Monday, November 28, 2022

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

November 28, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

November 28, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, November 27, 2022

Previewing SCOTUS arguments on reach of federal public-corruption laws

The Supreme Court starts a new round of oral arguments this Monday, beginning with a pair of political corruption cases, Ciminelli v. United States and Percoco v. United States.  SCOTUSblog has these previews of the coming arguments:

"A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting."

"Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law"

In addition, here are a few media previews:

From The Buffalo News, "Supreme Court to hear Ciminelli, Percoco appeals – and decide shape of federal corruption laws"

From Reuters, "U.S. Supreme Court to weigh Cuomo-era New York corruption cases"

From the Wall Street Journal, "The Supreme Court Gets a Fraud Test: The Justices hear two major cases on prosecutorial overreach."

November 27, 2022 in Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

November 27, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, November 26, 2022

Rounding up some criminal justice news and notes over holiday week

One easy way to catch up on a number of criminal justice stories and commentaries is to do a round-up of headlines and links. So here goes:

From the AP, "Judge denies 19-year-old's ask to attend father's execution"

From the Arizona Republic, "States under scrutiny for recent lethal injection failures"

From the Atlantic, "The Crime Spike Is No Mystery: By zooming out and looking at the big picture, the question of what causes violence becomes quite answerable."

From Ball and Strikes, "The Supreme Court Is On Another Execution Spree"

From Law Dork, "Failures of capital punishment: Alabama, Missouri, and Oklahoma"

From Rolling Stone, "‘Digitized Love’: How Prison Mail Bans Harm Incarcerated People"

From The Conversation, "The criminal justice system is retraumatizing victims of violent crime"

From the New Republic, "The Supreme Court’s New Second Amendment Test Is Off to a Wild Start"

From the New York Times, "The Search for Beauty in a Prison Cell"

From the Wall Street Journal, "The U.S. Knows How to Reduce Crime: Evidence-based strategies like ‘focused deterrence’ don’t conform to partisan slogans, but they have been shown to work"

November 26, 2022 in Recommended reading | Permalink | Comments (0)

Wednesday, November 23, 2022

Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence

As reported in this new press piece, "District Judge Edward Davila has proposed sentencing Theranos founder Elizabeth Holmes to a federal prison camp in Texas, according to court filings." Here is more:

“The Court finds that family visitation enhances rehabilitation,” Davila wrote in the filing, according to Bloomberg, which summarized the terms of Holmes’ sentencing.

The prison camp is located in Bryan, Texas, and was proposed as an alternative to Holmes serving her 11-year 3-month sentence at a California prison.  There’s a few prison camps like this one across the country that typically have a low security-to-inmate ratio, dormitory housing, and a work program. “...compared to other places in the prison system, this place is heaven.  If you have to go it’s a good place to go.” Alan Ellis, a criminal defense lawyer, told Bloomberg.

Keri Axel, a criminal defense attorney told Yahoo! Finance that it is common for non-violent offenders like Holmes to serve out their time at minimum security facilities.  “Sometimes they’re called ‘Camp Fed’ because they have a little bit more amenities, and they’re a little nicer places,” she said, adding the caveat, “they’re not great places. No one wants to be there.”

Although the judge has recommended the prison camp for Holmes’ incarceration, the U.S. Bureau of Prisons will make the final decision.  Holmes was sentenced to 11 years and three months in prison on November 18 after she was found guilty of defrauding Theranos investors out of millions of dollars as part of her failed blood-testing startup.  She was also sentenced to three years of supervision after her release.

Prior related posts:

November 23, 2022 in Celebrity sentencings, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, November 22, 2022

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

November 22, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state

As reported in this local article, "Alabama Gov. Kay Ivey has ordered a halt to executions in the state after two failed attempts at lethal injections, calling for a 'top-to-bottom' review of the process."  Here is more:

The announcement came in the form of a press release sent Monday morning. According to the press release, the governor asked Alabama Attorney General Steve Marshall to withdraw the state’s two pending motions in the Alabama Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.

“Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” the press release stated.

Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete. No timeline was provided. A spokesperson for the Alabama AG’s office said Marshall will ”have more to say on this at a later date.”

Miller was set to be executed on Sept. 22, but survived after prison workers couldn’t find a vein to start the intravenous line needed for the three-drug lethal injection cocktail before the death warrant expired at midnight. Kenneth Eugene Smith, who was set to die Nov. 17, experienced a similar situation and also survived after officials couldn’t start an IV.

A federal judge has ordered the ADOC must preserve evidence from both failed execution attempts.

“For the sake of the victims and their families, we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here,” Ivey said in the statement. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment. I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

Hamm also made a statement, which was sent alongside the governor’s. “I agree with Governor Ivey that we have to get this right for the victims’ sake. Everything is on the table – from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”...

The Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty sent a joint statement applauding the decision. After the July execution of Joe Nathan James Jr., the groups launched a campaign called “Pull Back the Curtains” to call for transparency in the execution process.

“The ‘Pull Back The Curtains’ campaign references the fact that corrections workers are starting the execution process without public scrutiny. Every government program, especially executions, should be transparent from the start,” the groups said in a statement. “We are relieved that there will be a review, and dismayed that our state won’t simply throw out this archaic and unnecessary punishment. Among other things, at a minimum this review should assess the toll taken on corrections workers & establish PTSD support for tortured prisoners and corrections officers alike.”

November 22, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, November 21, 2022

Does Prez Biden's clemency record in 2022 deserve some praise on the day of turkey pardons?

Prez Biden today engaged in the annual turkey pardon silliness at the White House, and I found this array of headlines about the event amusing:

From AP, "Biden opens holidays, pardons turkeys Chocolate and Chip"

From CNN, "Biden pardons Thanksgiving turkeys: 'No ballot stuffing, no fowl play'"

From Fox News, "80-year-old Biden falsely claims Delaware has most chickens in the nation"

Media biases aside, I usually have my own bias toward criticizing each and every president on this day for pardoning turkeys so regularly while granting clemencies to people so rarely.  Here are a few prior posts of this vintage:

But, as the title of this post asks, I am wondering whether I have to use this day in 2022 to praise rather than criticize President Joe Biden's clemency record.  Back in April, as detailed here, Prez Biden used his clemency pen to grant three pardons and 75 commutations.   And last month, as detailed here, Prez Biden pardoned many thousands of persons federally convicted of simple possession of marijuana.  This record puts Prez Biden way ahead of any other modern President in terms of clemency grants in his first few years in office, and I do think that merits some praise.

That said, as perhaps the title of this post hints, I also think there is far more that a president can and should do with the clemency pen, and so I am eager to push Prez Biden to do more, a lot more.  There are still many thousands of persons serving excessive federal prison terms and hundreds of thousands pf persons burdened with the collateral consequences of low-level federal convictions.  Though I am prepared to praise Prez Biden for what he has done so far, I also want to make sure he knows there is a lot more clemency work to do.

November 21, 2022 in Clemency and Pardons, Who Sentences | Permalink | Comments (1)

"Punishment Externalities and the Prison Tax"

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

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation.  Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.  But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state.  These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment.  This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities.  The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions.  This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

November 21, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, November 20, 2022

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

November 20, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, November 19, 2022

Lots and lots more terrific new Inquest essays

Amid a very busy semester, I have not been able to keep up with the steady stream of great pieces regularly posted at Inquest.  Inquest, "a decarceral brainstorm," keeps churning out lots and lots of must-read essays, and I am hoping the coming holiday season provides me more time to read (or re-read) all the great content.  Here are just some of the recent pieces sentencing fans may want to check out:

By Cecilia Bruni & Destiny Fullwood-Singh, "Serial Injustices: Millions rallied behind Adnan Syed, whom the system gave a second look. Many others serving extreme sentences deserve a second look, too."

By Abraham Santiago & Norman Gaines, "A Passport to the Future: Restoring Pell grants for incarcerated students is long overdue. But without meaningful infrastructure, true freedom will remain elusive."

By Cristian Farias, "Revoking Probation: After years of working in the system, a reformer and believer in government gives up on probation and parole."

By J.D. King & Andrea Roth, "Anything But Petty: Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system."

By Ashley Kilmer & Sami Abdel-Salam, "Pretty and Punitive: For all its aesthetically pleasing attributes, Norway’s Halden Prison is still a prison for the men who must endure it."

By Tomas Keen & Atif Rafay, "Decarcerating from Within: A path for imprisoned writers to offer reasoned analysis on policies affecting the carceral state."

November 19, 2022 in Recommended reading | Permalink | Comments (0)

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

November 19, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 18, 2022

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentence: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

November 18, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (8)

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

November 18, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (5)

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

November 18, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Thursday, November 17, 2022

Oklahoma completes execution for man who killed three-year-old child nearly 30 years ago

As reported in this AP article, "Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993."  Here is more:

Richard Stephen Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Broomhall's family. “Today's a day for Adam, justice for Adam," Fairchild said....

Michael Hurst, the slain child's uncle, said the boy would have been 34. “Our long journey for justice has finally arrived," Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn't said that in 30 years.”

Prosecutors from the Oklahoma attorney general's office had described the boy's killing as torture when they wrote to the state's Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Fairchild's execution was the seventh since Oklahoma resumed carrying out the death penalty in October 2021 and one of four scheduled nationwide over a two-day stretch. It was the 16th execution in the U.S. this year, including one in Texas and one in Arizona on Wednesday, up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama. Oklahoma's attorney general this summer asked the state's top criminal appeals court to set more than two dozen execution dates.

November 17, 2022 in Death Penalty Reforms | Permalink | Comments (0)

"Assessing the Status of Minors in Possession: Marijuana Versus Alcohol"

The title of this post is the title of this new article available via SSRN authored by Mitchell F. Crusto, Jillian Morrison and Laurel C. Taylor.  (Disclosure: this paper was supported by a grant from the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.)  Here is its abstract:

The legalization and decriminalization of marijuana at state level has an impact on adult use, as well as on use by minors. In many jurisdictions, minor use and possession of marijuana is regulated much like that of alcohol.  This paper examines the statutory language of laws regulating possession of marijuana by minors across states in which marijuana is legalized, decriminalized, and illegal.  From there, data was collected to look at the arrest rates for minors in three case study jurisdictions.  The purpose of this comparison was to reveal how laws criminalizing minors in possession of marijuana are carried out as reflected in the arrest rates of reporting jurisdictions. 

Overall marijuana arrests for minors in possession decreased from 2018 to 2020 across every state case example provided.  Additionally, based on the case examples provided in those states that decriminalized marijuana, arrests for juveniles were lower overall than those with legalized or illegal status.  While further analysis is needed, the study found positive results, noting that states across the board appear to be decreasing arrest rates for marijuana possession, and more and more states are looking to alcohol violation statutes to craft their marijuana violation statutes for minors.  Accordingly, the public shift in thinking about marijuana appears to be impacting the practicalities of drafting statutes and mandating arrests for the better: to create a less hostile approach with less punitive impact on minors.

November 17, 2022 in Marijuana Legalization in the States, Offender Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

Wednesday, November 16, 2022

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

November 16, 2022 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Texas stuggles a bit as it completes its fifth and final execution in 2022

As reported in this local article, headlined "Texas’ execution of Stephen Barbee was prolonged while officials searched for a vein," an execution in Texas tonight was a bit more of a struggle than usual. Here are the details:

Texas’ execution of Stephen Barbee Wednesday evening was prolonged while prison officials searched for a vein in the disabled man’s body, according to a prison spokesperson.

Barbee, convicted in the 2005 murders of his pregnant ex-girlfriend and her child, had severe joint deterioration which prohibited him from straightening his arms or laying them flat, according to court records. His attorney had recently tried to halt his execution because he feared the process with Barbee’s disability would result in “torture.”

But courts rejected the appeals, noting that prison officials had vowed to make special adjustments to the death chamber’s gurney to accommodate Barbee. Still, it took much more time to carry out the execution than is typical in Texas. Reporters walked into the prison around 6 p.m., signaling the execution was about to begin. But for an hour and 40 minutes, no one came back out, causing anti-death-penalty protesters outside to grow worried that something had gone wrong. It is uncommon for executions to last more than an hour. “Due to his inability to extend his arms, it took longer to ensure he had functional IV lines,” prison spokesperson Amanda Hernandez said in an email Wednesday night.

Barbee was pronounced dead at 7:35 p.m., nearly an hour and a half after he was strapped into the death chamber’s gurney, according to the prison’s execution record. Within minutes of being strapped on the gurney, an IV was inserted into his right hand, at 6:14 p.m., but it took another 35 minutes for an additional line to begin flowing in the left side of his neck. All the while, his friends watched through a glass pane adjacent to the chamber, according to a prison witness list. So did the friends of the murder victims — Lisa Underwood and her 7-year-old son Jayden — as well as Underwood’s mother....

Hours before the prisoner’s scheduled death, Barbee’s execution was paused as courts battled once again over the state’s handling of the prisoner’s religious rights in the death chamber. Federal courts this month went back and forth over Texas’ execution policy and the findings of multiple U.S. Supreme Court rulings largely requiring the state to allow prisoners’ religious advisers to audibly pray and touch them in their final moments. On Tuesday, a district judge essentially halted Barbee’s pending execution, stating Texas’ prison system can only kill the death row prisoner after creating and adopting a new execution policy that clearly lays out his final religious rights. But after the federal appellate court and the U.S. Supreme Court both ruled in favor of the state early Wednesday afternoon, Barbee’s execution was put back on track.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (4)

Arizona completes execution of man convited of committing a double murder 42 years ago

As report in this AP piece, an "Arizona man convicted of murdering two people in 1980 was put to death Wednesday in the state's third execution since officials started carrying out the death penalty in May after a nearly eight-year hiatus." Here is more:

Murray Hooper, 76, died by lethal injection at the state prison in Florence for his murder convictions in the killings of William "Pat" Redmond and his mother-in-law, Helen Phelps, at Redmond's home in Phoenix.  Redmond's wife, Marilyn, also was shot in the head during the attack but survived and testified against Hooper at his trial....

Hooper was executed within a couple hours of the U.S. Supreme Court rejecting his last-minute appeal.  Hooper's lawyers had asked the Supreme Court to review his claim that that authorities had until recently withheld that Marilyn Redmond had failed to identify him in a photo lineup.  The high court made no comment in the rejection. His appeal was brought to the high court after the Arizona Supreme Court ruled to allow Hooper's execution to proceed in October.

Authorities say the killings were carried out at the behest of a man who wanted to take over Redmond's printing business. Hooper has maintained that he is innocent for four decades and suggested he was framed for the crimes.  Kelly Culshaw, an assistant federal public defender representing Hooper, said in a statement last month that he was sentenced and convicted "based on corrupt police practices and unreliable witness testimony."...

The courts rebuffed attempts by Hooper's lawyers to postpone the execution and order fingerprint and DNA testing on evidence from the killings. But his lawyers said Hooper is innocent, that no physical evidence ties him to the killings and that testing could lead to identifying those responsible.  They say Hooper was convicted before computerized fingerprint systems and DNA testing were available in criminal cases....

Authorities say Hooper and two other men forced their way into the Redmond home on Dec. 31, 1980.  The three victims were bound, gagged, robbed and shot in the head.  Two other men, William Bracy and Edward McCall, were convicted in the killings but died before their death sentences could be carried out....

Arizona did not carry out the death penalty for nearly eight years after criticism that a 2014 execution was botched and because it encountered difficulty obtaining lethal injection drugs.  No other executions are currently scheduled in the state.  Arizona now has 110 people on death row, 22 of whom have exhausted their appeals, according to the state attorney general's office.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (1)

Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

In this post from a couple of months ago, I noted the notable 25-page ruling in US v. Quiroz, No. PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022) (available here), in which a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional.  As of earlier this week, another federal district court, this one in Oklahoma, formally agreed.  Here is the start and conclusion of the 12-page opinion in US v. Stambaugh, No. CR-22-00218-PRW-2 (W.D. Ok. Nov. 14, 2022) (available here):

Before the Court is Defendant Stolynn Shane Stambaugh’s Motion to Dismiss Count 3 of the Indictment as Unconstitutional (Dkt. 31) and the United States’ Response in Opposition (Dkt. 38). Stambaugh seeks to dismiss Count 3 — Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. § 922(n) — on grounds that § 922(n), as applied to him, violates the Second Amendment to the United States Constitution.  The motion has been briefed and heard. For the reasons explained below, the Court GRANTS Stambaugh’s motion (Dkt. 31)....

A historical analogue to support constitutional applications of § 922(n) might well exist, but the United States hasn’t pointed to it.  And because it is the United States’ burden to demonstrate that laws like § 922(n) are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” that failure is fatal.  While the United States needed not find a “historical twin,” surety laws and § 922(n) are simply not “analogous enough to pass constitutional muster,” particularly not in a case like this, where there is nothing in the record to support the United States’ contention that Stambaugh is categorically a “dangerous person” merely because he was indicted for larceny. Accordingly, the Court finds that § 922(n) is unconstitutional as applied to Stambaugh and therefore GRANTS his motion to dismiss Count 3 of the Indictment.

Some prior recent related posts:

November 16, 2022 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

Prison Policy Initiative reports on "Winnable criminal justice reforms in 2023"

Via email, I learned that the Prison Policy Initiative already has produced its "guide to winnable criminal justice reforms" for 2023.  As explained over at the PPI site, "this briefing is not intended to be a comprehensive platform," but the list is intended "to offer policymakers and advocates straightforward solutions that would have the greatest impacts on reducing incarceration and ameliorating harms experienced by those with a conviction history, without further investments in the carceral system."   Via the email sent my way, here links to part of the guide and additional context:

The reforms focus on nine areas:

Each reform explains the problem it seeks to solve, points to in-depth research on the topic, and highlights solutions or legislation introduced or passed in states.  While this list is not intended to be a comprehensive platform, we’ve curated it to offer policymakers and advocates straightforward solutions that would have the greatest impacts without further investments in the carceral system and point to policy reforms that have gained momentum in the past year.  We have focused especially on those reforms that would reduce the number of people needlessly confined in prisons and jails.  We made a conscious choice to not include critical reforms that are unique to just a few states, or important reforms for which we don’t yet have enough useful resources to be helpful to most states.

November 16, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

"Sentencing Commissions and Guidelines: A Case Study in Policy Transfer"

The title of this post is the title of this notable new article authored by Arie Freiberg and Julian V. Roberts now available via SSRN. Here is its abstract:

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils.  Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.  This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978.

The article explores the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions.  This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. 

November 16, 2022 in Sentencing around the world, Who Sentences | Permalink | Comments (0)

Latest Gallup polling highlights "Steady 55% of Americans Support Death Penalty for Murderers"

Republicans-remain-most-supportive-of-death-penaltyThe quoted portion of the title of this post is the title of this recent Gallup report on its latest polling on opinions regarding the death penalty.  Here are excerpts:

The majority of Americans, 55%, are in favor of the death penalty for convicted murderers in the U.S. While this marks the sixth consecutive year that support for capital punishment is between 54% and 56%, it is below the 60% to 80% readings recorded in the four prior decades between 1976 and 2016.

When Gallup initiated this measure in 1936, 59% of U.S. adults favored the death penalty for convicted murderers -- and majorities have supported it since then, with the exception of several readings taken between 1957 and March 1972, including the record-low 42% in 1966.

After the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it. When it was reinstated in 1976, public support for it grew until it peaked at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped to the lowest point since 1972, and today it remains at that level.

The latest findings are from an Oct. 3-20 Gallup poll that was conducted during the trial of the gunman who murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018.  On Oct. 13, the jury in the highly publicized trial spared him the death penalty and instead sentenced him to prison for the rest of his life. The decision was met with disappointment from many of the victims' families, who thought the gunman should be put to death.

Partisans' views of the death penalty differ sharply, with majorities of Republicans (77%) and independents (54%) favoring it but a majority of Democrats opposed (63%) and 35% in favor.

Since 2000, when Gallup began tracking the measure annually in its Crime survey, Republicans' support has been the most consistent. No less than 72% of Republicans have been in favor of the death penalty, and the latest reading is not statistically different from the 2000 reading of 80%.

Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000.

Democrats' support for capital punishment has not been at the majority level since 2012 and has varied the most of the three party groups, ranging from 34% to 65% since 2000. Democrats' latest reading is essentially unchanged from last year's record low for them and is 21 points lower than the 2000 reading.

November 16, 2022 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Tuesday, November 15, 2022

Another round up of post-election criminal justice analysis

As noted before, I did a number of pre-election posts with a round-up of news and commentary focused on criminal justice policy and politics as the 2022 voting approached (see here and here and here).  In turn, late last week, I did a first post-election round-up (and update) with news and commentary as all the 2022 mid-term votes were being counted.  With counting now almost complete, here are another set of new pieces in this space:

From the ACLU, "Three Key Criminal Legal Reform Takeaways from the 2022 Midterms"

From Colorado Public Radio "For losing Republicans, a silver lining: They pushed the conversation on crime and public safety during the election"

From The Crime Report, "Reform – Not Crime – Was the Winning Message in 2022"

From Filter, "Midwest Offers Only Real Reform Highlights in 2022 Prosecutor Elections"

From The Marshall Project, "7 Key Criminal Justice Takeaways From the Midterms"

From The Washington Post, "How Democrats can win voters’ trust on crime"

November 15, 2022 in Elections and sentencing issues in political debates | Permalink | Comments (0)

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

Prior related post:

November 15, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

Monday, November 14, 2022

"The Inherent Problem with Mass Incarceration"

The title of this post is the title of this new essay authored by Raff Donelson now available via SSRN.  Here is its abstract:

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration.  This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs.  Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically.  This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes.  On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

November 14, 2022 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3)

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Bac4c356-7915-4767-bd62-7e39643a3eb3The title of this post is the title of this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

More details and a simple registation form can be found at this link

November 14, 2022 in Clemency and Pardons, Pot Prohibition Issues, Who Sentences | Permalink | Comments (2)

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

November 14, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 13, 2022

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

Prior related posts:

November 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (9)

Saturday, November 12, 2022

New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges (see posts here are here).  I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 USC § 922(g)(1) and the federal drug-user-in-possession statute, 18 USC § 922(g)(3).  Interestingly, as detailed in prior posts here and here, a few district courts have already declared other parts of § 922 unconstitutional.  And this past week a new opinion adds § 922(g)(8) to the post-Bruen carnage.

Title 18 USC § 922(g)(8) makes it a federal crime for any person to possess a firearm while subject to a domstic violence restraining order.  In his opinion in US v. Perez-Gallan, No. PE:22-CR-00427-DC (SD Texas Nov. 10, 2022) (available here), US District Judge David Counts works through Bruen analysis to conclude "that § 922(g)(8) is unconstitutional under Bruen's framework." The opinion is 30+ pages long, and it starts and ends this way:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods.  A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth.  Firearm regulations are that overgrowth.  Starting with the Federal Firearms Act in 1938, laws were passed with little — if any — consideration given to their constitutionality.  That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool.  But after growing unchecked for almost 100 years, today’s tangle of gun laws has left lower courts with a gordian knot.  And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw....

How strictly or flexibly a court reads Bruen impacts its conclusion.  Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry.  According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge.  Thus, after sifting through the history above, this Court finds that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen.  As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Some prior recent related posts:

November 12, 2022 in Gun policy and sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (6)

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

November 12, 2022 in Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 11, 2022

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

November 11, 2022 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

Veterans-original_cropThe question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

November 11, 2022 in Clemency and Pardons, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another important look at the role of prosecutors in second-look sentencing

Many years ago, I had the honor of giving a keynote speech at a conference focused on the work of prosecutors where I suggested they should be much more involved in reviewing past sentences.  That speech, whi got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010), came to mind as I read this new Marshall Project piece headlined "Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do."  I recommend the lengthy and effective piece in full, and here is a brief excerpt:

Louisiana is one of five states that has recently passed prosecutor-initiated resentencing laws, along with California, Washington, Illinois and Oregon.  Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — considered similar bills this year, though none were brought to a vote.

Many incarcerated people view these laws as a way to get fresh eyes on their cases.  Advocates for criminal justice reform say the laws are needed to help reduce mass incarceration.

But their reach so far has been concentrated in the offices of a few district attorneys, mainly in urban areas, according to a review by The Marshall Project.  One reason is the high cost of reviewing old cases, prosecutors say. There are also moral and political issues.  Some prosecutors are philosophically opposed to the notion of overturning sentences handed down by a judge, and others fear pushback from voters.

Some of many recent prior related posts:

A small sampling of my prior writing on this front:

November 11, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 10, 2022

Rounding up a few post-election accountings and commentary on the crime and justice front

I did a number of pre-election posts with a round-up of news and commentary focused on criminal justice policy and politics as the 2022 voting approached (see here and here and here).  It now seems only fitting to do a (first?) post-election round-up of news and commentary as we get closer to all the 2022 mid-term votes being counted:

From The Appeal, "Midterm Elections Deliver Some Good News For Criminal Legal Reform"

From The Crime Report, "Crime and the Midterms"

From Democracy Now!, "Progressive Prosecutors Win Key Races Despite GOP Attacks on Criminal Justice Reform"

From the New York Times, "For Republicans, Crime Pays, No Matter What Else Happens"

From Reason, "The Crime Backlash Mostly Failed To Materialize on Election Night"

From the Washington Post, "How Democrats can win back trust on the issue of crime"

 

UPDATE:  I now have seen some more pieces in this vein since my initial posting:

From The Appeal, "Voters Didn’t Buy The ‘Crime Panic’ Narrative. Democrats Should Take Note."

From BuzzFeed News, "Progressive Prosecutors Won In Midterm Elections Across The US In Spite Of Tough-On-Crime Rhetoric From Republicans"

From Mother Jones, "Republicans Hoped a 'Crime Wave' Was Their Ticket to a Red Wave. It Wasn’t."

From Religion Unplugged, "Recreational Marijuana Use Becomes New Front In The Culture Wars Following Midterms"

From Vera Action, "As Voters Reject Crime Scare Tactics in the 2022 Midterms, Democrats Must Seize the Opportunity for a New Path Forward on Safety and Justice"

From The Watch (Randy Balko), "What the midterms told us about voters and crime"

November 10, 2022 in Elections and sentencing issues in political debates | Permalink | Comments (0)

"Dresser Drawer Pardons: Pardons as Private Acts"

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

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

November 10, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 9, 2022

Texas completes its fouth execution in 2022

As reported in this local artcle, Texas "executed Tracy Beatty on Wednesday evening for murdering his mother in East Texas in 2003."  Here are some of the backstory:

Beatty, 61, was found guilty of fatally strangling Carolyn Click at the end of a violent and tumultuous relationship. Although his attorneys acknowledge Beatty killed his mother, they contended the crime didn’t qualify for the death penalty.

Lethal drugs were injected into Beatty at 6:22 p.m. Wednesday inside the state’s Huntsville Unit, and he was declared dead 17 minutes later, according to the Texas Department of Criminal Justice....

Although Beatty gave several versions of what happened in his 62-year-old mother’s death, according to court records, he ultimately told police that he came home drunk, the pair started fighting and he choked her. He said he didn’t realize Click was dead until the next day.

But Beatty was found guilty of capital murder because prosecutors argued he killed his mother during a home burglary, entering without her consent, even though he lived with Click at the time. A neighbor testified that Click had told her the day she was last seen that she had told her son that day to move out after a fight....

Beatty had been released from prison on parole months before Click’s death. Prosecutors at trial listed a slew of his previous criminal charges, including injuring a prison guard and assaulting an 18-month-old child....

Neither the Supreme Court nor Texas Gov. Greg Abbott intervened in Beatty’s execution. It was the state’s fourth execution of the year. Seven others are scheduled in Texas through September.

November 9, 2022 in Death Penalty Reforms | Permalink | Comments (0)

New DPIC analysis finds "murder rates during the pandemic were highest in states with the death penalty"

2020-Pandemic-Murder-RatesThe Death Penalty Information Center has posted this notable new review of murder data under the heading "DPIC Analysis: Pandemic Murder Rates Highest in Death Penalty States." I recoemmend the full posting, and here are excerpts (with links and the chart from the original, footnotes removed):

A DPIC analysis of 2020 U.S. homicide data has found that murder rates during the pandemic were highest in states with the death penalty and lowest in long-time abolitionist states.

DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem.  Then, taking the analysis out of the realm of politics and into the context of public policy, DPIC compared the data to states’ death-penalty status and historic usage of the death penalty.  That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the states’ general level of death-penalty usage.

The data show that nine of the ten states with the highest pandemic murder rates — ranging from 9.9 to 20.5 murders per 10,000 residents — are death penalty states. On the other hand, eight of the eleven states with the lowest pandemic murder rates — ranging from 0.88 to 3.49 murders per 10,000 residents — had abolished the death penalty. DPIC found that the three death penalty states with the lowest pandemic murder rates — all 2.89 murders per 10,000 residents — have not carried out an execution in more than a decade, and one had a gubernatorial moratorium on executions.

Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.

More than half of all death penalty states (14 of 27) had murder pandemic murder rates of at least 7.00 per 100,000 residents, and 30 percent (8 states) had pandemic murder rates of 10.29 per 100,000 residents or higher. By contrast, nearly two-thirds of the states that had abolished the death penalty (15 of 23) had pandemic murder rates of 5.14 or less per 100,000 residents, more than a third (8 states) had pandemic murder rates below 3.5 murders per 100,000 residents....

DPIC’s review of The Third Way pandemic murder data found that 15 of the 20 states with the highest pandemic murder rates are death penalty states, of which 12 have carried out 20 or more executions each in the past half century. Collectively, these 12 states have accounted for more than three quarters of all executions in the U.S. since the 1970s.

At the other end of the spectrum, none of the 23 states with the lowest pandemic murder rates are historically heavy users of capital punishment. Fifteen had abolished the death penalty, including nine who had not had the death penalty at any time during the 21st century.  The eight death penalty states with the lowest pandemic murder rates include two with moratoria on executions, six who have executed five or fewer people in the past half century, one that has carried out seven executions, and six who have not executed anyone in more than a decade.

Twenty U.S. states have carried out ten or more executions in the past half-century.  All of them, including three who have since abolished the death penalty, are among the 28 states with the highest pandemic murder rates.

November 9, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4)

So, does anyone already have "hot takes" on what election results might mean for criminal justice reforms?

Because votes are still being counted nationwide and especially because control of the US Senate may not be resolved until a Georgia run off in December, it is way too early to make any confident predictions about the national policy landscape for the next few months or the next few years.  But with marijuana reform getting mixed results in five states — winning in the big states of Maryland and Missouri, losing in the smaller states of Arkansas, North Dakota and South Dakota — there is already a basis to make a lot of mixed predictions about the short- and long-term future of marijuana reforms.  Likewise, with crime and punishment being a big part of lots of other candidate campaigns that have been called, maybe it is not too early for folks to have interesting views on what the 2022 election means for crime and punishment issues in 2023 and beyond.

So, dear readers, please feel free to use the comments to flag any especially notable races (or exit polls) that you think are especially important for informed political or policy view on criminal justice issues post-election 2022.  And, as the title of this post suggests, "hot takes" are more than welcome.

November 9, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (9)

"Set up to Fail: Youth Probation Conditions as a Driver of Incarceration"

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

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision.  Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions.  The orders rely on standardized terms on youth probation condition forms.  This is the first scholarly Article to excavate original youth probation condition forms.  It relies on data from 17 different urban and rural jurisdictions across the United States, including the five largest, and provides both a descriptive and perscriptive analysis of the problems with the design and execution of probation conditions.

Based on my analysis of hundreds of youth probation conditions in these different jurisdictions, I argue that standard youth probation conditions are part of a youth probation system that is structurally flawed in its design and execution, and that probation conditions that lack an adolescent framework cause real harm to youth and their families — particularly those who are most vulnerable, especially youth of color.  Simultaneously, youth probation systems concentrate power in probation officers, granting them inordinate discretionary power.  Although youth probation is viewed as the ideal alternative to detention, I argue that youth probation in its current structure is a driver of incarceration — that should be viewed as part of a carceral state — in need of thoughtful re-imagination: perhaps even abolition.

November 9, 2022 in Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Tuesday, November 8, 2022

How many federal LWOP sentences have been reduced via 3582(c)(1)(A) and on what grounds?

The question in the title of this post was prompted by a notable new ruling sent my way, US v. West, No. 06-21185 (E.D. Mich. Nov. 7, 2022), which grants a sentenced reduction motion for a prisoner serving a federal LWOP sentence.  Before discussing that opinion (which can be dowloaded below), I will note that Figure 2 of the USSC's latest Compassionate Release Data Report from September 2022 reports that 27.9% of the over 4000 prisoners who have had their 3582(c)(1)(A) motions granted were serving original sentences of "20 years or more."  In other words, since the First Step Act became law in December 2018, well over 1000 persons serving sentences of 20 or more years have received sentence reductions.  But, to my knowledge, the USSC has not provided further details with any data specifically regarding prisoners serving LWOP securing compassionate release or regarding the reasons judges commonly give when reducing LWOP sentences.

General numbers and broader trends aside, the ruling in West makes for an interesting read because the judge here decides that Apprendi error as well as unwarranted sentencing dispartity provided extraordinary and compelling reasons for a sentence reduction.  Here is how the West opinion gets started:

Roy West is in year 17 of a life without parole sentence.  The indictment and case submitted to the jury should have netted West not more than ten years in prison.

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition of a sentence in violation of the law on West.  Even skilled appellate counsel failed to raise the sentencing error.

West has no way to correct this extraordinary and compelling error — and end his days in prison — but through his now pending motion for sentence reduction (compassionate release).

18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, opens an avenue for this Judge to correct a fundamentally unfair sentence that did not exist before.  Justice and faith in our judicial system demand correction for the benefit of Roy West.

This human error on multiple levels, the resulting sentencing disparity, the absence of any other avenue for relief, and West’s extraordinary rehabilitation constitute extraordinary and compelling reasons for sentence reduction.  The 18 U.S.C. § 3553(a) factors support a sentence reduction as well.

Download West CR opinion

November 8, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied

As detailed in this AP article, headlined "Bid for new trial fails, Elizabeth Holmes awaits sentencing," a high-prfole federal sentencing is now on track for later this month.  Here are the basics:

A federal judge rejected a bid for a new trial for disgraced Theranos CEO Elizabeth Holmes after concluding a key prosecution witness’s recent remorseful attempt to contact her wasn’t enough to award her another chance to avoid a potential prison sentence for defrauding investors at her blood-testing company.

The ruling issued late Monday by U.S. District Judge Edward Davila is the latest setback for Holmes, a former Silicon Valley star who once boasted an estimated net worth of $4.5 billion but is now facing up to 20 years in prison that would separate her from her 1-year-old son.

In the latest twist in a Silicon Valley soap opera, Holmes appeared to be pregnant when she showed up for an Oct. 17 hearing about her request for a new trial....

Davila has scheduled Nov. 18 as the day he will sentence Holmes, 38, for four felony counts of investor fraud and engaging in a conspiracy with [Rawesh “Sunny”] Balwani.  Earlier Monday, Davila postponed Balwani’s sentencing for his conviction on 12 counts of investor and patient fraud from Nov. 15 to Dec. 7.

I plan to wait until we see the formal sentencing submissions from the parties before even trying to make any predictions as to what kind of prison term Holmes might get.  But I welcome others' predictions in the comments as we gear up for what should be an interesting (and unpredicatable) sentencing proceeding.  

Prior related posts:

November 8, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (3)

Monday, November 7, 2022

Are there going to be five executions in four US states over the next ten days?

The question in the title of this post is prompted by my quick look this morning at the "Upcoming Executions" page over at the Death Penalty Information Center.   That page shows that Texas has two executions scheduled, and Alabama, Arizona and Oklahoma each have one execution scheduled, between November 9 and November 17.  If all five of these executions go forward, it will be the most executions completed in the US within such a short period of time in a decade.  (In 2012, between November 6 and 15, Texas completed three executions and Ohio and Oklahoma also completed one execution.)

So many executions in a short period would be a pretty dramatic break from recent norms throughout the US.  Since roughly the start of the pandemic, the US has averaged only about one execution per month as various states have continued to have various difficulties with converting death sentences into completed executions.  Even before COVID hit, the US averaged only about two executions per month when President Trump was in office and less than four executions per month during President Obama's years in the oval office. (About seven executions per month was the national average during President Clinton's second term, and around five per month was the national norm for most of President Bush's two terms).

With all the recent political discussions about crime and crime policy, I have been a bit surprised that we have not seen a significant uptick in chatter about capital punishment polcies and practices this election season.  But it does seem we may be on the verge of an uptick in the number of executions this November.

UPDATE:  I just saw this notable new Salon commentary by Austin Sarat headlined "Crime is a hot issue, but even Republicans don't talk about the death penalty: That's good news."  I recommend the full extended piece, and here are a few excerpts:

In the past, politicians at every level responded to public concerns about crime with law-and-order campaigns in which promises to bring back or enforce the death penalty featured prominently....

Throughout the late 20th and early 21st centuries, death-penalty ballot measures have been used as tools of partisan and political advantage, largely to increase turnout among a targeted portion of the electorate in order to benefit "law and order" candidates.

But not this year.

Only in Alabama will voters be asked to decide on a death-penalty ballot measure. It would "require the governor to provide notice to the attorney general and make reasonable efforts to notify a designated family member of a victim before granting a commutation (a reduced sentence such as life imprisonment) or reprieve (temporary stay of execution) of a death sentence." ...

But in campaigns up and down the ballot, even as conservative candidates have accused their opponents of being soft on crime and promised robust anti-crime measures, Republican gubernatorial candidates in Arizona, Georgia, New York and Oklahoma have said little or nothing about the death penalty....

Whatever the verdict delivered by voters this week may be, the relative invisibility of the death penalty in this year's political campaigns is a clear sign of the progress abolitionists have made in changing the national temperature on that issue.

November 7, 2022 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Three notable dissents from denials of cert in criminal case on latest SCOTUS order list

The Supreme Court this morning released this 54-page(!) order list, and nearly 50 pages are comprised of dissents from the denial of cert by a handful of justices in five distinct cases. Here is a (too brief) accounting of the three criminal cases in this number:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

November 7, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, November 6, 2022

Recapping last week's SCOTUS arguments in two complicated review procedure cases

Last Tuesday, the Supreme Court hear arguments in two complicated criminal cases: Jones v. Hendrix, which I previewed here last week, and Cruz v. Arizona, a capital case.  These cases have not garnered that much general attention, surely because they both involve complicated procedural issue.  Still, the folks at SCOTUSblog have detailed reviews of the arguments, and I have also seen a few other discussions of the arguments:

Jones:

From SCOTUSblog, "In habeas case, the liberal justices try to untangle a complex statute"

From Law & Crime, "Justice Alito Concerned that Freeing Legally Innocent Man from Prison Would Clog Up the Federal Courts"

 

Cruz:

From SCOTUSblog, "Arizona asks court to approve “Kafkaesque” treatment of due-process claim from man on death row"

From Cronkite News, "Supreme Court presses state on its rejection of Arizona death-row appeal"

From the Arizona Republic, "U.S. Supreme Court hears oral argument of Arizona man on death row"

November 6, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, November 5, 2022

Rounding up recent disheartening stories in incarceration nation

In recent days, I have seen a number of notable stories and commentaries focused on various discouraging incarceration realities in US prisons and jails:

From The Marshall Project, "Why So Many Jails Are in a ‘State of Complete Meltdown’"

From NBC News, "Tech glitch botches federal prisons' rollout of update to Trump-era First Step Act"

From the New York Post, "Rikers Island detainee is 18th person to die in NYC’s prison system in 2022"

From the New York Times, "‘Dying Inside’: Chaos and Cruelty In Louisiana Juvenile Detention"

From the Omaha World Herald, "‘Waiting on death’: Nebraska prisoners are getting older, and it’s costing taxpayers"

From PennLive, "Sick people in Pa. jails are suffering, dying: ‘The Constitution allows for medical neglect’"

From the Reno Gazette-Journal, "Inmate deaths, drug overdoses on rise at Washoe County Jail"

From Washington Monthly, "Do Prisons Need to Be Hellholes?"

From WSB-TV, "Reality star Joe Exotic says zoo has better living conditions than Atlanta Federal Penitentiary"

November 5, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, November 4, 2022

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. Glossip, now 59, has long maintained his innocence.

He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

November 4, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 3, 2022

Is the US "on the verge of a new wave of mass incarceration"?

The question in the title of this post is prompted by this notable new Time commentary by Udi Ofer given the headline "Politicians' Tough-on-Crime Messaging Could Have Devastating Consequences."  Here are some extended excerpts from a piece that merits reading in full:

In the majority of hotly contested 2022 midterm races across the country, tough-on-crime rhetoric is at the top of the agenda.  Close to 60% of Republican spending on campaign ads since September has been on the topic of crime, with tens of thousands of ads running on the issue, and Democrats have responded with their own $36 million war chest.  Not since the height of America’s mass incarceration era has the nation seen law and order politics play such an outsized role in candidate races up and down the ballot.  The outcome could put the country in danger of entering a new era of more mass incarceration....

While Republicans are leading this charge, both parties are playing with fire, as the political rhetoric being deployed this election season has the potential to trigger a new surge in incarceration, as occurred following previous election cycles that starred tough-on-crime rhetoric.  Between 1973-2009, the nation saw an exponential growth in incarceration, from approximately 200,000 people in prisons and jails in 1973 to 2.2 million by 2009, making the U.S. the largest incarcerator in the world, with a rate 5 to 10 times higher than Western Europe and other democracies.  Hundreds of new laws and practices passed at the local, state, and federal levels, including new mandatory minimums with harsh sentences, more cash bail and pretrial detention, and more aggressive prosecutorial and policing practices like stop-and-frisk....

Along with mass incarceration came extreme racial inequities that spread well beyond the carceral system.  A Black boy born in the 2000s had a 1 in 3 chance of ending up incarcerated, compared to a 1 in 17 chance for a white boy.  Mass incarceration has contributed significantly to the racial achievement gap, poorer health outcomes in Black communities, and economic hardship for Black families....

This crisis in mass incarceration, which only recently began to dip, has roots that run deep in efforts to politicize and racialize crime.  Mass incarceration has been fueled by moments like the one we are living in today, where following years of gains on civil rights, a backlash ensues and crime is conflated with reforms and civil rights protests....

It wasn’t until the past 10 years that a bipartisan movement for criminal justice reform formed, pushing for an alternative approach.  This movement by Democrats and Republicans has worked together in states across the country to pass bipartisan reforms, such as sentencing reform in Louisiana and Oklahoma, bail reform in New Jersey and Colorado, second chance laws in Georgia, Michigan, Pennsylvania and Utah, drug law reform in Oregon and Rhode Island, and much more.  The nationwide prison population began to drop to 1.2 million, and the U.S. moved from first to fifth place in the global ranking of imprisonment rates, right between Cuba and Panama.  Families were reunited with their loved ones, and some of the states that have seen the largest decrease in incarceration are also some of the safest states in the nation, like New Jersey.

But today, just as nationwide incarceration rates were beginning to slowly drop, public anxiety over crime is being turned into a wedge issue between the two political parties to undermine progress made on civil rights and criminal justice reform.  Bail reform, police reform, parole reform, and sentencing reform are wrongfully being blamed for a rise in crime....

Candidates for office can resist the tough-on-crime impulse that has grown so common since Barry Goldwater’s 1964 run for office. They can provide a new vision for safety, one that many communities have been calling for — one the emphasizes prevention and investments in public health, schools, jobs, housing and community support structures, and relegates incarceration to the last possible option, after all other intervention efforts have failed.

In fact, research conducted by organizations like Vera Action and HIT Strategies has found that while voters care deeply about crime, they want more than the one-dimensional tough-on-crime message being delivered.  Candidates benefit by articulating a vision that recognizes that public safety is achieved when we provide people with the resources they need to thrive, like earning a living wage, receiving a good education, and having stable housing.  Voters understand that police shouldn’t be the ones charged with solving every social problem, from kids skipping school to mental health needs to homelessness. Instead, voters are seeking long term solutions rooted in prevention, like a good education and a good job.

So far, too few politicians on both the right and left are moving away from the reflexive tough-on-crime rhetoric that has proven to be so devastating in the past.  It won’t be clear until after the midterms how much this rhetoric has impacted voter choices, but the damage may have already been done.  Unless more politicians change course, the U.S. is on the verge of a new wave of mass incarceration — as history repeats itself.

There is much to commend in this piece (including in parts I did not reprint here), and I think there is a very sound basis to expect and fear that heightened concerns about crime and the new wave of political rhetoric being deployed this election season likely will slow or even impede various parts of the agenda in the bipartisan movement for criminal justice reform.  One obvious "for example" here is the now-stalled effort to equalize crack and powder cocaine sentences at the federal level.  The US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, but concerns about "soft-on-crime" attacks have seemingly kept the Senate from moving forward.  

But slowing down on-going reform efforts is a long way from "a new wave of mass incarceration."  As this commentary suggests, both voters and their representatives now understand the importance of a variety of policy responses to crime concerns.  More broadly, we now generally see a far more nuanced discussion of mandatory minimum sentences, drug policy issues and even the death penalty than we did a generation ago.  For example, though a number of GOP Senators have now come out against the EQUAL Act, their competing bill still involves reducing crack sentences a good deal (while also raising cocaine sentences a bit).  And at least one GOP Senator, Mike Lee, is still actively campaigning on his bipartisan criminal justice reform work in the FIRST STEP Act.  In other words, while we may only see a "one-dimensional tough-on-crime message" in 30-second TV ads, I sense most policy-makers still recognize the need for so-called "smart-on-crime" reform efforts.

Ultimately, a lot of political and policy forces that developed over decades provided the infrastructure for modern mass incarceration, and a lot of countering political and policy forces also developing over decades have contributed to the (slow) decline in incarceration rates in recent years.  I do not think one political cycle alone will dramatically change all the trends and dynamics that have brought us to this somewhat fraught moment.  But I do think, as this commentary stresses in many ways, there are plenty of political and policy lessons to learn from both older and more recent developments.  Interesting times.

November 3, 2022 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)