is not tying the hands of our law enforcement officials or making crime worse.”...

Bowser wrote in her letter to Mendelson that while there was “consensus agreement” on 95 percent of the bill, she opposed particular provisions lowering maximum sentences and allowing for more jury trials.  She said the bill would weaken “already lenient sentencing for gun possession” by reducing the maximum penalties for carrying a pistol without a license and being a felon in possession of a gun.

Gregg Pemberton, chairman of the D.C. Police Union, said in a statement that the law, once enacted, would lead to “violent crime rates exploding more than they already have.” “Every resident should be outraged that the Council has weakened the criminal justice system in a way that makes every neighborhood less safe,” Pemberton said.  “Their actions today are shameful.”

Supporters of the bill have countered the reduction in maximum penalties are in line with what judges are actually imposing.  “This isn’t some huge, mass decarceration measure,” said Patrice Sulton, founder and executive director of the D.C. Justice Lab. “It’s making the code clear, consistent, and constitutionally sound.”

January 17, 2023 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

January 17, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (86)

Monday, January 16, 2023

Another look at some of the post-Bruen Second Amendment uncertainty

Folks who follow Second Amendment jurisprudence know that the Supreme Court's landmark ruling in Bruen last summer has created  lots of notable new questions and constitutional uncertainty concerning an array of gun control measures.  And folks who follow this blog know that I find especially interesting the legal debates over the constitutionality of various laws criminalizing gun posession by persons with certain prior convictions or other criminal-justice involvement.  So I wanted to flag some notable recent press coverage of these issues:

From ABC News, "Supreme Court decision creates confusion over which firearm restrictions are constitutional"

From the Brunswick News, "Should nonviolent crimes cost a man his 2nd Amendment rights?"

From Reuters, "Federal public defenders seek end to several gun restrictions"

I think it might only be a matter or when, not if, the Supreme Court has to take up the issue of th constitutionality of at least some felon-in-possession bans.  But when might be many years from now. 

Some (of many) prior recent related posts:

January 16, 2023 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Sunday, January 15, 2023

"A World Without Prosecutors"

The title of this post is the title of this new essay now on SSRN authored by Jeffrey Bellin.  Here is its abstract:

This Essay is part of a Symposium of responses to Bennett Capers’ provocative article, Against Prosecutors.  Capers proposes to (largely) abolish public prosecutors, a reform he suggests would slash the number of people incarcerated, particularly for drug crimes, and return the power of prosecution to the people.

Using data from my new book, Mass Incarceration Nation, this Essay suggests that Capers' proposal is unlikely to have the promised benefits because it targets only one of the many drivers of American criminal law.  Prosecutors matter. But they are one piece of a large and complex puzzle.  And most importantly, prosecutors are primarily reactive, responding to the laws enacted by legislators and the arrests made by police.  Capers’ proposal makes perfect sense if prosecutors are truly the one thing responsible for mass incarceration and the primary driver of drug enforcement.  If, however, politicians and police are also (or even primarily) pushing the “tough on crime” agenda, jettisoning public prosecutors becomes a murky policy prescription and may prove counterproductive.

January 15, 2023 in Scope of Imprisonment, Who Sentences | Permalink | Comments (21)

Saturday, January 14, 2023

Fourth Circuit panel finds district court abused its discretion when denying compassionate release to elderly drug offender

I just came across a notable ruling from last week by a Fourth Circuit panel in US v. Malone, No. 21-6242 (4th Cir. Jan. 5, 2023) (available here). In this case, the circuit court panel concludes that "the district court abused its discretion by failing to properly assess the following factors which would warrant Malone’s compassionate release: his ailing health, advanced age, and relevant 18 U.S.C. § 3553(a) factors." Here is one key paragraph from the opinion (emphasis in the original):

[W]e conclude that the district court abused its discretion by failing to recognize that the relevant § 3553(a) factors clearly favor release.  Having a Category I criminal history, Malone acknowledged the seriousness of his offense in prior motions to the court and has now served over fourteen years of his sentence.  While in prison, he participated in multiple classes and was also placed in a low-level prison camp.  His new extraordinary and compelling health-related circumstances have condemned him to a life filled with limitations.  Due to these circumstances, his potential for recidivism is low to none and he does not pose a threat to others or the community at large.  To affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight.  There is a reason this is called compassionate release, after all.

January 14, 2023 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Friday, January 13, 2023

Just a couple of criminal matters in big new set of SCOTUS cert grants

The Supreme Court this afternoon granted cert on a number of cases via this order list.  Sadly, there is not much of interest in all the cases for sentencing fans, and really only one criminal case and immigration cases with criminal law elements.  This SCOTUSblog post has all the details, and here are snippets from that post:

The Supreme Court will review how employers must accommodate their employees’ religious practices, how courts should decide whether threatening statements are protected by the First Amendment, and whether a local government violated the Constitution when it confiscated and sold a $40,000 home based on the owner’s failure to pay $15,000 in property taxes.

Those issues are among a slew of new disputes that the justices added to their docket on Friday afternoon in an order list from their private conference earlier in the day. The justices granted review in 11 new cases for a total of eight hours of oral argument. The cases will likely be argued in late April, with decisions to follow by summer....

Counterman v. Colorado

The court also agreed to weigh in on an important free speech question: What test should courts use to determine whether statements are “true threats” that are not protected by the First Amendment? The question comes to the court in the case of Billy Raymond Counterman, who was convicted and sentenced to four-and-a-half years in prison for stalking a local musician....

Pugin v. Garland and Garland v. Cordero-Garcia

In a pair of immigration cases that have been consolidated for oral argument, the justices agreed to decide whether a criminal offense that does not interfere with an existing investigation or judicial proceeding qualifies as an “offense relating to obstruction of justice,” a serious crime that can result in deportation and additional criminal punishment for noncitizens.

January 13, 2023 in Offense Characteristics, Who Sentences | Permalink | Comments (0)

Outgoing Pennsylvania Gov included high-profile artist in final batch of record-setting clemency grants

Pennsylvania Governor Tom Wolf has only a few more days in office, and he is closing out a tenure that has been record setting in the use of clemency authority.  This local article discusses that record as well as the high-profile clemency recipent in the last batch of grants:

Pennsylvania Governor Tom Wolf has pardoned Philadelphia rapper Meek Mill of his possession of drugs and weapons charges from 2008....

Wolf has issued more than twice the amount of pardons granted by any of his predecessors, with at least a quarter of them targeting non-violent marijuana offenses, his administration announced Thursday.

Wolf, a Democrat, signed his final 369 pardons this week, for a total of 2,540 since he took office in 2015. He surpassed Democratic Gov. Ed Rendell's record of 1,122 granted pardons. Of the pardons, 395 were part of the expedited review process for nonviolent marijuana-related offenses. Another 232 were part of the PA Marijuana Pardon Project, which accepted applications through the month of September.

"I have taken this process very seriously - reviewing and giving careful thought to each and every one of these 2,540 pardons and the lives they will impact," Wolf said in a statement. "Every single one of the Pennsylvanians who made it through the process truly deserves their second chance, and it's been my honor to grant it."

A pardon grants total forgiveness of the related criminal conviction and allows for expungement.

January 13, 2023 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, January 12, 2023

Oklahoma become third state to complete an execution at the start of 2023

As detailed in this press report, "Oklahoma executed a man Thursday who was convicted of killing an elderly couple and committing other crimes 20 years ago before authorities caught up to him in Texas after a manhunt."  Here is more:

Scott James Eizember, 62, received a lethal injection at the Oklahoma State Penitentiary in McAlester and was pronounced dead at 10:15 a.m. local time....

Eizember's attorneys did not deny he killed A.J. Cantrell, 76, and his wife, Patsy Cantrell, 70, on Oct. 18, 2003. But they told the state's Pardon and Parole Board last month that the killings were unplanned and spontaneous and his life still had value. The board voted 3-2 to reject a clemency recommendation.

"He has felt remorse every day of his imprisonment.  There is no reason to kill him next month other than revenge," attorney Mark Henricksen told the board.

After the execution, several members of the Cantrell spoke of the pain the family has endured and voiced concern at the length of time it took for Eizember to be executed.  "After living this nightmare, I must say that 20 years is too long for justice to be served," Johnny Melton, the slain couple's nephew, said in a statement read on behalf of the family.  "We want to get it right and we absolutely want to ensure that everyone's rights are protected, but the process is much too slow."

Melton also stressed the importance of addressing domestic violence and improving mental health treatment, in the state of Oklahoma and across the nation.  "I know this is going to be a controversial statement, but I believe it to be a fact. It is the abuser who needs help. They need it when they are young," Melton said. "By the time the victim needs help, it's too late."...

Eizember filed a last-minute lawsuit seeking to have his spiritual adviser with him inside the death chamber during his execution after the Department of Corrections rejected the minister because of [Rev. Jeffrey] Hood's history of anti-death penalty activism, including arrests.  The DOC reversed course on that decision Wednesday, citing concerns from the Cantrell family that the decision could lead to Thursday's execution being called off.  The U.S. Supreme Court ruled last year that states must accommodate the wishes of death row inmates who want to have their pastors pray aloud and even touch them during their executions.

Oklahoma uses a three-drug lethal injection method starting with the sedative midazolam, rendering the person unconscious, followed by a paralytic vecuronium bromide and finally potassium chloride, which stops the heart.  Eizember's execution was the eighth in Oklahoma since the state resumed executions in 2021.

January 12, 2023 in Death Penalty Reforms | Permalink | Comments (3)

US Sentencing Commissions publishes proposed guideline amendments and issues for comment

This afternoon, the (finally) fully loaded US Sentencing Commission held a public meeting in which it discussed and published proposed guideline amendment on a number of topics. This official press release provide this summary (with links from the original):

The United States Sentencing Commission voted today to publish for comment proposed guideline amendments on several topics, including revisions that would implement two significant changes made by the First Step Act of 2018.

The First Step Act authorized defendants for the first time to file a motion for compassionate release, without having the Director of the Bureau of Prisons make a motion. Today’s proposed amendment would add this new procedural option.   The amendment would also revise the circumstances identified by the Commission as “extraordinary and compelling reasons” for purposes of a motion for compassionate release.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates.  It is my sincere hope that our work today and in the coming months brings greater clarity to the federal courts and more uniform application of Compassionate Release across the country,” said Judge Carlton W. Reeves, Chair of the Commission.

The First Step Act also expanded “safety valve” eligibility for relief from mandatory minimum penalties to certain offenders with more than one criminal history point.  The Commission proposed changes today that would update §5C1.2 and amend the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission also voted to publish a proposed amendment implementing the Bipartisan Safer Communities Act — firearms legislation that passed after the school shooting in Uvalde, Texas.  The Act directed the Commission to increase penalties for certain firearms offenders, particularly straw purchasers. 

The Commission also published a package of amendments relating to the criminal history rules, including reconsideration of “status” points for defendants who commit the instant offense while under another criminal justice sentence, the treatment of defendants with zero criminal history points, and the impact of simple possession of marihuana offenses.

The amendment also presents an alternative to the “categorical approach,” a complex legal test courts use to determine whether a conviction qualifies an offender for enhanced penalties under the guidelines. “I have heard consistently from judges throughout the nation that the categorical approach should be reconsidered. Judges are far too often flummoxed by how to apply the categorical approach.  This is certainly a matter that the Commission will continue to discuss and one that warrants a public hearing,” Judge Reeves said.

The Commission also asked for comment on whether the guidelines adequately address certain sexual abuse offenses, how it should address important circuit court conflicts, and whether the guidelines appropriately account for acquitted conduct, among other matters.

“The Commission received more than 8,000 letters of public comment on our tentative priorities in October,” said Reeves, “and we again look forward to robust comment in response to these proposed amendments.” 

The proposals are subject to a 60-day public comment period running through mid-March.  The Commission will hold public hearings in February and March to receive expert testimony on the amendments proposed at today’s meeting.  The events will stream live on the Commission's website.  A data briefing on today’s proposed criminal history amendments will also be made available in the coming weeks.

Notably, this overview of proposed amendments only provides a partial account of all that sentencing fans should find interesting in the new proposed amendment. For example, the proposals also include a provision to "amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction."

I hope to find timein the coming days and weeks to comment in various ways on these amendments. And I am hopeful that we will see lots of commentary and analysis from lots of sources and perspectives as the new USSC gears up finalize the first set of guideline amendments in nearly 5 years.

January 12, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Council on Criminal Justice releases Illinois analysis of "The Public Safety Impact of Shortening Lengthy Prison Terms"

I keep noting this post from earlier this year discussing the Council of Criminal Justice's impressive Task Force on Long Sentences.  That Task Force keeps producing all sorts of interesting documents about long sentences (see prior posts here and here), and this latest report is authored by Avinash Bhati and titled "The Public Safety Impact of Shortening Lengthy Prison Terms."  This press release about the report provides this background and some particulars:

Shortening Illinois prison sentences of 10 years or more by modest amounts would result in very few additional arrests, cutting the state prison population significantly without jeopardizing public safety, according to a new analysis for a Council on Criminal Justice (CCJ) task force.

Reducing lengthy prison terms by as much as 30% would result in “a virtually undetectable increase” (less than one tenth of one percent) in annual arrests statewide, according to the report for CCJ’s Task Force on Long Sentences, which was produced in partnership with the Illinois Sentencing Policy Advisory Council (SPAC). Most additional arrests would be for drug, property, and other nonviolent crimes.

More than 1,100 people were released from Illinois prisons during the three-year study period, after serving a decade or more; the group served an average of nearly 19 years. While any additional arrests are cause for concern, the research estimates that reducing prison time served by those in the study group by one, two, or three years would result in between 11 and 37 additional arrests; in 2020, there were 89,173 total index crime and drug arrests in Illinois. No individual in the study group was estimated to have more than one additional arrest....

The research was conducted by the data analytics firm Maxarth LLC, which analyzed detailed arrest history data for the 1,127 people released from Illinois prisons between June 2016 and June 2019. For those who had served 10 years or more, researchers then created “microsimulations” to estimate the number of arrests that were averted due to the individuals’ long prison stays. (Details on the calculations and analysis can be found in the report methodology.)

Reductions in the size of the prison population, the analysis found, would range from a 2.4% drop if prison terms were trimmed by 10% (or 1.9 years), to a 7.2% cut if sentences were shortened by 30% (or 5.7 years). Such reductions represent potential cost savings. A separate 2021 analysis by SPAC found that a 3,000-person reduction in the average daily prison population, along with a reduction in staffing, could represent nearly $148 million in annual state correctional appropriations. Saltmarsh said that while these reductions in and of themselves would not automatically produce cost savings for Illinois, they could lead legislators to make different choices about how to fund IDOC’s general operations.

January 12, 2023 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 11, 2023

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

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

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

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

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

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

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

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

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

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

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

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

Texas completes its first executon of 2023

Texas completed only five executions in 2022 (and only three in 2021 and 2020), but the state already has six executions planned for the first few months of 2023. And, as detailed in this AP article, the first of those scheduled execution was carried out yesterday. Here are the basics:

A former suburban Houston police officer was executed Tuesday for hiring two people to kill his estranged wife nearly 30 years ago amid a contentious divorce and custody battle.

Robert Fratta, 65, received a lethal injection at the state penitentiary in Huntsville for the November 1994 fatal shooting of his wife, Farah. He was pronounced dead at 7:49 p.m., 24 minutes after the lethal dose of the powerful sedative pentobarbital began flowing into his arms.

For about three minutes before the execution began, Fratta’s spiritual adviser, Barry Brown, prayed over Fratta, who was strapped to the death chamber gurney with intravenous needles in each arm.... Asked by the warden if he had a final statement, Fratta replied: “No.”...

Prosecutors say Fratta organized the murder-for-hire plot in which a middleman, Joseph Prystash, hired the shooter, Howard Guidry. Farah Fratta, 33, was shot twice in the head in her home’s garage in the Houston suburb of Atascocita. Robert Fratta, who was a public safety officer for Missouri City, had long claimed he was innocent.

The punishment was delayed for little more than an hour until the last of a flurry of final-day appeals cleared the U.S. Supreme Court and Texas’ highest courts, the Texas Supreme Court and Texas Court of Criminal Appeals. Fratta’s lawyers argued unsuccessfully that prosecutors withheld evidence that a trial witness had been hypnotized by investigators, leading her to change her initial recollection that she saw two men at the murder scene as well as a getaway driver....

Fratta was also one of four Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. That lawsuit also failed late Tuesday,

The Supreme Court and lower courts previously rejected appeals from Fratta’s lawyers that sought to review claims arguing insufficient evidence and faulty jury instructions were used to convict him. His attorneys also unsuccessfully argued that a juror in his case was not impartial and that ballistics evidence didn’t tie him to the murder weapon....

Fratta was first sentenced to death in 1996, but his conviction was overturned by a federal judge who ruled that confessions from his co-conspirators shouldn’t have been admitted into evidence. In the same ruling, the judge wrote that “trial evidence showed Fratta to be egotistical, misogynistic, and vile, with a callous desire to kill his wife.” He was retried and resentenced to death in 2009....

Fratta was the first inmate put to death this year in Texas and the second in the U.S. Eight other executions are scheduled in Texas for later this year.

January 11, 2023 in Death Penalty Reforms | Permalink | Comments (1)

Tuesday, January 10, 2023

"Are Schools in Prison Worth It? The Effects of and Economic Returns to Prison Education"

The title of this post is the title of this paper available via SSRN and authored by Steven Sprick Schuster and Ben Stickle. Here is its abstract:

We estimate the effects of various forms of prison education on recidivism, post-release employment, and post-release wages.  Using a sample of 148 estimates drawn from 78 papers, we conduct a meta-analyses to estimate the effect of four forms of prison education (adult basic education, secondary, vocational, and college).  We find that prison education leads to decreases in recidivism and increases in post-release employment and wages.  The largest effects are experienced by prisoners who participated in vocational or college education programs. 

We also calculate the economic returns on educational investment for both prisons and prisoners.  We find that each form of education yields large, positive returns, due primarily to the high costs of incarceration, and therefore high benefits to crime avoidance.  The returns vary across education types, with vocational education featuring the highest return to each dollar spent ($3.10) and college seeing the highest positive impact for each student participating ($16,863).

January 10, 2023 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Brennan Center assesses "Criminal Legal Reform Halfway Through the Biden Administration"

The Brennan Center has this notable new analysis of some of the criminal justice work of the Biden Administration and it reaches the mid-point of Prez Biden's current term.   The piece is filled with lots of context and links and is worth a full read.  Here is how it starts and closes, with its headings along the way as a kind og summary:

A year ago, we reviewed progress made by the Biden administration toward building a fairer and more effective criminal legal system, as well as missed opportunities. Here we outline major developments since then, including setbacks and steps in the right direction.

Retrenchment on the Federal Death Penalty...

Limited Progress on Prison Reform...

Notable Nominations and Confirmations...

Updates to DOJ Charging Policy...

Limited Progress on Clemency...

Mixed Record on Immigration Detention...

New Investments in Community Violence Interventions...

Critically, the administration can continue to make progress in many of the areas named above without the need to navigate complex congressional dynamics. The power to restructure the federal clemency power, for example, lies wholly within the president’s discretion. The DOJ has already begun to significantly revamp its approach to implementing the First Step Act, and it should continue to do so. And the president could effectively suspend the death penalty on his own initiative by commuting existing federal death sentences to life in prison.

While the president must continue to work with Congress on major legislative priorities, all of these steps and more would represent significant progress on their own.

January 10, 2023 in Criminal justice in the Biden Administration, Who Sentences | Permalink | Comments (1)

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

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

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

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

Key Findings

Federal Sentencings for Simple Possession of Marijuana

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

Impact of Prior Sentences for Simple Possession of Marijuana

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

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

Monday, January 9, 2023

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

January 9, 2023 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wondering about the impact of AG Garland's new charging and sentencing memos

Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here).  These memos received some press attention (and some blog commentary) when first issued in mid December.  But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos. 

Of course, with the holidays and all, it is surely too early to be expecting to see the full impact or fall out from these DOJ memos.  Still, given that the instructions in these memos impact every federal criminal case in some way, I am continuing to expect these memos to generate notable cases and controversies before too long.  And, while waiting, I have now had the honor and pleasure of working with former ENDY US Attorney Alan Vinegrad to write up a short overview of the memos for coming publication in the February 2023 issue of the Federal Sentencing Reporter.  The draft of that overview is available for download below, and it starts this way:

On December 16, 2022, United States Attorney General Merrick Garland issued long-awaited guidance setting forth the Department of Justice's latest charging, plea and sentencing policies. He did so in the form of two memos: one providing general policies for all criminal cases (the "General Memo"), and a second providing additional policies for drug cases (the "Drug Memo").

These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion.  All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.

Download Vinegrad and Berman for FSR on new DOJ policies

January 9, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Saturday, January 7, 2023

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.

Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.

Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.

Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses....

Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.

At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina....

A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.

But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.  “Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.

January 7, 2023 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Friday, January 6, 2023

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

January 6, 2023 in Celebrity sentencings, Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Some highlights from Ohio's sweeping new criminal justice reform bill

From sentencing to prison reform to marijuana policy to record relief, Ohio has long been a state with all sort of dynamics developments across a range of criminal law and policy issues of great interest to me.  And, as this local article details, these dynamic realities continued in the Buckeye State at the end of 2022 and into 2023 as the Ohio General Assebly finally completed a long-in-development major criminal reform bill known as Senate Bill 288.  There is so much in the massive SB 288, I am still looking for an effective and complete summary.  But the press piece reviews some of the parts I wish to highlight here:

Gov. Mike DeWine on Tuesday signed into law an enormous criminal justice reform bill making it easier for Ohioans to adjust to life after their release, giving state officials wider latitude to release inmates early, reducing the consequences of minor marijuana offenses, and reducing underage drinking penalties, among dozens of other provisions.

The most high-profile part of the new law, added shortly before it passed the legislature, toughens Ohio’s distracted-driving laws. But the 1,000-page bill, which passed the legislature with overwhelming support, also makes the greatest changes to Ohio’s criminal code in years.

The new law, which takes effect in early April, was the product of nearly two years of work by state lawmakers and various agencies and groups. DeWine, before signing Senate Bill 288 during a Statehouse signing ceremony, said that while Ohioans might not agree with every part of the legislation, “everybody was heard” about their opinions. “I think legislators should be complimented on the fact that they reached out to prosecutors, that they reached out to defenders, that they reached out to law-enforcement agencies,” the governor said....

Two of the most important parts of SB288 will expand when people convicted of crimes can seek to have their criminal records sealed – in other words, kept private with limited exceptions – or expunged, meaning their record is destroyed altogether. Proponents argue that sealing and expunging helps to address widespread problems with former inmates getting housing, being offered a job, or securing a loan because of their criminal record.

Other parts of the new law will:

Allow prosecutors or city law directors to expunge thousands of low-level marijuana possession offenses, as well as ensure that arrests or convictions for possessing marijuana paraphernalia won’t appear on Ohioans’ criminal records.

Give the Department of Rehabilitation and Correction, the state’s prison agency, more power to decide when inmates should be granted an early release.

Set up a process for inmates to ask a judge for early release when the Ohio governor declares a state of emergency due to a pandemic or other public health crisis.

Allow inmates to shave more time off their sentences for participating in educational, job training, or drug treatment programs.

Expand Ohio’s “Good Samaritan” law that provides immunity from arrest or prosecution for people who seek medical assistance for an overdose – either on their own behalf or for someone else – as long as the person receiving that legal protection is referred to addiction treatment within 30 days....

Create the new offense of “strangulation,” which would range from a fifth-degree felony to a second-degree felony. Domestic-abuse advocates have worked for years to pass such a law, pointing to research indicating that victims who are strangled by their partner are more than seven times as likely to end up being murdered by their abuser....

Require a minimum five-year prison sentence for anyone convicted of “aggravated vehicular homicide” in cases where the victim is a firefighter or an emergency medical worker. The change was brought in response to the death of Cleveland firefighter Johnny Tetrick, who was killed during a hit-and-run along Interstate 90 last month.

Decriminalize fentanyl test strips, used to test substances for the opioid. Test strips are currently classified by Ohio law as “drug paraphernalia,” and people found to possess them can face up to 30 days in jail. Supporters of the move argue it will help reduce fatal overdoses in the state; critics say the strips can help drug users look for fentanyl, which was involved in 81% of Ohio overdose deaths in 2020, according to the Ohio Department of Health.

January 6, 2023 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, January 5, 2023

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

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

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

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

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

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

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

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

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

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

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

Council on Criminal Justice releases "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members"

In this post last year, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences.  Today,  CCJ released its latest publication from the Task Force, titled "Reflections on Long Prison Sentences: A Conversation with Crime Survivors, Formerly Incarcerated People, and Family Members.This full 20-page report is worth a full read, and here are the document's "Key Takeaways":

While participants shared their experiences with long sentences from different perspectives, the views expressed reflected numerous common themes. These included:

+ Prison sentences-including long sentences-should serve the purpose of rehabilitation, a goal that many participants said was often impeded by a lack of programming in prisons.

+ Long sentences are not synonymous with accountability; rather, accountability comes from taking responsibility for the harm caused and making amends through personal changes.

+ People serving long sentences should have the opportunity to seek reconsideration of that sentence after a period of time through a process that bases release decisions, in part, on the cognitive, behavioral, and/or emotional growth individuals make while incarcerated.

+ Victims and survivors of crime should have a role in any sentencing reconsideration.

Participants made several specific recommendations in line with these themes.  These included:

+ Provide programming and counseling to all individuals serving long sentences

+ Permit crime victims and survivors to request specific programming for the defendant in their case to complete while incarcerated, as part of pre-sentencing investigation reports

+ Provide victims and survivors, upon request, with information regarding expressions of remorse, educational or skills training, and other personal changes made by incarcerated individuals in their cases

+ In cases of sentencing reconsideration, provide victims and survivors general information about supports available to the incarcerated person post-release

+ Provide more opportunities for victim-offender dialogue throughout long prison sentences

+ Enhance transparency and communication during criminal justice processes and create mechanisms for quickly referring victims and survivors to community-based counseling and other therapeutic services

+ Give judges more complete contextual information about the background of the person being sentenced or resentenced, including facts about the impact of the crime(s) on victims and survivors

+ Provide earlier intervention and healing to at-risk children to prevent future crime, sparing individuals, families, and communities from the pain of violence and from the loss of young persons to long prison sentences

January 5, 2023 in Prisons and prisoners, Scope of Imprisonment, Victims' Rights At Sentencing | Permalink | Comments (6)

Wednesday, January 4, 2023

"Death Penalty Abolition, the Right to Life, and Necessity"

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

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life.  Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm.  Can capital punishment be necessary in this sense — and thus justified defensive killing?  If so, the right-to-life argument would have to admit certain exceptions where executions are justified.  Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world.  A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat.  ONI precludes executions for reasons of future dangerousness.  By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

January 4, 2023 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Tuesday, January 3, 2023

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

A few of many prior posts on other defendants in college admissions scandal:

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

January 3, 2023 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

"The Truth About Truth in Sentencing: Tennessee’s Experience"

The title of this post is the title of this terrific new article in the Tennessee Bar Journal authored by David Raybin.  I recommend the very readable piece in full, and here are excerpts from the introduction and conclusion:

The truth is that the crime rate does not drive a state’s prison population — policy choices do. Last year the Tennessee legislature enacted a “Truth in Sentencing” scheme where most penitentiary-bound prisoners will now serve between 85% to 100% of their time with no parole. The increases are staggering: a burglary conviction can now net nine years in prison where under prior law parole could occur in about three years.

Gov. Bill Lee reluctantly allowed this legislation to become law without his signature, saying, “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.” At an eventual cost of $25 million a year, the proponent of the legislation, Speaker of the House Cameron Sexton replied, “If we need to build more prisons, we can.”

Recent, horrid homicides in Memphis prompted the legislature to propose even more amendments to our criminal statutes. These would abolish probation for many crimes and remove parole for other offenses. Soon virtually all offenses will be punished by mandatory incarceration with little or no alternative sentencing.5 Over the last 200 years, Tennessee has experimented with several sentencing systems which have met with varying degrees of success and failure. This state’s problems are not unique to this decade or even this century....

When viewed from the perspective of 200 years, the most obvious conclusion is that our sentencing structure has been dramatically altered with increasing frequency in recent years.  The original penitentiary law of 1829 remained substantially unchanged for 84 years until the enactment of the indeterminate sentence law in 1913.

It was another 60 years before there were any major modifications.  These changes, which occurred in 1973, were themselves altered less than six years later by the enactment of the Class X Felony Law.  Three years later the legislature passed the 1982 Sentencing Reform Act.  In another three years the legislature created the “safety valve.”  Four years later, in 1989, a new sentencing law was enacted.  In less than five years the legislature was considering yet another revision under the label of “truth in sentencing.” And then began 25 years of ever-increasing sentences for dozens of criminal offenses.  The 2022 Truth in Sentencing law was the final — and perhaps fatal — conclusion to this process.

Since 1970, the total jail population has increased 681%. The cost of the penitentiary and jail system is staggering: a billion dollars a year. Counting those in our county jails, Tennessee now incarcerates approximately the same number of people as does the entire continent of Australia, which has four times the population.  In Tennessee, African American people constitute 18% of state residents, but 36% of people in jail and 42% of people in prison....

Although our sentencing structures have been often altered, the statutory length of sentences, as set forth by current law, is not that different from those statutes first enacted in 1829.  In 1829, involuntary manslaughter was punished from one to five years. Today it is a very similar at one to six years. In 1829, the punishment for burglary of a dwelling was three to 10 years; today, for one with no record, it is three to six years.  The 1829 law was enacted to replace the previous practice of corporal punishment consisting of branding and whipping people. What may have been a valid term of imprisonment in 1829 may no longer be appropriate in 2022.  Perhaps we should revisit the length of our sentences.

We have commissioners of education and commissioners of roads, but the commissioner of correction only houses prisoners and has no impact on who goes into his or her penitentiary system.  I suggest that we do what other states and the federal government have done.  I suggest that we do what we did in Tennessee between 1986 and 1995.  We should have a full-time sentencing commission made up of professionals in the criminal justice system with judges, defense lawyers, prosecutors and citizens such as we had before.  Perhaps we should add an ex-offender or two to give us some perspective. We need that.

A sentencing commission is also a tool for discovering problems before they get out of hand.  A full-time sentencing commission is the only solution to making meaningful progress.  We cannot have committees or commissions who come together every 20 years to fix the system.  We advocate routine maintenance on our cars, so why not our criminal justice system?

January 3, 2023 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Timely new CRS review of US Sentencing Commission's guideline amendment process and plans

A helpful colleague alerted me to a new Congressional Research Service “Legal Sidebar” which efficiently covers the US Sentencing Commission's history, its amendments process, and some of its stated priorities for 2022-23 guideline amendments.  This five-page report is titled "Back in Action, the U.S. Sentencing Commission to Resolve Circuit Splits on Controlled Substances and Sentencing Reductions," and it starts this way:

In 1984, Congress revolutionized federal sentencing.  That year, Congress established the U.S. Sentencing Commission (the Commission) as an independent agency within the judicial branch and directed it to promulgate the first-ever federal sentencing guidelines.  In 1987, the Commission published the inaugural U.S. Sentencing Guidelines manual (the Guidelines), which serves as the starting point and anchor for every federal sentence imposed across the country. Over 1.9 million defendants have been sentenced under the Guidelines since their inception.

Congress also required the Commission to “review and revise” the Guidelines, which it has done periodically.  Between 2019 and July 2022, however, the Commission lacked a quorum and therefore the ability to propose amendments to the Guidelines. In August 2022, the Senate confirmed a full slate of seven new commissioners, restoring the Commission’s quorum and thus enabling the Commission to initiate its amendments process.  As a part of that process, in November 2022, the Commission published a list of final priorities for analysis and possible action.  According to a timetable fixed in statute, should the Commission study a priority and approve prospective changes to the Guidelines, the Commission will submit the proposed amendments to Congress by May 1, 2023.  Congress then has until November 1, 2023, to affirmatively reject any such amendments, or the amendments will take effect.

This Sidebar addresses one of the Commission’s listed priorities: the resolution of two conflicts among the federal appeals courts involving the Guidelines.  The first conflict relates to whether, for a “controlled substance offense” to trigger the Guidelines’ “career offender” recidivist enhancement, the underlying controlled substance must be prohibited by the federal Controlled Substances Act (CSA) or whether a controlled substance prohibited only under state law can also lead to the career offender enhancement.  The second conflict pertains to whether federal prosecutors may withhold a sentencing reduction from a federal defendant because the defendant raised a pre-trial Fourth Amendment challenge to the government’s evidence.

January 3, 2023 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, January 2, 2023

Missouri scheduled to execute transgender woman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, January 1, 2023

Gearing up for a new federal sentencing year that might finally bring some new guideline amendments

Branch by branch, there are a lot of federal sentencing stories to watch as we start a new year.  The last Congress made (halting) progress on some statutory sentencing reforms, but nothing major made it all the way to the President's desk.  With the House of Representatives in GOP control in the new Congress, legislative dynamics have changed in ways that might diminish the prospects for any big reforms in 2023.  But with murder rates ticking down a bit in 2022 and crime narratives seemingly not having a huge midterm poitical impact, perhaps some modest consgressional reform could still happen in the coming year.

On the executive front, I will be watching closely for early impacts of Attorney General Garland's new charging and sentencing memos (basics here).  It will be particular interesting to see the effect of AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses."  And, with Prez Biden having used his clemency powers a few times in 2022 (with grants in April, October and December), maybe executive grace as well as prosecutorial discretion will continue to impact federal sentencing realities in the coming year.

The judicial branch is the arena in which I am expecting the most action in this new year.  Focusing the courts, we may see in the coming weeks if the Supreme Court is finally ready to address acquitted conduct sentencing enhancments (details here).  Other notable sentencing issues may also make their way to the SCOTUS docket because circuits are split on important topics like deference to the guidelines and application of a key part of the FIRST STEP Act.  Other notable sentencing issues are sure to keep gurgling in district and circuit courts in the year ahead.

But I can most confidently predict judicial branch sentencing action in 2023 because the US Sentencing Commission, which is located in that branch, is finally now fully loaded and is hard at work on potential guidelines reforms.  The Commission has now officially announced that it will have a public meeting on January 12, 2023 with an agenda to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."  Though we should not expect the USSC to advance amendments on all the topics mentioned in its ambitious list of priorities, we are sure to get some notable and impactful proposals to start the year from the Commission.

Notably, though the USSC's work is primarily focused on the sentencing guidelines, the agency can have real impact on other aspects of the justice system.  This new Forbes article by Walter Palvo, headlined "A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons," highlights Steve Sady's new article in the Federal Sentencing Reporter urging the USSC to "make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences."  Here is an excerpt from the Forbes piece:

I recently spoke to Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon about a paper he wrote that was critical of the BOP but stated that the United States Sentencing Commission (USSC) could encourage the BOP to balance long guideline sentences by implementing ameliorative statutes that reduce actual prison time. As Sady told me, “The BOP has failed to adequately implement critical legislation to improve the conditions of people in prison.”

As Sady points out, even as Congress has repeatedly provided options and directives that would reduce the time defendants spend in prison, the BOP has failed to implement the full scope of the available authority, resulting in expensive and pointless over-incarceration. The most important of these can be put into six categories, 1) Increase the availability of community corrections commensurate with repeated statutory directives for greater use of residential reentry centers and home confinement (18 U.S.C. § 3624(c)), 2) Expand eligibility and availability of sentence reductions under Residential Drug Abuse Program (RDAP), 3) Eliminate computation rules that create longer sentences, 4) Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist, 5) Revive the boot camp program to provide nonviolent offenders sentence reductions and expanded community corrections and 6) Fully implement the First Step Act’s earned time credit program (18 U.S.C. §§ 3632(d) and 3624(g)). No new legislation would be required for any of these reforms. “It’s a pragmatic approach,” Sady said, “that uses the laws already in place to do what the BOP should already be doing. This is not a stretch.”

Interesting times as we start a new year.

January 1, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Another year-end report from the Chief Justice with a few federal criminal caseload highlights

The Chief Justice of the United States always closes out a calendar year by releasing a year-end report on the federal judiciary, and that report typically includes some notable federal criminal justice caseload data.  Chief Justice John G. Roberts' 2022 version of the year end report can be found at this link, and here are some data excerpts that might interesting federal criminal justice fans:

In the regional courts of appeals, filings fell six percent from 44,546 to 41,839 in FY 2022.  This represents a 14 percent drop from FY 2019, the last full year prior to the COVID-19 pandemic.  Total civil appeals were down five percent from the prior year to 22,181.  Criminal appeals were down six percent from the prior year to 9,973.... Prisoner petitions accounted for 22 percent of appeals filings (a total of 9,401), and 86 percent of prisoner petitions were filed pro se, compared with 34 percent of other civil filings....

The federal district courts docketed 68,315 criminal defendant filings in FY 2022, eight percent fewer than the prior year. This represents a 26 percent drop from FY 2019.  The largest categories of criminal defendant filings involved drug offenses, which decreased 15 percent to 19,589, and immigration offenses, which decreased one percent to 19,148....

A total of 122,872 persons were under post-conviction supervision on September 30, 2022, an increase of less than one percent from the prior year and a five percent decrease compared to FY 2019.  Of that number, 109,781 were serving terms of supervised release after leaving correctional institutions, an increase of one percent.  Cases activated in the pretrial services system, including pretrial diversions, fell four percent to 73,690. Pretrial case activations were 32 percent lower than in FY 2019.

January 1, 2023 in Data on sentencing, Who Sentences | Permalink | Comments (1)

Friday, December 30, 2022

President Joe Biden closes out 2022 by granting full pardons to six people

I was pleased to learn this afternoon that President Joe Biden took out his clemency pen on the last working day of 2022 and granted full pardons to six individuals.  The list of recipients is set forth in this official "Clemency Recipient List," and here are the basics from that list:

Gary Parks Davis – Yuma, Arizona
Gary Parks Davis is a 66-year-old man who pleaded guilty to use of a communication facility (a telephone) to facilitate an unlawful cocaine transaction at age 22....

Edward Lincoln De Coito III – Dublin, California
Edward Lincoln De Coito III is a 50-year-old man who pleaded guilty to involvement in a marijuana trafficking conspiracy at age 23; his involvement was limited to serving as a courier on five or six occasions....

Vincente Ray Flores – Winters, California
Vincente Ray Flores is a 37-year-old man who, at approximately age 19, consumed ecstasy and alcohol while serving in the military; he later pleaded guilty at a special court-martial....

Beverly Ann Ibn-Tamas – Columbus, Ohio
Beverly Ann Ibn-Tamas is an 80-year-old woman who was convicted of murder in the second-degree while armed for killing her husband. Ms. Ibn-Tamas, 33 at the time of the incident, was pregnant and testified that before and during her pregnancy, her husband beat her, verbally abused her, and threatened her....

Charlie Byrnes Jackson – Swansea, South Carolina
Charlie Byrnes Jackson is a 77-year-old man who pleaded guilty to one count of possession and sale of distilled spirits without tax stamps. The offense, which occurred when Mr. Jackson was 18, involved a single illegal whiskey transaction, and resulted in nominal loss to the government....

John Dix Nock III – St. Augustine, Florida
John Dix Nock III is a 72-year-old man who pleaded guilty to one count of renting and making for use, as an owner, a place for the purpose of manufacturing marijuana plants. 

December 30, 2022 in Clemency and Pardons, Who Sentences | Permalink | Comments (3)

Oregon Supreme Court gives retroactive effect to Ramos Sixth Amendment jury unanimity rule (two months after Louisiana Supreme Court refused to do so)

An opinion from the Oregon Supreme Court on this last working day of 2022 provides a notable bookend to the echoes of the Supreme Court's 2020 Ramos holding that the Sixth Amendment requires that a jury reach a unanimous guilty verdict to convict a defendant of a crime.  This local article reports on the basics and its import: 

Hundreds of felony convictions became invalid Friday after the Oregon Supreme Court struck down all non-unanimous jury verdicts reached before the practice was banned two years ago.

The retroactive ruling applies to all split-jury convictions reached during the 86-year stretch when Oregon was one of only two states, alongside Louisiana, to allow such verdicts.

In a concurring opinion, Justice Pro Tempore Richard Baldwin described the authorization of 10-2 and 11-1 jury verdicts in 1934 as a “self-inflicted injury” that was intended to minimize the voice of nonwhite jurors.

“We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color,” Baldwin wrote. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

Voters approved Oregon’s non-unanimous jury system after a jury handed down a light sentence in a 1933 gangland murder trial, spurring racist and xenophobic newspaper coverage that blamed the compromise verdict on immigrant jurors, The Oregonian/OregonLive previously reported.

The U.S. Supreme Court outlawed divided verdicts in its landmark Ramos v. Louisiana decision in April 2020, but the order only applied to open cases and convictions that were actively being appealed when the ruling came down.

The ruling left the door open for states to make their own laws applying it retroactively. The Oregon legislature did not take that action, but people convicted by split juries began pursuing a retroactive ruling at the Oregon Appeals Court last year.

The Oregon Department of Justice says the Ramos ruling vacated more than 470 convictions with active appeals, meaning that prosecutors were required to essentially reboot each case from the beginning and either pursue a new trial, cut a plea deal or dismiss the charges.

The new state Supreme Court ruling means county district attorneys will have to make a similar decision for cases where the defendant had already exhausted a final appeal.

There are approximately 300 people, mostly in state prison, with exhausted appeals who have filed new litigation because they were convicted by a non-unanimous jury before the Ramos decision, according to Aliza Kaplan, a Lewis & Clark law professor and leader of the Criminal Justice Reform Clinic.

The full opinions from the Oregon Supreme Court in Watkins v. Ackley are available here.

Notably, Louisiana was the only other state with a history of non-unanimous criminal jury verdicts, and a couple of months ago its state Supreme Court decided against giving retroactive effect to Ramos (as this local press piece details).  The full opinion from the Louisiana Supreme Court in Louisiana v. Reddick are available here.

December 30, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Bureau of Justice Statistics releases "Federal Justice Statistics, 2021"

This week, the Bureau of Justice Statistics released this big data report titled simply "Federal Justice Statistics, 2019." This press release about the report provides these highglights (which are only a small sample of data reported):

The study found that arrests by federal law enforcement agencies declined 35% from fiscal year (FY) 2020 to FY 2021, reaching the lowest level over the past two decades.  Due to the coronavirus pandemic, federal arrests declined 81% and cases charged in federal court declined 77%, from March to April 2020, with an additional decline of 25% in arrests and 20% in cases charged, from October 2020 to February 2021.

About 6 in 10 federal arrests in 2021 were for immigration, drug, or supervision violations (48,257).  The largest percentage decrease in arrests from FY 2020 to FY 2021 was for immigration offenses (down 72%), from 51,723 to 14,446 arrests.  Arrests for property offenses increased 11% during this time.

While federal arrests declined substantially from FY 2020 to FY 2021, the number of persons charged with a federal offense in U.S. district court decreased less than 1%, from 66,059 to 65,880.  During that period, the number of persons charged with violent offenses increased 18% and the number charged with public order offenses increased 13%, while the number of persons charged with immigration offenses decreased 18%....

Of the 63,380 defendants adjudicated in federal district courts in FY 2021, about 9 in 10 were convicted.  Among those convicted, nearly three quarters (74%) were sentenced to prison.  The median prison sentence for persons convicted was 37 months.  Among persons sentenced to prison, both white and black defendants were sentenced to a median of 60 months.

The type of sentence imposed in FY 2021 varied by sex, race or Hispanic origin and age of defendants.  Convicted males (77%) were sentenced to prison more commonly than convicted females (59%).  Those sentenced to prison had a median age of 35 years, while those sentenced to probation had a median age of 38 years.  A greater percentage of blacks (85%) and American Indians or Alaska Natives (82%) who were convicted were sentenced to prison compared to convicted persons who were white (77% ), Hispanic (71%) or Asian, Native Hawaiian or Other Pacific Islander (69%).

For the 10-year period from fiscal yearend 2011 to 2021, the number of persons under federal correctional control declined 15%, from 410,887 to 350,543.  The proportion in confi nement or community supervision did not change during that period.  Approximately 3 in 5 of these persons were in secure confinement and 2 in 5 were on community supervision in each year.

December 30, 2022 in Data on sentencing, Detailed sentencing data | Permalink | Comments (0)

Thursday, December 29, 2022

"Remorse, Relational Legal Consciousness, and the Reproduction of Carceral Logic"

The title of this post is the title of this paper authored by Kathryne M. Young and Hannah Chimowitz now available via SSRN. Here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole.  But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states.

To understand how parole board members make sense of remorse, we draw on in-depth interviews with parole commissioners in California, the state with the largest proportion of parole-eligible lifers.  We find that commissioners’ remorse assessments hinge on their perceptions of lifers’ relationships to law and carceral logic.  In this way, relational legal consciousness — specifically, second-order legal consciousness — functions as a stand-in for the impossible task of knowing another person’s heart or mind.  We distinguish relational from second-order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.

December 29, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Wednesday, December 28, 2022

Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements

Regular reader may vaguely recall some of my prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As I have detailed in posts months ago (and linked below), over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays, it appears that this case will finally be considered at next week's SCOTUS conference.  And that reality likely account for this new AP article headlined "Supreme Court asked to bar punishment for acquitted conduct."  Here are excerpts:

A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing anyway. In courtrooms across America, defendants get additional prison time for crimes that juries found they didn’t commit.

The Supreme Court is being asked, again, to put an end to the practice. It’s possible that the newest member of the court and a former federal public defender, Justice Ketanji Brown Jackson, could hold a pivotal vote. McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on a Supreme Court decision from the late 1990s. And the justices have turned down numerous appeals asking them to declare that the Constitution forbids it.

The closest the court came to taking up the issue was in 2014, when Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg provided three of the four votes necessary to hear an appeal.... Scalia and Ginsburg have since died, and Thomas remains on the court. But two other justices, Neil Gorsuch and Brett Kavanaugh, have voiced concerns while serving as appeals court judges.

I am hopeful, but still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.  If enough Justices are sincerely committed to orignalist principles, perhaps this issue will get to the Court's docket this coming year.  But I am certainly not holding my breath. 

A few recent of many, many prior related posts:

December 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (31)

Notable ruling on meth sentencing guidelines by a notable federal sentencing judge

A helpful colleague made sure I did not miss a notable little new ruling from federal judge in Mississippi in US v. Robinson, No. 3:21-CR-14-CWR-FKB-2 (S.D. Miss. Dec. 23, 2022) (available here).  The ruling addresses the calculation of the federal sentencing guideline range in meth cases, and here are some excerpts (with lots of cites omitted):

The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability....  As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.”   All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture....

The distinction is significant to Mr. Robinson.  Because he possessed 214.4 grams of especially pure methamphetamine, the Guidelines indicate that he should have a “base offense level” of 32.  In contrast, if Mr. Robinson was deemed to have possessed 214.4 grams of methamphetamine mixture, the Guidelines indicate that his base offense level would be 26....

At the outset, the Court appreciates the parties for pointing to Judge Bennett’s decision in United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018).  In that case, the United States conceded that there is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture. Other courts have found the same....

On review, the undersigned agrees with these colleagues.  The Guidelines use drug purity as a proxy for culpability.  But national experience suggests that is no longer true for methamphetamine.  The DEA data show that most methamphetamine confiscated today is “pure” regardless of whether the defendant is a kingpin or a low-level addict....

Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant’s case and life -- seeing the defendant as a “whole person,” as the Supreme Court just instructed in Concepcion. 142 S. Ct. at 2395.  There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises.  If the defendant’s case warrants, those enhancements should be applied.  In the context of methamphetamine, though, purity is no longer probative of the defendant’s culpability.

This ruling is notable on its own terms, but it seemed especially blogworthy because of the opinion's author: US District Judge Carlton W. Reeves. Judge Reeves, as some readers likely know, is the new Chair of the US Sentencing Commission.

December 28, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Tuesday, December 27, 2022

Federal judge sentences Michigan man who plotted to kidnap Gov to 16 years despite feds seeking LWOP ... and thereafter give other leader 235 months

As reported in this NBC News piece, headlined "Man sentenced to 16 years for plotting to kidnap Michigan Gov. Gretchen Whitmer," a high-profile case reached a sentencing outcome this morning in Michigan federal court. Here are some of the notable details:

A federal judge on Tuesday sentenced a man to 16 years in prison for his role in a plot to kidnap Michigan Gov. Gretchen Whitmer — opting against the prosecution's bid for life behind bars.

Adam Fox, 39, was convicted in August of conspiracy to commit kidnapping and to use a weapon of mass destruction to attack Whitmer, who had drawn the ire of far-right groups for her efforts to curb the spread of Covid-19 in 2020. Jurors in April failed to come to verdicts against Fox and co-defendant Barry Croft, forcing a judge to declare a mistrial before a second trial proved decisive.

U.S. District Judge Robert Jonker questioned whether Fox was a true "natural leader" of the plot, worthy of a life sentence.  "I don't think life is needed to achieve the important public deterrent factors," Jonker said in Grand Rapids, explaining the 192-month sentence.

While a terrorism enhancement set up Fox for a possible life term, Jonker said that harshest sentence isn’t automatic and that he had to carefully consider other factors.  Jonker said he leaned heavily on a 2018-19 Northern California case where U.S. District Judge Charles Breyer, brother of retired U.S. Supreme Court Justice Stephen Breyer, sentenced ISIS sympathizer Amer Alhaggagi to 188 months in prison, more than 15 years short of the 33 years sought by prosecutors.

“You have to calibrate, as judges, the overall seriousness of wrongdoing and the overall seriousness of the defendant’s history," Jonker said. “I see nothing in the record ... nothing that makes me think he’s (Fox) a natural leader and nothing that makes me think he’s the kind of person that anybody involved in this group was naturally going to follow.”

Assistant U.S. Attorney Nils Kessler had said Fox was out to spark an all-out war and needed to be put away for life. “They wanted a second Civil War or a revolution,” Kessler told the court on Tuesday.  "They wanted to ruin everything for everybody."  Kessler warned that Fox will still be a dangerous man when he someday walks free. “The problem is this defendant, he’s going to go into jail and probably emerge more radicalized than when he went in and will remain a danger to the public, your honor," the prosecutor said.

The plot was hatched in response to Whitmer's actions during the start of the pandemic in 2020 when she ordered various lockdowns aimed at curbing the spread of Covid. Far-right groups blasted Whitmer, and then-President Donald Trump appeared to back that opposition in an all-caps tweet.

Defense attorney Christopher Gibbons argued on Tuesday that a life sentence would have been too much.  "That overstates the reality of the conduct that has been alleged and that was actually accomplished by Adam Fox in summer of 2020," Gibbons said.

Based on various press reports, I surmise a terrorism enhancement under the federal sentencing guidelines led to a guildeine-recommended sentencing of life, which is turn served as a key basis for federal prosecutors to advocate for an LWOP term. But it seems Judge Jonker concluded that a 16-year prison term would be "sufficient but not greater than necessary" to serve the purposes set forth by Congress in 18 USC 3553(a)(2).

UPDATE:  On Wednesday (Dec. 28), another kidnapping plot leader was sentenced by the same judge as detailed in this Fox News account:

The other co-leader convicted of conspiracy charges in the foiled plot to kidnap Michigan Gov. Gretchen Whitmer in 2020 was sentenced Wednesday to nearly 20 years in prison.

Barry Croft Jr., who prosecutors recommended a life sentence, learned of his punishment a day after key ally Adam Fox was sentenced to 16 years. Croft was sentenced to 19 years and seven months.

Fox, 39, and Croft, 47, were convicted on two counts of conspiracy at a trial in August. Croft also was found guilty of possessing an unregistered explosive.  The conspirators were furious over tough COVID-19 restrictions that Whitmer and officials in other states had put in place during the early months of the pandemic, as well as perceived threats to gun ownership.

Croft, a Delaware trucker, regularly wore a tri-cornered hat common during the American Revolution and had tattoos on his arms symbolizing resistance -- "Expect Us" -- as he traveled to Ohio, Wisconsin and Michigan to meet with like-minded extremists, according to the Associated Press. "Although he may not have had hierarchical control over all the other participants, he coordinated and pushed the implementation of the conspiracy from its inception to its final stages," Assistant U.S. Attorney Nils Kessler said in a court filing....

"The abduction of the governor was only meant to be the beginning of Croft’s reign of terror," Kessler said. "He called for riots, ‘torching’ government officials in their sleep and setting off a ‘domino’ effect of violence across the country."

A key piece of evidence showed Croft, Fox and others traveled to see Whitmer's vacation home in northern Michigan, with undercover agents and informants inside the cabal. At one point, Croft told allies, "I don’t like seeing anybody get killed either. But you don’t make an omelet without breaking a few eggs, you know what I mean?"

Croft's attorney tried to soften his client's role. In a court filing, Joshua Blanchard said the Bear, Delaware, man did not actually have authority over others and often frustrated them because he "just kept talking." Croft was smoking 2 ounces of marijuana per week, Blanchard said. "Simply put, to the extent that the jury determined he was a participant, as they necessarily did, he was a participant to a lesser degree than others," Blanchard insisted.

Two men who pleaded guilty and testified against Fox and Croft received substantial breaks; Ty Garbin is already free after a 2 1/2-year prison term, while Kaleb Franks was given a four-year sentence.

In state court, three men recently were given lengthy sentences for assisting Fox earlier in the summer of 2020. Five more are awaiting trial in Antrim County, where Whitmer’s vacation home is located.

December 27, 2022 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)