Tuesday, April 19, 2022

Highlighting just some of the notable US executions scheduled for the next few weeks

This Upcoming Executions page at the Death Penalty Information Center has listed six executions scheduled to be carried out by five states over the next three weeks.  Given that there have only been three executions nationwide so far in 2022 and that there were only eight state executions in all of 2021, the fact that six executions might be completed in the span of a few weeks is itself noteworthy.  But, as this Voice of America article details, there are some particularly notable aspects of some of these scheduled executions.  Here is excerpts from the VOA piece:

Capital punishment has been on the wane in the United States but an upcoming slate of executions has refocused attention on the use of the death penalty.

Richard Moore, a 57-year-old African-American man, is to be executed in South Carolina on April 29 for the 1999 murder of a convenience store clerk during a robbery. It would be the first execution in the southern state in over a decade.

Recent US executions have been carried out by lethal injection but South Carolina has been forced to abandon that method because drug manufacturers are refusing to supply the necessary ingredients. So Moore had the choice between the electric chair and a firing squad made up of three rifle-toting volunteers from the Corrections Department. He chose the firing squad....

There have been three executions in the United States this year. There were 11 in 2021, down from 17 in 2020. Only one of the executions in 2021 was of a woman and of the more than 1,540 people executed in the United States since 1976, only 17 have been women. Melissa Lucio, 53, could be the 18th.

Lucio, a Mexican-American mother of 14, is scheduled to be executed by lethal injection in Texas on April 27 for the 2007 death of her two-year-old daughter, Mariah. Lucio claims a confession was coerced by police during a five-hour interrogation and that the toddler's death was actually caused by an accidental fall down a staircase.

Her case has been championed by the Innocence Project, which fights for the wrongly convicted, and reality TV star Kim Kardashian, who has urged Texas Governor Greg Abbott to grant clemency for Lucio.....

Also scheduled to be executed in Texas in coming days is Carl Wayne Buntion, who was sentenced to death in 1991 for the murder of a Houston police officer. Buntion, who does not dispute his guilt, is scheduled to die by lethal injection on April 21.

At 78, he is the oldest man on Death Row in Texas and his lawyers have argued that executing him now - more than 30 years after the crime - would constitute "cruel and unusual punishment." Texas law also requires it be established that Buntion would "likely harm others if he is not executed," his lawyers said.

Buntion, they said, poses no danger to anyone and suffers from multiple ailments including arthritis, vertigo, hepatitis, sciatic nerve pain, and cirrhosis. "Mr. Buntion is a frail, elderly man," his lawyers said in a petition to the Texas Board of Pardons and Parole, "and will not be a threat to anyone in prison if his sentence is reduced to a lesser penalty."

Buntion also has been in solitary confinement for the past 20 years, restricted to his cell for 23 hours a day.

April 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 18, 2022

"A Welfare Analysis of Medicaid and Crime"

The title of this post is the title of this notable new empirical paper now on SSRN and authored by Erkmen Giray Aslim, Murat Mungan and Han Yu.  Here is its abstract:

We calculate conservative estimates for the marginal value of public funds (MVPF) associated with providing Medicaid to inmates exiting prison.  Our MVPF estimates, which measure the ratio between the benefits associated with the policy (measured in terms of willingness to pay) and its costs net of fiscal externalities, range between 3.44 and 10.61.  A large proportion of the benefits that we account for are related to the reduced future criminal involvement of exiting inmates who receive Medicaid.  Using a difference-in-differences approach, we find that Medicaid expansions reduce the average number of times a released inmate is reimprisoned within a year by about 11.5%.

We use this estimate along with key values reported elsewhere (e.g., victimization costs, data on victimization and incarceration) to calculate specific benefits from the policy. These include reduced criminal harm due to reductions in reoffenses; direct benefits to former inmates from receiving Medicaid; increased employment; and reduced loss of liberty due to fewer future reimprisonments.  Net-costs consist of the cost of providing Medicaid net of changes in the governmental cost of imprisonment; changes in the tax revenue due to increased employment; and changes in spending on other public assistance programs. We interpret our estimates as being conservative, because we err on the side of under-estimating benefits and over-estimating costs when data on specific items are imprecise or incomplete.

Our findings are largely consistent with others in the sparse literature investigating the crime-related welfare impacts of Medicaid access, and suggest that public health insurance programs can deliver sizeable indirect benefits from reduced crime in addition to their direct health-related benefits.

April 18, 2022 in National and State Crime Data, Reentry and community supervision | Permalink | Comments (0)

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

April 18, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Sunday, April 17, 2022

"Entitlement to Punishment"

The title of this post is the title of this paper recently posted to SSRN and authored by Kyron Huigens. Here is its abstract:

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification.  It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism.  The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights.  It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation.  We impose punishment when an offender initiates an ordered sequence of rights- power, claim, duty, power, liability-by means of committing a crime.  This sequence ends with the offender's holding both a claim to be punished and a liability for punishment.  This pair of legal relations is not a right to punishment, because it is more than a claim with a corresponding duty.  To hold this claim and this liability to punishment in tandem, as cognate legal relations, is better described by the more comprehensive term "entitlement." Neither desert nor good consequences is part of this account of how and why we punish.  It is enough to say that an offender is entitled to punishment.

Entitlement to punishment is a more accurate and honest description of the reason we punish than either desert or good consequences is.  The belief that legal punishment is imposed because and only when it is deserved obscures the extent to which legal punishment is a consequence of moral luck.  The word "entitlement" better describes the situation of a person who has entangled himself in criminal law's stringent rules as a consequence of his limited power to overcome unpredictable outcomes, his circumstances, the influences on his character, or his personal history.

Finally, entitlement to punishment reflects the moral salience of criminal law.  Entitlement to punishment conveys respect for the rationality of criminal offenders and their capacity for self-determination-particularly when criminal law is cast as a choosing system and as part of a conception of positive liberty centered in autonomy.

April 17, 2022 in Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, April 15, 2022

Condemned due to be executed in South Carolina in two weeks opts for firing squad over electric chair

As detailed in this AP article, a "South Carolina prisoner scheduled to be the first man executed in the state in more than a decade has decided to die by firing squad rather than in the electric chair later this month, according to court documents filed Friday."  Here is more:

Richard Bernard Moore, 57, is the also first state prisoner to face the choice of execution methods after a law went into effect last year making electrocution the default and giving inmates the option to face three prison workers with rifles instead.

Moore has spent more than two decades on death row after being convicted of the 1999 killing of convenience store clerk James Mahoney in Spartanburg. If executed as scheduled on April 29, he would be the first person put to death in the state since 2011 and the fourth in the country to die by firing squad in nearly half a century. The new law was prompted by the decade-long break, which corrections officials attribute to an inability to procure the drugs needed to carry out lethal injections.

In a written statement, Moore said he didn’t concede that either method was legal or constitutional, but that he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice. “I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election,” Moore said in the statement.

Moore’s attorneys have asked the state Supreme Court to delay his death while another court determines if either available method is cruel and unusual punishment. The attorneys argue prisons officials aren’t trying hard enough to get the lethal injection drugs, instead forcing prisoners to choose between two more barbaric methods. His lawyers are also asking the state Supreme Court to delay the execution so the U.S. Supreme Court can review whether his death sentence was a disproportionate punishment compared with similar crimes. The state justices denied a similar appeal last week.

South Carolina is one of eight states to still use the electric chair and one of four to allow a firing squad, according to the Washington-based nonprofit Death Penalty Information Center. Only three executions in the United States have been carried out by firing squad since 1976, according to the nonprofit. Moore’s would mark the first since Ronnie Lee Gardner’s 2010 execution by a five-person firing squad in Utah....

Moore is one of 35 men on South Carolina’s death row. The state last scheduled an execution for Moore in 2020, which was then delayed after prison officials said they couldn’t obtain lethal injection drugs. During Moore’s 2001 trial, prosecutors said Moore entered the store looking for money to support his cocaine habit and got into a dispute with Mahoney, who drew a pistol that Moore wrestled away from him. Mahoney pulled a second gun, and a gunfight ensued. Mahoney shot Moore in the arm, and Moore shot Mahoney in the chest. Prosecutors said Moore left a trail of blood through the store as he looked for cash, stepping twice over Mahoney.

April 15, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Split Iowa Supreme Court finds Sixth Amendment jury trial rights apply to (unique?) state law restitution provision

A helpful reader made sure I saw the interesting ruling today from the Iowa Supreme Court in Iowa v. Davison, No. 20–0950 (Iowa Apr. 15, 2022) (available here).  The start of the majority opinion should highlight why all Apprendi fans will want to check out this notable new decision:

A jury found the defendant guilty of assault causing serious injury and conspiracy to commit murder in connection with a shooting death.  The district court later awarded restitution against the defendant under Iowa Code section 910.3B (2017).  That law mandates an award of at least $150,000 restitution when “the offender is convicted of a felony in which the act or acts committed by the offender caused the death of another person.” Id. § 910.3B(1).  The defendant now argues that the restitution was statutorily and constitutionally impermissible because the offenses of which he was convicted did not include, as an element, causing the death of another person.

We conclude that Iowa Code section 910.3B does not require a jury finding that the defendant caused the death of another person.  But the Sixth Amendment to the United States Constitution is a different matter.  The United States Supreme Court has repeatedly held that the Sixth Amendment requires facts that increase the defendant’s minimum or maximum punishment to be determined by a jury.  Because the $150,000 restitution is punitive in part, awards of such restitution must be based on jury findings.  No jury found that the defendant caused the death of the victim of the shooting.  Therefore, we reverse the award of restitution in this case and remand for further proceedings.

Here is part of the substantive discussion from the majority in Davison:

Courts have generally declined to apply Apprendi to restitution because restitution is usually compensatory and indeterminate. At first glance, Davison’s argument faces a steep climb. Courts considering the matter have ruled overwhelmingly that Apprendi and Southern Union do not apply to criminal restitution. See, e.g., State v. Leon, 381 P.3d 286, 289 (Ariz. Ct. App. 2016) (“Leon acknowledges that no court has applied Apprendi to restitution awards.”); State v. Arnett, 496 P.3d 928, 933 (Kan. 2021) (“[A]t least 11 of 13 federal United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution, not to mention the many state courts which have followed suit.”)...

Restitution under Iowa Code section 910.3B is punitive and determinate. By contrast, Iowa Code section 910.3B establishes a mandatory minimum of $150,000 awardable only if the defendant’s felonious acts caused the death of another person. It may be a low number for the nonmonetary loss attributable to a death of a human being, but it is a floor—and it is awarded only if certain facts are found to exist.  Under normal circumstances, a victim of crime in Iowa is limited to recovery of “pecuniary damages,” which exclude “damages for pain, suffering, mental anguish, and loss of consortium.” Iowa Code §§ 910.1(6), .2(1)(a).  Only when the defendant is convicted of a felony in which their acts caused the death of another person may the minimum amount of $150,000 be recovered in additionSee id. § 910.3B(1).

Like other forms of restitution, the restitution authorized by Iowa Code section 910.3B provides compensation. “It serves a remedial purpose in compensating the victim’s estate.” Klawonn, 609 N.W.2d at 520.

But section 910.3B restitution is also punitive. In our 2000 decision, Izzolena, we detected “several punitive elements” in the statute. 609 N.W.2d at 548.  Restitution under section 910.3B “is awarded in addition to separate restitution for pecuniary damages.” Id. Also, the statute “establishes a minimum threshold amount of $150,000 for all cases, with no required proof of evidence to support damages excluded from the definition of pecuniary damages.” Id. at 548–49. For this reason, we found that the $150,000 restitution was subject to the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution. Id. at 549.

One concurring opinion frames the ruling in a notable way that seems worth highlighting (and which might entail that the Supreme Court would be disinclined to take this case up if there were a future cert petition):

The opinion concurring in part and dissenting in part argues that Apprendi should not be extended to restitution awards, but this merely begs the question. It is not disputed that courts almost uniformly have held that Apprendi does not apply to restitution awards....  And the court’s opinion in this case says nothing different. The question in this case is not, as the dissenting opinion frames it, whether Apprendi should be extended to restitution awards.  Instead, the question is whether section 910.3B is merely a restitution award or whether it also amounts to criminal punishment.  The dissent assumes the former, but our precedents dictate the latter.

And here is the start of the partial dissent:

I join the court’s opinion except for part III.B. I respectfully dissent from the court’s holding extending Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny to victim restitution awards.  Our court is the first appellate court in the nation to do so.  Only two justices of the United States Supreme Court have concluded that Apprendi should be applied to require a jury to find all the facts needed to justify a restitution order.  Hester v. United States, 139 S. Ct. 509, 509–11 (2019) (Gorsuch, J., joined by Sotomayor, J., dissenting from the denial of certiorari).  Seven justices declined to take the bait. See id. at 509 (mem.).  Every federal circuit court of appeals to reach the issue has refused to extend Apprendi to victim restitution awards.  So too has every state appellate court to reach the issue.  I would follow the wisdom of that crowd.

It is not a given that Iowa would seek SCOTUS review of this ruling, and the distinctiveness of Iowa law here might make the SCOTUS Justices disinclined to take up this case even if Iowa does seek cert. That said, it seems worth noting that any forthcoming cert petition on this issue could possible engage some of the Justices who were not on Court back in 2019 when cert was denied in the Hester case.  Back then, Justice Ginsburg and Breyer were apparently disinclined to take up this issue.  But I suspect the new Justice Jackson might be much more interested in expanding Apprendi rights than her former boss has been.  And, as I suggested in this post about Hester, if Justice Barrett is really the originalist that she claims to be, she too might be inclined to join Justice Gorsuch's call to consider this important Sixth Amendment procedural matter.

Though there is much to say about restitution and procedural rights in general (e.g., there is not discussion of burdens of proof or other due process issues in Davison), this cases has me inclined to talk up the broader question of whether the "new" Supreme Court might be somewhat more eager consider and question a lot of pro-state/pro-prosecution doctrines that seem inconsistent with the text and original public meaning of the Bill of Rights.  The Apprendi line of cases helped me to understand that lots of established sentencing doctrines and precedents ought to make real textualists and originalists blush.  If lots of precedents are going to start to be reexamined on textualist and originalist grounds, those ought also to include an array of (mostly pro-state/pro-prosecution) criminal law and procedure precedents.

April 15, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Justice Department has new Pardon Attorney who is a former public defender ... which means ...?

I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney.  As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:

We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.

However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....

There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration).  It's a mess.  We just know what kind of mess, or where the mess is located.  The whole thing needs reform.

For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority.  But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role.   As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways.  I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.

in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority.  Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes."  But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation.  With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month.  Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way.  As of now, though, it does not appear that Prez. Biden really has much of a clemency will. 

A few on many prior recent related posts:

April 15, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, April 14, 2022

"An Algorithmic Assessment of Parole Decisions"

The title of this post is the title of this new paper now on SSRN authored by Hannah Laqueur and Ryan Copus. Here is its abstract:

Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration.  Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison.  We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015.  We quantify the social welfare loss of the Board’s suboptimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions.  We also estimate the release rates that could be achieved holding arrest rates constant.  We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making.  Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform.

April 14, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Discouraging update on various sentencing and prison reform bills from inside the Beltway

This new Politico article, "Criminal justice reform faces political buzzsaw as GOP hones its midterm message," provides an unsurprising, but still disappointing, update on the current political realities facing a set of small but important sentencing and prison reform bills pending in Congress. I recommend the whole piece, and here are excerpts:

The Senate delivered former President Donald Trump a bipartisan criminal justice reform deal shortly after the last midterm election.  Staging a sequel for President Joe Biden this year won’t be so easy.

Dick Durbin and Chuck Grassley, the top Democrat and Republican on the Senate Judiciary Committee, are still in talks over finalizing a package that would serve as a more narrow follow-up to the 2018 prison and sentencing reform bill known as the First Step Act.  But both senior senators acknowledge it’s not a glide path forward, particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.

“That’s dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley (R-Iowa) said in a brief interview.  He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”  Durbin (D-Ill.), meanwhile, said he’s concerned about the bill’s prospects, particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime.  The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

While both Durbin and Grassley say the sequel legislation is necessary to fully implement and expand on the sentencing updates in the First Step law, the campaign-season politics surrounding criminal justice reform threaten broader GOP support. Though 38 Republican senators backed the 2018 bill, it took Trump’s personal appeals to get many on board. And with Democrats in full control of Washington, Republicans’ emerging midterm message — that liberals are to blame for rising violent crime — could make sentencing changes that much harder.

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee and a close adviser to Minority Leader Mitch McConnell, has yet to review the proposal but predicted a tough road ahead. “Particularly given the spike in violence in the inner cities, it would probably be controversial depending on what the specific proposal was,” Cornyn said. “The timing is not great given the closeness of the midterms and the primaries that still remain to be run.”

The Judiciary panel already passed the foundation for Durbin and Grassley’s potential criminal justice reform package last year. It would give inmates who were sentenced prior to the First Step law’s passage the ability to petition for its reduced sentencing guidelines, applying them retroactively if approved. Another bill included in it would increase eligibility for a program that allows certain elderly prisoners to serve the rest of their sentences at home. There’s also discussion around expanding the scope of a federal carjacking statute, according to a GOP Judiciary Committee aide....

A separate but related criminal justice push in the upper chamber, however, illustrates that reform advocates aren’t exactly pinning their hopes on a broader agreement this year. Supporters of eliminating the long-standing federal sentencing disparity between crack and powder cocaine offenses originally discussed including that provision in the committee’s bigger proposal.

Now advocates for change want the Senate to move a standalone bill on the crack-cocaine disparity, citing its support from 11 Senate Republicans — enough to overcome a filibuster. “They have been working on that package for the better part of a year now, and the [standalone bill] is ready right now,” said Holly Harris, executive director of the Justice Action Network, who is urging the Senate to act shortly after the Easter recess. “My hope is obviously that we can see the [standalone bill] through to fruition here. I mean, it’s literally on the goal line.”... Backers of the legislation eliminating the crack-cocaine disparity, which passed the House overwhelmingly in September, range from conservative Sen. Cynthia Lummis (R-Wyo.) to Senate Majority Leader Chuck Schumer. It’s backed by law enforcement groups, including the Major Cities Chiefs Association and the National District Attorneys Association.

While Schumer hasn’t yet laid out a timeline for when he’d bring the crack-cocaine disparity bill to the floor, members of the Congressional Black Caucus earlier this month wrote to him and Durbin urging the Senate to consider the bill “without delay.” The legislation is a top priority for the caucus, which has already faced setbacks on police reform and voting rights bills. And proponents of the reform are framing it as legislation about “fairness” instead of crime, highlighting support from Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Texas).

But Senate aides on both sides of the aisle warn that despite the disparity-closing bill’s bipartisan support, it could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Grassley, who is not a co-sponsor, has also outlined concerns about whether there would be enough Republican support in the Senate to get the legislation over the finish line. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

Meanwhile, Durbin isn’t giving up on his broader criminal justice reform package. At least not yet. While the Jackson hearings highlighted the “extremes” of GOP opposition, he said he remains hopeful that “there are fair-minded Republicans and Democrats who can form the basis of an agreement.”

Sigh. From the very start of this Congress, many folks have been stressing (see here and here) that the criminal justice arena as presenting opportunities for bipartisan reforms.  And nearly a year ago, as noted here, the Senate Judiciary Committee advanced the COVID-19 Safer Detention Act of 2021, the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021.  Since then, the House in September 2021 passed, as detailed here, the EQUAL Act by a margin of 361-66 and last month passed, as detailed here, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a margin of 405-12.  Not sure we can expect more bipartisan agreement than these votes reflect, and so I continue to believe the relatively modest reforms in all of these bills could have and should have been low-hanging fruit for bipartisan legislative achievements in this Congress.  Instead, it now appears that none of these bills may get to the finish line in this Congress. 

I understand fully the challenging politics presented by rising homicide rates and other crime challenges now facing the nation.  But these reforms are all sound tweaks to a federal sentencing and prison system that have rightly garnered strong bipartisan support because they are modest and sensible reforms that are long-overdue and have very little to do with violent offenders.  The apparent failure of this Congress to get any of these bills enacted so far strikes me as much more a story of problematic policy priorities than of modern crime politics.  Sigh.

April 14, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"New Originalism: Arizona's Founding Progressives on Extreme Punishment"

The title of this post is the title of this interesting new article now available via SSRN authored by John Mills and Aliya Sternstein. Here is its abstract:

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike.  Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions.  Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds.  Arizona was founded in 1912 as a progressive project and the founding generation — from the convenors of the 1910 constitutional convention and the courts to the people themselves — held and acted on progressive views of punishment.  They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime.  Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

April 14, 2022 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 13, 2022

Notable example of federal prosecutors and crime victims advocating for sentences way below applicable mandatory minimums

This lengthy local press piece, headlined "After pleas for leniency, mosque bombers receive 16-, 14-year sentences: Prosecution, defense agreed the two were manipulated by militia ringleader," reports on an interesting federal sentencing that took place yesterday in Minnesota.  Here are some of the details:

Following a rare display of both victims and prosecutors advocating mercy, U.S. District Judge Donovan Frank sentenced two Illinois men Tuesday to 14 and 16 years in federal prison for bombing Bloomington's Dar al-Farooq Islamic Center in 2017.

Frank said the "substantial assistance" of Michael McWhorter, 33, and Joe Morris, 26 — including testifying against Emily Claire Hari, their "White Rabbits" militia leader — permitted him to render penalties that each amounted to less than half of the 35-year statutory minimums in the domestic terror case.

Prosecutors and defense attorneys described McWhorter and Morris as patsies in Hari's terror plot, manipulated to participate in a string of violent crimes that included robbing a Walmart with airsoft guns, a home invasion, attempting to extort the Canadian railroad and an unsuccessful attempt to bomb a women's health clinic.

Acknowledging that they were under Hari's influence, Frank also condemned McWhorter's and Morris' seventh-month crime spree as "contrary to everything America stands for," rejecting the 10-year sentences requested by their defense attorneys. "When all is said and done," Frank said, lesser sentences would not "promote respect for the law."

Frank sentenced Hari to 53 years in prison last year, higher than the mandatory minimum but lower than prosecutors' request for life, for civil rights and hate crime convictions.

The sentencings brought to a close a saga that began four-and-a-half years ago, when a black-powder bomb exploded in Imam Mohamed Omar's office early on Aug. 5, 2017, while several mosque members gathered for morning prayer. Throughout the trial, Dar al-Farooq leaders testified to the horror they continued to feel after that day, worried another attack could be imminent.

Still, in court Tuesday, Muslim, Jewish and Christian faith leaders asked Frank for mercy. Omar, who in Hari's trial described feeling he was in a "nightmare" when the bomb went off, told Frank he'd come with "a message of peace" in the name of "solidarity as a human family" on behalf of Dar al-Farooq. Omar said McWhorter sent him a seven-page letter from jail expressing remorse and explaining how he'd fallen into the "dark web of Hari's manipulation" and described Hari as a "cultish" figure....

McWhorter and Morris pleaded guilty in 2019 to their role in the group known as the "White Rabbits 3 Percent Illinois Patriot Freedom Fighters."  In the trial for Hari — then known as Michael Hari — the two men testified that he took advantage of their financial desperation to recruit them for the attacks. Morris, who described Hari as a father figure, said Hari told him they were taking orders from Steve Bannon and a CIA agent called "Congo Joe" to harass "untouchables."...

The day of the bombing, Hari waited until they'd driven through the night and were an hour away from Bloomington to reveal the plot to bomb the mosque. Neither McWhorter nor Morris knew what a mosque was, according to their lawyers. McWhorter said he feared Hari and Morris would kill him if he didn't go through with the plan. "I bombed a mosque. But it was not by choice," he said. "I feared for my life when I bombed the mosque. I didn't do it out of just pure hatred. I don't have any hate" for Muslims.

For their roles in helping convict Hari, Assistant U.S. Attorney Allison Ethen asked Frank for a 50% reduction from the mandatory minimum sentences for McWhorter and Morris — a request both Ethen and Frank remarked was rare. While they were not the masterminds, Ethen said, the two men still committed grave crimes that cannot be "uncommitted" and a light penalty could send the wrong message.  "We need to make sure this sentence also reaches the Haris of the world," she said. Ethen also said she was representing victims from Illinois who couldn't appear in court to speak for themselves, including "countless women" whose doctor's office became the target of a hate crime.

Frank said he calculated the sentence while balancing the need for deterrence of similar crimes, noting the men participated in "very serious premeditated behavior."

April 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

  • Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

  • Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

  • The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

  • Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

April 13, 2022 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

"Why Should Guilty Pleas Matter?"

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

Most offenders plead guilty without a trial.  Their guilty plea typically earns a reduced punishment. It raises the issue of why should guilty pleas matter.  This chapter considers the use of plea bargaining in the United States and guilty plea discounts in England and Wales.  While the former is found deeply problematic, a limited defence of the latter is made. Offenders should normally receive discounted punishment and for more than instrumental reasons.  However, there must be more robust safeguards in place to ensure greater consistency and fairness for the use of guilty plea reductions to be justified more substantially.

April 13, 2022 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

Tuesday, April 12, 2022

Could a shortage of state prosecutors put a further dent in mass incarceration?

Professor John Pfaff effectively documented the important insights, discussed in this article about his 2017 book Locked In, that more prosecutors filing more felony charges was an important contributor to modern mass incarceration.  Against that backdrop, this new Reuters article has me wondering if fewer prosecutors filling fewer charges might further contribute now to declining incarceration.  The article is headlined "Prosecutors wanted: District attorneys struggle to recruit and retain lawyers," and here are excerpts:

District attorneys’ offices across the U.S. are struggling to recruit and retain lawyers, with some experiencing vacancies of up to 16% and a dearth of applicants for open jobs, according to interviews with more than a dozen top prosecutors and five state and national prosecutors’ associations.

The district attorneys said the effects of the COVID-19 pandemic and increasing concern about racial inequities in the criminal justice system — compounded by long-standing issues with relatively low pay and burnout — have made a career as a state prosecutor a tougher sell in the past several years.

“We're seeing a prosecutor shortage throughout the country; it's not limited to large jurisdictions versus small jurisdictions,” said Nelson Bunn, executive director of the National District Attorneys Association, a trade group with 5,000 members....

Staffing shortages are affecting prosecutors’ decisions about whether to bring certain criminal cases to trial, according to Anthony Jordan, president of the District Attorneys Association of the State of New York. "We don’t get to choose the crimes that come in," said Jordan, who is the district attorney in Washington County, New York. "But if you don’t have enough people to prosecute them then you have to let certain ones go.”

Data from the Maricopa County Attorney's Office in Phoenix, Arizona illustrate that challenge.  The number of cases the office prosecuted dropped from nearly two-thirds of felonies referred by law enforcement in 2018 to under half in 2020. And the number of vacancies in the office of 338 attorneys continues to rise — increasing nearly 53% between July 2020 and April 2022.

Recent BJS data, flagged here, indicate that the national prison population has declined nearly 25% from 2010 to 2020, although a good portion (but not all) of this prison population decline has been a consequence of COVID pandemic dynamics.  Ultimately, a number of legal and extra-legal forces have been contributing to a decline in incarceration in recent years.  And Pfaff's work suggests that, if there is a sustained period of fewer prosecutors filling fewer charges nationwide, we should expect some continued declines (or at least reduced likelihood of US prison populations growing significantly in coming years).

April 12, 2022 in Data on sentencing, Who Sentences | Permalink | Comments (5)

"Trauma and Blameworthiness in the Criminal Legal System"

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

Violence can result in trauma, but so too can trauma lead to violence.  Neuroscience offers an increasingly sophisticated understanding of the biology of behavior, including the nexus between trauma and criminal behavior.  Yet the criminal legal system consistently fails to account for the traumatic backgrounds of many people charged with crimes. Instead, people who experience trauma as a result of community violence, along with so many others, are ignored or ridiculed when they argue that their traumatic experiences should mitigate their blameworthiness.  Military veterans, on the other hand, provide a unique example of a class of people for whom judges, prosecutors, and other actors in the criminal legal system recognize that context and circumstances matter — that even when someone is criminally responsible for a wrongdoing, their traumatic experiences may mitigate their blameworthiness.

In this article, I explore why we treat trauma as a reason for leniency for some people but not for others, and whether it is morally justifiable for us to approach criminal behavior as situational (a result of environmental circumstances) for certain groups, while insisting that it is characterological (the result of individual character traits) for others. Offering a novel perspective on the issue, I contend that what distinguishes military veterans from defendants for whom trauma and other environmental factors are routinely disregarded is not a difference in the kind or degree of the impact of their circumstances, but rather cognitive assumptions about who is and is not a criminal.  These assumptions in turn lead to a false dichotomy between people whose criminal behavior we deem characterological, and therefore fully morally blameworthy, and people whose criminal behavior we accept as situational, and therefore less blameworthy. I situate the roots of these categorizations in structural racism and show how this dichotomous thinking perpetuates racial injustice.

April 12, 2022 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Reviewing the application of Miller and juvenile LWOP in the federal system

This AP story, headlined "Juvenile lifer seeks reprieve amid broader push for leniency," focuses on one high-profile juvenile lifer case while also discussing some of the other realities of juve LWOP in the federal system since the Supreme Court's major Eighth Amendment ruling in Miller v. Alabama a decade ago.  Here are some excerpts from a lengthy piece worth reading in full:

Shortly after Riley Briones Jr. arrived in federal prison, he cut his long, braided hair in a symbolic death of his old self. As a leader of a violent gang and just shy of 18, Briones drove the getaway car in a robbery turned deadly on the Salt River-Pima Maricopa Indian Community outside Phoenix in 1994. He was convicted of murder and given a mandatory sentence of life without parole.

In prison, he has been baptized a Christian, ministers to other inmates who call him Brother Briones, got his GED and has a spotless disciplinary record, his attorneys say in their latest bid to get the now 45-year-old’s sentence cut short. “He’s clearly on the side of the line where he should be walking free,” said his attorney, Easha Anand.

The U.S. Supreme Court opened the door for that possibility with a 2012 ruling that said only the rare, irredeemable juvenile offender should serve life in prison. Over the past decade, most of the 39 defendants in federal cases who received that sentence have gotten a reprieve and are serving far fewer years behind bars. Meanwhile, more than 60 legal experts and scholars have asked the federal government to cap sentences for juvenile offenders at 30 years, create a committee to review life sentences in the future and reconsider its stance in Briones’ case.

But the move toward greater leniency has been gradual and not without resistance. Briones is among those whose life sentences have been upheld in recent years, though he still has another chance. Prosecutors in his case have opposed a reduced term. They argue despite Briones’ improvements, he minimized his role in the gang and its crimes that terrorized Salt River amid an explosion of gang violence on Native American reservations in the 1990s....

Briones’ case became eligible for resentencing after the Supreme Court’s 2012 decision in Miller v. Alabama.  It was part of a series of cases in which the court found minors should be treated differently from adults, partly because of a lack of maturity.  The court previously eliminated the death penalty for juveniles and barred life-without-parole sentences for juveniles except in cases of murder.  A handful of the defendants in the 39 federal cases — most of whom are minorities — have been released from prison.

The Feb. 17 letter seeking reform from the Justice Department pointed to statistics that show the median sentence for adults convicted of murder in the federal system is 20 years — nearly half the median for the juvenile offenders.  “Taking a life is really, really serious, and I don’t belittle that at all,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, one of the signatories.  “But a full life in prison when you’re a juvenile and you’re talking about 40, 50, 60 years in prison is exceedingly excessive probably in almost every case and not consistent with typical sentences for homicides, even adults.”...

The California-based Criminal Justice Legal Foundation, a victims rights group, said changes in the law that continually allow juvenile offenders to get another shot at freedom are damaging for the families, communities and the criminal justice system. “Some of these crimes are just very horrible, and the impacts on the families are substantial, and they never go away,” said the group’s president, Michael Rushford.

The Campaign for the Fair Sentencing of Youth has long argued the changes a person makes once they’ve entered prison should matter, and juveniles offenders should be able to live as adults outside prison walls.  “If the facts of the crime are always going to be the overpowering force, then Miller isn’t going to be meaningfully interpreted to outweigh all this positive growth,” said Rebecca Turner, who tracks the federal cases for the group.

The federal court in Arizona has resentenced more of the juvenile offenders to life in prison than any other state. Texas has two juvenile offenders who are serving life but weren’t able to be resentenced because of how courts interpreted Miller v. Alabama. South Carolina resentenced one inmate to life.  All three federal cases in Arizona were from Native American reservations, where the federal government has jurisdiction when the suspect, victim or both are Native American for a set of major crimes, including homicide. The penalties, in general, are stricter than if the crimes happened off the reservation and the cases ended up in state court.

April 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Monday, April 11, 2022

"The Return of the Firing Squad?"

The question in the title of this post is the headline of this notable new Marshall Project piece, which gets started this way:

Six years ago, a man on death row in Nevada named Scott Dozier said he wanted to give up his legal fight and be executed, but there was a problem.  Prison officials couldn’t find lethal injection drugs.  Amid the ensuing legal turmoil, Dozier tossed off his own solution, telling me during an interview, “I’d have been just as happy if they took me out back and shot me.”

Dozier’s death, in 2019, was ruled a suicide, but now his words seem prescient. On Thursday, South Carolina scheduled the execution of Richard Moore — convicted of murder in a 2001 convenience story robbery — for April 29. Because state officials say they can’t secure lethal injection drugs, they will give him the choice between the electric chair and the firing squad.  Officials have spent $53,000, by their own estimate, to renovate part of a prison to allow a three-person firing squad to carry out executions, including adding bulletproof glass to protect witnesses.

South Carolina’s not alone: Oklahoma and Mississippi have also formally adopted the firing squad, though Utah remains the only state that has actually used the method in the last century. The U.S. Supreme Court has told death row prisoners that if they want to fight lethal injection in court, they need to propose an alternative. Following dozens of botched, evidently painful lethal injections in recent years, prisoners in at least 10 states have been making a surreal argument: They would prefer the firing squad.

So, are we really about to start shooting prisoners?  Although the method strikes many as cruel and archaic, conversations with scholars and a review of history suggest we should also ask why we have so consistently avoided the firing squad. The answers suggest that this is about more than just another execution method.  The firing squad dredges up some of the core contradictions at the heart of American capital punishment.

“It’s an almost instantaneous death, it’s the cheapest, it’s the simplest, it has the lowest ‘botch’ rate,” said Corinna Lain, a law professor at the University of Richmond.  (Federal judges have made similar points.)  At the same time, it’s “more honest,” she said.  Lain and other scholars have argued that Americans have long wanted — not always consciously — to disguise the violence of capital punishment.  “We don’t want a mess,” wrote Douglas B. Kamerow, a former assistant surgeon general, in The BMJ, a medical journal published by the British Medical Association.  “We want these evil people to disappear, to be dead, but most of us don’t want to feel bad about how they died.”

April 11, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Considering sentencing echoes of SCOTUS confirmation hearings' sentencing attacks

This lengthy new CNN article, headlined "Ambitious trial judges could be wary after GOP attacks on Judge Jackson's sentencing record," provides an effective review of how last month's SCOTUS spectacle could impact the work of federal sentencing judges.  I recommend the full piece, and here are excerpts (with some commentary added in spots):

The Senate Republicans who led the attacks on Judge Ketanji Brown Jackson's sentencing record say they hoped to send a message to other trial judges who might seek appointments to higher courts.

While some veteran judges see it as a tactic of intimidation, it hits on a longstanding tension between the lifetime tenure granted to judges to in theory shield them from politics and lawmakers' frustration that they're using that discretion to supposedly stretch beyond the instructions they've received from Congress. J

One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations, who are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes," Sen. Ted Cruz, a Texas Republican, told CNN.

Of course, as I highlighted in this prior post, Judge Jackson was "following the law" in all of her sentencing decisions; and the cases that were the focal point for attacks by GOP Senators did not generally involve "violent criminals," but on computer criminals who downloaded child pornography.  Sigh.  Now, more from the CNN article:

"It is in part meant to intimidate judges," said Ret. Judge Shira Scheindlin, who joined several other retired judges in a letter last month defending Jackson's approach to the child pornography cases that had been singled out by GOP lawmakers. "They are kind of on notice that, if that's their ambition, they better think hard about their sentencing practices," Scheindlin, a Bill Clinton appointee, told CNN. "That's a bad thing."...

"I think it's terrible for public perception for the senators to be suggesting that there are judges around the country who favor child pornography," said Ret. Judge John Martin, who served as a US Attorney under Presidents Jimmy Carter and Ronald Reagan before his appointment by President George H.W. Bush to Manhattan's federal court....

Whether judges will change their approach out of fear they too may someday face the hostility Jackson was subjected to remains to be seen. "People in the legal profession saw it for what it was, and it wasn't a real argument based in fact," said Lisa Cylar Barrett, the director of policy at the NAACP Legal Defense & Educational Fund.

Judges take it seriously, Ret. Clinton-appointed Judge Faith Hochberg told CNN, that their job requires them "to set politics aside and apply the facts and the law to every single case that comes before them, without any overlay of what may be made of the decision politically by someone else who wasn't privy to the facts and the law that the judge was presented."

Still other former judges acknowledged it could have a conscious or subconscious effect. "I don't think judges are going to be too intimidated, but for those few who have the ambition to go to a higher court, they may think twice about leniency," Scheindlin said. "That's unfortunate. They should only be thinking about the defendant in front of them."

April 11, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Sunday, April 10, 2022

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

April 10, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (2)

Saturday, April 9, 2022

Crooked test taker gets four months in federal prison as Varsity Blues prosecutions conclude

It is now three years since I reported in this post about the first pleas in the high-profile college fraud Varsity Blues case detailed in this press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty."   Though I covered a number of the early and celebrity sentencings, there have been too many cases for me to keep track of them all.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.

But, as detailed in this AP article headlined "Test taker gets prison; coach convicted in admissions scam," the Varsity Blues prosecutions are winding down with a final jury conviction and a notable sentencing.  Here are the particulars:

A former Florida prep school administrator was sentenced to federal prison and a decorated water polo coach at the University of Southern California was swiftly convicted by a jury in a busy Friday in Boston federal court in the long running college admissions bribery scandal.

Mark Riddell, who was paid handsomely to take college entrance exams for wealthy students, was handed a four-month prison sentence, ordered to serve two years of supervised release and forfeit nearly $240,000.

Meanwhile, former USC coach Jovan Vavic, who faked the athletic credentials of rich students so they could gain admission, was convicted on all three counts of fraud and bribery he faced after a jury deliberated less than a day following his nearly monthlong trial.

U.S. Attorney for Massachusetts Rachael Rollins said the verdict in Vavic’s trial represents the final conviction in the headline grabbing case dubbed “Operation Varsity Blues.”

The investigation announced in 2019 exposed corruption in the college admissions process at Yale, Stanford, Georgetown and other sought-after schools, and implicated wealthy and connected parents, including actors Felicity Huffman and Lori Loughlin and Loughlin’s fashion designer husband, Mossimo Giannulli....

Vavic, a 60-year-old, who guided USC’s men’s and women’s water polo teams to 16 national championships, strode out of the courtroom Friday with his family, declining to comment on the verdict. Prosecutors said he received about $250,000 in bribes for designating unqualified students as water polo recruits so they could attend the elite Los Angeles school....

In a separate courtroom just minutes after Vavic’s verdict was read, Riddell was contrite as he faced sentencing on fraud and money laundering conspiracy charges.  The Harvard graduate, who emerged as a key figure in the wide-ranging scandal, apologized to the many students that lost out on college opportunities because of his “terrible decision.”  He said he brought shame to his family and pleaded for leniency for cooperating with law enforcement officials and for committing to make amends now and going forward for his actions.

Riddell’s lawyers said he should serve one to two months in prison because he was neither the ringleader of the scheme nor a university insider, like the coaches and college administrators implicated.  They also noted he’s already paid nearly $166,000 toward the forfeiture obligation.

Judge Nathaniel Gorton, however, sided with prosecutors who had argued for the four-month sentence.  He said Riddell played a key role for many years in the scheme by secretly taking the ACT and SAT for students, or correcting their answers.  “And for what?” the judge said.  “You did not need the money. How could you have stooped so low?”

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

April 9, 2022 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3)

Friday, April 8, 2022

Rounding up some new commentary prompted by a new Justice Jackson

Though a few of these pieces were published before the official confirmation vote, all of these new commentaries rounded up here lean into criminal justice issues and are inspired by Judge Jackson becoming Justice Jackson: 

By Brakkton Booker, "What Justice Ketanji Brown Jackson means for the country"

By Garrett Epps, "Ketanji Brown Jackson Was a Public Defender. Here’s Why That’s a Great Thing."

By Shanteal Lake, "Justice Ketanji Brown Jackson will bring new perspectives on mass incarceration to U.S. Supreme Court jurisprudence"

By Marc Levin, "It's Confirmed: The Constitution Isn't Tough or Soft on Crime"

By Andrey Spektor, "Ketanji Brown Jackson is confirmed. Our criminal justice system awaits the verdict"

April 8, 2022 in Who Sentences | Permalink | Comments (0)

A new normal?: federal prison population now growing by over 1000 persons for multiple months

In this post on March 18, I noted that the federal prison population had grown by over 1100 persons in just four weeks from mid February and mid March.  Specifically, "Total Federal Inmates," on March 17, 2022 stood at 154,194, nearly 1150 more prisoners than the total number of federal inmates on February 17, 2022, when the number stood at of 153,053.  It is now early April, and checking in at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," one now sees that it has only taken three weeks for another 1000+ person surge of federal prisoners.  As of April 7, 2022, the official BOP count reads at 155,274, and so another 1080 more federal prisoners have been added to the population compared to the total on March 17.

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  But, whatever the particulars, if this level of month-over-month growth in the federal prison population were to continue through much of the current year, 2022 could end up becoming a year for historically high increases in the federal prison population.  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes." 

April 8, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (15)

Thursday, April 7, 2022

South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review

This local article from South Carolina, headlined "‘Our system is broken.’ SC Supreme Court justice assails death sentence in Upstate case," reports on an interesting ruling from the top court in the Palmetto State. Here are the basics and the context from the press piece:

An associate justice of the South Carolina Supreme Court issued a rare and blunt dissent Wednesday in an Upstate death penalty case about a 1999 convenience store robbery that four of the five justices agreed to uphold.

“In the nearly 13 years I have served on this Court, I have voted to affirm eleven death sentences on direct appeal and have never dissented,” Associate Justice Kaye Hearn wrote in her 14-page dissent. But the spur-of-the moment killing committed by Richard Moore in 1999 during a convenience store robbery in Spartanburg County is so different from the usual brutal premeditated slayings for which South Carolina juries give out the death penalty that condemning Moore to death is disproportional, or so far out of line, as not to be lawful, Hearn wrote.

“The death penalty should be reserved for those who commit the most heinous crimes in our society, and I do not believe Moore’s crimes rise to that level,” Hearn wrote, calling South Carolina’s system “broken.”

In Wednesday’s majority opinion, four Supreme Court justices upheld Moore’s death sentence in a case that centered on the issue of whether the sentence was proportional, or roughly the same as, other death sentences for similar crimes. The majority, in an opinion written by Chief Justice Donald Beatty, wrote that Moore’s crime had the aggravating factors set out in the law — such as killing during an armed robbery — that qualified a person for the death penalty, Moore, now 57, has been on South Carolina’s death row 21 years.

The full ruling in Moore v. Stirling, Opinion No. 28088 (S.C. April 6, 2022), is available at this link.  Here is how the majority opinion starts:

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  In Copeland, the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters.  After review of the record and applicable law and consideration of the parties' arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed.  We conclude, however, that Moore has not established that he is entitled to habeas relief.

And here is how the dissent begins:

This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly. This includes the forty-three individuals who have been executed by the State of South Carolina during this modern era of capital punishment, and all of the thirty-five inmates currently housed on death row who have exhausted their direct appeal.  The State characterizes these statistics — currently, approximately zero for seventy-seven — as proof that our capital sentencing scheme functions as it should.  I write separately to express my view that our system is broken and to disagree with that part of the majority opinion which finds Petitioner Richard Moore's sentence proportionate to his crime.

April 7, 2022 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

By vote of 53 - 47, US Senate confirms its second former US Sentencing Commissioner to serve as a Supreme Court Justice

There are many historic elements to every Supreme Court confirmations, including the one today discussed in this USA Today article starting this way:

The Senate confirmed Ketanji Brown Jackson to the Supreme Court on Thursday afternoon, making her the 116th justice — and first Black woman — to serve on the nation's highest court.

The Senate's historic vote was 53-47 with three Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, and Mitt Romney of Utah joining every member of the Democratic caucus in voting for her confirmation.

President Joe Biden nominated Jackson in February, after Associate Justice Stephen Breyer announced he would retire at the end of the current court term.  Though confirmed, Jackson will wait months to take her seat on the bench, until Breyer officially steps down.

Of course, lots of folks are especially excited for the ways in which Judge (Justice-confirmed?) Jackson represents a first.  But I could not help but highlight in this post a notable way in which she is a second: she is now the second former US Sentencing Commissioner to be confirmed as a Supreme Court Justice.  The first, of course, is the man she will be replacing in a few months, namely outgoing Justice Stephen Breyer.

Am I showing too much of my nerdiness by saying I hope that someday there will be a Jeopardy question (or should I say Jeopardy answer) on this topic?  Does anyone else have any other fun SCOTUS (and/or USSC) trivia for the occasion?

April 7, 2022 in Who Sentences | Permalink | Comments (6)

Wednesday, April 6, 2022

Remaining (overly?) upbeat about bipartisan criminal justice reform

Marc Levin has this notable new Hill commentary, headlined "Confirmation combat can’t crush bipartisan criminal justice reform," making an important case for staying bulling on the prospects for bipartisan criminal justice reform efforts.  I recommend the piece in full, and here are excerpts:

The “soft on crime” critique of Judge Ketanji Brown Jackson has prompted obituaries for the era of bipartisan support for criminal justice reform, a détente that the country has enjoyed since Texas kicked off a wave of policy change 15 years ago.  While the coalition may be fragile, the prospects remain encouraging for continued progress on both public safety and justice.

Optimism stems in part from the fact that the primary responsibility for criminal justice policy rests at the state level, and the most significant reforms continue to occur there. Indeed, it was state-level reforms that first led to prison closures and reduced recidivism through treatment courts and other alternatives to incarceration, including in red states like Texas and Georgia. Those advancements, in turn, inspired the federal First Step Act signed by President Trump in 2018, a law that pared back mandatory minimum sentences for drug crimes and allowed low-risk individuals to shave time off their prison terms by completing rehabilitative programs.

Today, state legislators remain the most significant actors in this arena, given that about 90 percent of all criminal cases and incarcerated populations are at the state and local levels. In Oklahoma, which has the nation’s highest incarceration rate, a bipartisan measure that brings consistency and proportionality to sentencing for nonviolent offenses overwhelmingly passed the state’s Senate on March 23.... Another red state, Ohio, is advancing a handful of significant bipartisan criminal justice reforms in its current legislative session....

While continued momentum on the state level promises to have the most far-reaching impact on the justice system, strong possibilities remain this election year for bipartisan congressional action.  One area with potential for progress is marijuana policy. There are a variety of proposals for unwinding failed federal policy on cannabis with varying levels of bipartisan support....

Also, in recent weeks, additional Republican senators have become cosponsors of a bill that would end the pronounced disparity in penalties between crack and powder cocaine, which would affect some 1,500 new sentences every year....  Other bipartisan federal legislation that could reach President Biden’s desk this year include bills that abolish federal life without parole sentences for juveniles, prevent the use of acquitted conduct in sentencing, extend Medicaid to otherwise eligible individuals within 30 days of their release from incarceration, and invest in treatment for people with mental illness in the justice system.

Undoubtedly, the recent rise in some types of violent crime, most notably homicides, has strained bipartisan coalitions around sensible reforms. While fearmongering is unwarranted, rigorously evaluating the impact of recent justice system changes is not just desirable, but necessary....

Criminal justice policy is too important to leave to any one political party, and all Americans, regardless of ideology, rightly demand a system that protects both their lives and liberties. While hearings for both Republican and Democratic administration Supreme Court nominees have become circus-like, there is reason to believe that our political leaders can move from confirmation combat to considerable consensus on the next steps to achieve safety and justice for all.

This commentary effectively highlights that there is still continued momentum for some forms of criminal justice reforms on both sides of the aisle at both the state and federal levels. But, even before the SCOTUS confirmation hearings, a pandemic-era spike in homicides and other crimes concerns were already creating headwinds for many reform efforts. And the SCOTUS hearings served as a significant reminder that "tough/soft on crime" rhetoric can often still quickly become a central part of the modern political atmosphere. How these matters play out in our politics and policy-making in the months and years to come is going to be important and interesting to watch closely.

April 6, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

New letter from House CBC members urges EQUAL Act Senate floor vote ASAP

As detailed in this press release, all House Members of the Congressional Black Caucus sent a letter this week "calling on Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chairman Dick Durbin to bring H.R. 1693, the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act to the Senate floor for a vote."  Here is part of the text of the letter:

As you know, in 1986, Congress passed the Anti-Drug Abuse Act, which established a 100:1 sentencing disparity for crack and powder cocaine.  Over the years, this policy has been widely criticized for lacking scientific and penological justification.  Accordingly, Congress has taken steps to address this problem through the passage of the bipartisan Fair Sentencing Act of 2010, which reduced the disparity from 100:1 to 18:1, and the bipartisan First Step Act of 2018, which made those changes retroactive.  Both efforts made our drug sentencing laws fairer, but the work is not done as long as a significant and harmful disparity remains.

The impacts of these policies on communities of color across the country have been devastating.  According to the U.S. Sentencing Commission, in Fiscal Year 2020, 77.1% of crack cocaine trafficking offenders were Black, whereas most powder cocaine trafficking offenders were either white or Hispanic.  Put simply, this law is unjust, unconscionable and unacceptable.  It is time to eliminate this disparity once and for all.  

That is why we write in support of bringing the EQUAL Act (H.R. 1693/S. 79) to the Senate Floor for consideration as soon as possible.  It would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.  According to a recent analysis from the U.S. Sentencing Commission, approximately 827 individuals would benefit from the prospective section of the bill each year, and 7,787 offenders in BOP custody would be eligible to seek a modification of their sentence based on the retroactive section.  In total, the EQUAL Act will reduce excessive prison time by 67,800 years, and 91 percent of the individuals who will get this critical relief are Black.

A few of many prior posts on the EQUAL Act:

April 6, 2022 in Drug Offense Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 5, 2022

Brennan Center concludes is terrific essay series titled "Punitive Excess"

In this post last year, I was pleased to spotlight a new essay series unveiled by the Brennan Center for Justice, titled "Punitive Excess."  Today, I received an email noting that the series in concluding in an exciting way (links from the original):

Today the Brennan Center for Justice at NYU Law published the final essay plus a new video (90-second version here) in its Punitive Excess series.  The video includes voices from the essay collection, each showing a different way that the American legal system takes punishment to the extreme. Asia Johnson and Shon Hopwood speak from personal experience with being behind bars. In the last essay for the series, criminal justice experts Jeremy Travis and Bruce Western propose an “honest reckoning” with the harms of punitive excess as the path to a “new vision of justice that promotes community well-being, not oppression, and celebrates democracy, not racial domination.”...

The series will be published as a book by Columbia University Press. Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program, co-edited the series with Daniel Okrent.

April 5, 2022 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

With SCOTUS nominee now on path to confirmation, time to fret again about the lack of USSC nominees from Prez Biden

As we approach a full 15 months into the Biden Administration, I must yet again return to expressing my frustration that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for the better part of five years, and the USSC has not had complete set of commissioners in place now for nearly a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now three+ years since that law's enactment.

Though I harped on this front a lot last year, I did not complain too much recently about the persistent lack of nominees while the Biden Administration was selecting and seeking the confirmation of a replacement for US Supreme Court Justice Breyer.  But, after yesterday's developments (news here), it seem quite clear that Judge Ketanji Brown Jackson will be confirmed to replace Justice Breyer.  So, with this SCOTUS transition now seemingly settled, I will return to full-time fretting about the lack of USSC nominees from Prez Biden.

I have heard buzz from a variety of sources leading me to believe a slate of nominations could be imminent.  These nominations cannot come soon enough, especially given that already three month have passed since Justice Sotomayor, joined by Justice Barrett, issued a statement respecting the denial expressing "hope in the near future the Commission will be able to resume its important function in our criminal justice system."  As all my posts below detail, I have shared this hope, so far still unfulfilled, for quite some time.

One of many reasons sentencing fans should now hope for imminent nominations for the US Sentencing Commission is the inherently uncertain (and political) nature of the confirmation process.  I am hopeful that, because nominations to the USSC have to be bipartisan, there will be Senators from both parties eager to move the eventual nominees through the confirmation process efficiently.  But I am perhaps naive to believe that good government functioning could come before possible political opportunism in this setting (especially during an election year).  Moreover, even if the confirmation process goes quickly and smoothly, the process is still likely to take months, while more than a thousand federal defendants are getting sentenced in federal courts every week. 

A few of many prior related posts:

April 5, 2022 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Might Texas be on the verge of executing an innocent woman?

The question in the title of this post is prompted by this AP article discussing the case of Melissa Lucio, who is scheduled to be executed by the state of Texas in three weeks.  Here are excerpts:

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter. But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. “I guess I did it,” Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah’s 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family’s apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio’s lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state’s Board of Pardons and Paroles and Gov. Greg Abbott to grant an execution reprieve or commute her sentence....

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General’s Office maintains evidence shows Mariah suffered the “absolute worst” case of child abuse her emergency room doctor had seen in 30 years. “Lucio still advances no evidence that is reliable and supportive of her acquittal,” the office wrote in court documents last month....

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

In their clemency petition, Lucio’s lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died....

In 2019, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Lucio’s conviction, ruling she was deprived of “her constitutional right to present a meaningful defense.” However, the full court in 2021 said the conviction had to be upheld for procedural reasons, “despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.”

Three jurors and one alternate in Lucio’s trial have signed affidavits expressing doubts about her conviction. “She was not evil. She was just struggling. ... If we had heard passionately from the defense defending her in some way, we might have reached a different decision,” juror Johnny Galvan wrote in an affidavit.

In a letter last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be “a miscarriage of justice.”...

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it. The board plans to vote on Lucio’s clemency petition two days before the scheduled execution, Rachel Alderete, the board’s director of support operations, said in an email. A spokeswoman for Abbott’s office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimized again if his son was executed. Lucio’s supporters have said her clemency request is similar in that her family would be retraumatized if she’s executed.

April 5, 2022 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 4, 2022

"No Check We Won't Write: A Report on the High Cost of Sex Offender Incarceration"

The title of this post is the title of this new article in the journal Sexual Abuse authored by Elizabeth Letourneau, Travis Roberts, Luke Malone and Yi Sun. Here is its abstract:

Child sexual abuse is a preventable public health problem that is addressed primarily via reactive criminal justice efforts.  In this report, we focus on the cost of incarcerating adults convicted of sex crimes against children in the United States.  Specifically, we summarize publicly available information on U.S. state and federal prison and sex offender civil commitment costs.  Wherever possible, we used government data sources to inform cost estimates.  Results indicate the annual cost to incarcerate adults convicted of sex crimes against children in the United States approaches $5.4 billion.  This estimate does not include any costs incurred prior to incarceration (e.g., related to detection and prosecution) or post-release (e.g., related to supervision or registration).  Nor does this estimate capture administrative and judicial costs associated with appeals, or administrative costs that cannot be extricated from other budgets, as is the case when costs per-prisoner are shared between prisons and civil commitment facilities.  We believe information on the substantial funding dedicated to incarceration will be useful to U.S. federal, state, and local lawmakers and to international policymakers as they consider allocating resources to the development, evaluation and dissemination of effective prevention strategies aimed at keeping children safe from sexual abuse in the first place.

April 4, 2022 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (10)

SCOTUS, via 6-3 ruling in Thompson v. Clark, clarifies requirements for certain § 1983 claims for malicious prosecution

The Supreme Court handed down one opinion this morning, and it concerns criminal justice issues.  Justice Kavanaugh wrote the relatively short opinion (12 pages) for the Court in Thompson v. Clark, No. 20-659 (S. Ct. April 4, 2022) (available here), and it begins this way:

Larry Thompson was charged and detained in state criminal proceedings, but the charges were dismissed before trial without any explanation by the prosecutor or judge.  After the dismissal, Thompson alleged that the police officers who initiated the criminal proceedings had “maliciously prosecuted” him without probable cause.  App. 33–34.  Thompson sued and sought money damages from those officers in federal court. As relevant here, he advanced a Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution.

To maintain that Fourth Amendment claim under §1983, a plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.  Cf. Heck v. Humphrey, 512 U.S. 477, 484, and n. 4 (1994).  This case requires us to flesh out what a favorable termination entails.  Does it suffice for a plaintiff to show that his criminal prosecution ended without a conviction?  Or must the plaintiff also demonstrate that the prosecution ended with some affirmative indication of his innocence, such as an acquittal or a dismissal accompanied by a statement from the judge that the evidence was insufficient?

We conclude as follows: To demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.  Thompson satisfied that requirement in this case.  We therefore reverse the judgment of the U.S. Court of Appeals for the Second Circuit and remand for further proceedings consistent with this opinion.

Justice Alito also wrote a 12-page opinion as a dissent, and it was joined by Justices Thomas and Gorsuch.  Here is how it starts:

Homer described the mythical chimera as a “grim monster” made of “all lion in front, all snake behind, all goat between.” The Iliad p. 201 (R. Fagles trans. 1990).  Today, the Court creates a chimera of a constitutional tort by stitching together elements taken from two very different claims: a Fourth Amendment unreasonable seizure claim and a common-law malicious-prosecution claim.

The Court justifies this creation on the ground that malicious prosecution is the common-law tort that is most analogous to an unreasonable seizure claim.  And because a common-law malicious-prosecution claim demanded proof of a favorable termination, the Court holds that its new creation includes that element.  But this Court has never held that the Fourth Amendment houses a malicious-prosecution claim, and the Court defends its analogy with just two sentences of independent analysis and a reference to a body of lower court cases.

I cannot agree with that approach.  The Court’s independent analysis of this important question is far too cursory, and its reliance on lower court cases is particularly ill-advised here because that body of case law appears to have been heavily influenced by a mistaken reading of the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994).

What the Court has done is to recognize a novel hybrid claim of uncertain scope that has no basis in the Constitution and is almost certain to lead to confusion.

April 4, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

No new SCOTUS cert grants, though three Wooden GVRs highlights ACCA's remaining wackiness

Based on a notable number of criminal law relists flagged here at SCOTUSblog by John Elwood, I was hoping there might be something interesting for sentencing fans on this morning's Supreme Court order list.  But the Justices today added no new cases to the SCOTUS docket. 

The Justices did GVR (grant, vacate, remand) three cases based on Wooden v. US (basics here, analysis here), which I suppose serves as a reminder that all federal courts will continue to struggle with how to apply the the Armed Career Criminal Act (ACCA) for the foreseeable future.  Sigh.  (A comment over at SCOTUSblog amusingly asked "Does sending back 3 cases for Wooden in the same order list count as one incident?"  The lawprof in me wants to correct the question to say "one occasion," but anyone who read this far likely gets the ACCA joke.)

April 4, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, April 3, 2022

"Invisible Victims"

the title of this post is the title of this intriguing recent paper authored by Mihailis Diamantis that I just found on SSRN.  Here is its abstract:

The halls of justice are forever closed to many who suffer grievous wrong.  They need not have done anything to forfeit their claim.  No matter how certain the evidence is or how eager prosecutors may be, no criminal court will admit them.  These victims are, for all intents and purposes, invisible to the criminal law.

Invisible victims exist because of doctrines that shield certain categories of people from any criminal justice inquiry.  These people include those whose alleged misdeeds occurred long ago, diplomats, legislators, pardon recipients, and the deceased, among many others.  Immunizing such individuals from criminal sanction often makes sound policy sense.  But criminal law has yet to reckon with the moral cost of deferring unconditionally to their interests.

This Article offers a more balanced approach.  Criminal law should permit courts to try suspects who are immune from punishment.  Trial could memorialize invisible victims’ narratives in the solemn forum of the courtroom.  Where the evidence warrants, juries could validate invisible victims by condemning the wrongs they suffered.  Familiar procedural safeguards could protect unpunishable suspects’ weightiest interests even as invisible victims finally receive the recognition they deserve.

April 3, 2022 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2)

Another round of highlights from among many great new Inquest essays

It has now been a few months since my last blog posting highlighting piece from Inquest, "a decarceral brainstorm," but that is not a reflection of that site lacking lots of new must-read essays.  Indeed, there is so much new and important content, I am not sure how anyone can keep up.  For now, here I will spotlight a handful of the many recent pieces worth checking out (with, of course, an emphasis on sentencing and corrections topics):

From Piper Kerman, "Burn the Spot: Writing about people you encounter in prison carries special responsibilities."

From Matthew Caldwell, "The End of Public Defenders: One path to ending mass incarceration is ending our modern conception of public defense. And being transparent about our work is one way to start."

From Caits Meissner, "Finishing Sentences: Writing about the harms of the penal system from within it is a form of freedom-fighting. It is not without risks — and many rewards."

From Ariel Nelson & Stephen Raher, "Captive Consumers: How government agencies and private companies trap and profit off incarcerated people and their loved ones."

April 3, 2022 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, April 2, 2022

"The Trouble with Time Served"

The title of this post is the title of this new article recently posted to SSRN and authored by Kimberly Kessler Ferzan. Here is its abstract:

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial.  In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice.  In fact, however, crediting detainees for time served is perverse.  It harms the innocent.  A defendant who is found not guilty, or whose case is dismissed, gets nothing.  Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive.  Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions.  The bottom line is this: Time served is not a panacea.  To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted.  The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds.  Time served should be abandoned.  Detainees should be financially compensated instead.  Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms.  Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

April 2, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, April 1, 2022

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

April 1, 2022 in Clemency and Pardons, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

April 1, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Thursday, March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

New short FAMM memo makes the case for the EQUAL Act

The folks at FAMM today released this short memo titled "The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences."   Though only two pages, the memo cover a lot of ground, and here are some of its concluding points (with cites removed):

The crack-powder disparity fosters and entrenches racial inequality

  • In 2019, 81% of people convicted of crack cocaine crimes were Black, even though white and Hispanic people have historically accounted for over 66% of crack users.
  • Before Congress established the crack-powder disparity in 1986, the average federal drug sentence for Black people was 11% higher than for whites. Just four years later, the average federal drug sentence for Black defendants was 49% higher.
  • The U.S. Sentencing Commission found that, in the case of crack cocaine penalties, “perceived improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system.”

Passing the EQUAL Act would reunite families sooner and protect taxpayers

  • If enacted, the EQUAL Act would reduce sentences for people serving time for crack offenses by an average of just over six years. This change alone would cut a total of 46,500 years off sentences.
  • For those convicted after the EQUAL Act passes, their average sentence will be reduced by 2.5 years. This change will reduce total sentences over the next ten years by 21,300 years.
  • By reducing unnecessary prison time by an estimated 67,800 years for people, 91 percent of whom are Black, the EQUAL Act will reunite thousands of families sooner and save hundreds of millions of taxpayer dollars in the first decade alone.

A few of many prior posts on the EQUAL Act:

March 31, 2022 in Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1)

An effective (though incomplete) review of current GOP views on criminal justice reform

Li Zhou has this lengthy new Vox piece about the state of GOP politics on criminal justice issues headlined "The Republican Party is still fractured on criminal justice reform."  The piece is worth a full read, and here are excerpts:

The rhetoric in Jackson’s hearing and in broader GOP messaging have seemed like a departure from the focus on criminal justice reform that the party had as recently as 2018, when the majority of Senate Republicans backed sentencing changes for nonviolent offenders in the First Step Act.  The party back then was eager to show it had made progress on an issue that arose from Congress’s efforts to crack down on crime decades ago.  (Many of these efforts notably excluded violent offenders or sex offenders that Jackson was spuriously accused of going easy on.)

There are some Republicans who are reluctant to evangelize criminal justice reforms now, advocates say, since increases in crime have become a GOP talking point.... “I think your average conservative, or average Republican, may have supported the First Step Act, but I have the impression that the average conservative has backed off from where they were,” says Clark Neily, a senior vice president of legal studies at the Cato Institute.

Experts emphasize, however, that the most aggressive moments in the hearing are not indicative of how open a segment of Republicans still is to important but limited criminal justice reforms. Just last week, 10 Republicans signed on to cosponsor the Equal Act, legislation that would reduce the sentencing disparities between crack cocaine and powder cocaine.  The legislation — which would make penalties the same for the two substances — has yet to be considered on the floor but could pass with the GOP support it has....

For years, the party has been fractured on the subject with senators like Tom Cotton (R-AR) opposed to virtually any reforms, while others like Sens. Rand Paul (R-KY), Mike Lee (R-UT) and Tim Scott (R-SC) have led efforts for sentencing reforms for nonviolent drug offenses and police reforms....

At the state and local level, many Republican officials have also pushed back on progressive prosecutors, policies like changes to cash bail, and reduced prosecutions for low-level offenses. “I think they’re often scared that if … crime continues to increase, no one wants the blame placed on them,” says Jillian Snider, the policy director for the criminal justice and civil liberties team at R Street Institute.

There’s also the Trump factor.  During his presidency, Trump’s support of the First Step Act helped to get Republicans who were on the fence on board. Without his advocacy on the issue now, some lawmakers are likely less open to this idea.

Because there are so many moving part to this story, even a strong press piece cannot cover the ground completely.  For example, the piece does not discuss the conventional wisdom that the slogan "abolish the police" proved extremely unpopular with voters in the 2020 election cycle, nor does it engage much with all sorts of interesting and diverse political reform dynamics at the state level (especially on topics like marijuana reform and record clearing).  Still, this piece reflects a notable moment in the ever-changing ebb and flow over crime policy and crime politics.

March 31, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (1)

Wednesday, March 30, 2022

New report claims many successes attributable to Proposition 47's sentencing reductions in California

The Center for Juvenile and Criminal Justice has this notable new report on developments in California titled "Proposition 47: A $600 Million Lifeline to California Communities." Here is the 10-page report's introduction (with cites preserved):

Proposition 47 (Prop 47), one of the most significant criminal justice reforms in California history, has now been in effect for more than seven years.  The initiative, which passed with nearly 60 percent of the vote in 2014, sought to interrupt cycles of frequent incarceration and redress decades of overly punitive sentencing by reclassifying several low-level drug and property offenses from potential felonies to misdemeanors (SOS, 2014; 2014a).  The result has been a marked decline in California’s incarcerated population (Bird et al., 2016; 2018; Graves, 2020).

A key provision of Prop 47 was the reinvestment of state dollars from prisons into community-based prevention programs.  This year, as part of his Fiscal Year (FY) 2022-23 budget proposal, Governor Gavin Newsom announced an additional $150 million in prison savings attributed to Prop 47 (DOF, 2022).  This latest investment would increase total funding to nearly $600 million.

Proposition 47 has been a lifeline to vulnerable Californians. This support has proved critical as California now faces an unprecedented set of challenges.  These include significant disruption and loss of life due to COVID-19, a reckoning over police violence against people of color, sharp increases in the cost of living, and rising rates of homelessness and drug overdose.  Most recently, there are changing public narratives around crime and the impacts of justice reform.  To date, Prop 47 has:

1. Coincided with a period of record-low crime in California (CJCJ, 2020; 2020a; 2021; 2021a).

2. Reduced unconstitutional overcrowding in state prisons (Graves, 2020).

3. Offered resentencing, release, and/or record change opportunities to thousands of Californians.

4. Lessened racial disparities in California’s criminal justice system (Lofstrom et al., 2020).

5. Reinvested more than half a billion dollars into local programs that address the root causes of incarceration for as many as 40,000 people by reducing homelessness and boosting employment.

March 30, 2022 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

"Free-World Law Behind Bars"

The title of this post is the title of this new article authored by Aaron Littman just published in the Yal Law Journal.  Here is its abstract:

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

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

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

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

March 30, 2022 in Prisons and prisoners | Permalink | Comments (2)

Tuesday, March 29, 2022

Another review of varying concerns about sentencing equity for January 6 rioters and others

This new Washington Post article reviews anew the enduring question of whether and how January 6 rioters are getting equitable treatment at sentencing.  The article is fully headlined "Judge: Nonviolent Jan. 6 defendants shouldn’t get ‘serious jail time’: A Trump appointee disputes that Capitol breach cases are unique, stirring a debate over how to hold individuals accountable in mass crime." I recommend the full piece, and here are excerpts:

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett M. Kavanaugh. “I know that the government believes that the January 6 cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor N. McFadden, a 2017 Trump appointee. He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations....

McFadden spoke out Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., who pleaded guilty to misdemeanor trespassing.  Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink....

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden, previously served as federal prosecutors in the District....

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants similar to nonviolent protesters who routinely disrupt congressional hearings or simple trespassers....

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura E. Hill rejected the comparison. “January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 that was not present on the days of the Kavanaugh protests.  The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and congresswomen were not required to evacuate the building. … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.  “When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer.  “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”

“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month.  Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”

Prosecutors say they are trying to treat people fairly based on their individual conduct.  But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

Some of many prior related posts:

March 29, 2022 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (7)

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021"

I continue to believe that federal sentencing reforms can continue to be an arena for bipartisan achievements in Congress (as we saw with the Fair Sentencing Act during the Obama Administration and with the FIRST STEP Act during the Trump Administration).  Of course, the recent SCOTUS confirmation hearings provided a reminder that some legislators on some criminal justice issues are going to favor partisan attacks over responsible discourse.  Nevertheless, my hope springs eternal and news from Congress last night bolsters this hope. 

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

I am so very pleased to see this very modest bill, but still very meaningful proposal, move forward and receive such overwhelming support from Representatives in both parties.  I hope this legislation can get a vote in the Senate ASAP.  

A few of many, many, many prior related posts:

March 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Monday, March 28, 2022

"Decarceration’s Inside Partners"

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

This Article examines a hidden phenomenon in criminal punishment.  People in prison, during their incarceration, have made important, sometimes extraordinary, strides toward reducing prison populations.  In fact, stakeholders in many corners, from policymakers to researchers to abolitionists, have harnessed the legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls that were once considered impossible.  Despite this outside use of inside moves, legal scholars and reform-minded actors have disregarded the potential of looking to people on the inside as partners in the long-term project of decarceration.

Building on the change-making agency and revolutionary ideation inside the walls, this Article points the way to a new, alternative approach to decarceration: thinking alongside people banished from the polity.  Criminal law scholars routinely recount their stories but rarely do we consider people held in prison as thought leaders, let alone equal partners, to progress toward a noncarceral state.  Despite conducting extensive research on prisons and those held inside them, legal scholars know — and wonder — tremendously little about the decarceral work, decarceral ideas and “think tanks” that surge behind bars.  The absence of our curiosity reflects and reproduces the ideological work of carceral punishment.

This Article demonstrates that an alternative vision of decarceration that resists this ideological work opens up more promising paths to create the legal and social change that our current moment demands.  It calls on law scholars to find ways to discover, ignite and emancipate more decarceral visions on the inside.  And it argues that, unless we make this challenging shift, we suppress innovative, effective and more conceivable possibilities to radically transform our carceral state.

March 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

March 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

March 28, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Sunday, March 27, 2022

"Charging Time"

The title of this post is the title of this new paper now available via SSRN authored by Pamela Metzger and Janet Hoeffel. Here is its abstract:

On the day William Haymon turned 16, it was his 511th day in jail in Mississippi and a prosecutor had yet to formally charge him with a crime.  William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges.  In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them.  Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been no study of the necessity of the extended time period between arrest and charging.  Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss.  In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.

A recent original study reveals that prosecutors’ crushing caseloads, shoddy and inadequate investigative work by police officers, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep.  Extended time in jail risks lives, health, jobs and case outcomes.  Yet we explain how neither the constitutional protections granted to criminal defendants nor statutory provisions provide any remedy at this uncharged stage.  After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in the charging decisions of prosecutors across the country.

March 27, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)