Sentencing Law and Policy

"Grants Pass And The Pathology Of The Criminal Law"

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

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives.  That decision, Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.  This distinction fatally undermines the Eighth Amendment’s “status crimes” doctrine.  The majority opinion has been decried by homeless advocates as inhumane and counterproductive, and the case produced a pointed dissent that has been lauded by court watchers.

As this Essay explains, however, the outcome in Grants Pass was necessitated not by the merits of a thin status–conduct distinction, but by judicial deference to an ever-expanding criminal law.  The dissent’s preferred interpretation of the Eighth Amendment (in which the laws at issue impermissibly punish the “status” of homelessness) arguably implicates three distinct constitutional claims: one about the wrongfulness of punishing status, one about the wrongfulness of punishing involuntary conduct, and one about the wrongfulness of punishing in the absence of culpability.  Once disaggregated, each of those claims proves to be in tension with contemporary criminal practices — neither status, nor involuntariness, nor lack of culpability currently prevents the infliction of criminal punishment.  In other words, the dissent’s preferred interpretation would have unsettled a considerable amount of criminal law. Grants Pass can therefore best be understood as revealing the Supreme Court’s reticence to check states’ expansive — and expanding — approach to criminal liability.

So understood, the Grants Pass case provides an important supplement to the literature on criminal law’s political pathology, demonstrating that a federal constitutional solution is likely out of reach under the current court.  Just as legislatures and prosecutors drive expansive criminalization, expansive criminalization narrows the range of constitutional remedies, even for obvious injustices such as punishing the unhoused for sleeping.  Prescriptively, the Essay calls for homeless advocates to step away from the Eighth Amendment and toward doctrines — particularly under state constitutions — that more explicitly engage with the agency of unhoused individuals.

Two different stories about two different executions scheduled for tomorrow in two states

I was struck by these notably distinct headlines and subheadlines from USA Today about two executions scheduled for tomorrow in Alabama and Texas:

"'I am guilty:' Alabama inmate Derrick Dearman asks for death sentence to be carried out: Dearman says his death will bring justice to the families of the five people he killed with an ax and a gun, including a pregnant woman. He has also criticized the process that has delayed his death."

"All evidence points to Robert Roberson's innocence. Texas still plans to execute him.: Roberson remains scheduled to die by lethal injection despite evidence indicating he was wrongfully convicted for the death of his 2-year-old daughter Nikki, whom police believed was shaken to death."

I have not followed either of these cases closely, though I do know know many persons beyond the USA Today writers doubt guilt in the Texas case.

Split Nebraska Supreme Court orders Secretary of State to implement new state law enfranchising persons with felony convictions

As report in this NBC News article, the "Nebraska Supreme Court ruled that convicted felons who served their sentences are allowed to vote, after the state's top election official sought to keep them from casting ballots ahead of the Nov. 5 election." Here is more about this ruling:

Nebraska has historically restored the voting rights of former felons two years after they completed the terms of their sentences. Earlier this year, state legislators voted on a bipartisan basis to eliminate the two-year waiting period. Nebraska Attorney General Mike Hilgers later argued that only the state’s board of pardons could restore voting rights, and Nebraska Secretary of State Robert Evnen ordered local registrars to stop letting all people with previous felony convictions vote, arguing the laws enfranchising them were unconstitutional.

On Wednesday, Nebraska's top court disagreed, writing that state officials had not convinced them the law, known as L.B. 20, was unconstitutional. “The Secretary is ordered to remove any disqualification on registration he has imposed that is not contained within L.B. 20 and to comply in all respects with the provisions of L.B. 20,” the state’s high court wrote in an order.

The full ruling in State ex Rel. Spung v. Evnen, 317 Neb. 800 (Neb. Oct. 16, 2024) (available here), is quite lengthy, in part due to many concurring and dissenting opinions. Here is how the per curiam majority opinion for the court gets started:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences.  The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote.  Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately.

"Excessive Force In Prison"

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

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny.  Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force.  This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily.  Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison.  What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated.

This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy.  What drives the inquiry — and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody — is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here.  But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine. 

This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.

New Prison Policy Initiative report, "One Size Fits None: How ‘standard conditions’ of probation set people up to fail"

Writing for the Prison Policy Initiative, Emily Widra has this notable new report titled "One Size Fits None: How ‘standard conditions’ of probation set people up to fail." The report's extended subtitle summarizes its coverage: "Courts and probation agencies impose a standard set of rules on everyone under their supervision, before tacking on any extra restrictions.  Our national review finds these mandatory rules are often unnecessarily burdensome and incredibly vague, making it all too easy to 'fail' at probation and land behind bars."  The full report is worth a full read, and here is how ite gets started (with links from the original):

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation.  All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.”  Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail.  And because the vast majority of people under correctional control are on probation — 2.9 million people, far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration.  Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

A couple more GVRs and lots more cert denials in second full SCOTUS order list of OT 2024

The Supreme Court formally entered its second week of its new term, October Term 2024, with this order list mostly defined by a long list of cert denials.  The order list begins with two new G(ranted), V(acated), R(emanded) cases perhaps of note, with one citing Rahimi and another citing Erlinger. 

Late last week, John Elwood had this long post at SCOTUSblog reviewing relists drawing from the last order list titled "Fourteen cases to watch from the Supreme Court’s end-of-summer "long conference'."  Here was the one sentencing case of particular note from his accounting (which included three other criminal procedure cases among his "cases to watch"):

Last up is Esteras v. United States. In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Esteras is not on the list of cert denials this time around, so that is a case to continue to watch.

"Plea Bargaining in Homicide Cases: An Empirical Exploration in One State"

The title of this post is the title of this new article by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

Even the most serious criminal cases are often resolved through plea bargaining, with potentially dramatic consequences for the sentence ultimately imposed.  In Wisconsin, the most serious type of homicide is a Class A felony, which results in a mandatory life sentence.  However, many individuals who are initially charged with the Class A offense are given the opportunity to plead guilty to a lesser Class B offense, which does not trigger any mandatory minimum sentence at all.

In this Article, we compare the characteristics of the cases in which the defendant pleads guilty to a Class A offense (a relatively harsh outcome) with the characteristics of the cases in which the defendant pleads guilty to a Class B offense (a relatively lenient outcome).  We find statistically significant differences between these two sets of cases in such areas as county of prosecution, appointed versus private-pay defense lawyer, and gender of defendant, victim, prosecutor, and defense lawyer.

Noting struggles with case-processing due to prosecutor shortages from coast-to-coast

As the start of this year, Stateline has this article about criminal justice staffing shortages headlined "Shortage of prosecutors, judges leads to widespread court backlogs: The pandemic worsened problems that already had caused state and local court delays."  That article focused particularly on developments in Georgia, New York and Vermont, but some more recent press pieces from a number of states showcase that this is a nationwide problem.  A brand new piece from Alaska, noted below, led me to notice similar tales from multiple states in press pieces from earlier this year:

From Alaska, "Domestic Violence, Child Abuse and DUI Cases Are Being Dismissed en Masse in Anchorage"

From Arizona, "Attorneys raise concerns over slow moving cases, how Pima County Attorney is addressing shortage of prosecutors"

From Indiana, "Prosecutor says Indiana is facing an attorney shortage"

From Maine, "Staffing shortage blamed for lack of prosecutions of crimes in western Maine"

From Michigan, "New state funding not enough to solve shortage of prosecutors, counties say"

From Nebraska, "Rural NE county attorneys, public defenders confront ‘legal desert’ in hiring new lawyers"

From South Carolina, "Thousands await trial in SC on years-old charges. AG proposes way to clear cases"

I have long surmised that government prosecutors and public defenders generally share the privilege of being underpaid and overworked, while both are absolutely essential to the administration of justice in our legal systems.  And I sense these staffing problems are particularly acute in rural areas, especially as new generations of lawyers seem particularly drawn to city life and practice.  What this might mean long term for our criminal justice systems merits watching carefully.

"Categorical Declinations & Democracy"

The title of this post is the title of this new paper now available on SSRN authored by Brenner Fissell. Here is its abstract:

The most contentious action taken by reform prosecu­tors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification­ of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate.  Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides.  How should we think about democracy and categorical declinations?  The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray.  In this essay, I hope to continue the work begun by M­urray, offering additional insights that bear on the relationship of categorical declinations and democracy.

Most significantly, I aim to bring to this conversation the tools of deliberative democratic theory — a vision of democracy that is extremely influential, but not taken up by Murray.  Viewing deliberation as the touchstone of democracy, as this theory does, has implications for both (1) the institutional site for decriminalization decisions, and (2) the type of offenses that might be legitimately decriminalized by declination.  State legislatures are structurally superior deliberative bodies, but local prosecutors can ameliorate their deliberative deficits by seeking ratification of their decisions by local legislatures.  Moreover, deliberation rests on a deeper commitment to the mutual respect for the freedom and equality of other persons, and this commitment suggests that there is an upper limit on the severity of crimes that can be legitimately declined.  Declination of serious offenses asks too much of the state-level co-citizens who enacted the offenses, in that it asks them to abandon their reciprocal concern for the lives of their local brethren. Conversely, reciprocal concern suggests that purely victimless crimes can be subject to declination with far less democratic concern, as there is no co-citizen whose basic liberties are infringed through the elimination of the protection of the law.  The actual practice of reform prosecutors appears to treat crime severity as an important consideration, as no prosecutor has attempted to decriminalize a serious felony.

With eight more executions scheduled, 2024 could conclude with most US executions in nearly a decade

I flagged here last month that a flourish of executions in multiple states had been scheduled over just a week, and all five of those executions were ultimately carried out.  I now see from this Death Penalty Information Center page that eight more executions are scheduled for the final few months of 2024.  If seven of those executions go forward as planned, the US will have completed 26 total execution in 2024, which would be more than in any calendar year since 2015.

Of course, 26 executions in a year is still a relatively paltry number in America's capital punishment history.  In the 1930s, for example, the US averaged well over 150 executions per year.  And from 1995 to 2014, the US states executed, on average, 56 persons per year, and hit a modern peak of 98 executions in 1999.  Still, I find it fascinating that state executions were trending down in the final years of the Trump Administration and now are trending up in the final years of the Biden Administration.  These trends seem especially notable given that candidate Joe Biden pledged to work to "eliminate the death penalty."    

Writing at Inquest, Lee Kovarsky highlights in this new essay how this year's presidential election could prove an inflection point in modern capital punishment history.  The substitle of the piece captures its main theme: "The presidential candidates are worlds apart on the death penalty. The winner could either jolt or sap the energy of the movement to end it."

Intriguing (though likely doomed) effort to alter South Carolina clemency process by condemned inmate

This new AP article reports on an interesting claim brough by a condemned inmate in South Carolina.  Here are the details:

A South Carolina inmate scheduled to be executed in just over three weeks is asking a federal judge to take away the power of granting clemency from the governor who is a former state attorney general and place it with a parole board.  The South Carolina constitution gives the governor the sole right to spare an inmate’s life, and Gov. Henry McMaster’s lawyers said he intends to retain it.

Lawyers for Richard Moore are arguing that McMaster cannot fairly consider the inmate’s request to reduce his death sentence to life without parole because for eight years starting in 2003 he was the state’s lead prosecutor and oversaw attorneys who successfully fought to uphold Moore’s death sentence. “For Moore to receive clemency, McMaster would have to renounce years of his own work and that of his former colleagues in the Office of the Attorney General,” the attorneys wrote in asking a federal judge to pause the execution until the matter can be fully resolved.

McMaster has taken tough-on-crime stances and also in the past said he is against parole. The governor said in 2022 that he had no intention to commute Moore’s sentence when an execution date was a possibility, Moore’s attorneys said in court papers filed Monday.

Lawyers for McMaster said he has made no decision on whether to grant Moore clemency, and courts have repeatedly said attorneys general who become governors do not give up their rights to decide whether to set aside death sentences.  Currently, nine states, including South Carolina, are run by former attorneys general.  Among the top prosecutors cited by the state who later become governors and made decisions on clemency is former President Bill Clinton in Arkansas....

Moore, 59, is facing the death penalty for the September 1999 shooting of store clerk James Mahoney. Moore went into the Spartanburg County store unarmed to rob it, and the two ended up in a shootout after Moore was able to take one of Mahoney’s guns. Moore was wounded, while Mahoney died from a bullet to the chest. Moore didn’t call 911. Instead, his blood droplets were found on Mahoney as he stepped over the clerk and stole money from the register.

State law gives Moore until Oct. 18 to decide or by default that he will be electrocuted.  His execution would mark the second in South Carolina after a 13-year pause because of the state not being able to obtain a drug needed for lethal injection.  No South Carolina governor has ever granted clemency in the modern era of the death penalty.  McMaster has said he decides each case on its merits after a through review....

McMaster has said he will follow longtime tradition in South Carolina and wait until minutes before an execution is set to begin to announce whether he will grant clemency in a phone call prison officials make to see if there are any final appeals or other reasons to spare an inmate’s life.

And his lawyers said his decision on whether to spare Moore life will be made under a different set of circumstances than his decision to fight to have Moore’s death sentence upheld on appeal. “Clemency is an act of grace,” the governor’s attorneys wrote. “Grace is given to someone who is undeserving of a reprieve, so granting clemency in no way requires the decisionmaker to ‘renounce’ his previous work.”

Notably, a divided Supreme Cout in Ohio Adult Parole Authority v. Woodard interpretation the Constitution to mean that "some minimal procedural safeguards apply to clemency proceedings." But I would be shocked if that precedent (or any others) will enable the condemned defendant to prevail in this case.

A deep dive into sentencing patterns for NY felony crime of falsifying business records

This week the New York Times published this lengthy article, headlined "Will Trump Get Jail Time? We Looked at Similar Cases to Find Out," while provides some statistical context regarding sentences in New York for the crimes that Donald Trump will be sentenced for next month.  Here are excerpts from the piece:

The former president’s unruly behavior at the New York trial makes him a candidate for jail time, as does his felony crime of falsifying business records: Over the past decade in Manhattan, more than a third of these convictions resulted in defendants spending time behind bars, The Times’s examination found. Across New York State, the proportion is even higher — about 42 percent of those convictions led to jail or prison time....

Over the past decade or so, the most likely punishment for someone in New York State convicted on a top charge of felony falsification of business records was jail or prison time, according to data from the New York State Division of Criminal Justice Services. The data shows that 204 people ended up behind bars for that crime, while 174 received probation and no jail time.

The Times review of false records convictions in Manhattan alone — which was based on data from state and local agencies and verified by case files retrieved from the clerk’s office — similarly supports the notion that Mr. Trump could spend a few weeks or months in jail.

The Times found 30 cases in Manhattan since 2014 in which a person was convicted and sentenced on a top charge of felony falsification of business records. Of those cases, only five resulted in probation and no jail time, while 11 involved incarceration.

Defendants in nine of the 11 cases were first-time felony offenders like Mr. Trump and received sentences between one week and 364 days in jail, with the most frequent jail sentence being six months. The other two defendants, both of whom had been previously convicted of felonies, received more than a year in prison.

All but one of the other defendants received a so-called conditional discharge, a sentence that allows them to avoid probation or jail if they follow certain conditions, such as maintaining employment or paying restitution. The remaining man received only community service and a fine.

Still another variation on animal abuse produces another notable federal sentencing

Over the last month, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  I am not sure if I should keep blogging in this genre, but I am sure this latest story, headlined "Etna monkey torture video producer gets sentenced to federal prison," is another variation on an ugly theme: 

A federal judge sentenced an Etna man to more than four years in prison after he pleaded guilty to charges that he conspired to create and distribute videos depicting torture and sexual abuse against monkeys.

U.S. District Judge Edmund A. Sargus Jr. sentenced Ronald P. Bedra, 42, to 4½ years in prison Thursday, according to a news release. In April, he pleaded guilty to creating and distributing “animal crush” videos and distributing them, the release says.

Investigators say Bedra conspired with other people to create and distribute the videos, which depict sadistic violent acts against baby and adult monkeys. Using encrypted chat applications, Bedra sent money to people in Indonesia willing to commit the tortious acts on camera, the release says. Some of the videos contain images of monkeys’ fingers and limbs being severed and others abused with a heated screwdriver, according to investigators.

“We will punish participants of sadistic conspiracies like this one no matter their role in the crime,” U.S. Attorney Kenneth Parker said in the release. “As this case shows, even if you do not commit the torture firsthand, you will be held accountable for promoting this obscene animal abuse.”

Investigators also said Bedra mailed a thumb drive to a co-conspirator in Wisconsin containing more than 60 videos of monkeys being tortured.

“Defendant Ronald Bedra commissioned grotesque videos of torture of juvenile and baby monkeys,” Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division said in the release. “Such appalling conduct has no place in our society. The Justice Department stands ready to prosecute individuals engaging in this activity to the fullest extent of the law.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 
• Yet another wild (and wildlife) animal crime leads to notable federal sentencing

The Sentencing Project releases "Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction"

The Sentencing Project has this timely new report on felon disenfranchisement. Here is the text of the report's "Overview":

Laws in 48 U.S. states ban people with felony convictions from voting. In 2024, an estimated 4 million Americans, representing 1.7% of the voting-age population, will be ineligible to vote due to these laws, many of which date back to the post-Reconstruction era. In this historic election year, questions persist about the stability of democratic institutions, election fairness, and voter suppression in marginalized communities. The systematic exclusion of millions with felony convictions should be front and center in these debates.

This report updates and expands upon a quarter century of work chronicling the scope and distribution of felony disenfranchisement in the United States. As in 2022, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latino populations impacted. This year, we also present state-level data on the degree of disenfranchisement among men and women. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of U.S. felony disenfranchisement as of the November 2024 election.

Among the report’s key findings:

• An estimated 4 million people are disenfranchised due to a felony conviction, a figure that has declined by 31% since 2016, as more states enacted policies to curtail this practice and state prison, probation, and parole populations declined. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.6 million in 2000, 5.1 million in 2004, 5.7 million in 2010, 5.9 million in 2016, 4.9 million in 2020, and 4.4 million in 2022.
• One out of 59 adult citizens – 1.7% of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
• Seven out of 10 people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on felony probation or parole.
• In two states – Florida and Tennessee – more than 6% of the adult population, one of every 17 adults, is disenfranchised.
• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 961,000 people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 730,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
• One in 22 African Americans of voting age is disenfranchised, a rate more than triple that of non-African Americans. Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. In 15 states, 5% or more of the African American adult population is banned from voting due to a felony conviction.
• More than one in 10 African American adults is disenfranchised in five states – Arizona, Florida, Kentucky, South Dakota, and Tennessee.
• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 495,000 Latino Americans or 1.5% of the voting eligible population are disenfranchised.
• Based on available correctional data that records an individual’s sex, approximately 764,000 women are disenfranchised, comprising about 0.6% of the female voting eligible population and approximately one-fifth of the total disenfranchised population.3 We estimate that approximately 3.2 million men or 2.7% of the male voting eligible population is disenfranchised, consistent with the overrepresentation of men in the criminal legal system.

Supreme Court reveals (predictable) split during argument on Glossip capital case

Supreme Court watchers who know the current Justices' patterns, especially in capital cases, would have expected Justices Barrett and Kavanaugh to be likely key swing votes in the Glossip case argued today (previewed here).  This round-up of some press accounts of today's Glossip argument suggest those Justices are likely to deterimine the case's fate:

From NPR, "Okla. AG seeks new trial for death row inmate, but Supreme Court seems split"

From SCOTUSblog, "No clear decision as justices debate Richard Glossip’s death sentence"

From the New York Times, "Splintered Supreme Court Wrestles With Case of Oklahoma Death Row Inmate"

From the Washington Examiner, "Supreme Court appears divided over Oklahoma death row appeal"

From the Washington Post, "Supreme Court closely divided on new trial for Oklahoma death row inmate"

"Measuring Punishment Severity"

The title of this post is the title of this book chapter authored by Adam Kolber (for this forthcoming book on the philosophy of punishment), which was recently posted to SSRN. Here is its abstract:

If punishment is ever morally appropriate, it will only be so in amounts that fit the circumstances.  We cannot possibly punish justly without at least some ability to measure punishment severity.  Since punishment is often thought to require an intentional infliction, one might think punishment severity depends on the severity punishers intend.  But since real-world punishment practices include both intended and unintended inflictions, the "intent approach" to severity fatally ignores unintended harms.  Our punishment practices cannot be justified unless we justify their side-effect harms as well.  The "harm approach" to punishment severity, by contrast, focuses not on intentions but on foreseeably caused harms.  Because the harm approach measures what needs to be morally justified, it better fits theories that seek to justify punishment practices.  It also fits well with our intuitions about severity: those punished care little about what punishers intend and a lot about how much they are harmed.  Once harm is properly measured, however, our traditional notions of retributive proportionality look surprisingly unattractive, and two seemingly plausible ways of fixing proportionality fail.

Pennsylvania Supreme Court hears constitutonal challenges to mandatory LWOP for felony murder ... not long after Colorado Supreme Court rejects similar claims

As reported in this local article, the Pennsylvania Supreme Court yesterday heard oral arguments in a case challenging the state's mandatory life without parole sentencing scheme for all defendants convicted of second degree felony murder.  Here is a snippet from the report:

The Supreme Court agreed in February to consider the appeal of former Allegheny County resident Derek Lee, who was sentenced to life in prison without parole for a 2014 murder committed by his accomplice in a robbery.  Grote said Lee’s punishment is disproportionately harsh given the lack of intent to kill inherent in the crime and argued that it does little to deter others. He urged the court to find that the punishment violates both the Pennsylvania and U.S. Constitutions....

Lee, 36, was convicted of second-degree murder, robbery, and conspiracy in the Oct. 14, 2014, shooting death of Leonard Butler in Pittsburgh. Lee and another man entered the home Butler shared with his longtime girlfriend and forced them at gunpoint into the basement.  After Butler gave Lee his watch, Lee left the basement and the other man remained. Butler’s long-term partner Tina Chapple testified that Butler lunged at the man and she heard a gunshot. Butler was struck and died from his injuries, according to court filings.

Allegheny County Assistant District Attorney Kevin McCarthy noted that the felony murder rule has been Pennsylvania law since 1794 and that the penalty has been revised from death to include the option of a life sentence and most recently to require life without parole in 1974....  “Each and every member who participates is responsible to the same degree and can be punished to the same degree,” McCarthy said.

During the arguments, the Supreme Court justices grappled with the potential impact of a ruling that life without parole is unconstitutional and whether it should be retroactive.  More than 1,100 people are serving such sentences in Pennsylvania and finding them unconstitutional could require the state’s courts to revisit each person’s case.

Interestingly, similar constitutional claims about LWOP sentencing for felony murder were considered and recently rejected by a unanimous Colorado Supreme Court in Sellers v. Colorado, 2024 CO 64 (Colo. Sept. 30, 2024) (available here).  Here is how that opnion begins:

Petitioner Wayne Tc Sellers IV asks us to consider whether a life without the possibility of parole (“LWOP”) sentence for felony murder is categorically unconstitutional or, alternatively, grossly disproportionate to the offense of felony murder following the General Assembly’s 2021 reclassification of that offense.

Based on objective indicia of societal standards and evolving standards of decency as expressed in legislative action and state practice, as well as the exercise of our independent judgment, we now conclude that an LWOP sentence for felony murder for an adult offender is not categorically unconstitutional.

We further conclude that, even assuming without deciding that felony murder is not per se grave or serious, Sellers’s offense here was, in fact, grave and serious. Thus, his LWOP sentence, although severe, does not run afoul of the Eighth Amendment or article II, section 20 of the Colorado Constitution and therefore was not grossly disproportionate.

Certain offense facts might distinguish the case in Pennsylvania from the one in Colorado, and the Pennsylvania Supreme Court has broad authority to interpret its state constitution differently than how other state courts interpret their state constitutions. But the unanimous ruling by the Justices of the Colorado SUpreme Court, who were all appointed by Democratic governors, highlights the enduring challenge adult defendants face when seeking to challenge prison terms on certain constitutional terms.  

"On the Importance of Listening to Crime Victims . . . Merciful and Otherwise"

The title of this post is the title of this new essay authored by Paul Cassell recently posted to SSRN. Here is its abstract:

What role should mercy play in the criminal justice system?  While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note.  Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims.  Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims.  This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world.

This cautionary point does not assume that all crime victims want a more punitive criminal justice system.  To the contrary, many crime victims may argue for mercy.  But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes.

CCJ releases new report on "The Implications of AI for Criminal Justice"

The Council on Criminal Justice today released this notable report put together following a summer convening of researchers and various stakeholdersto discuss the potential and pitfalls of artificial intelligence for criminal justice systems.  Here is part of the report's introduction:

The rapid advancement of artificial intelligence (AI) technologies has implications for every sector of society, including the criminal justice system.  As AI tools for investigation, adjudication, prioritization, analysis, and decision-making proliferate and evolve, understanding their potential benefits and risks becomes increasingly important.

In June 2024, the Council on Criminal Justice (CCJ) convened a group of experts and stakeholders to discuss the implications of AI for the U.S. criminal justice system.  The meeting brought together a diverse group of three dozen leading stakeholders from across ideologies, disciplines, and sectors of the system — policymakers, practitioners, researchers, technologists, and advocates — for two days of discussion and the examination of three use cases. The event was hosted by the Stanford Criminal Justice Center at the Stanford University School of Law....

The key goal of the convening was to jump-start a national conversation about how to integrate AI into criminal justice in ways that promote justice, efficiency, and effectiveness and avoid exacerbating existing problems or creating new ones. This report summarizes key themes from the convening.

New PPI briefing highlights incarceration trends on tribal lands

Emily Widra writing at the Prison Policy Initiative has this lengthy new briefing titled "New, expanded data on Indian country jails show concerning trends extend to tribal lands." The subheading of the piece provides an overview: "In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands."  Here is how the briefing gets started:

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.  More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people.  Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country. In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land.  They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

Previewing SCOTUS's latest Glossip argument

Richard Glossip already has a significant Supreme Court ruling associated with his name; nearly a decade ago, SCOTUS considered and then rejected his Eighth Amendment challenge to Oklahoma's lethal injection protocol.  In addition, as the start of this AP article notes, Glossip has had eventful decades on death row after his conviction related to a 1997 murder-for-hire scheme: "Oklahoma has set execution dates nine times for death row inmate Richard Glossip.  The state has fed him three 'last meals.'  Glossip has even been married twice while awaiting execution."

Now, Glossip's case is coming before the Supreme Court again, and this thorough SCOTUSblog preview highlights the latest complicated chapter in an eventful capital punishment procedural.  Here is how that post starts and its framing of the key issues before SCOTUS:

Twice in the past decade the Supreme Court has blocked Oklahoma from executing Richard Glossip. Now the state has joined Glossip to argue that newly uncovered evidence shows prosecutors violated his rights at trial. But even with the Oklahoma’s rare confession of error, both the state’s highest court for criminal cases and te state’s pardon and parole board turned down Glossip’s pleas for relief. On Oct. 9, two former U.S. solicitors general -- Seth Waxman, representing Glossip, and Paul Clement, representing Oklahoma’s attorney general -- will appear before the justices, seeking to persuade them to set aside Glossip’s conviction and death sentence and order a new trial.

Oklahoma Attorney General Gentner Drummond told the court that the state is not looking for an exoneration “by fiat (or at all)” but that “justice would not be served by moving forward with a capital sentence that the State can no longer defend.”

In 1997, Barry Van Treese was bludgeoned to death with a baseball bat in the room he was staying in at his Oklahoma City motel, where Glossip worked as a manager. Another one of Van Treese’s employees, Justin Sneed, confessed to killing him while on meth. He is serving a life sentence. Glossip has maintained he had no part in the murder and is innocent over the decades he has been on death row.

The only evidence implicating Glossip in Van Treese’s death was testimony from Sneed, who worked as a handyman at the hotel. Sneed told jurors that Glossip paid him up to $10,000 to kill Van Treese. In exchange for his testimony, prosecutors promised Sneed that he would not face the death penalty....

In granting the case, the justices added a question for the parties to address: Whether the Supreme Court has the power to review the decision by the Oklahoma Court of Criminal Appeals at all, or whether it is instead barred from doing so because the decision rests on an “adequate and independent state ground.”...

The second question before the court goes to the heart of the case: Whether the justices should invalidate Glossip’s conviction and sentence because prosecutors failed to correct false testimony by Sneed and turn over evidence that might have helped to clear Glossip.

Because any grant of cert by the Justices in a case of this nature usually means more than a few are concerned about the rulings below, I suspect that both the claims of innocence and his support from Oklahoma's AG has prompted some of the more conservative members of the Court to want to take this new look at this long-running case. And yet, the more conservative member of the Court have, generally sepaking, been much more comfortable showing much more deference to state court capital procedings. It will be interesting to see which Justices at oral argument seem most troubled by Glossip's case.

"Pointing the Way... In the Wrong Direction: the Model Penal Code: Sentencing's Errant Approach to Restorative Justice and Its Role in Sentencing"

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

The Model Penal Code: Sentencing (MPCS) represents a missed opportunity to make restorative justice a foundational element of sentencing.  This Article identifies seven of the main shortcomings in the MPCS’s approach to restorative justice.

First, the MPCS relegates restorative justice to the periphery of sentencing, excluding it from its list of primary sentencing purposes and only authorizing courts to “experiment” with restorative justice.  Second, the MPCS perpetuates the current norm in which sentencing systems fail to meet what victim-survivors have indicated are their principal needs in the aftermath of a crime.  Third, the MPCS fails to recognize that restorative justice is evidence-based, making assumptions and assertions about restorative justice that the research on restorative justice contradicts.  Fourth, the MPCS perpetuates the patronizing treatment of victim-survivors, overriding what victim-survivors have said are their paramount needs and allowing prosecutors and judges to bar victim-survivors’ access to a restorative process.  Fifth, the MPCS is discordant, spurning, for example, restorative justice for reasons that would disqualify other sentencing goals the MPCS embraces. S ixth, by failing to recognize restorative justice as a critical component of sentencing, the MPCS undercuts other of its sentencing goals, including the goals of proportionality in sentencing and future crime avoidance.  Seventh, and most fundamentally, the MPCS reflects a lack of understanding about what restorative justice is and how it is an aid, not a threat, to a court’s sentencing authority.

This Article concludes with recommendations to dissipate the potential inhibiting effect the MPCS might have on the spread and advancement of restorative justice in the United States.

Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility

Though California’s Proposition 36, the "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative," is arguably the biggest 2024 sentencing-related ballot initiative (discussed here), voters in Colorado also have a notable sentencing-related initiative to consider this fall.  Proposition 128 in Colorado, "Concerning Eligibility for Parole," is described by Ballotpedia this way:

A "yes" vote supports requiring offenders convicted of certain violent crimes on or after January 1, 2025, to serve at least 85% of their sentence before parole eligibility, and offenders with two prior violent crime convictions to serve their full sentence before beginning parole.

A "no" vote opposes making changes to parole eligibility, thereby maintaining current law providing parole eligibility to individuals convicted of certain violent crimes after completing 75% of their imposed sentence minus any time earned off of the sentence for good behavior.

This lengthy Denver Post piece discusses this initiative along with another focused on police funding under the headline "Should Colorado spend $350 million on police and require more prison time for some criminals? Voters will decide." Here is an excerpt discussing Prop 128:

People sentenced to prison in Colorado typically serve less than half of their total sentences before they are released on parole, state data shows. State law requires prisoners to serve at least 75% of their sentences, but that time can be reduced further if prisoners maintain good behavior while incarcerated — a reduction known as “earned time” or “good time.”

People convicted of Class 2 felonies — the second-most serious felony in Colorado — on average were sentenced to 28 years in prison and served 13 years before they were released, according to Colorado Department of Corrections data for the 2022 fiscal year. That’s about 46% of their sentences.

For certain crimes, Proposition 128 would change state law by increasing the amount of time a person must serve in prison to 85% of their sentence before the person could be eligible for earned-time reductions or parole.

The change would apply only to a handful of convictions beginning Jan. 1: second-degree murder, first- or -second-degree sexual assault, aggravated robbery, first-degree assault, kidnapping, first-degree arson and first-degree burglary.  Additionally, people convicted of a third crime of violence — a wider swath of crimes — would be ineligible for any type of early release and would be required to serve an entire sentence on their third conviction....

[P]roponents of the ballot measure say the extra prison time would improve public safety by keeping what Fields called the “worst of the worst” offenders in prison longer.  But opponents say that position is not supported by evidence, and they say earned time is a powerful incentive for prisoners to participate in rehabilitation while incarcerated.

Prisoners who can’t earn good time will feel more despair and be more likely to participate in violent and dangerous behaviors, said Dana Mueller, a Colorado Department of Corrections release case manager.  She spoke on behalf of her union, Colorado Workers for Innovative and New Solutions, which has come out against Proposition 128. “This would not reduce recidivism or crime, and it wouldn’t fix what is wrong in corrections,” she said. “Instead, it would make things worse, making conditions more dangerous both for workers and the inmate population.”...

If Proposition 128 passed, it would affect roughly 220 prison sentences annually.  The financial impact would come in about 20 years, when the longer time served by some inmates would add to the prison population — increasing state spending on prisons by an estimated $12 million to $28 million, state analysts found.

A few GVRs and lots of cert denials in first full SCOTUS order list of OT 2024

The Supreme Court formally kicks off its new term, October Term 2024, with oral arguments in two cases this morning.  But its first official product of OT 2024 is this 50-page order list with more cert denials than I can count.  The order list begins with a few G(ranted), V(acated), R(emanded) cases in federal criminal matters based on Rahimi and Erlinger, and I am a bit surprised that the GVR list is not longer. 

I am not at all surprised that the cert denial list is extreme long, and I suspect there may be a few surprises therein.  Readers are encourage to comment on any cases in (or not in) the denials that catch their eye.

The only big criminal case to be argued during the first SCOTUS sitting of OT 2024 is the capital case Glossip v. Oklahoma.  I hope to round up some of the press coverage and commentary on this case in the coming days.

Federal Bureau of Prisons announces new time credit and phone call policies

As detailed in this official announcement released Friday afternoon by the Federal Bureau of Prisons, the BOP "is introducing several important updates to its phone call policies and time credit systems, reflecting its commitment to improving the well-being of Adults in Custody (AICs) and supporting their successful rehabilitation and reintegration." The full announcement has all the details, and here are key parts:

[D]ue to budget constraints and in an effort to incentivize programming participation, the FBOP decided to change its approach and will provide free phone calls only to those who are on the waitlist for, or are participating in, an [Evidence-Based Recidivism Reduction program]. As mentioned, this is intended to incentivize programming and also to allow FBOP to reallocate resources to other critical needs, including programming, staffing, and contraband interdiction....

The FBOP is also updating its [First Step Act] Time Credit system to better support AICs as they engage in pre-release planning. Under the FSA, AICs earn time credits for completing approved programs while in custody, which can reduce the time before they are placed in community settings such as Residential Reentry Centers or home confinement.

Walter Pavlo has this Forbes piece, headlined "Bureau Of Prisons Announces Updates To First Step Act Calculations," seeking to explain what BOP is hoping to achieve on time credits.  As he explians, BOP's efforts here seem to be "an improvement but it is certain to bring more questions from prisoners."

"Taking Retributive Value Seriously"

The title of this post is the title of this essay authored by Douglas Husak recently posted to SSRN. Here is its abstract:

I present the following challenge to retributivists (including myself).  I stipulate that retributivism is the claim that inflictions of deserved punishment produce intrinsic value.  If this definition is accepted, it is curious that the academic writing of few if any retributivists express enthusiasm for punishing greater numbers of persons who commit serious crimes.  A great deal of intrinsic value could be added by increasing the clearance rates for serious offenses. 

In this paper I briefly explore five reasons that might explain and/or justify this reticence.  Perhaps any value that is created by these punishments is too small to give rise to much concern.  Or it is outweighed by competing disvalues.  Or maybe efforts to increase existing rates of punishment would be too uncertain or difficult to implement.  Or many of those we might seek to punish have viable excuses and are not blameworthy.  Or perhaps the personal and political costs of broadening the net of penal liability are too great to incur among those committed to racial justice.  Retributivists who are not eager to increase the number of deserving persons who are punished must choose from these five (or perhaps from other) options.

Supreme Court grants cert on 13 new matters, with a few of possible interest for sentencing fans

The US Supreme Court's new season, known as October Term 2024, officially gets started on Monday with oral arguments in two cases raising technical procedural issues.  But, for SCOTUS watchers, today feels like openning day because the Justices this morning released this big new order list detailing all the cases for which it granted cert following its "long conference" earlier this week. 

By my quick count, the Court appears to have granted cert on 15 cases to deal with 13 issues.  (In two instances, the Justices formally granted cert in two cases but consolidated the pair for oral argument.)  And from my too-quick review, it seems that there are four cases involving criminal law issues (or criminal-law adjacent), though is seems technical procedural issues may be at the heart of a couple of them. 

The only pure criminal case appears to be Thompson v. US dealing with what constitutes a "false statement" to sustain a federal bank fraud conviction.  But Fourth Amedment fans will certainly be excited because Barnes v. Felix takes on, in the context of a civil rights suit, the so-called "moment of the threat" doctrine in assessing excessive force claims under the Fourth Amendment. 

Technicalities come to the fore in Perttu v. Richards, another civil rights case, this one involving a state prisoner dealing with when the Prison Litigation Reform Act requires a prisoner to exhaust administrative remedies prior to securing a jury trial.  And in Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a defendant to secure post-conviction DNA testing.

This AP piece previewing cases on the SCOTUS docket before today suggested the Term looks like it could be "relatively sleepy." None of these new grants, either in the criminal cases or any of the others, seems to be much of a wake-up call. But with a major election and a presidential tradition transpiriting in the next few months, I doubt there will be much dozing off among Justice or advocates in the Term to come  

Making a robut case for robust legal representation for the incarcerated

Inquest has this notable new essay on a topic that I think merits a lot more attention, namely on the needs of the incarcerated for legal assistance.  The piece, authored by Jennifer Soble, is headlined "Lawyerless No More: Once a person is imprisoned, indigent defense stops. But the gravity of mass incarceration demands legal representation to the very end." I recommend the full essay, and here are some excerpts:

Some of the most vulnerable incarcerated people are denied counsel even in proceedings explicitly designed to help them because of their vulnerability. For example, although most states have a process for releasing incarcerated people who are terminally ill or disabled, almost no state provides lawyers to people who are eligible for this relief. Under these schemes, people eligible for medical release — many of whom are actively dying, or who live with paralysis, or who are experiencing severe cognitive decline — are expected to not only draft compelling legal filings, but are also expected to find their own housing and outside medical care, all from behind prison walls.... Expecting sick and dying incarcerated people to represent themselves undermines the very existence of these laws.

People who have suffered some of the most extreme harms of the criminal legal system—such as unconstitutional conviction or a sentence that is punctuated by a serious medical diagnosis—need improved access to legal assistance. But so do people who have been harmed in quieter, more common ways. Few people outside the system know that departments of corrections have enormous power to both lengthen and reduce sentences. Prison systems can award sentencing credit for participation in programs, in work assignments, and sometimes for no reason at all. Conversely, and perniciously, prison systems can take that sentencing credit away. Prison officials use this power capriciously, sometimes for significant incidents of misconduct, sometimes for technical rule violations, and sometimes for seemingly no reason at all.... Legal advocates can significantly move up an incarcerated person’s release date simply by advocating to ensure that they get the sentencing credit that they deserve, while ensuring that credit is not taken away illegally or unjustly....

For [some], the only hope of freedom [is] clemency, an act of “grace” that is usually held exclusively by state governors or, for those in the federal system, the president. Unencumbered by the burdensome rules that govern other forms of post-conviction relief, clemency has historically been a nimble vehicle to correct excessive sentences, unjust prosecutions, or criminal legal events that feel unjust years or decades after the fact. Governors and presidents used to grant clemency routinely, but it has become extremely rare since the 1950s.

However, while the use of clemency has plummeted, the number of people for whom clemency is the only possible avenue for freedom has skyrocketed. Before the 1970s, only seven states authorized life-without-parole sentences, and even those states rarely imposed them. Today every state allows life or virtual life sentences, and more than 200,000 people are currently serving these draconian prison terms. For them, clemency is the most probable path out of prison, and it is generally the only way for an incarcerated person to ask for release from prison based on their rehabilitation and personal growth.

There are many reasons that clemency applicants should have representation. Clemency is a slow process, subject to rules that feel both pointless and burdensome. Successfully navigating it often depends on receiving help from someone with experience in clemency. Still, the right to counsel does not extend to clemency, leaving most incarcerated people to pursue their only hope for freedom on their own.

Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

As reported in this new NBC News piece, "Prosecutors in California are reviewing the convictions of the Menendez brothers, who were found guilty in the 1989 killing of their parents, to determine whether they should be resentenced and potentially released, officials said Thursday." Here is more:

Los Angeles County District Attorney George Gascón said his office is also reviewing possible evidence included in petitions the brothers filed last year alleging molestation by their father.  Gascón said that the allegations are under review and that none of the information has been confirmed. A hearing is scheduled for Nov. 26....

That evaluation in the brothers' case is ongoing, he said, adding: "Until we get there, we’re not sure yet which direction this will go."

Joseph “Lyle” Menendez, now 56, and Erik Menendez, now 53, were convicted in 1996 in the shotgun murders of their parents at their Beverly Hills homes seven years before.  After two trials, they were sentenced to life in prison without parole and remain incarcerated in a California prison.

In their initial trials, the brothers said their father sexually abused them for years.  Prosecutors accused them of killing their parents to inherit a fortune.  The proceedings ended in a mistrial.  The abuse allegations were limited at their second trial. The brothers were convicted and sentenced to life without the possibility of parole....

The district attorney's announcement came amid controversy over a new Netflix series about the case, “Monsters: The Lyle and Erik Menendez Story."  In a statement released by his wife, Erik Menendez said that the series included "blatant lies" and that it was "ruinous" for his brother....

The district attorney, Gascón, is up for re-election.  He said at Thursday's news conference that more than 300 people have been resentenced during his term and that only four have gone on to commit crimes again.

Intriguingly, today Kim Kardashian also authored this "personal essay" in which she states that her "hope is that Erik and Lyle Menendez’s life sentences are reconsidered." Here is a portion of her essay:

According to Erik and Lyle, they were physically, sexually and emotionally abused by their parents since childhood, and their father repeatedly raped them when they were just little boys.  Many people believe the crimes the brothers committed are unforgivable — but what about the decades of alleged abuse they suffered as children?

I have spent time with Lyle and Erik; they are not monsters.  They are kind, intelligent, and honest men.  In prison, they both have exemplary disciplinary records.  They have earned multiple college degrees, worked as caregivers for elderly incarcerated individuals in hospice, and been mentors in college programs — committed to giving back to others.  When I visited the prison three weeks ago, one of the wardens told me he would feel comfortable having them as neighbors.  Twenty-four family members, including their parents’ siblings, have released statements fully supporting Lyle and Erik and have respectfully requested that the justice system free them.

The killings are not excusable.  I want to make that clear.  Nor is their behavior before, during or after the crime.  But we should not deny who they are today in their 50s.  The trial and punishment these brothers received were more befitting a serial killer than two individuals who endured years of sexual abuse by the very people they loved and trusted.  I don’t believe that spending their entire natural lives incarcerated was the right punishment for this complex case.  Had this crime been committed and trialed today, I believe the outcome would have been dramatically different.  I also strongly believe that they were denied a fair second trial and that the exclusion of crucial abuse evidence denied Erik and Lyle the opportunity to fully present their case, further undermining the fairness of their conviction.

"Rural Mass Incarceration and the Politics of Punitiveness"

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

Criticisms of American mass incarceration have generally focused on urban areas, and especially large, racially segregated cities.  But after nearly two decades in which urban incarceration rates have fallen while rural rates have risen, rural Americans are now more likely to be incarcerated than urban Americans.  Because most rural areas in the United States are overwhelmingly white, the rise of rural incarceration rates creates a puzzle for race-focused explanations of American mass incarceration.  Why would overwhelmingly white areas "lock up their own" in such great numbers?

This article proposes an explanation for the ongoing rise of rural mass incarceration that draws on two strands of political science research.  First, Peter Enns's analysis of the origins of American mass incarceration suggests that changes in incarceration rates have been largely driven by two interrelated factors: crime rates and punitive public attitudes toward crime.  Because rural crime rates have remained lower than urban crime rates, Enns's model implies that rural incarceration rates are likely higher than urban incarceration rates today primarily because rural Americans have more punitive attitudes toward crime.

Survey evidence shows that, in fact, rural Americans do have more punitive criminal justice views than nonrural Americans.  A second strand of political science research suggests possible explanations.  Scholars of political psychology including Karen Stenner and Marc Hetherington have found that punitiveness, like intolerance, tends to vary based on differences in personality and changes in perceived threats.  Notably, rural Americans have a higher average score than nonrural Americans on a standard measure of "authoritarian" predisposition, which is associated with greater punitiveness under at least some conditions.

Understanding political support for mass incarceration as fundamentally the product of psychological processes tied to punitiveness and intolerance rather than ideological attitudes specifically about race does not mean ignoring the central role of race in the politics that created American mass incarceration.  To the contrary, the most politically powerful expression of intolerance throughout U.S. history has been racial intolerance, especially toward Black and Indigenous Americans.  But attending to the political psychology of punitiveness suggests that confronting racial injustices in the criminal legal system, while necessary, may not be sufficient to end mass incarceration.

Rounding up some recent coverage and commentary on Prop 36 in California

The most significant sentencing-related ballot initiative in the 2024 election cycle is California’s Proposition 36, titled "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative."  This initiaitive is summarized by Ballotpedia this way:

A "yes" vote supports making changes to Proposition 47 approved in 2014, including: classifying certain drug offenses as treatment-mandated felonies; increasing penalties for certain drug crimes by increasing sentence lengths and level of crime; requiring courts to warn individuals convicted of distributing illegal drugs of their potential future criminal liability if they distribute deadly drugs like fentanyl, heroin, cocaine, and methamphetamine; and increasing sentences for theft based on the value of the property stolen.

A "no" vote opposes this initiative that makes changes to Proposition 47 (2014), thereby maintaining certain drug and theft crimes as misdemeanors.

I have recently noticed more press outlets discussing and advocating around Prop 36, and here is an abridged review of just some of the coverage and commentary catching my eye:

From Cronkite News, "California’s Prop. 36, which would again toughen criminal penalties, sparks debate"

From LAist, "California Proposition 36: Increases criminal penalties for certain drug and theft crimes"

From Lookout Santa Cruz, "California voters consider tough love for repeat drug offenders with Prop 36"

From the Los Angeles Times, "Endorsement: No on Proposition 36. California shouldn’t revive the disastrous war on drugs"

From the Orange Country Register, "Prop. 36 is a common sense solution to the suffering on our streets"

From Reason, "Should California Vote To Roll Back Criminal Justice Reforms?"

From the San Diego Union Tribune, "Endorsement: Yes on Proposition 36: Time to free the detergent"

Another federal ruling that aspects of Michigan's sex offender registry is unconstitutional

As detailed in this local article, in the past week a "federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional."  (Disclosure: I have worked with a group of law professors on amicus briefing in these matters.)  Here is more about yet another ruling finding various constitutional and other problems with Michigan’s law:

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.  "This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement....

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.  It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

∎ Retroactively extending registration terms from 25 years to life violates the Constitution;

∎ People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

∎ Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

∎ The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

∎ Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.  Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.  Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

The full 115-page ruling from the District Court is available at this link.

"The Coming Assault on Class-Based Gun Prohibitions"

The title of this post is the title of this new essay available via SSRN and authored by Ian Ayres and Fredrick Vars.  Here is its abstract:

Lower federal courts are struggling to determine the constitutionality of longstanding federal laws prohibiting felons and those involuntarily committed from purchasing or possessing firearms.  While Justice Scalia in Heller described such laws as "presumptively lawful," Justice Thomas' more recent Bruen decision holds that essentially all gun regulations are presumptively unconstitutional unless the government can provide sufficiently analogous precedents of gun regulations from the Founding-Era.  Some courts applying the Bruen test have had difficulty finding "how" analogs -- particularly with regard to the permanent nature of federal prohibitions and their imposition without individualized determination of dangerousness.  This essay proposes a number of ex ante and ex post reforms that would simultaneously help to insulate class-based prohibitions from constitutional attack, better target gun restrictions to individuals who pose credible threats to public safety or themselves, enhance individual liberty, and provide greater due process protections.  In particular, we propose that state and federal trial court judges ex ante include express individualized determinations of dangerousness in criminal sentencing and involuntary commitment orders.  We also propose that Congress refund the existing § 925(c) petition mechanism so that any individual subject to a firearm restriction can ex post receive an individualized determination of whether the restriction is still warranted.

US Sentencing Commission releases still more updated "Quick Facts" publications

To close out September, the US Sentencing Commission released yet another new set of its terrific "Quick Facts" publications.  Regular readers are now used to my praise for the USSC's production of these convenient and informative short data documents, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."  Here are the newest sets of postings by the USSC on the "Quick Facts" page from the start of this week:

• NEW Mandatory Minimum Penalties (September 2024)
• NEW Federally Sentenced Native Americans (September 2024)
• NEW Securities and Investment Fraud (September 2024)
• NEW Sexual Abuse (September 2024)
• NEW Escape (September 2024)
• NEW Sentenced Organizations (September 2024)

Texas completes execution for murders committed 35 years ago

As reported in this AP article, a "Texas man convicted of fatally stabbing twin 16-year-old girls more than three decades ago was executed on Tuesday evening."  Here is more:

Garcia Glenn White was pronounced dead at 6:56 p.m. CDT following a chemical injection at the state penitentiary in Huntsville. He was condemned for the December 1989 killings of Annette and Bernette Edwards.  The bodies of the twin girls and their mother, Bonita Edwards, were found in their Houston apartment.

White, 61, was the sixth inmate put to death in the U.S. in the last 11 days.  His execution took place shortly after the U.S. Supreme Court, without comment, rejected three last-ditch appeals....

He said he took responsibility for the slayings, regretted his actions and was praying for prison officials, officers and “for my brothers and sisters behind these walls.”...

Testimony showed that White went to the girls’ Houston home to smoke crack with their mother, Bonita, who also was fatally stabbed.  When the girls came out of their room to see what happened, White attacked them. Evidence showed White broke down the locked door of the girls’ bedroom.  Authorities said he was later tied to the deaths of a grocery store owner and another woman.

Harris County District Attorney Kim Ogg, who witnessed White’s death, lamented that it took some 30 years to carry out the jury’s death verdict as multiple appeals in White’s case worked through the courts.  “The suffering of surviving (victims’) family members is just unspeakable,” she said. “At least it’s over.”

White’s lawyers had unsuccessfully appealed to the U.S. Supreme Court to stop the execution after lower courts previously rejected petitions for a stay.  The Texas Board of Pardons and Paroles on Friday denied White’s request to commute his death sentence to a lesser penalty or to grant him a 30-day reprieve....

The deaths of the twin girls and their mother went unsolved for about six years until White confessed to the killings after he was arrested in connection with the July 1995 death of grocery store owner Hai Van Pham, who was fatally beaten during a robbery at his business.  Police said White also confessed to fatally beating another woman, Greta Williams, in 1989.

Yet another wild (and wildlife) animal crime leads to notable federal sentencing

In recent weeks, I have noticed and blogged about a number of notable recent sentencing stories involving aninals (see links to prior posts below).  This local story out of Montana, headlined "Vaughn man who cloned, bred and sold illegal sheep sentenced," prompts me to continue the genre.  Here are the basics along with links from the story to original court documents:

The Vaughn man who earlier this year pleaded guilty to violating the Lacey Act by cloning and trafficking a large species of an Asian sheep and selling hybrid offspring DNA was sentenced Monday to six months in prison.  The prison sentence for Arthur “Jack” Schubarth, 81, was about one-quarter of what he could have been sentenced to under federal sentencing guidelines, according to a sentencing memo from the U.S. Attorney’s Office.

The memo said Schubarth at his age was unlikely to attempt the same crimes again and that he had been helpful in cooperating with the government after his arrest, providing officials with genetic testing showing which of his animals could be dangerous to wild animals, helping them care for the animals, and declining compensation for the animals that had to be killed and given to Montanans for meat.  But in the sentencing memo, the U.S. Attorney’s Office also said a sentence that included prison could deter others from committing the same crimes....

Along with the sixth-month prison sentence, Judge Brian Morris ordered Schubarth to pay a $20,000 fine to the Lacey Act Reward Fund, $4,000 to the National Fish and Wildlife Foundation, and a $200 special assessment. He will also have three years of []supervised release following his prison sentence....

According to federal prosecutors, from 2013 through 2021, Schubarth worked with at least five others to try to create a large hybrid sheep that could be hunted at captive hunting operations, typically fenced-in land. He brought parts of the world’s largest sheep, the Marco Polo argali sheep, from Kyrgyzstan illegally.  He sent genetic material from the animal’s parts to a lab to clone the animal, then implanted embryos in other sheep at his Schubarth Ranch in Vaughn, leading to the birth of a cloned Marco Polo argali he named “Montana Mountain King.”

He used that animal’s semen to artificially inseminate several other species of sheep that are illegal in Montana to create hybrids, hoping to sell large sheep to captive hunting facilities across the U.S., but primarily in Texas, according to court documents.  The group forged inspection certificates, Schubarth sold his pure clone’s semen directly to other breeders, and at least two of the sheep he was involved in creating died from a contagious chronic wasting disease. According to the government, he also illegally purchased the testicles of large Rocky Mountain bighorn sheep killed in Montana from outfitters and sold them to others....

As part of the plea agreement, Schubarth wrote to the judge in February explaining his long background with exotic animals and Montana Fish, Wildlife and Parks. He also asked for house arrest because of health problems and a lack of a criminal record and apologized for his actions.  “My biggest fault is I become extremely passionate in any project I take on. This is what happened with my sheep project. I got my normal mind set clouded by my enthusiasm and looked for any grey area in the law to make the best sheep I could for this sheep industry,” he wrote. “I’m very sorry for my actions and deeply ashamed and I’m sorry I have caused my family pain and a loss of money. My family has never been broke, but we are now.”

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs
• Another notable long sentence for cruel animal mistreatment 

FBI reports extraordinary crime drop in the first half of 2024

This brief press release, titled "FBI Releases 2024 Quarterly Crime Report and Use-of-Force Data Update," reports on the FBI's latest data on crime.  Here is how it starts:

On Monday, September 30, 2024, the FBI’s Uniform Crime Reporting (UCR) Program released the Quarterly Uniform Crime Report (Q2), January-June 2024, and the National Use-of-Force Data Collection Update, June 2024, on the FBI’s Crime Data Explorer (CDE) at https://cde.ucr.cjis.gov.

The Quarterly Uniform Crime Report (Q2), January-June 2024, provides a preliminary look at crime trends for January through June 2024 compared to January through June 2023. A comparison of data from agencies that voluntarily submitted at least three or more common months of data for January through June 2023 and 2024 indicates reported violent crime decreased by 10.3%. Murder decreased by 22.7%, rape decreased by 17.7%, robbery decreased by 13.6%, and aggravated assault decreased by 8.1%. Reported property crime also decreased by 13.1%.

In this new Substack posting, Jeff Asher explains why these data may be "overstating the trend by a healthy amount." He goes on:

That said, the second quarter report clearly points to the US crime trends in 2024 even taking the overstating declines into account.  Murder is down at the fastest rate ever recorded, easily eclipsing 2023’s previous record decline. Violent crime is down a fair amount — 4 or 5 percent — and will likely be the lowest reported violent crime rate since 1969 considering that 2023’s violent crime rate was virtually tied with 2014 for that honor.  And property crime is down a ton thanks to the massive decline in motor vehicle theft following several years of huge increases.

"Drug Policy, Drug War, and Disparate Sentencing"

The title of this post is the title of this book chapter that I just noticed on SSRN and authored by Emily Greberman and Colleen Berryessa. Here is its abstract:

The United States (U.S.) and its criminal-legal system have had a historically turbulent relationship with drugs and substance use.  Public rhetoric, political ideology, and resulting policies, shaped by both rehabilitative and punitive ideals, have served as a foundation for the criminalization and mass incarceration of those who possess, distribute, and use illegal drugs–especially the targeting and blaming of communities of color.  Early on, though drugs such as opium had versatile medical benefits, the use of heroin, crack/cocaine, and cannabis by people of color was quickly shaped into discourse that amplified fear and racist stereotypes and catalyzed the War on Drugs.  Throughout several presidential administrations, the criminalization of drug crimes disproportionately affected Black individuals, despite White citizens using them at similar or higher rates.  ‘Tough on crime’ policies, policing, and sentencing that resulted from this period culminated in the mass imprisonment of people of color.

Now trying to repair the harm caused by the War on Drugs and rhetoric from the media in 2024, there is a strong push for the decriminalization and legalization of several drugs across the U.S.  For cannabis in particular, efforts have been made to advocate for its legalization federally.  In the criminal-legal system, many political leaders and legislators have actively attempted to advocate for and enforce policies that release individuals from prison who have been incarcerated for minor drug offenses or are affected by unjust sentencing practices.  Combined with nationwide efforts to promote research on the use of drugs for medicinal purposes as well as the problems of drug abuse and addiction, a more progressive and optimistic approach to drug use has begun and continues to grow across the U.S. The social and political forces that have historically shaped attitudes towards drug use and punishment are crucial to understanding the current direction of U.S. drug policies and why the pendulum continues to swing.

Pennsylvania Supreme Court finds legal error when sentencing court "relied upon prior arrests as a sentencing factor"

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant's constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors' arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the "sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests."

Is former Prez Trump going to release a new short list of possible Supreme Court nominees?

I have noted before that I thought then-candidate Donald Trump's decision in May 2016 to release a "short list" of people he would consider as potential Supreme Court appointments was a clever and consequential campaign strategy.  Such short lists also make for great blog fodder for court watchers, which is among the reasons I am now asking the question in the title of this post.

Notably, in an mid_August interview with a CBS reporter detailed here, former Prez Trump was asked about, and he pledged we would be getting, a new SCOTUS short list:

The former president said he would release a shortlist of possible nominees for the Supreme Court in the next month.  "I'll be releasing it I'd say over the next three or four weeks," he said. 

It has now been six weeks since Trump stated a SCOTUS short list would be released in "three or four weeks," and I am now thinking we may not get a list at all.

Noting, yet again, that very few recipients of clemency from Prez Trump have faced new charges

In this post a couple of years ago, I flagged the historical and statistical reality that it is likely that, among any significant cohort of clemency recipients, some number are to face some future legal difficulties.  I made the point in conjunction with a press effort to suggest that an unusually large number of persons granted clemency by President Trump were "back in legal jeopardy."  This point merits raising again because this weekend the New York Times decided to rabble-rouse in this arena via this article headlined "Trump Gave Them a Second Chance. They Could Not Stay Out of Trouble."  Here are some excerpts (with links from the original):

Executive clemency is among the most unilateral unchecked powers of the Oval Office. Presidents are allowed to decide how and to whom to issue commutations, which reduce or eliminate prison sentences, and pardons, which wipe away conviction records.

According to an analysis in a law journal focused on criminal justice, only 25 of the nearly 240 clemency grants issued by Mr. Trump were vetted and recommended by the pardon attorney’s office. The analysis concluded that most other modern presidents skirted the Justice Department clemency process less often, with a few notable exceptions that sometimes prompted outrage or investigations.

As Mr. Trump campaigns for another term as president, he is again dangling the prospect of executive clemency for supporters and cases that align with his politics. He has promised to commute the life sentence of Ross W. Ulbricht, founder of an online drug marketplace. Mr. Ulbricht’s cause has been championed by the cryptocurrency industry, which Mr. Trump has cultivated.

In addition, Mr. Trump has pledged to pardon people convicted in connection with the Jan. 6, 2021, riot at the Capitol by his supporters, egged on by his claims that the 2020 election was stolen.....

Ms. Camberos is among six people granted clemency by Mr. Trump and known to have been charged with new crimes after they received a second chance, according to a Times review of the former president’s clemency grants....

To be sure, some criminal justice experts and supporters of prisoners’ rights say the Justice Department’s process takes too long and gives too much deference to federal prosecutors, who tend to frown on having their convictions undermined.  But even some Trump aides were concerned that his White House’s ad hoc process lacked sufficient vetting and relied too much on insider ties, according to former officials who spoke on the condition of anonymity to discuss internal deliberations.

Even if all six of the persons mentioned in the NYTimes piece are guilty of the crimes for which they have been charged, that would still mean the group of Trump clemency recipients have a reconviction rate of just 2.5%. Given that the US Sentencing Commission has determined in a 2016 report that federal offenders as a group generally have roughly 32% reconviction rate, Prez Trump's distinctive process for picking clemency recipients does not seem to have produced a great threat to public safety.

Prior related post:

• Isn't a 4% post-offense "faced legal scrutiny" rate worthy of praise ... even for Prez Trump's clemency grants?

Rounding up some prison press pieces as the week winds down

The highest-profile corrections stories of this week were surely the four executions in four US states.  But, as is always the case in our big nation with lots of prisons and jails, there were also lots of lower-profile incarceration stories from this week worth noting.  Here is an abridged list of pieces catching my eye:  

From Fortune, "Binance founder ‘CZ’ leaves prison on Friday—along with his $60 billion fortune"

From The Guardian, "Activists ‘fight against censorship’ in the largest US book bans: prisons"

From The Marshall Project, "The Future of Prisons?: Inspired by Germany, South Carolina let prisoners design their own units, write house rules and settle their own disputes. Then came politics."

From the Minnesota Star Tribune, "Many people in jail have an opioid addiction, but less than half of jails offer medication, study shows"

From the Mississippi Free Press, "Mississippi Town Ran ‘Kinds of Debtors’ Prisons Charles Dickens Described,’ Justice Department Alleges"

From MIT News, "Study evaluates impacts of summer heat in U.S. prison environments"

From NPR, "DOJ watchdog: federal prison not doing enough to prevent inmate suicides"

From the Washington Post, "D.C. Jail inmates take up soccer in new program with D.C. United"

From Wisconsin Public Radio, "Wisconsin DOC: Nonprofit can no longer send used books to prisoners"

Another day, another two executions completed in two states

As noted in this post, on Tuesday of this week, Missouri and Texas completed executions of condemned murderers.  Today, it was Alabama and Oklahoma carrying out executions.  Here are press accounts:

From AL.com, "Alabama inmate Alan Miller executed with nitrogen gas Thursday for 1999 shootings":

An Alabama Death Row inmate, convicted of killing three men in a workplace shooting, was executed Thursday evening. He is the second inmate in the country to be executed using nitrogen gas.

Alan Eugene Miller, 59, was executed at 6 p.m. at William C. Holman Correctional Facility in Atmore. The prison, located just north of the Florida border, is the only facility in the state equipped with an execution chamber and where most of the state’s death row inmates are housed.

From USA Today, "Emmanuel Littlejohn executed in Oklahoma despite clemency recommendation from state board":

Emmanuel Littlejohn was executed by the state of Oklahoma Thursday morning in the shooting death of a beloved convenience store owner, despite a recommendation from a clemency board that his life should be spared.

Littlejohn was convicted of the 1992 murder of Kenneth Meers in a robbery that turned fatal. Littlejohn had admitted to his role in the robbery but insisted until his death that an accomplice was the one to pull the trigger.

Littlejohn's execution was the fourth in the U.S. in less than a week and comes just hours before Alabama is set to use nitrogen gas to execute Alan Eugene Miller on Thursday evening.

Notable resource provides "State Constitution Tool"

I just saw this week this (new?) website, called "State Constitution Tool."  In a brief foray, I have found this resource pretty easy to navigate as a means to find state constitutional provisions related to a particular topic, such as "punishments" or "Due Process & Court Access."  The About page describing the resource starts this way:

The State Constitution Tool was developed by lawyers and scholars with expertise in constitutional law. They share a desire to equip other lawyers and the general public with the ability to identify, analyze, and compare different constitutions by topic.

Other research tools and commentaries categorize constitutions according to the author’s interests and opinions. The State Constitution Tool is unique because it allows users to draw their own comparisons directly from the source – the text of constitutions.

"The Weight"

The title of this post is the title of this new essay authored by Mark William Osler now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

Baked into the mechanism for determining sentences in drug cases is an old, simple and pernicious machine for injustice: the use of the weight of narcotics to measure relative culpability for drug crimes.  At an instinctual level it makes sense, since someone selling 100 pills is doing more harm than another person who sells five.  But this ignores a basic fact about drug crimes: that they are business crimes that are committed by groups of people acting together, with different roles. That means the same deciding factor, the weight of the narcotics transported, is going to apply equally to both the mule who simply drives the drugs to a destination for a small payment and the mastermind who will ultimately make real money off the deal.  There is a better way — to tie relative culpability to the profit taken by an individual — and it is time to make this change.

Missouri and Texas both complete lethal injection executions

Two states completed executions last night.  Here are the basics from news accounts:

From CNN, "Missouri executes Marcellus Williams despite prosecutors and the victim’s family asking that he be spared":

Marcellus Williams, whose murder conviction was questioned by a prosecutor, died by lethal injection Tuesday evening in Missouri after the US Supreme Court denied a stay.  The 55-year-old was put to death around 6 p.m. CT at the state prison in Bonne Terre.

Williams’ attorneys had filed a flurry of appeal efforts based on what they described as new evidence – including alleged bias in jury selection and contamination of the murder weapon prior to trial. The victim’s family had asked the inmate be spared death.  The US Supreme Court’s action came a day after Missouri’s supreme court and governor refused to grant a stay of execution.

From AP, "Texas man who waived his right to appeal death sentence is executed for killing infant son":

A Texas man who had waived his right to appeal his death sentence received a lethal injection Tuesday evening for killing his 3-month-old son more than 16 years ago, one of five executions scheduled within a week’s time in the U.S.

Travis Mullis, 38, was pronounced dead at 7:01 p.m. CDT following the injection at the state penitentiary in Huntsville. He was condemned for stomping to death his son Alijah in January 2008.

I believe that the last time the US had two executions on the same day was just last year on November 16, 2023. And it woudl happen again tomorrow with executions scheduled in Alabama and Oklahoma.

Caroline Ellison sentenced to two years in prison for her role in FTX collapse

As reported in this CNBC article, "Caroline Ellison, the star witness in the prosecution of her former boyfriend, FTX founder Sam Bankman-Fried, was sentenced Tuesday in New York federal court to two years in prison and ordered to forfeit $11 billion for her role in the massive fraud and conspiracy that doomed the cryptocurrency exchange once valued at $32 billion."  Here is more about her sentencing:

The prison term was significantly stiffer than the recommendation by the federal Probation Department that Judge Lewis Kaplan sentence Ellison to three years of supervised release, with no time at all behind bars.

Defense lawyers also had requested a no-prison sentence for Ellison, who had run the hedge fund Alameda Research, which had received much of the $8 billion in customer funds looted by Bankman-Fried from FTX.  The stolen money was used for Alameda’s trading operation and other purposes.

While Kaplan praised Ellison for her extensive cooperation with prosecutors — which led to the conviction of Bankman-Fried — the judge said her criminal sentence needed to deter other potential bad actors from committing fraud.

The judge said that the FTX case is probably the greatest financial fraud perpetrated in the history of the United States, and because of that a “literal get-out-of-jail-free card I can’t agree to,” Kaplan said in U.S. District Court in Manhattan, where Ellison’s parents and two sisters looked on from the courtroom’s gallery.

“I’ve seen a lot of cooperators over the years and I’ve never seen one quite like Miss Ellison,” said Kaplan, who also said he believed that Ellison was genuinely remorseful for her crimes and that her cooperation carried a steep price for her emotionally....

Ellison read from a statement in a shaky voice while crying at times as she apologized to the people she had hurt and said she was deeply ashamed. She also said she was sorry for being brave enough to walk away from FTX and Bankman-Fried....

Ellison reached a plea deal with prosecutors in December 2022, a month after FTX spiraled into bankruptcy. She pleaded guilty to conspiracy and financial fraud charges. Bankman-Fried, in contrast, chose to stand trial and was convicted of all seven criminal fraud charges against him in the same courthouse where she was sentenced.

He was sentenced to 25 years in prison in March and also was ordered to pay $11 billion in forfeiture by Kaplan. Bankman-Fried since then has appealed his conviction, and requested a new trial and a different judge, arguing that Kaplan was biased against him.

Two other former FTX executives, Gary Wang and Nishad Singh, are scheduled to be sentenced later this year. Like Ellison, they pleaded guilty instead of standing trial....

On Tuesday, before sentencing Ellison, Kaplan contrasted her conduct after she was charged with that of Bankman-Fried.  While the FTX founder had denied criminal conduct, she cooperated with authorities, Kaplan noted.  “It didn’t work out so well” for Bankman-Fried, in part because of Ellison’s cooperation, the judge said.

Both Bankman-Fried and Ellison had faced the same statutory maximum sentence of about 110 years in prison for their crimes. But defendants in criminal cases who cooperate with prosecutors instead of fighting the charges particularly in white-collar cases such as FTX, often receive leniency when they are sentenced.

A few prior related posts:

• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds
• For executive connected to FTX collapse (and Sam Bankman-Fried's girlfriend), federal guidelines call for LWOP, but probation office recommends time served
• Feds praise Caroline Ellison's cooperation while refusing to suggest any specific sentence when federal guidelines recommend LWOP

Another notable long sentence for cruel animal mistreatment

For whatever reason, I am noticing a number of notable recent sentencing stories involving pets and aninals.  A couple of weeks ago, I blogged here about notable federal sentences given to criminal cat kickers, and a few days ago I flagged here the story of negligent dog owners in Texas getting sentenced in state court to decades in prison when their dogs killed an elderly man.  Today, the latest notable sentencing story in this (interesting?) genre comes from Alabama and involves horses as well as dogs.  This local reporting, headlined "Colbert County woman sentenced to 30 years for animal abuse," details the basics:

A Colbert County woman who was found guilty of animal cruelty was sentenced on Tuesday.  A judge sentenced Debra Catledge to a 30-year split sentence.  That means she will only have to serve nine years. Catledge will then be on probation for the remainder of her sentence. If she violates her probation she will be sent back to prison for the remainder of her sentence.

In August, a Colbert County jury found Catledge guilty. The charges were filed after Colbert County deputies found dead horses and more than 60 malnourished dogs and horses on her property.

When she was convicted, Colbert County Assistant District Attorney Dustin McCown said this should be a warning and an example to everyone in Colbert County. “We are doing everything we can to keep this type of behavior and conduct from something that is acceptable here,” McCown said. “I don’t think it’s acceptable here but we are going to show that we will enforce the laws on these types of cases.”

This local story from earlier this year provides a few more details about what seems to have been a pretty extreme case of animal cruelty.  In addition, a little google searching turned up this story from 10 years ago suggesting that this defendant had previously been charged with animnal cruelty in conjunction with running a puppy mill.  All that context perhaps makes nine years in prison and an additional two decades on probation a bit easier to understand.

Prior recent related posts:

• A reminder that kicking a cat down the road can get you sentenced to years in a federal prison 
• Negligent owners get decades in prison for deadly failings to control dogs

"Plea Agreements and Suspending Disbelief"

The title of this post is the title of this new essay authored by Sam Merchant now available via SSRN (and forthcoming in the Federal Sentencing Reporter). Here is its abstract:

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker.  Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range.  Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence.  The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged.  Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

Another review of the jurisprudential mess of the Second Amendment ... and originalism's deep challenge

Adam Liptak's latest Sidebar column in the New York Times, headlined "Supreme Court’s Gun Rulings Leave Baffled Judges Asking for Help," is focused on the mess that is Second Amendment jurisprudence.  I recommend the piece in full, and here are excerpts: 

Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.  In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence.  Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”

Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”  He added: “Courts, tasked with sifting through the sands of time, are asking for help.”....

In June, in United States v. Rahimi, the Supreme Court upheld a federal law that made it a crime for people subject to domestic violence restraining orders to have guns.  In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.  “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”

Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, “offered little instruction or clarity.”... Judge Pamela Harris of the Fourth Circuit, speaking at a conference on Saturday at William & Mary Law School, said appeals court judges faced a perplexing task.  “The trick is that we all need to go back in time and become historians,” she said. “And short of that, I find this to be very, very challenging.”

She gave an example. “I just got two briefs,” she said. “One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’”

“What do I do?” she asked.

I noted in this post a few days ago that the three federal circuit courts which have weighed in on what Rahami and the Second Amendment means for federal felon-in-possession law have reached three different conclusions using, in essence, three different interpretive methodologies.  And this comes after the Supreme Court has had three major opinions embracing an originalist approach to the Second Amendment (Heller, Bruen and Rahimi), with the latter two seemingly serving as a bold statement that lower courts could not properly understanding and apply the Supreme Court's prior originalist rulings.

I do no want to go too far in suggesting that modern Second Amendment developments show that the originalist jurisprudential emperors wear no clothes.  But I do think the problems is these gun cases reflect the unavoidable difficulties in turning the wholesale concepts of originalism into detailed retail rules for precises case-by-case application and adjudication.  And these problems seem especially acute in various criminal justice settings where there are literally thousands of factual and legal variations being litigated in federal and state courts nationwide all the time.  (And that's why, as I have discussed here and here, I suspect some of the current conservative Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.)