Saturday, May 18, 2024

"The Sense of an Ending"

The title of this post is the title of this new essay authored by Susan Bandes available via SSRN. Here is its abstract:

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development.  These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending.  As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.”  One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying.  This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged.

This Essay will first examine the notion of a satisfying ending as it applies to Succession.  It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not — and could not be — emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew.  The Essay will then pose the question: What lessons can the notion of narrative closure — the need for a satisfying ending — convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish.  Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts.  I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

May 18, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, May 17, 2024

World's greatest (golf) driver gets (over?) charged for reckless driving on way to PGA Championship

I have been looking forward to spending my weekend mostly ignoring work while watching the PGA Championship to see if World No. 1 golfer Scottie Scheffler could secure the second leg of the Grand Slam after his impressive Masters victory last month.  But an unfortunate incident, as detailed in this Fox News story, now has me thinking about work in conjunction with Scheffler as I trying to figure out Kentucky criminal procedure and sentencing law.  Here are some particulars in a story that I still find stunning:

Scottie Scheffler ended Thursday within striking distance of the lead in hopes of winning the first PGA Championship of his career, but Friday got off to a rough start. Scheffler was arrested and charged after he allegedly failed to follow police orders as he was about to enter Valhalla Golf Course in Louisville, Kentucky, for the second round of the tournament. He released a statement before he teed off in the second round.

"This morning, I was proceeding as directed by police officers. It was a very chaotic situation, understandably so considering the tragic accident that had occurred earlier, and there was a big misunderstanding of what I thought I was being asked to do," he said. "I never intended to disregard any of the instructions. I’m hopeful to put this to the side and focus on golf today...."

ESPN reported that Scheffler drove past a police officer in his SUV with markings on the door indicating it was a PGA Championship vehicle. The officer screamed at him to stop and then attached himself to the car until Scheffler stopped his vehicle about 10 yards later. ESPN reporter Jeff Darlington characterized it as a "misunderstanding with traffic flow" as authorities were investigating a traffic fatality earlier in the morning.

"Scheffler was then walked over to the police car, placed in the back, in handcuffs, very stunned about what was happening, looked toward me as he was in those handcuffs and said, ‘Please help me,’" Darlington said on ESPN’s "SportsCenter." "He very clearly did not know what was happening in the situation. It moved very quickly, very rapidly, very aggressively."

Scheffler was booked into the Louisville Department of Corrections later Friday.  He was charged with second-degree assault of a police officer (a felony), criminal mischief, reckless driving and disregarding signals from an officer directing traffic. 

A police report said a detective was knocked down after Scheffler refused "to comply and accelerated forward." The detective was allegedly dragged to the ground and he suffered injuries to his wrist and knee." 

Scheffler’s attorney, Steve Romines, released a statement on the incident. "In the early hours of the morning in advance of his tee time Scottie was going to the course to begin his pre round preparation," he said, via Sports Illustrated. "Due to the combination of event traffic and a traffic fatality in the area it was a very chaotic situation He was proceeding as directed by another traffic officer and driving a marked player’s vehicle with credentials visible. In the confusion, Scottie is alleged to have disregarded a different officer’s traffic signals resulting in these charges. Multiple eyewitnesses have confirmed that he did not do anything wrong but was simply proceeding as directed. He stopped immediately upon being directed to and never at any point assaulted any officer with his vehicle. We will litigate this matter as needed and he will be completely exonerated."

Scheffler was coming off of four victories in the last five tournaments, including a second Masters title.  He was home in Dallas the last three weeks waiting for the birth of his first child, which occurred on May 8.  

I have already seen various conflicting reports about how Scheffler was driving, but even the worst version of the story leaves me puzzled by a felony second-degree assault charge which in Kentucky carries a prison term of five to ten years and requires intentionally or wantonly causing injury.  The other lesser charges seem potentially a bit more fitting, though this still sounds a lot more like an unfortunate misunderstanding than a criminal episode calling for multiple charges including a very serious felony count.  Given that a police officer was injured in this unfortunate incident, I can understand why it is being treated seriously.  But I would like to think a lot of matters can be treated seriously without the filing of multiple and serious criminal charges.

Even without knowing anything about criminal Kentucky criminal procedure and sentencing law, I am fairly confident that Scheffler and his lawyer(s) will get this matter straightened out relatively quickly.  (And, notably, as I write this post, Schefller is under par through his first five holes, so he seems to be coping well.)  But one always wonders about an array of collateral consequences from criminal justice involvement.  For example, this new article in its headline highlighted that Scheffler may have to worry about a unique kind of collateral consequence: "Paris Olympics: Will Scottie Scheffler be Denied Entry After Arrest Scandal?"

May 17, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Sports, Who Sentences | Permalink | Comments (54)

Thursday, May 16, 2024

"Trial Ambivalence"

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

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad.  Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair.  As such, a thread of reform has emerged calling for more trials and fewer pleas.  As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them.  This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance.

This ambivalence is not new.  Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial.  Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders — lawyers, judges and reformers — trust the American jury process to produce just results.  As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining.

May 16, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Texas Gov fulfils pledge to pardon man convicted of murdering BLM marcher and sentenced to 25 years

The Govenor of Texas issued a notable (and previously promised) clemency, as detailed in this local article.  Here are excerpts:

Daniel Perry, a former Army sergeant convicted of killing a Black Lives Matter protester in downtown Austin in 2020, was freed from prison Thursday within an hour of Gov. Greg Abbott signing a pardon proclamation in a case that triggered a political and legal firestorm.

In a series of rapid-fire developments in a less than two-hour span, the Texas Board of Pardons and Paroles recommended that Perry be pardoned on the murder conviction.  Abbott then granted the full pardon to Perry, leading to his release from the Mac Stringfellow Unit in Rosharon, about 20 miles south of downtown Houston. Perry, 36 at the time of his April 2023 conviction, may also be able to apply to have his record expunged, according to the Texas Department of Criminal Justice.

The board announced its recommendation to pardon Perry and restore his firearm rights in a statement posted on its website Thursday.  Its decision came after a "meticulous review of pertinent documents, from police reports to court records, witness statements, and interviews with individuals linked to the case," the statement said.

In July 2020, Perry shot and killed Garrett Foster after Perry drove into a racial justice protest on Congress Avenue. Perry claimed that he shot Foster, who was carrying an AK-47 rifle, in self-defense. During Perry’s trial last year, prosecutors argued that Perry had sought out confrontation.

"Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott said in a statement Thursday.  "I thank the Board for its thorough investigation, and I approve their pardon recommendation.” In a proclamation Thursday, Abbott took aim at Travis County District Attorney José Garza, writing that Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry."

Less than 24 hours after a jury in April 2023 found Perry guilty of murder, Abbott said on social media that he would approve a pardon if one were recommended by the Texas Board of Pardons and Paroles. The announcement came after prominent conservative figures called on him to undo Perry's conviction. Shortly after Abbott’s announcement, a state district judge unsealed court records that contained Perry’s previously unreleased messages and social media posts, which contained racist rhetoric.

"Daniel Perry was imprisoned for 372 days and lost the military career that he loved," Doug O'Connell, an attorney who represents Perry, said in a statement. "The action by Governor Abbott and the Pardon Board corrects the courtroom travesty which occurred over a year ago and represents justice in this case. "I spoke to Daniel Perry this afternoon. He is thrilled and elated to be free. Daniel is also optimistic for his future."

Garza condemned the actions of the parole board and Abbott, writing in a statement that they have "put their politics over justice and made a mockery of our legal system."

Gov Abbott's proclamation is available at this link and his statement is at this link; the pardon board's statement is available at this link.

Prior related posts:

May 16, 2024 in Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Notable (below-guideline) sentence for key anti-abortion activist after trial conviction

As reported in this Washington Post article, a "30-year-old antiabortion activist who kept fetuses in a Capitol Hill home was sentenced Tuesday to nearly five years in prison for illegally blockading and breaking into a reproductive health clinic in D.C." Here is more about a number of sentencings in this case:

Lauren Handy, of Alexandria, Va., received a 57-month term and became the first person to be sentenced for the combination of conspiring to violate reproductive health rights under a federal civil rights law and violating the Freedom of Access to Clinic Entrances Act, a 1994 law that prohibits threats to and obstruction of a person seeking reproductive health services or providers....

Handy, convicted by a jury last year, was charged along with nine others after the group launched an antiabortion blockade at the Washington Surgi-Clinic in 2020.  Handy’s was the first of four clinic-access cases pending trial or sentencing around the country in which the Justice Department under the Biden administration has charged defendants with obstructing clinic access in combination with a conspiracy against rights — a civil rights law passed after the Civil War that makes it punishable by up to 10 years in prison to “conspire to injure, oppress, threaten, or intimidate any person” exercising a constitutional or legal right. Violations of the 1994 clinic access law alone are punishable by up to a one-year prison term.

Handy gained additional notoriety when, on the same day a federal indictment was announced against the defendants, D.C. police discovered five fetuses in a Capitol Hill rowhouse basement where she had been staying. The criminal trial, however, had nothing to do with the fetuses that antiabortion activists say they collected from outside the same D.C. abortion clinic, and authorities have not charged anyone in that matter.

Handy and co-conspirators live-streamed a preplanned “lock-and-block” blockade that used force and physical obstructions to shut down the D.C. clinic on Oct. 22, 2020, Kollar-Kotelly said in summarizing trial evidence. Prosecutors said Handy was the leader of the group that orchestrated the blockade and recruited participants, arranged lodging and used a fake name to book an appointment. A nurse was injured and patients were traumatized in the incursion, including two women who begged to enter for treatment and one who suffered a medical emergency, the judge said.

“It was not peaceful, and it was not contemplated to be peaceful,” Assistant U.S. Attorney Sanjay Patel argued in a 90-minute sentencing hearing. The government sought a sentence at the high end of a 63- to 78-month range recommended by federal guidelines — up to 6½ years — based on Handy’s leadership role, obstructive conduct, the violence and victims in the case.

Prosecutors called her “an active antiabortion extremist” who has organized clinic blockades around the country, resulting in four convictions for which she was sentenced up to 45 days in jail, with all terms suspended or pending appeal. Patel also cited the need for deterrence, saying that without a stiffer punishment “the purpose of sentencing may be lost on this defendant.”

Also sentenced Tuesday with Handy were John Hinshaw, 69, of Levittown, N.Y., who received 21 months of incarceration; and William Goodman, 54, of the Bronx, who was sentenced to 27 months....

Defense attorney Martin A. Cannon cited more than nine letters of support for Handy and likened her actions to those of civil rights leaders such as Martin Luther King Jr. and Rosa Parks, saying she “did not act out of self-interest, but … at her own peril,” in good faith and out of conscience.  Cannon said Handy was a peaceful, kindhearted person with a history of philanthropic work in Haiti and on behalf of homeless people who was “trying to save babies from being killed.”  He continued, “Lauren did nothing on her own that was violent or forceful.  She did not, I submit, anticipate any of the force that resulted.”

Kollar-Kotelly said that to the contrary, the evidence showed that Handy and her co-plotters planned to push their way into the clinic, and fretted beforehand over possible use of violence.  She said the case was “not a referendum on abortion, but violation of civil rights” of patients and medical practitioners.

The judge concluded that while Handy and her co-conspirators were entitled to have “very strong views about abortion,” she found it disheartening that they “showed no compassion or empathy to women patients who were human beings in pain and seeking medical care.”

Handy and seven co-defendants, including Idoni and Geraghty, were found guilty on all counts in two federal jury trials in August and September.  Another was convicted at a bench trial before a judge in November, and one pleaded guilty. The man who pleaded guilty, Jay Smith, 32, of Freeport, N.Y., received 10 months last year after pushing a nurse who fell and suffered an ankle injury in the blockade.  The remaining six will be sentenced later this month.

Kollar-Kotelly noted that other civil rights conspiracy cases involving the Freedom of Access to Clinic Entrances Act are pending in Tennessee, Michigan and Florida. Because no one else has been sentenced under the laws in combination, she said she relied on federal sentencing guidelines for the alleged and convicted conduct.

I have not followed these cases closely, so I may not have the facts right, but this certainly seems to be another situation involving a trial penalty.  Handy, who seemngly did not directly commit any violence, gets almost 5 years in prison after exercising her tiral rights; Smith, who injured a nurse, is sentenced to only 10 months after pleading guilty.  Handy does seem to have some aggravating history and a leadership role, so the differential here may be the result of various other factors.  But still, based on the facts reported here, I am not sure other facts really full account for Handy getting a sentence nearly six times longer.

May 16, 2024 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Wednesday, May 15, 2024

"Victims as Fact-Finders"

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

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases.  Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms.  Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society.  Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors.  Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations.  Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

May 15, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Sentencing Project releases new report on "The Second Look Movement"

The Sentencing Project today released this new report fully titled "The Second Look Movement: A Review of the Nation’s Sentence Review Laws."  Here is the start of its executive summary:

Today, there are nearly two million people in American prisons and jails -- a 500% increase over the last 50 years. In 2020, over 200,000 people in U.S. prisons were serving life sentences -- more people than were in prison with any sentence in 1970.  Nearly one-third of people serving life sentences are 55 or older, amounting to over 60,000 people. People of color, particularly Black Americans, are represented at a higher rate among those serving lengthy and extreme sentences than among the total prison population.

Harsh sentencing policies, such as lengthy mandatory minimum sentences, have produced an aging prison population in the United States.  But research has established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Most criminal careers are under 10 years, and as people age, they usually desist from crime.  Existing parole systems are ineffective at curtailing excessive sentences in most states, due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.  Consequently, legislators and the courts are looking to judicial review as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society.  A judicial review mechanism also provides the opportunity to evaluate whether sentences imposed decades ago remain just under current sentencing policies and public sentiment.

Legislation authorizing judges to review sentences after a person has served a lengthy period of time has been referred to as a second-look law and more colloquially as “sentence review.”

This report presents the evolution of the second look movement, which started with ensuring compliance with the U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) on the constitutionality of juvenile life without parole (“JLWOP”) sentences. This reform has more recently expanded to other types of sentences and populations, such as other excessive sentences imposed on youth, and emerging adults sentenced to life without parole (“LWOP”).  Currently, legislatures in 12 states, the District of Columbia, and the federal government have enacted a second look judicial review beyond opportunities provided to those with JLWOP sentences, and courts in at least 15 states determined that other lengthy sentences such as LWOP or term-of-years sentences were unconstitutional under Graham or Miller.

May 15, 2024 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

"Crimes of Violence and Violent Crime"

The title of this post is the title of this new paper authored by Erin Blondel available via SSRN.  Here is its abstract:

Why can’t federal law define crimes of violence? Major federal statutes turn on whether someone was convicted of a violent crime.  But judges and scholars widely agree that the law defining violence is “chaos.”  This Article treats the problem as one of statutory design and construction.  What’s a violent crime is a context-specific judgment call — the kind the law usually adjudicates factually, through criminal prosecutions.  In other words, it’s a standard.  But the Supreme Court has increasingly treated violence as a rule, stripping factual information and interpretive flexibility that might help federal judges judge crimes.

Predicate statutes like the violence definitions are hardly unusual, however, and most have operated smoothly, without mass confusion.  They differ from federal violence law by using simpler, rule-friendly criteria.  They typically list qualifying crimes, and courts interpret criteria more flexibly, leaving some room for facts and interpretation.  That experience shows that federal law is fixable.  Congress should return to listing violent crimes, as it did before the 1980s.  And the Supreme Court should scrap its rigid interpretive rules and give federal judges more flexibility to judge violence sensibly.

The federal experience defining violence offers a case study in the classic rules-versus-standards debate and the problem with treating standards as rules.  And it contradicts a favored proposal among leading criminal law scholars and some jurists to make crime definitions more precise — more rule-like — to constrain prosecutorial discretion. Crimes are standards, and discretion is necessary to interpret them across thousands of unpredictable fact patterns. Prosecutorial discretion, in other words, is not just enforcement discretion but interpretive discretion.  Criminal procedure constrains that discretion by distributing it across many interpreters — law enforcement, prosecutors, defense attorneys, defendants, judges, and juries — within a broader network of laws, procedures, policies, and norms.  Longstanding debates in rules versus standards largely ignores this sort of “distributed distraction,” but it helps make discretionary judgments like violence — and crime — make sense.

May 15, 2024 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (10)

Tuesday, May 14, 2024

Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition

I noted last month in this post that the Tennessee legislature has passed a bill authorizing the death penalty for those convicted of rape of a child.  This new AP piece reports that this bill is now law:

Tennessee Gov. Bill Lee has approved legislation allowing the death penalty in child rape convictions, a change the Republican-controlled Statehouse championed amid concerns that the U.S. Supreme Court has banned capital punishment in such cases. Lee, a Republican, quietly signed off on the legislation last week without issuing a statement.

The new Tennessee law, which goes into effect July 1, authorizes the state to pursue capital punishment when an adult is convicted of aggravated rape of a child.  Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago....  Meanwhile, Idaho’s GOP-controlled House approved similar legislation earlier this year, but the proposal eventually stalled in the similarly Republican-dominated Senate.

While many supporters of Tennessee’s version have conceded that even though the Volunteer State previously allowed convicted child rapists to face the death penalty, the U.S. Supreme Court ultimately nullified that law with its 2008 decision deeming it unconstitutional to use capital punishment in child sexual battery cases.

However, they hope the conservative-controlled Supreme Court will reverse that ruling — pointing to the decades long effort that it took to overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.  “Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling last month while debating in favor of the law. “We’re simply challenging a ruling.”

Lee told reporters Tuesday that he didn’t sign the bill hoping it would be “tested” in court.  Instead, he said crimes against children are “some of the most heinous that there are.”...

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process.

Prior related posts:

May 14, 2024 in Death Penalty Reforms, Sex Offender Sentencing, Who Sentences | Permalink | Comments (19)

New Death Penalty Information Center report presents racialized view of Ohio's capital punishment history

The Death Penalty Information Center (DPIC) today published this new report on Ohio capital punishment history titled "Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty." In this press release about the report, DPIC asserts that it "does not take a position on the death penalty itself," but all of its work clearly draws from an anti-capital punishment perspective.  This report is quite critical of Ohio's capital punishment history and current state as reflected in this description of the report from portions of the press release:

As Ohio legislators debate expanding or repealing the death penalty, the Death Penalty Information Center (DPIC) today released a report that documents how racial bias and violence affected the past use of the death penalty in Ohio and how that history continues to influence the current administration of capital punishment in the state.  None of the reforms recommended by a bipartisan task force 10 years ago to reduce racial disparities in capital cases have been adopted.

The report, “Broken Promises: How A History of Racial Violence and Bias Shaped Ohio’s Death Penalty” and “Five Facts You Should Know About Ohio’s Death Penalty” are available at this link....

As the report documents, racial discrimination is the throughline that runs from the state’s founding to its application of capital punishment today.  For example, from the early 19th century, Ohio’s Black Laws imposed legal restrictions on the rights and status of Black people in the state, including barring Black people from jury service.  In 1807, Ohio adopted a “Negro Evidence Law” which prohibited Black people from testifying against white people, establishing a legal double standard.  In the 19th and early 20th centuries, lynch mobs tortured and killed Black men after accusing them of raping white women without evidence.  Even when photos were taken in broad daylight of lynch mob participants, they rarely faced legal consequences for these extrajudicial murders.

As the report reveals, race, especially the race of the victim, continues to play an outsized role in Ohio’s death penalty system.  For example, homicides involving white female victims are six times more likely to result in execution compared to those involving Black male victims, despite the majority of murder victims in the state being Black. Similarly, a study of aggravated murder charges in Hamilton County shows that prosecutors are four and a half times more likely to seek the death penalty if there is at least one white victim, compared to similar cases without white victims....

“Broken Promises” builds upon DPIC’s 2020 report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty.” It is the fourth in a series of reports detailing how individual state histories of racial injustice affect the current use of capital punishment. In 2023, DPIC released “Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty” and “Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today.” In 2022, DPIC released “Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

May 14, 2024 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (26)

A (timely?) round up of some commentary on Culley v Marshall

Last Thursday, as noted in this post, the US Supreme Court in Culley v. Marshall rejected certain challenges to Alabama's civil forfeiture proceedings, holding that the "Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing."  Though a notable concurrence by Justice Gorsuch (joined by Justice Thomas) and a notable dissent by Justice Sotomayor (joined by Justices Kagan and Jackson) raised a bunch of notable policy concerns with civil forfeiture practices, I find the Court's opinon generally sound.  And I figured I would roung up a few commentaries on the Court's work with a range of views:

From Adam's Legal Newsletter, "In praise of robotic judging: The Supreme Court mindlessly and correctly decides Culley v. Marshall"

From Crime and Consequences, "Forfeitures: Govt. Win in SCOTUS with a Warning"

From The Federalist Society, "An Observation About Culley v. Marshall"

From Law Dork, "Civil asset forfeiture is on notice — but came out unscathed at SCOTUS for now"

From the Volokh Conspiracy, "Supreme Court Issues Flawed Ruling in Asset Forfeiture Case"

As some of these commentaries note, the separate opinions in Culley seem to signal there are at least five Justices prepared to take up other cases, in the words of Justice Gorsuch, to explore whether "contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process."  But I was struck that the fact of the cases from Alabama before SCOTUS this time included what seemed to be significant procedural failings from the petitioners; as the Court's opinion stressed, "Culley and Sutton do not challenge the timeliness of their forfeiture hearings."   When persons do not make good use of the state processes provided, it is always going to be hard to thereafter prevail on claims that these processes were not "due."

May 14, 2024 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, May 13, 2024

Calling once more for papers: Federal Sentencing Reporter issue on "Booker at 20"

M_fsr.2024.36.4.coverIn this prior post, I set out the full call for papers for a forthcoming issue of the Federal Sentencing Reporter in which we plans to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created by the Supreme Court's ruling in Booker.  I previously threatened to repost this call every few weeks until the deadline tard the near end of May, so a mid-May re-post on a Monday seems like good timing.  I will forego all the background about Booker in this reminder call and be content with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

May 13, 2024 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits | Permalink | Comments (0)

Might Justice Alito be a frequent vote for certain criminal defendants on the Supreme Court this term?

GNYo66-WgAA9ul7The question in the title of this post is prompted by this notable new NBC News article headlined "Trump, gun owners and Jan. 6 rioters: Tough-on-crime Justice Alito displays empathy for some criminal defendants."   In a post here last year about articles discussing Justice Alito's jurisprudence, I flagged this 2017 empirical article noting Justice Alito had not once voted in favor a Fourth Amendment litigant in a divided case and explained I could not think of any criminal justice arena in which Justice Alito could be expected to vote for a criminal defendant.  But, as the NBC News article highlights, it seems that the current SCOTUS Term has brought criminal defendants to the Court that seem to be more to Justice Alito's liking.  Here are excerpts from a piece that should be read in full:

Conservative Justice Samuel Alito, a former U.S. attorney with a long history of voting in favor of prosecutors, has shown signs of empathy for defendants in recent cases involving gun owners, Jan 6. rioters and former President Donald Trump.

Alito, appointed in 2006 by Republican President George W. Bush, has a reputation for being the justice on the court most hostile to criminal defendants. Earlier in his career, he was a U.S. attorney in New Jersey and held several other positions in the Justice Department.

He sides with defendants less frequently than any of his eight colleagues, according to numbers crunched by Lee Epstein, a political scientist at the University of Southern California Gould School of Law.

But in several recent oral arguments in some of the most contentious cases currently before the court, Alito has notably raised questions about the Justice Department’s decisions to prosecute certain cases, expressed sympathy for Trump’s argument that former presidents should be immune from prosecution, and aired concerns about gun owners being charged. Rulings in all the cases are due by the end of June....

Alito was among several justices who questioned the Justice Department’s use of an obstruction statute to prosecute people involved in the Jan. 6, 2021, attack on the Capitol. He suggested that if the court allows it to apply to Jan. 6 defendants, prosecutors could also seek to use it against people involved in peaceful demonstrations, such as those that take place in the courtroom from time to time.

In another case on a federal ban on gun accessories called “bump stocks” that allow a semiautomatic rifle to file more quickly, Alito said it would be “disturbing” for people to be prosecuted for owning them when lower courts have questioned the ban’s lawfulness, even if the Supreme Court ultimately upholds it.

Alito also appeared concerned in a separate gun case about the due process rights of gun owners who face having to give up their firearms, and risk prosecution if they don’t, when accused of domestic violence.... At one point, he even cited a friend-of-the-court brief filed by lawyers in California who represent criminal defendants.

The fascinating (and unurprising) graph of voting patterns in criminal cases reprinted here comes the NBC News piece and is based on Epstein's data. Though quite interesting and justifying a focus Justice Alito's apparent affinity for certain criminal defendants this term, I also expect we will see a number of the Justices who are generally much more likley to vote for criminal defendants to be much more pro-prosecution in particular cases this term.  Put simply, certain types of cases and defendants change the political valence of certain criminal justice issues, and we really should not be all that surprised when they also change the views and votes of at least some judges and Justices.

May 13, 2024 in Offender Characteristics, Who Sentences | Permalink | Comments (47)

Notable dissent from denial of cert in Texas capital case concerning jury selection process

The Supreme Court this morning issued yet another order list which did not grant review in any cases.  But the list is conclude with a notable six-page dissent from the denial of cert authored by Justice Jackson and joined by Justice Sotomayor in a capital case, Sandoval v. Texas.  Here is how the dissent gets started:

Criminal defendants have a “fundamental righ[t]” “to personal presence at all critical stages of the trial.”  Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam).  We have long held that voir dire — the moment that “represents jurors’ first introduction” to the facts of a case — is one such stage.  Gomez v. United States, 490 U.S. 858, 873–874 (1989).  In this capital case, however, the Texas Court of Criminal Appeals (TCCA) determined that a defendant had no due process right to attend “special venire” proceedings held prior to voir dire, during which a judge preevaluated potential jurors who were summonsed specifically for that case and given information about the defendant and the allegations against him.  The TCCA’s ruling raises a significant and certworthy question about whether criminal defendants have a due process right to be present in such circumstances.  In my view, the answer is yes, and this Court should have granted the petition for certiorari to furnish that important holding.

May 13, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Sunday, May 12, 2024

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

May 12, 2024 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, May 10, 2024

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.  Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The location and timing of this ruling is almost as interesting as its substance.  Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors).  And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

May 10, 2024 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, May 9, 2024

Should prosecutors be seeking waivers of all Fourth Amendment rights "for as long as 20 years" in plea deals?

The question in the title of this post is prompted by this notable new Bolts article wih this full headline: "'An Impossible Choice': Virginians Asked to Waive Constitutional Rights to Get a Plea Deal; Governor Glenn Youngkin vetoed a bill that would have barred prosecutors from making defendants waive protections against unreasonable police searches as a condition of pleas." Here are excerpts, with a little emphasis added in spots:

For Virginians facing criminal convictions with plea deals on the table, the unalienable constitutional rights they typically enjoy suddenly become negotiable. Under state law, prosecutors can ask people to sign away their Fourth Amendment protections against unreasonable search and seizure in exchange for reduced charges or sentencing. Black Virginians are much more likely than their white counterparts to get plea deals that waive these rights, which can open people up to random and invasive police searches long after they’ve resolved their cases.

In the capital city of Richmond, 96 percent of people who agreed to waive their Fourth Amendment rights in 2020 were people of color, data obtained by Bolts show. The city’s population was 45 percent Black and eight percent Hispanic. That same year in Lynchburg, Virginia, the second largest city, Black people accounted for 78 percent of all plea waivers signed, while they only made up 28 percent of the population.

The practice, known as a Fourth Amendment waiver, permits police to search a person, their home, or vehicle for a specified number of years after a conviction, even if they’ve completed their sentence of incarceration or parole, and regardless of proof they committed a crime.  People living under the waiver cannot challenge the legality of anything police find during a search.  Lengths of the waivers can stretch long beyond probationary periods — prosecutors have ordered some people to waive their Fourth Amendment rights for as long as 20 years, according to data obtained by Virginia advocacy group Justice Forward through public records requests and shared with Bolts.

Prosecutors say the waivers improve public safety. Colette McEachin, the commonwealth attorney for the city of Richmond since 2019, told Bolts the waivers are “very effective” in resolving cases and put people “on notice” once they’re released from incarceration. She also said the waivers prevent people from reacting violently to otherwise unlawful police searches. “They are aware that they’ve given up that right, because they had to sign an agreement that says that. Hopefully there will not be a dangerous situation where they are upset that law enforcement is searching them.”...

Across the country, roughly 95 percent of cases in state courts are resolved through plea bargains.  Prosecutors in some Virginia counties make the waiver a mandatory condition of a plea bargain, and people who choose not to accept them face the threat of a longer sentence after a trial.... Prosecutors can ask people to waive protections such as the right to a jury trial, the right to see evidence against them, or the right to erase their record later as a condition of a plea deal. Fourth Amendment waivers also happen across the U.S., in states including California, Georgia, and Idaho.

Virginia was slated to abolish the practice earlier this year, when legislators passed a bill along party lines that would have prohibited plea deals and court orders that “waive, release, or extinguish” defendants’ Fourth Amendment rights.  State Senator Saddam Azlan Salim, a Democrat who has backed criminal justice reform legislation in the past, was the sponsor. Supporters of the legislation cited concerns about prosecutors disproportionately leveraging the waivers against people of color.  Governor Glenn Youngkin, however, killed the legislation in March, vetoing it along with 21 other criminal justice-related bills, stating they “undermine public safety.”...

Typically, police must have a reasonable suspicion that someone committed a crime to stop and search them.  But once a person signs away their Fourth Amendment rights, police are allowed to stop them at random. There’s no way to track the full scope of how often police stop people with Fourth Amendment waivers because the searches typically aren’t logged unless police find something.  While Virginians on supervised release already agree to allow probation officers to randomly search their homes and vehicles, the Fourth Amendment waivers take these searches to the extreme; the search privileges outlined under the waivers go beyond what probation officers may search....

Ashley Shapiro, a public defender in Richmond who says her clients are often made to choose between accepting a waiver or a tougher sentence, argues that the waivers have provided a shield for police to illegally stop people. “Usually it’s that they stop people on the street for no reason and then get lucky that they happen to have a Fourth Amendment waiver,” she said.

The waivers are often wide-reaching.  A copy of a Richmond plea agreement including a waiver states a person waiving their rights “shall submit to search and seizure of his person, property, place of residence, vehicle and personal effects, at any time of day or night by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause for a period of 3 years from the date of his release from active incarceration.”...

McEachin, the Richmond commonwealth attorney, said she looks at the facts of each case before deciding whether to ask for a waiver as part of a plea deal. In drug and gun cases, she said, asking a person to give up their Fourth Amendment protections is particularly important. “Those are the individuals who we want to be able to search in the future, if you’ve developed information that they have resumed criminal behavior,” she said.

When asked about the data showing that roughly 96 out of every 100 people with waivers in Richmond are people of color, McEachin insisted her office’s use of them is not racially discriminatory. “I think that probably most of the people who have been charged are African American, or brown or Latino,” she conceded, but continued, “I think that everybody who’s an adult always has difficult choices, and this probably is a difficult choice. But it is a difficult choice that that person has arrived at through their own actions.”

Use of the waivers often comes down to the discretion of individual prosecutors, and it varies across Virginia. Vikram Kapil, the head public defender for the southern counties of Halifax, Mecklenburg, and Lunenburg, said that only prosecutors in Lunenburg County try to include them in plea deals, especially for drug offenses. “We’re pushing back on it,” he said. “We generally say, ‘No, you shouldn’t do this.’ It’s tough telling someone who’s sitting in jail who isn’t able to go see their family and see their loved ones.”...

There was little opposition to the bill to abolish the waivers. The powerful Virginia Association of Commonwealth’s Attorneys was the only organization to come out against the legislation. “Fourth amendment waivers are a tool prosecutors may use for a few reasons, including for the benefit of the defendant and public safety,” Amanda Howie, administrator of the association, wrote in an email to Bolts.

Regularly readers likely know I am not a big fan of prosecutors using plea deals to secure broad waivers of future rights, though I usually focus my ire on federal efforts to demand waivers of rights to future appeals or other means to seek to block individuals' rights to access court reviews of prison sentences.  But broad waivers concerning all future Fourth Amendment rights, especially when they last beyond the terms of any formal sentence, strike me as the first step toward even more extreme efforts by government agents to insulate government power from any real accountability or scrutiny.  I wonder if prosecutors in Virgninia or elsewhere might soon just ask for blanket waivers of all constitutional and statutory rights.  Maybe we could just call them somethng like serfdom waivers, although I believe even serfs had some protected rights.

May 9, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (31)

"The Blackstone Ratio, Modified"

The title of this post is the title of this new paper auhtored by Murat Mungan now available via SSRN. Here is its abstract:

In his discussion of evidentiary policies, Blackstone famously noted that "it is better that ten guilty persons escape than that one innocent suffer" (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstonian ratios (either as marginal rates of substitution or, alternatively, as the ratio between quantities of errors), I show these conventional views are incorrect. I then consider a simple modification of the Blackstone ratio which would make it more consistent with commonly held views about its implications and justifications.

Trigger warning for lawyers: there is a lot of math in this short paper.

May 9, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

May 9, 2024 in Death Penalty Reforms, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Split Supreme Court limits the extent of hearings required in civil forfeiture proceedings

The Supreme Court this moring issued a series of opinion in Culley v. MarshallNo. 22-585, concerning the process that is due in civil forfeiture proceedings.   This Culley ruling limits, by a 6-3 vote along the usual ideological lines, what is constitutionally required.  Justice Kavanaugh authored the opinion for the Court, which is relatively short and starts this way:

When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitutionequires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing.

Justice Gorsuch, joined by Justice Thomas, authored an extended concurrence that starts this way:

I agree with the Court that, at a minimum, the Due Process Clause requires a prompt hearing in civil forfeiture cases. Ante, at 5.  I agree that no legal authority presented to us indicates a prompt hearing must necessarily take the form Ms. Culley and Ms. Sutton suppose. Ante, at 6. I agree, too, that Mathews v. Eldridge, 424 U. S. 319 (1976), does not teach otherwise.  Ante, at 9.  Under its terms, judges balance “the private and governmental interests at stake,” Mathews, 424 U. S., at 340, to determine “what procedures the government must observe” when it seeks to withhold “benefits” “such as welfare or Social Security,” Nelson v. Colorado, 581 U. S. 128, 141 (2017) (ALITO, J., concurring in judgment).  That test does not control — and we do not afford any particular solicitude to “governmental interests” — in cases like this one where the government seeks to deprive an individual of her private property.  But if all that leads me to join today’s decision, I also agree with the dissent that this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.  I write separately to highlight some of them.

And Justice Sotomayor, joined by Justices Kagan and Jackson, authored an extended dissent that starts this way:

A police officer can seize your car if he claims it is connected to a crime committed by someone else. The police department can then keep the car for months or even years until the State ultimately seeks ownership of it through civil forfeiture. In most States, the resulting proceeds from the car’s sale go to the police department’s budget. Petitioners claim that the Due Process Clause requires a prompt, post-seizure opportunity for innocent car owners to argue to a judge why they should retain their cars pending that final forfeiture determination. When an officer has a financial incentive to hold onto a car and an owner pleads innocence, they argue, a retention hearing at least ensures that the officer has probable cause to connect the owner and the car to a crime.

Today, the Court holds that the Due Process Clause never requires that minimal safeguard. In doing so, it sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system. Because I would have decided only which due process test governs whether a retention hearing is required and left it to the lower courts to apply that test to different civil forfeiture schemes, I respectfully dissent.

A faculty meeting and other commitments my prevent me from having all the time I need to consume and comment on these opinions.  But this looks quite interesting and I hope to be able to share some thoughts before too long.

May 9, 2024 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, May 8, 2024

Split Oklahoma Court of Criminal Appeals grants state's request to add an extra month between scheduled executions

As reported in this local article, the "Oklahoma Court of Criminal Appeals has decided future executions will be set 90 days apart 'unless circumstances dictate modification'."  Here is more on an interesting ruling in response to an interesting request:

Oklahoma Attorney General Gentner Drummond had asked for more time to reduce the stress on the volunteer execution teams. He was joined in the request by Steven Harpe, the executive director of the Department of Corrections. "The present pace of executions, every 60 days, is too onerous and not sustainable," Harpe said.

The decision on 90-day intervals was announced Tuesday. It was not unanimous. Two of the five judges called for executions to remain at 60 days apart.  "Individuals in many professions face demanding and arduous duties as part of their job requirements," Judge Gary Lumpkin wrote in opposing more time. "Personnel in our military continuously face life and death situations but they step up each day and do their duty."

All five judges agreed, though, that executions will be set one at a time from now on instead of in phases. The state has a backlog because of a hiatus on lethal injections that lasted almost seven years. A dozen have been carried out since they resumed in 2021 at the Oklahoma State Penitentiary in McAlester. The latest was April 4.

Drummond and Harpe in January asked the court to go to 90-day intervals once the second phase of executions is completed in June.... Drummond last year called for a change to 60-day intervals to reduce the stress on staff and give more time for training. The Court of Criminal Appeals agreed, resetting seven executions.

The court acknowledged Tuesday that scheduling executions in phases has not worked.  Judges told the attorney general to timely notify them each time an inmate is executed, gets a stay or has a stay lifted so the next execution can be set.

Lumpkin on Tuesday pointed out the Department of Corrections carried out 18 executions in 2001, seven in 2002 and 14 in 2003. "It is time to realize the victims and their families must be remembered and the law established by the Oklahoma Legislature followed," he wrote. "As shown in 2001-2003 by the actions of DOC employees, they can step up to meet the challenges placed before them when proper leadership is provided."

UPDATE: A helpful reader helped me find my way to this report on the ruling that includes the full order from the Oklahoma Court of Criminal Appeals in In re The Setting of Execution Dates.

May 8, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Notable pending cert petition asks Justices to resolve split over reach of appeal waivers in a notable setting

I recently noticed that an intriguing and distinctive federal case that I heard about some months ago was flagged here as a "Petition of the Week" over at  SCOTUSblog.  I recommend the full SCOTUSblog post for the case details, but here is the start and close of that post:

The vast majority of criminal cases — 98% of those in federal court, and 95% of those in state court — are resolved through plea bargains.  As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal.  This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all....

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling.  He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

The full cert petition in Khadr is available at this link, and here is how it presents the question that the Justices will consider at a conference later this month:

Plea agreements often include a general waiver of the right to appeal. Circuits are divided over whether the inclusion of such a term bars a defendant from bringing a direct appeal of a conviction, when a subsequent controlling judicial decision has held that the conduct to which the defendant pled guilty was not a crime.  The Second, Third, and Fourth Circuits hold that an appeal may proceed.  In the decision below, a divided panel of the D.C. Circuit joined the Seventh and Ninth Circuits in holding that it may not.

Does a plea agreement that includes a general appellate waiver foreclose a direct appeal when a defendant has pled guilty to conduct that was not criminal?

May 8, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Tuesday, May 7, 2024

Rounding up a number of new prison stories and commentaries

We are only a few days into the work week, but I have already come across a number of notable new pieces about a number of notable prison issues.  I figured a round-up here would allow me to cover a lot of interesting ground:

From The Guardian, "Appetising, delicious food served up to prisoners? It works for the Nordic countries"

From The Hill, "Prison education programs ready to expand, but new Pell Grants slow to arrive"

From KTVU Fox 2, "FCI Dublin transfers complain of poor treatment, retaliation at other prisons"

From the Montgomery Advertiser, "Six incarcerated people sue Alabama leaders, alleging unconstitutional prison labor"

From NBC News, "Elizabeth Holmes sees more months trimmed from prison release date"

From the New York Times, "When Prison and Mental Illness Amount to a Death Sentence"

From Vox, "America’s prison system is turning into a de facto nursing home"

May 7, 2024 in Prisons and prisoners | Permalink | Comments (6)

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

May 7, 2024 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (14)

A little calm before the coming SCOTUS storms?

The Supreme Court has about 8 weeks to issue over 40 opinions in cases argued this Term if it is going to wrap its work before the start of July (as is its yearly custom).  That means we could and should expect about five rulings per week, on average, though I expect we will get fewer than that number through May and perhaps a lot more the last few weeks of June.   The Court has announces that this Thursday (May 9) will be an opinion day, and suspect we may be three or more opinions on that day.  

As the legal world awaits big rulings from SCOTUS in a variety of legal arenas, here I always forcus on the Court's criminal justice work.  In that space, I count nearly a dozen notable criminal cases still pending, some constitutional and some statutory.  Though a number of these could be blockbusters, there are at least three constitutional cases that I am especially eager to see the Court's opinions.  In these three cases, based in part on oral argument, I am already pretty sure which party is likely to prevail, but just how the opinions are written could still prove really interesting:  

US v. RahimiNo. 22-915 [Arg: 11.7.2023]

Erlinger v. USNo. 23-370 [Arg: 3.27.2024]

City of Grants Pass, Oregon v. JohnsonNo. 23-175 [Arg: 4.22.2024]

In all of these cases, dealing with the Second, Sixth and Eighth Amendments, respectively, just how the Court gets to its results could matter a whole lot.  In addition, in all these cases, I am also interested in how particular Justices vote and what certain Justices might have to say along the way.

I strongly doubt we will get any of these rulings before the last few weeks of June (though I could imagine Erlinger coming a bit earlier).  In the meantime, there are more than a few other criminal cases that could prove important and interesting.  Indeed, that Culley v. MarshallNo. 22-585 (argued October 30) and Brown v. USNo. 22-6389 (argued November 27) have not yet been resolved has me wondering if intriguing opinions are in the works.

Any thoughts on these cases or others yu may be watching for, dear readers?  

May 7, 2024 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, May 6, 2024

New Prison Policy Initiative report details “Inmate Welfare Funds" used to cover "prison operations, staff salaries, benefits, and more"

The Prison Policy Initiative this morning released this new report titled "Shadow Budgets: How mass incarceration steals from the poor to give to the prison." This lengthy report subtitle details its findings and themes: "Revenues from communication fees, commissary purchases, disciplinary fines, and more flow into “Inmate Welfare Funds” meant to benefit incarcerated populations. However, our analysis of prison systems across the U.S. reveals that they are used more like slush funds that, in many cases, make society’s most vulnerable people pay for prison operations, staff salaries, benefits, and more." Here is how the report gets started:

Prisons and jails generate billions of dollars each year by charging incarcerated people and their communities steep prices for phone calls, video calls, e-messaging, money transfers, and commissary purchases.  A lot of that money goes back to corrections agencies in the form of kickbacks.  But what happens to it from there?  As it turns out, much of this money flows into special accounts called “Inmate Welfare Funds.”  These welfare funds are supposed to be used for non-essential purchases that collectively benefit the incarcerated population.  In reality, poorly written policies and lax oversight make welfare funds an irresistible target for corruption in jails and prisons: in many cases, corrections officials have wide discretion to use welfare funds as shadow budgets for subsidizing essential facility operations, staff salaries, vehicles, weapons, and more, instead of paying for such things out of their department’s more transparent and accountable general budget.

How do welfare funds get funded?  How is the money used, and who gets to decide?  We analyzed laws and policies governing welfare funds in all 50 state prison systems and the federal Bureau of Prisons to find out.  We identified at least 49 prison systems that have some form of welfare fund, though it’s likely that every system has one.  In most cases, they are funded through communications fees and store purchases, as we mentioned, as well as interest accrued on individual trust accounts.  Some prison systems also fund them with sums of money confiscated from people who escape custody, contraband, or disciplinary fines.

Although welfare funds are generally meant to be used for recreation equipment, entertainment, social and educational opportunities, and other non-essential benefits for the incarcerated population as a whole, prison policies frequently allow them to pay for facility construction and maintenance, hygiene products for indigent people, release-related costs and other goods and services that are supposed to come out of a department’s general budget.  Our analysis reveals that most policies are so vague that prison officials enjoy wide discretion to spend incarcerated peoples’ money as they please — sometimes spending it on luxury perks for staff.

May 6, 2024 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"What is Penal Minimalism?"

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

This article provides an account of penal minimalism.  It argues that penal minimalism presents four core features. First, criminal law and the criminal legal system have a role to play in addressing culpable wrongful harm and other culpable wrongs.  Second, minimalism embraces human rights and liberal criminal law and criminal procedure rights and principles.  Third, minimalism requires that every person that is involved in or affected by the commission of culpable wrongful harm or culpable wrongs is treated as a fellow human being whose interests and well-being must be considered in deciding whether and how the criminal legal system should be used.  Fourth, minimalism embraces the last resort principle (or variations of it), which requires that criminal law and the criminal legal system should only be used as a last resort when no other social responses or public measures would suffice to adequately advance a legitimate goal, such as addressing harmful behavior.

The article also makes clear that these four features do not exhaust minimalist accounts and discussions.  Minimalist accounts can embrace a range of theories of punishment, policing, investigation, prosecution, adjudication, sentencing, and post-sentencing — though many theories about these issues are incompatible with minimalism. Minimalist accounts can also include other principles besides the four core features this article identifies, such as what this article calls the bidirectional accountability principle.  Minimalism can be combined with bureaucratic, communitarian, democratic, liberal, non-extreme versions of penal abolitionist, racial justice, reconstructivist, republican, and other accounts of criminal punishment, criminal law, and the criminal legal system.  Minimalism can also be combined with various theories of the state and of justice.  In this regard, there is not a single penal minimalism.  Rather, there are penal minimalisms.  And each and all of them have insights to contribute to discussions about how to make and strive for a fair penal system and a just society in the United States and beyond.

May 6, 2024 in Purposes of Punishment and Sentencing | Permalink | Comments (2)

Sunday, May 5, 2024

The latest encouraging violent crime data ... and differing takes on US crime realities

This past Friday, the Major Cities Chiefs Association released this accounting of violent crime for the first quarter on 2024 based on surveys of 68 cities in the US.  These data included homicide totals suggesting that, cumulatively, homicides have dropped nearly 20% in these cities at the start of 2024 compared to the same period in 2023 (which also experienced a homicide decline compared to 2022).  In addition, these data indicate (notable but lesser) declines in rape, robbery and aggravated assault. 

These data do not, of course, reflect the crime realities in every region on the US, and crime trends certainly could charge over the course of 2024.  Still, these data provide ever more reason to believe that COVID-era crime spikes in 2020 and 2021 have not become the new normal.  Indeed, the homicide rate to start 2024 based on the preliminary data would seem to be right now lower than the pre-pandemic homicide rate in US for 2019 and almost as low as the least lethal year in modern US history in 2014.  Again, these data are not complete and could change, but the broader violent crime data and trends are surely encouraging.  

Of course, crime data past and present always provide a basis for various crime takes, and here are three I have seen recently that are notable and notably different:

From the Brennan Center, "Violent Crime Is Falling Nationwide — Here’s How We Know"

From the City Journal, "Enduring Lawlessness in Our Cities: Crime continues to plague the American urban core at much higher levels than before the pandemic."

From External Processing, "Violence is Plummeting in the US!: And We Should Thank The Invisible Touch of Local Government"

UPDATE on 5/6: Here one more notable data take on crime that seemed worth adding to the discussion:

From Jeff-alytics, "Is The NIBRS Transition To Blame For Our Current Crime Trends?; Short answer: No. Longer answer: Also no."

May 5, 2024 in National and State Crime Data | Permalink | Comments (0)

Friday, May 3, 2024

Reviewing legal complications for Jan 6 rioters convicted of federal charge SCOTUS might overturn

I have discussed briefly in some prior posts some of the legal intricacies that certain Jan 6 defendants could face if the Supreme Court in Fischer v. US were to reverse a key statutory charge brought by federal prosecutors or many cases.  Helpfully, Law360 has this new lengthy discussion of these issues under the headline "If High Court Upends Jan. 6 Conviction, What Happens Next?".  These issues are potentially so complicated, it is hard to map out or summarize all the particulars.  But this article provides an effective overview and gets started this way:

In the coming weeks, the U.S. Supreme Court will decide whether prosecutors overstepped by using a felony obstruction charge against a rioter who stormed the U.S. Capitol building on Jan. 6, 2021.  In oral arguments in April, a majority of justices seemed poised to side with the defendant, a man named Joseph Fischer, who shouted, "Charge!" as he ran into the Capitol building and then assaulted a police officer.

If Fischer prevails, results will likely be mixed for the more than 350 other defendants charged under the same statute for their role in the riot on Jan. 6, in which a mob of former President Donald Trump's supporters seized the Capitol and interrupted the electoral ballot count that would eventually declare Joe Biden the winner of the 2020 presidential election.  For more than 120 defendants who have already been sentenced under the statute, challenging their convictions would depend on whether they've preserved their right to appeal, whether they've already used their shot at vacating a sentence and what other charges would remain.

It's not unusual for the high court to find prosecutors were overbroad in their interpretation of a criminal statute — in recent years, justices have limited the applicability of honest services fraud, aggravated identity theft and computer fraud statutes.  Nor is it unusual for people who have been convicted under an outdated interpretation of the law to face procedural hurdles in getting resentenced, criminal defense attorneys say. 

Time bars on criminal appeals and limits on post-conviction motions point to the federal courts' "very, very strong preference for finality," according to Erica Zunkel, a former federal public defender and a law professor who teaches in the University of Chicago Law School's Criminal and Juvenile Justice Clinic.  "There are different rules and regulations for how you can challenge convictions, how long you have to appeal, what issues you can raise and not raise," she said. "It wouldn't be novel for the Supreme Court to say the interpretation of this statute is overbroad. Truly, this is what happens day in and day out in the criminal system. And then the question is, what to do when the Supreme Court has changed the law."

May 3, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Thursday, May 2, 2024

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

May 2, 2024 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Will Congress ever actually do something about federal overcriminalization?

Concerns about overcriminalization, especially at the federal level, have long been bipartisan.  Nearly 15 years ago, the Heritage Foundation and the National Association of Criminal Defense Lawyers teamed up on a big report with a focus on mens rea issues.  More than 10 years ago, the U.S. House of Representatives unanimously created the "Overcriminalization Task Force of 2013" to study and conduct hearings on the problem of overcriminalization.   A couple of days before leaving the White House, President Trump issued this Executive Order on "Protecting Americans From Overcriminalization Through Regulatory Reform" (though President Biden rescinded this order a few months later).  Earlier this week, the GOP-led House Judiciary Subcommittee on Crime and Federal Government Surveillance held this hearing titled "Overreach: An Examination of Federal Statutory and Regulatory Crimes," at which all the witnesses assailed federal overcrminalization.  And so, too, did the Ranking Democratic Member of the House Judiciary Committee in this opening statement.

But, as the title of this post suggests, bipartisan complaints about federal overcriminalization seemingly has not resulted in much (any?) significant congressional action in the form of actual statutory legal reforms.  Of course, this is a pattern we see in many arenas: talking in general terms about a legal problem often proves much easier than actually settling on reform particulars for legislative enactment.  Still, just the fact of this past week's "Overreach" hearing leads me to believe there are still a number of lawmakers who might really want to get something done in this space.  And yet, because there is no major consituency or significant voting block that will be always eager to press Congress on these topics, I fear the easy and likely right answer to the question in the title of this post has to be "No."

May 2, 2024 in Offense Characteristics, Who Sentences | Permalink | Comments (2)

Notable review of 30 murders still on death row in Alabama after judges overrode jury life recommendations has this interesting and detailed review of every death row defendant in Alabama who was sent to the row by a judge after a jury did not recommend a death sentence.   The article is headlined, "These 30 Alabama Death Row inmates are waiting to die because judges overruled juries," and here is how it sets up its discussion of these cases:

Despite a 2017 Alabama law banning judges from sentencing defendants to death when juries recommend life in prison, 30 inmates remain sentenced under those circumstances on death row.

A bill that would require courts to resentence people sentenced to death by judicial override was recently killed by a legislative committee, leaving those inmates to face death sentences juries did not want.

Why did the judges in these cases decide to overrule the juries? A look at the inmates’ appeals offers a glimpse into the judges’ thought processes.

In one case, the judge theorized the jury was “probably emotionally and mentally worn out” after the defendant’s family asked them to spare their relative’s life.

In others, judges said jury “outbursts” showed they were incapable of rendering a death sentence recommendation. Others said the heinousness of the crimes was enough to warrant execution.

May 2, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 1, 2024

"The Puzzling Persistence of Capital Punishment"

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

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history.  The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age — a relic that would, in a generation or two, fade away.  What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West.  There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large.  Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment.  Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals.  And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.”  The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling.  The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia.  Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress.  It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment. 

May 1, 2024 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (19)

A much different federal sentence for a different crypto criminal

The trial and sentencing of Sam Bankman-Fried to 25 years in federal prison for his crypto criminality garnered a whole lot of attention earlier this years.  The plea and sentencing of another crypto criminal got a whole lot less attention, perhaps in part because his crimes and sentence were different in kind.  This press article, headlined "Binance founder Changpeng ‘CZ’ Zhao sentenced to 4 months, will enter prison as country’s richest inmate," provides some of the interestingly different details (with links from the original):

Changpeng “CZ” Zhao once sat atop the crypto industry as the founder and CEO of Binance, the world’s leading crypto exchange.  On Tuesday, a judge in Seattle federal court sentenced Zhao to four months in prison as part of a plea deal — but the multibillionaire will still retain most of his wealth.

After two years marked by the stunning collapse of crypto companies including Sam Bankman-Fried’s FTX, the Justice Department brought criminal charges against Binance and its CEO in November, though the exchange remained operational.  Unlike the DOJ’s case against Bankman-Fried, or other alleged crypto criminals such as Terraform Labs’ Do Kwon, Zhao and Binance reached a settlement with prosecutors, along with a slew federal agencies including the Treasury Department and Commodity Futures Trading Commission.

Zhao’s sentencing marks the conclusion of the process, with Judge Richard Jones ruling that the crypto entrepreneur — estimated to be worth around $43 billion, making him the richest inmate to serve time in the U.S. — must pay a $50 million personal fine in addition to his time behind bars.  In court, Zhao expressed contrition for his “mistakes” as CEO, though he noted that Binance implemented a compliance program. “In my mind, I wanted to do everything possible before stepping down as CEO,” he said before Jones.

The judge argued that Zhao’s “better to ask forgiveness than permission” philosophy was troubling, but ultimately decided on a lesser sentence than the 36 months requested by prosecutors. “Everything I see about your history and characteristics are of a mitigating nature and a positive nature,” Jones said, citing Zhao’s dedication to Binance and low likelihood to re-offend.

Zhao founded Binance in 2017, and it became the largest crypto exchange in just six months. Amid its meteoric growth, however, Binance struggled to implement effective “know your customer” and anti–money-laundering regimes — an embarrassing reality laid bare in complaints filed by the CFTC and Securities and Exchange Commission in 2023, including internal messages revealing that executives were aware of widespread compliance violations.  Despite — or perhaps owing to — Binance’s wildcat approach, Zhao became a global icon for the crypto industry, appearing at conferences from Portugal to the United Arab Emirates, which he made his de facto headquarters.  Still, as U.S. authorities circled around the world’s leading crypto companies, reports emerged that the DOJ was building a case against Binance....

In November, Attorney General Merrick Garland announced that the DOJ, along with the CFTC and Treasury Department, had reached a settlement with Binance and Zhao on charges related to money-laundering violations at the exchange.  The company agreed to pay $4.3 billion in fines spread among the agencies, which represented the largest enforcement action in Treasury Department history.  Notably, the settlement did not include fraud charges, and the SEC did not participate in the joint action. The agency continues to litigate its case against Binance in the U.S. District Court for the District of Columbia, where a judge recently held a hearing on Binance’s motion to dismiss the lawsuit.  The lack of more serious charges, along with the relatively light slap on the wrist for Zhao, led watchdog groups such as Better Markets to argue the settlement represented a “miscarriage of justice.”...

While Zhao’s plea deal laid out a potential sentence of 18 months in prison, prosecutors filed a memo last week requesting he serve 36 months, citing the “magnitude of Zhao’s willful violation of U.S. law and its consequences” and arguing that it would “not just send a message to Zhao but also to the world.”  In a concurrent filing, Zhao’s lawyers wrote that he “deeply regrets his offense” and asked for no time in prison, suggesting instead he be sentenced to house arrest. The request included letters from more than 160 friends and business associates, including members of the ruling families in the UAE and former U.S. ambassador to China Max Baucus, a former U.S. senator who serves on Binance’s advisory board.  Ultimately, Jones sided in part with Zhao’s team during Tuesday’s hearing, arguing against the prosecution’s proposed extended sentence given the lack of evidence that Zhao knew of illegal activity.

May 1, 2024 in Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 30, 2024

"A World Without Federal Sentencing Guidelines"

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

Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh.  A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing?  For decades, analysts have resorted to hypothetical cases to explore this issue.  But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1.  This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.

The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity).  Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment).  Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.

This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities.  The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data.  Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.

April 30, 2024 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction

I received from a colleague an interesting new federal court order granting a § 3582 sentence reduction motion based in part on the difficulties associated with extended home confinement. The full ruling in US v. Reynods, No. CR-12-84-GF-BMM-6 (D. Mont. April 30, 2024), is available for download below.  Here is one key passage from the ruling:

The Court finds that extraordinary and compelling reasons exist to warrant a reduction of Reynolds’s sentence.  18 U.S.C. § 3582(c)(1)(A)(i). Reynolds’s age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually.  These factors appear, however, to rise to that level when viewed together.  Reynolds’s advanced age increases her need for consistent, adequate medical care.  Reynolds’s status on home confinement makes it more difficult to schedule medical appointments and impossible to obtain Medicare or supplemental insurance.  Reynolds’s advanced age also makes commuting more difficult.  Reynolds’s status on home confinement prevents, however, Reynolds from obtaining housing closer to her work, UAs, and counselor.  The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Reynolds’s sentence.

Download Reynolds Order Redacted Filed (002)

April 30, 2024 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Pew Research Center updates its accounting of "What the data says about crime in the U.S."

John Gramlich has updated this helpful overview article on US crime realities at the Pew Research Center under the headline "What the data says about crime in the U.S."  I recommend the full piece for all the data particulars, which includes data on perceptions of crime as well as reporting rates and clearance rates.  Here is how the discussion is set up at the start of the article:

A growing share of Americans say reducing crime should be a top priority for the president and Congress to address this year. Around six-in-ten U.S. adults (58%) hold that view today, up from 47% at the beginning of Joe Biden’s presidency in 2021.

With the issue likely to come up in this year’s presidential election, here’s what we know about crime in the United States, based on the latest available data from the federal government and other sources.

April 30, 2024 in National and State Crime Data | Permalink | Comments (10)

Monday, April 29, 2024

"Electronic Prison: A Just Path to Decarceration"

The title of this post is the title of this new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects.  At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives.  Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice — giving offenders the punishment they deserve — and decarceration is commonly seen as inconsistent with that nonnegotiable principle.  Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.

In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison.  New technologies allow for imposing “electronic prison” sentences where authorities can monitor, control, and punish offenders in a cheaper and less damaging way than physical prison while still doing justice.  Further, the monitoring conditions provided in electronic prison allow for the imposition of a wide array of other non-incarcerative sanctions that were previously difficult or impossible to enforce.  Even while it justly punishes, electronic prison can dramatically increase an offender’s opportunities for training, treatment, education, and rehabilitation while avoiding the problems of unsupported families, socialization to criminality, and problematic reentry after physical incarceration.  And, from a public safety standpoint, electronic prison can reduce recidivism by eliminating the criminogenic effect of incarceration and also provides longer-term monitoring of offenders than an equivalently punitive shorter term of physical imprisonment.  Of course, one can imagine a variety of objections to an electronic prison system, ranging from claims it violates an offender’s rights to fears it may widen the net of carceral control. The Article provides a response to each.

Electronic prison is one of those rare policy proposals that should garner support from across the political spectrum due to effectively addressing the complaints against America’s incarceration system lodged by voices on the left, right, and center.  Whether one’s primary concern is decarcerating prisoners and providing offenders with needed treatment, training, counseling, and education, or one’s concern is reducing crime, imposing deserved punishment, or simply reducing government expenditures, implementing an electronic prison system would provide a dramatic improvement over America’s current incarceration policies.

April 29, 2024 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (32)

A long accounting of Justice Thomas' long disaffinity for his key vote in Almendarez-Torres

In this post a couple months ago, I asked "Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?".  That post discussed briefly, on the eve of a SCOTUS argument about the reach of jury trial rights, that Justice Thomas has argued since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  But that concurrence came only a few years after Justice Thomas had been a key vote in Almendarez-Torres to allow prior conviction facts to be treated not as elements for constitutional purposes.

Law360 has this new lengthy commentary covering this ground much more thoroughly under the headline "Thomas' Long Quest To Undo A 'Grave Constitutional Error'."  This long essay merits a full read, and here is how it starts and finishes:

A quarter-century after Justice Clarence Thomas cast a pivotal vote against jury trial rights and rapidly regretted it, his relentless campaign to undo the controversial precedent is suddenly center stage with a serious shot at succeeding, as judges and lawyers increasingly deem the decision dubious and the U.S. Supreme Court chips away at its edges....

It's hard to say just how close Justice Thomas is to convincing four of his colleagues to overrule Almendarez-Torres. Justices Barrett and Gorsuch have appeared open to the idea, and Justice Gorsuch was joined by Justice Sotomayor in the Wooden concurrence, which spotlighted jury trial rights for "every fact essential to an individual's punishment."

During the Erlinger arguments, Justice Ketanji Brown Jackson asked, "If there is a history and tradition of fact-finding by the jury with respect to recidivism ... what is the basis, then, for the Almendarez-Torres carveout?"

However, Justice Samuel Alito appears unlikely to provide a helping hand, given that he has railed against the high court's 2000 decision in Apprendi, which said juries must evaluate facts that augment maximum penalties, except for the fact of a prior conviction. "Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the court's analysis on that point," Justice Alito wrote in a solitary dissent when the high court decided Alleyne v. U.S. in 2013.

That skepticism apparently hasn't waned; at the Erlinger arguments, Justice Alito noted that "Almendarez-Torres is ... an established precedent of the court," and asked, "If we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?"

So while Almendarez-Torres might be teetering, it could ultimately cheat death, as it has done for decades.  There's very little doubt, though, that as long as the precedent endures with Justice Thomas on the high court, he'll continue the campaign he commenced 24 years ago.

It's a campaign that's now familiar to followers of the Supreme Court's criminal law docket, including [Eric] Feigin, who, after finishing his opening statement at the Erlinger arguments, didn't seem very surprised by the first question from the bench.

"Wouldn't it be cleaner, though, to just simply overrule Almendarez-Torres?" Justice Thomas asked. After a brief pause, laughter filled the courtroom as Feigin replied, "I had a suspicion you might ask me that question, Justice Thomas."

April 29, 2024 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 28, 2024


The title of this post is the title of this new essay authored by Youngjae Lee and published online in the Notre Dame Law Review Reflection. Here is its abstract:

“Proportionality” is ubiquitous.  The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history.  But that is not the only place where one encounters the concept of proportionality in law and ethics.  The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality.  Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of civilians.  Finally, constitutional theorists around the world outside the United States have been at work for decades on the principle of proportionality as a constitutional principle.  When so many different ideas come under the same label, confusion or at least ambiguity that could encourage confusion can easily creep in, which can lead to repeated mistakes and perpetuation and validation of erroneous thinking.  Accordingly, this Essay first discusses various ways in which the idea of proportionality is used in law and legal theory and documents and corrects certain misunderstandings and misleading arguments in the academic literature, particularly in the context of the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution.  This Essay then suggests that a better understanding of the term can yield new analytic and normative perspectives with which we might more effectively evaluate our current system of criminal law, policing, and punishment.

April 28, 2024 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

An abridged and overdue weekend round-up of recent stories and commentary

I have not had time to do a round-up post in a number of weeks, and I surely cannot here flag all the sentencing/corrections pieces that have caught my eye over that time.  But, to cover a lot of ground in a short space, here are some links to pieces of possible interest to readers on an array of topics.  As always, I welcome comments on which stories and commentaries may merit more attention:

From the AP, "Starting over: Women emerging from prison face formidable challenges to resuming their lives"

From The Appeal, "Biden’s Cannabis Pardons Made Progress. A Federal Expungement Statute Would Go Further."

From CBS News, "Louisiana man sentenced to 50 years in prison, physical castration for raping teen"

From The DP3 Substack (Death Penalty Policy Project), "DP3 Analysis: More Than 10% of U.S. Exonerations in 2023 Involved Wrongful Use or Threat of the Death Penalty"

From Fox News, "California crime reform gets 'unheard of' support from DAs, small businesses, progressive mayors"

From The Hill, "There’s nothing woke about ruling against sleep deprivation in prison"

From The Marshall Project, "They Killed Their Abusive Partners. Now Their Sentences Could Be Reconsidered."

From the Missouri Independent, "Mandatory minimum sentences are an old idea, but not a good one"

From the New York Times, "Black Prisoners Face Higher Rate of Botched Executions, Study Finds"

From Newsweek, "California Democrats Keep Being the Victims of Crime"

From, "New Orleans serial killer who targeted gay men granted parole after 46 years inside Angola"

From Prisons, Prosecutors, and the Politics of Punishment, "States’ Dismal Reaction to Covid in Prisons, Especially for the Elderly"

From Verdict, "Judges, Heretics, and Capital Punishment"

From The War Horse, "‘Consequences of War’–Veterans Incarcerated at Higher Rates and Face Longer Sentences"

April 28, 2024 in Recommended reading | Permalink | Comments (3)

Friday, April 26, 2024

After arguments in quite a SCOTUS Term, another call for papers for FSR issue on "Booker at 20"

Based on parts of yesterday's SCOTUS oral argument that I was able to hear on the road and then various subsequent press reports, it sure sounds like one particularly high-profile federal defendant is poised to get at least a partial victory from the US Supreme Court on his immunity claims.  More broadly, as the Justices now turn from oral arguments to completing and releasing opinions, I surmise there will likely be any number of big criminal law decisions in addition to Trump v. US that will be historic and consequential for many years as the Court wraps up its OT23. 

At the risk of trying to turn every story into a sentencing story, I cannot help up use recent events to flag again that we are approaching the 20th anniversary of what I would call the most consequential of all SCOTUS rulings for federal defendants.  Booker's landmark change to federal sentencing procedure impacts every one of tens of thousands of federal criminal cases each year even before indictment and certainly following any conviction.  And, as flagged in this post last month, there is call for papers for a forthcoming issue of the Federal Sentencing Reporter to note (and celebrate? criticize?) the federal sentencing system's 20 years of functioning under the rules created in Booker.  I previously threatened to repost this call every few weeks, and is am keeing to the threat by winding down a busy week with these shortened specifics:

Nearly 20 years have passed since Booker, and the editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share thoughts on “Booker at 20” for publication in an early 2025 FSR issue.  FSR commentaries for this issue could tackle foundational issues (such as the Court’s ruling in Booker and follow-up cases), discrete application issues (such as why certain advisory guidelines are more likely to be followed or ignored), institutional concerns (such as how Congress and the Commission and the Justice Department have responded to Booker), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes commentaries from all perspectives, including insights from sentencing experiences (with or without guidelines) in the states and other countries.  Everyone with an informed interest in sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with relatively light use of citations.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).  Priority will be given to drafts submitted by May 28, 2024, and later submissions will be considered as space permits.  Submissions should be sent electronically to [email protected] with a clear indication of the author and the author’s professional affiliation.

April 26, 2024 in Who Sentences | Permalink | Comments (7)

"Do progressive prosecutors increase crime? A quasi-experimental analysis of crime rates in the 100 largest counties, 2000–2020"

The title of this post is the title of this new research paper authored by Nick Petersen, Ojmarrh Mitchell and Shi Yan just published in the journal of Criminology and Public Policy. Here is its abstract:

Research summary

In recent years, there has been a rise in so-called “progressive prosecutors” focused on criminal justice reforms. Although there has been considerable debate about the relationship between progressive prosecution policies and crime rates, there has been surprisingly little empirical research on the topic.  Building on the limited extant research, we examined whether the inauguration of progressive prosecutors in the nation's 100 most populous counties impacted crime rates during a 21-year period (2000 to 2020).  After developing an original database of progressive prosecutors in the 100 largest counties, we used heterogeneous difference-in-differences regressions to examine the influence of progressive prosecutors on crime rates.  Results show that the inauguration of progressive prosecutors led to statistically higher index property (∼7%) and total crime rates (driven by rising property crimes), and these effects were strongest since 2013 — a period with an increasing number of progressive prosecutors.  However, violent crime rates generally were not higher after a progressive prosecutor assumed control.

Policy implications

Despite concerns that the election of progressive prosecutors leads to “surging” levels of violence, these findings suggest that progressive-oriented prosecutorial reforms led to relatively higher rates of property crime but had limited impact on rates of violent crime.  In fact, in absolute terms, crime rates fell in jurisdictions with traditional and progressive prosecutors.  Yet, relative property crime rates were greater after the inauguration of progressive prosecutors.  Given that prior research shows progressive prosecutors reduce mass incarceration and racial inequalities, our findings indicate that higher property crime rates may be the price for these advancements.

April 26, 2024 in National and State Crime Data, Who Sentences | Permalink | Comments (3)

Thursday, April 25, 2024

Kim Kardashian shows her criminal justice reform advocacy is bipartisan

Kim Kardashian used her celebrity status to push President Trump toward criminal justice reform in various way, and today she found her way back to the White House to keep pushing for reforms. This CNN article provides some details:

Kim Kardashian joined Vice President Kamala Harris at the White House on Thursday for a roundtable to discuss pardons issued by President Joe Biden - the latest inroad the reality star has made into national criminal justice policy.

The conversation came a day after the president issued pardons for 11 people and commuted the sentences of five others who had been convicted of non-violent drug offenses.

The forum included several people who were pardoned on Wednesday – Jason Hernandez, Bobby Darrell Lowery, Jesse Mosley and Beverly Holcy – who discussed their experiences with the justice system. All four started businesses or non-profits in their communities after their incarceration....

Harris thanked Kardashian, who visited the White House multiple times during the Trump administration to push for criminal justice reform, for her advocacy and for “using your platform in a way that has really lifted up the importance of talking about and being dedicated to second chances.” “I’m just here to help and to spread the word,” Kardashian said, before telling the pardon recipients she was “so excited to be here to hear your stories.”

Harris also used the event to announce the finalization of a new rule removing most restrictions on loans through the Small Business Administration based on a person’s criminal record.

Mosley, one of the roundtable participants, said he felt “overwhelming gratitude for being one of the few that they did pardon.” “Now I’m sitting at the table with the VP and Kim K.,” he said.

Kardashian said sharing personal stories helps people who have not been in the criminal justice system understand the challenges of reentering society after incarceration. “Every time I’ve gone and visited a prison, I’ve met some of the smartest individuals with the brightest ideas and to see the changes that are happening to make their reentry easier, I think, is going to be life changing and give so many people hope,” Kardashian said.

In 2018, Kardashian sat down with President Donald Trump in the Oval Office, where she was joined by Alice Marie Johnson, whose life sentence was commuted by Trump in 2018 on the heels of the reality TV star’s advocacy. In 2019, she delivered remarks from the White House East Room on a new initiative aimed at helping former inmates get jobs out of prison. She met with Trump at the White House again in 2020.

Kardashian’s advocacy has been credited in part with opening the former president up to the idea of criminal justice reform, eventually leading to the passage of the First Step Act in 2018. The prison-reform law marked a rare moment of bipartisanship during Trump’s presidency, and even some of his harshest critics have lauded its passage.

April 25, 2024 in Who Sentences | Permalink | Comments (0)

"The Relevance of State Misconduct for Mitigating Individual Punishment"

The title of this post is the title of this book chapter authored by Thom Brooks now available via SSRN. Here is its abstract:

This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences.  I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways.  First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race.  Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability.  This might be understood differently by different penal theories, whether desert-based or consequentialist.  Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

This view rests on an important assumption that it applies to states that can and do acknowledge when they, as a state, have engaged in state misconduct.  State misconduct happens and too often.  But no view of mitigation is possible where it is impossible for the state to recognise its shortcomings.  And, where it is found, the state should be compelled to ensure such misconduct is addressed so it is no longer a factor.

April 25, 2024 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 24, 2024

Prez Biden issues 11 pardons and five commutations to persons "convicted of non-violent drug offenses"

As stated in this press release from the White House, "President Joseph R. Biden, Jr. is using his authority under the Constitution to advance equal justice under law by granting clemency to 16 deserving individuals who were convicted of non-violent drug offenses." The release provide the names and various details about all the clemency recipients, though more background information is given concerning the 11 pardon recipients, and the basic sentence information is provided for the five persons who recieived prison sentence commutations. In this document, titled "Statement from President Joe Biden on Clemency Actions," comes this explanation:

America is a Nation founded on the promise of second chances. During Second Chance Month, we reaffirm our commitment to rehabilitation and reentry for people returning to their communities post incarceration.  We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law. That is why today I am announcing steps I am taking to make this promise a reality.

I am using my clemency power to pardon 11 individuals and commute the sentences of 5 individuals who were convicted of non-violent drug offenses. Many of these individuals received disproportionately longer sentences than they would have under current law, policy, and practice. The pardon recipients have demonstrated their commitment to improving their lives and positively transforming their communities. The commutation recipients have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.

Like my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety. While today’s announcement marks important and continued progress, my Administration will continue to review clemency petitions and deliver reforms in a manner that advances equal justice, supports rehabilitation and reentry, and provides meaningful second chances.

The Department of Justice also has this list of the clemencies. It looks like most, but not quite all, of these clemency recipients were convicted and sentenced for crack offenses, with some of the pardon recipient crimes going back in the 1990s.  Most of the commutations are for folks given decades of imprisonment in the 2010s.

April 24, 2024 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

"Degrees of difference: Do college credentials earned behind bars improve labor market outcomes?"

The title of this post is the title of this new Criminology article authored by Abby Ballou.  Here is its abstract:

It is widely held that providing postsecondary education programs to incarcerated individuals will improve postrelease labor market outcomes. Little research evidence exists, however, to support this view.  To test the effect of postsecondary carceral education credentials on employer perceptions of hireability, the current study uses a factorial design to survey a sample of employers nationwide (N = 2,538).  Employers were presented with résumés of fictional applicants applying to a job as a customer service representative at a large call center.  The résumés randomized education credentials earned while incarcerated. 

Results indicate that employers were significantly more willing to interview applicants with postsecondary education credentials relative to applicants with only a General Educational Development (GED) diploma.  Although Black applicants who had earned a sub-baccalaureate certificate saw improvements in hireability relative to GED holders, Black applicants who had earned a bachelor's degree did not.  In contrast, White applicants benefited both from sub-baccalaureate certificates and bachelor's degrees.  Results from a mediation analysis suggest that these credentials signal important information to employers about applicant attributes and that improved perceptions of applicant ability and likelihood to reoffend drive the overall effect.  Implications for future research and policy are explored.

April 24, 2024 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, April 23, 2024

Puzzling through the reach and application of the Eighth Amendment inspired by SCOTUS argument in Grants Pass case

I have listened to most of yesterday's Supreme Court oral argument in City of Grants Pass v. Johnson.  I share the basic sentiments reflected in the headlines of these press accounts of the SCOTUS argument:

From the New York Times, "Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments: A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors."

From NPR, "Supreme Court appears to side with an Oregon city's crackdown on homelessness"

From Vox, "The Supreme Court doesn’t seem eager to get involved with homelessness policy: Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be."

The subheadline of the Vox piece captures what I have been thinking about since listening to the Grants Pass argument.  It seems likely that there are at least six votes to reverse the Ninth Circuit's ruling based on the the Cruel and Unusual Punishment Clause of the Eighth Amendment.  But what will be the path for doing so? 

In this post a few weeks ago, I flagged commentary expressing concern that the Supreme Court might use the Grants Pass case as an opportunity to make a new and hard originalist turn in Eighth Amendment jurisprudence.  But I did not hear much during the oral argument to suggest that many Justices were eager to take up Eighth Amendment originalism as a means to resolve the case.  There surely could be some Eighth Amendment originalism in the Court's coming opinion, but I am now puzzling through other Eighth Amendment issues Grants Pass brings up that perhaps could provide other routes for the case's disposition.   Let me explain:

1. Civil versus criminal sanctionsJustice Thomas, in the first questions of oral argument, asked the lawyer for the City of Grants Pass, "have we ever applied the Eighth Amendment to civil penalties?"  The answer given, which I believe is correct, was " Not the Cruel and Unusual Punishments Clause, no."  That answer was well phrased, because the Supreme Court has applied the Excessive Fines Clause of the Eighth Amendment to "civil" sanctions.   The courts below in this case held that the Fines Clause was implicated by the city's anti-camping ordinance AND that the ordinance was criminal becuase repeat violations could lead to jail time.   But person one technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment when it only imposes a (modest? waivable?) fine for a first infraction.

2. Facial versus as-applied challengesI have never fully understood all the nuances around facial versus as-applied constitutional challenges, in part because it always seemed that Eighth Amendment claims must function as an as-applied challenge upon criminal enforcement.  Put another way, I have always assumed someone needs to first be subject to actual criminal prosecution with punishment threatened to litigate a Cruel and Unusual Punishment claim.  (A thought experiment: Could a doctor worried about new state laws criminalizing abortion bring an Eighth Amendment class-action challenge before being subject to any prosecution and even before he has performed any abortions?)  Then again, the courts below in this case held that the threat of enforcement was sufficient for standing, and arguably the categorical limits on application of the death penalty and LWOP for juveniles operate as a kind of class-wide, facial ruling about Eighth Amendment limits on statutory punishments.  Still, another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially challenged under the Cruel and Unusual Punishment Clause of the Eighth Amendment but only can be challenged in application on a case-by-case basis as it gets actually applied to different individuals.

3. Common-law defenses as constitutional defenses: The lawyer for the City of Grants Pass argued repeatedly that Oregon law recognizes a necessity defense which could be raised by homeless persons subject to the city's anti-camping ordinance.  Justice Gorsuch seemed particularly intrigued by this notion, but it is hard to sort through how this would doctrinally function as a matter of constitutional law.  Is just the availability of such a defense here, which is sure to be uncertain in application, enough to save the anti-camping ordinance from an otherwise winning Eighth Amendment claim?  Would such a ruling be tantamount to declaring that the Eighth Amendment makes a necessity defense sometimes constitutional required?  (Justice Gorush noted that it may make more sense to say a defense is required as a matter of due process, but he also recognized SCOTUS has rebuffed a due process claim regarding the insanity defense.)  Perhaps yet another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue is constitutional unless and until it is clear homeless persons are unable to advance an effective necessity defense in any criminal prosecution.   

Though some of these issues arose during oral argument, it is not clear any will be a focal point for the Court's coming disposition.  Many Justices seemed eager to make sure, in the words of Justice Kavanaugh, that "the federal courts aren't micromanaging homeless policy."  But, because the Justices are the only ones who define Eighth Amendment law, I hope they can at least avoid having this challening case create even more puzzling Cruel and Unusual Punishment jurisprudence.

April 23, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

April 23, 2024 in Data on sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"What Is a Prison?"

The title of this post is the title of this new book review authored by one of my Ohio State colleagues, Grace Li, now available via SSRN. Here is its abstract:

Tommie Shelby’s 2022 book The Idea of Prison Abolition sets out to compile and rearticulate the arguments for and against prison abolition -- using Angela Davis's works as the sole source texts.  In considering the arguments, he concludes that it is not necessary to abolish prisons and instead endorses reform.

In this book review, I argue that Shelby’s most helpful contribution in the book is not his analysis of whether prisons should be abolished but rather his elemental definition of incarceration.  To know what to abolish and when we have abolished it, we need to define what we mean by "prison."  I evaluate and extend his definition by culling some elements, such that the remaining elements are: "involuntary confinement," "in an enclosed space," "away from the general public;" and adding an element, "for a continuous amount of time."  I also add to these elements a list of harms that imprisonment inevitably causes.

April 23, 2024 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (12)