Friday, December 13, 2019

"Incapacitating Errors: Sentencing and the Science of Change"

The title of this post is the title of this notable new article authored by Eve Hanan and recently posted to SSRN.  Here is its abstract:

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited.  We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents.  We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies.  Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable.  Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.

Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.

The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude.  Rather, sentencing policy should engage in only modest predictions about future behavior.  The presumption of reintegration as a full member of society should be the norm.  Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.

December 13, 2019 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Reviewing two notable SCOTUS sentencing oral arguments finishing up the 2019 calendar

I flagged here a few days ago the SCOTUSblog argument previews before SCOTUS talked to counsel Tuesday in Holguin-Hernandez v. U.S.No. 18-7739 and Wednesday in McKinney v. ArizonaNo. 18-1109.  The SCOTUSblog folks now have posted reviews of both the arguments, and here are links and their starts:

"Argument analysis: Court likely to rule that a defendant preserves appellate challenge to length of sentence merely by arguing for lower one, but precise wording of opinion will be important" by Rory Little:

Justice Byron White, who as a retired justice hired a law clerk named Neil Gorsuch, once wrote that “a prime function of this Court’s certiorari jurisdiction [is] to resolve” conflicts between the federal circuits.  Yesterday the court heard argument in Holguin-Hernandez v. United States to review a sentencing rule of the U.S. Court of Appeals for the 5th Circuit that is out of step with nine other circuits. The argument was unusually brief, just over 45 minutes, and the transcript reads as somewhat desultory.  It seems clear that the 5th Circuit will be reversed; indeed, one can wonder why the court even bothered with briefing and argument (but see below).  A need to fill the argument calendar?  Or perhaps Gorsuch, who asked no questions, is imbued with White’s circuit-split-correction spirit.  In any case, Justice Sonia Sotomayor asked the only really difficult question: “How do we write this opinion?” in order to offer the doctrinal “clarity” that the solicitor general has requested.

"Argument analysis: Justices debate impact of 'do-over' in capital case" by Amy Howe:

[On Wednesday] the Supreme Court heard oral argument in the case of James McKinney, who was sentenced to death for two murders in 1991.  After the U.S. Court of Appeals for the 9th Circuit threw out McKinney’s death sentence four years ago, the Arizona Supreme Court reinstated it.  The state court first rejected McKinney’s argument that a jury, rather than a judge, should resentence him. It then concluded that the mitigating evidence — that is, the evidence why McKinney should not receive the death penalty — was not “sufficiently substantial” to warrant a lesser sentence.  Although it wasn’t entirely clear, after an hour of debate ..., McKinney appeared to face an uphill battle in convincing the justices to overturn the Arizona Supreme Court’s most recent ruling.

With the holiday season upon us, the Supreme Court now does not have any other oral arguments scheduled for a full month. When the Court is back to hearing arguments in January 2020, it will have on its calendar a notable white-collar crime case in Kelly v. US (January 14) and yet another of the never-ending ACCA cases with Shular v. US (January 21).

December 13, 2019 in Booker in the Circuits, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 12, 2019

"Second Looks & Criminal Legislation"

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

This Essay explores the relationship between second look sentencing and retributive theory by focusing on the primary vehicle for authorizing and distributing punishment in most American jurisdictions: criminal legislation.  Looking beyond debates over the import of evolving norms to desert judgments, the Essay argues that the central retributive issue presented by post-conviction judicial sentencing reductions is whether the long-term punishments imposed by criminal courts live up to the proportionality standards of any time period. 

Using the District of Columbia’s criminal statutes as a case study, the Essay explains how three pervasive legislative flaws — statutory overbreadth, mandatory minima, and offense overlap — combine to support (and in some instances require) the imposition of extreme sentences upon actors of comparatively minimal culpability.  The Essay argues that this code-based sentencing reality, when viewed in light of structural forces driving prosecutorial and judicial decisionmaking, provides very strong reasons to doubt the systemic proportionality of the severe punishments meted out in the District, as well as in other jurisdictions that suffer from similar legislative and structural problems.  And it explains why this epistemic uncertainty offers a compelling reason to authorize courts to reevaluate (and in appropriate cases reduce) severe punishments through second look sentencing reform — both in the District of Columbia and beyond.

December 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 11, 2019

Eighth Circuit panel explains the reach of FIRST STEP Act retroactivity eligibility

A helpful readers made sure I did not miss the helpful opinion from an Eighth Circuit panel today in US v. McDonald, No. 19-1221 (8th Cir. Dec. 11, 2019) (available here) concerning the retroactivity provision of the FIRST STEP Act.  I have not consistently kept up with this part of FIRST STEP jurisprudence, but I am consistently pleased when a circuit opinion seeks to bring simple clarity to a complicated issue.  So, here are a few paragraphs from ole McDonald:   

McDonald’s Count 39 conviction is a “covered offense” under § 404 of the First Step Act because (1) it is a violation of a federal statute; (2) the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act; and (3) it was committed before August 3, 2010.  Consequently, McDonald is eligible for a sentence reduction on Count 39: the district court may “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time of the covered offense was committed.”  First Step Act § 404(b). 

It is true, as the district court noted, that McDonald’s base offense level under the Sentencing Guidelines was based on more than 150 kilograms of powder cocaine, not cocaine base.  But this Guidelines calculation does not change the fact that he was convicted on Count 39 for distributing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii) (1996). The First Step Act applies to offenses, not conduct, see First Step Act § 404(a), and it is McDonald’s statute of conviction that determines his eligibility for relief, see, e.g., United States v. Beamus, No. 19-5533, 2019 WL 6207955, at *3 (6th Cir. Nov. 21, 2019); United States v. Wirsing, No. 19-6381, 2019 WL 6139017, at *9 (4th Cir. Nov. 20, 2019).

The government does not argue that McDonald did not commit a “covered offense.”  Instead, it contends the district court did not abuse its discretion by denying McDonald’s motion because it had already reduced his sentence in 2016.  But the fact that McDonald received a sentence reduction based on a retroactive Guidelines Amendment does not affect his eligibility for a sentence reduction under the First Step Act.  A court considering a motion for a reduced sentence under § 404 of the First Step Act proceeds in two steps.  First, the court must decide whether the defendant is eligible for relief under § 404. Second, if the defendant is eligible, the court must decide, in its discretion, whether to grant a reduction.  That the court might properly deny relief at the discretionary second step does not remedy any error in determining ineligibility at the first step....

Because McDonald is eligible for a sentence reduction under the First Step Act, we remand for the district court to exercise its discretion whether to grant relief.

December 11, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sentencing recommendation for Rick Gates highlights what a difference a guilty plea and lots of cooperation can make

All federal practitioners know, and all federal defendants should know, that what a defendant actually did can often matter a lot less in the sentencing process than whether that defendant pleads guilty and cooperates with authorities.  The latest reminder of this reality comes from the upcoming sentencing of Rick Gates, who was indicted two years ago in a 31-page indictment of  available via this link in which he was portrayed as a "partner in crime" with Paul Manafort. 

Manafort, of course, fought the charges and after being found guilty (on less than half of the charges given to the jury), federal prosecutors calculated his applicable guideline range as nearly 20 to 25 years in prison and seemed to argue that Manafort deserved a 20-year prison term for his criminal behaviors.  (Matters get complicated thereafter because Manafort pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.) 

Gates, in telling contrast, decided to plead guilty and cooperate with authorities.  Doing so contributed to a guideline calculation setting this advisory Guidelines range at 46 to 57 months of imprisonment.  And, as this Politico article highlights, it has now also led the federal prosecutors not to oppose Gates' request for a sentence of probation and no fine in this 19-page sentencing memo.  Here is part of the Politico piece providing highlights:

Rick Gates should be rewarded with probation after serving as a critical high-profile government witness whose testimony helped net convictions against two of President Donald Trump’s campaign aides, the Justice Department and an attorney for the former Trump deputy campaign chairman said in a pair of new court filings.

Gates — who pleaded guilty in February 2018 to financial fraud and lying to investigators — quickly became a fountain of information for Robert Mueller’s investigators, eventually testifying against both former Trump campaign manager Paul Manafort and Roger Stone, Trump’s long-time political whisperer.

The 47-year-old GOP operative spent more than 500 hours with federal and state prosecutors, both before and after he officially flipped on Trump and his allies. He also responded to three congressional subpoenas for documents and testimony. Gates’ voice dominates the final Mueller report, as he recounts details about how Trump and his 2016 campaign coordinated and planned for the release of stolen Democratic emails at critical moments of the White House race.

In a filing Monday, Gates’ attorney pleaded with U.S. District Court Judge Amy Berman Jackson to give his client probation and impose no fines when she sentences him Dec. 17. “We believe that the parties are in agreement that Mr. Gates has fulfilled every obligation he agreed to (and then some) and that he has devoted enormous energy and commitment to this task while telling the truth and maintaining his composure,” wrote Gates’ attorney, Tom Green.

Federal prosecutors — who inherited the Gates case from Mueller — said in a filing Tuesday that they wouldn’t oppose the request for probation. The former Trump deputy had “provided the government with extraordinary assistance,” wrote Molly Gaston, an assistant U.S. attorney in Washington D.C.  That included 50 meetings with investigators, during which Gates provided “truthful information” to Mueller and several other DOJ offices, as well as a vow to testify in any ongoing cases.  "Gates’ cooperation has been steadfast despite the fact that the government has asked for his assistance in high-profile matters, against powerful individuals, in the midst of a particularly turbulent environment," Gaston added.

Without elaborating, Gaston also said Gates had "received pressure not to cooperate with the government, including assurances of monetary assistance."  Gates has already helped the government at several high-profile moments.  In August 2018, he incriminated Manafort from the witness stand in several crimes, including multimillion-dollar tax evasion, bank fraud and hiding offshore accounts.  A jury later convicted Manafort, who is now serving a 7 1/2-year prison sentence. Gates also appeared last month as a star witness in the trial against Stone, who was convicted of lying to Congress about his efforts to contact WikiLeaks in the 2016 presidential race.

For so many reasons, the crimes and subsequent behaviors of Manafort and Gates are unique in many ways.  But federal practitioners know well that it is actually quite common for one defendant who goes to trial to be facing a prosecutorial recommendation of decades in prison while a cooperating co-defendant involved in comparable criminal behavior receives a recommendation for only probation.

December 11, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Collateral Consequences Resource Center produces "Model Law on Non-Conviction Records"

I am please to see via this posting that the Collateral Consequences Resource Center (CCRC) has now officially published an important new model law on a topic that I suspect even many criminal justice actors do not realize is a big problem.  Specifically, CCRC has now produced a "Model Law on Non-Conviction Records," and the posting helps explain the background and why this is so timely and valuable:

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them....

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

December 11, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 09, 2019

Two notable SCOTUS sentencing arguments to finish up 2019

In this post last week I flagged the criminal cases on the Supreme Court's argument schedule for this month.  The next two days close with a sentencing bang with arguments scheduled for Tuesday in Holguin-Hernandez v. U.S.No. 18-7739 and for Wednesday in McKinney v. ArizonaNo. 18-1109.  The SCOTUSblog folks have great previews of these cases, and here are links and their starts: 

"Argument preview: What arguments are preserved, and how, in federal sentencing appeals?" by Rory Little:

When a federal criminal defendant has already requested a lower sentence than the judge ultimately imposes, must that defendant again note an objection after the sentence is announced, to preserve anything other than “plain error” appellate review?  The general doctrine that a failure to object can forfeit an appellate claim is well-established.  Thus Federal Rule of Criminal Procedure 52(b) provides that an “error … not brought to the [trial] court’s attention” may be reviewed only for “plain error.”  On the other hand, Rule 51(b) explains that “[a] party may preserve a claim of error by informing the court — when the court ruling is made or sought — of the action the party wishes the court to take.”

Tuesday the justices will hear argument in Holguin-Hernandez v. United States to resolve a circuit split about how these two rules play out in federal sentencing proceedings.  It is an unusual case because the solicitor general has conceded that the U.S. Court of Appeals for the 5th Circuit erred, so the court has appointed an amicus to argue in support of the judgment.

"Argument preview: Justices to take on procedural – but important – questions in case of Arizona death-row inmate" by Amy Howe:

It has been nearly 30 years since James McKinney and his half-brother killed two people while robbing the victims at their homes.  A judge in Arizona sentenced McKinney to death, but in 2015 the U.S. Court of Appeals for the 9th Circuit threw out McKinney’s death sentence.  On Wednesday, the Supreme Court will hear oral argument in the dispute between McKinney and the state over how his case should proceed.

McKinney was convicted by a jury for the 1991 murders of Christine Mertens and Jim McClain, but he was sentenced to death by a judge.  Although McKinney’s lawyers offered evidence that McKinney suffers from post-traumatic stress disorder as a result of the horrific abuse that he experienced as a child, the judge did not take that evidence into account when making his decision, because the law in effect at the time barred him from considering mitigating evidence that was not linked to the cause of the crime.

The Arizona Supreme Court upheld McKinney’s sentence, but in 2015 the U.S. Court of Appeals for the 9th Circuit ruled that the sentencing judge and the Arizona Supreme Court should have considered the evidence of McKinney’s PTSD, as required by Supreme Court’s 1982 decision in Eddings v. Oklahoma, in which the justices ruled that a sentencer in a capital case cannot decline to consider relevant mitigating evidence.

After the 9th Circuit’s decision, Arizona asked the Arizona Supreme Court to fix the error that the 9th Circuit had identified by reviewing McKinney’s death sentence again.  The state supreme court rejected McKinney’s argument that the Supreme Court’s recent cases required a jury, rather than a judge, to resentence him.  And it upheld McKinney’s death sentence, concluding that the mitigating circumstances in his case were not “sufficiently substantial” to warrant a lesser sentence.  McKinney asked the justices to weigh in on that ruling, which they agreed to do earlier this year.

There are two questions before the justices.  The first is whether the Arizona Supreme Court was required to apply current law — rather than the law that was in effect when McKinney’s conviction became final in 1996 — when weighing the mitigating and aggravating evidence to determine whether a death sentence was warranted.... The second question before the justices is whether, regardless of whether he is resentenced under the law in effect in 1996 or the law in effect now, McKinney is entitled to a new sentencing in the trial court, rather than the Arizona Supreme Court.

December 9, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots worth reading at Law360 "Access to Justice" section

I am not quite sure when I started subscribing to Law360's  "Access to Justice" section, but I am quite sure that a lot of recent content in the section should be of great interest to sentencing fans.  Here are just some of the recent headlines and stories that caught my eye in no particular order:

"‘Scot-Free’: What Happens When Prosecutors Behave Badly"

"Time To Rethink License Suspensions Without Due Notice"

"Changing The Way We Dialogue About Justice Reform"

"As Parole Drives Incarceration, Can NY’s Bar Spur Reforms?"

"Appearances Matter If Jurists Want To Talk Justice Reform"

"Book Review: Who's To Blame For The Broken Legal System?"

December 9, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

"The Problem of Problem-Solving Courts"

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

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system.  The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money.  And they do so effectively — at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform.  But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking.  So why do they persist?

This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement.  It contends problem-solving courts do effectively address a problem — it is just not the one we think.  It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power.  Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight.  Together, these new insights help explain why the problem-solving court model endures.  They also reveal a new problem with the model itself — its entrenchment creates resistance to alternatives that might truly reform the system.

December 9, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Third Circuit panel finds error where district court "improperly relied on [defendant's] bare arrest record in determining his sentence"

I just saw the Third Circuit panel ruling from late last week in US v. Mitchell, No. 17-1095 (3d Cir. Dec. 5, 2019) (available here), which makes a strong statement against the reliance on an arrest record at sentencing.  Here is how the opinion starts and key passages thereafter:

A jury found Tyrone Mitchell guilty of seventeen drug distribution and firearms offenses.  Mitchell appeals his judgment of conviction and sentence of 1,020 months’ imprisonment, raising eight arguments nearly all of which are unavailing.  We do, however, agree with Mitchell as to one sentencing-related argument — that the District Court plainly erred by relying on Mitchell’s bare arrest record to determine his sentence.  We therefore affirm Mitchell’s judgment of conviction, vacate the judgment of sentence, and remand for resentencing....

Under the Due Process Clause, “[a] defendant cannot be deprived of liberty based upon mere speculation.”  Accordingly, in determining a sentence, although a court can mention a defendant’s record of prior arrests that did not lead to conviction, it cannot rely on such a record.  As we recognized in United States v. Berry, “a bare arrest record — without more — does not justify an assumption that a defendant has committed other crimes.”...

Contrary to the Government’s assertions, Mitchell did not just demonstrate that the District Court “noticed that he had a number of arrests that did not result in convictions.”  To the contrary, Mitchell has “bridge[d] the gap between reference and reliance,” and has thus shown plain error.  Looking at the record below in its entirety, we conclude that the District Court improperly relied on Mitchell’s bare arrest record in determining his sentence.  For example, the Court interrupted the prosecutor to highlight Mitchell’s arrests and later recited all 18 of Mitchell’s arrests.  The Court also explicitly referred to Mitchell’s arrests when describing his “long and serious” criminal record and identified Mitchell’s “extensive criminal history” as the sole justification for his sentence.  Resentencing is therefore required.

December 9, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Justice Sotomayor continues her practice of issuing statements on denials of certiorari in criminal cases

The Supreme Court this morning issued this order list this morning. The Court denied certiorari in a long list of cases, but two of those denials prompted short statements respecting the denial of certiorari. Here are the cases with the concluding paragraphs from these short statements:

Concerning the denial of cert in Schexnayder v. Vannoy, No. 18-8341, Justice Sotomayor stated, inter alia:

Petitioner, who was pro se during various stages of the lower court proceedings, did not clearly set forth his claim that he was entitled to habeas review without AEDPA deference when he sought a certificate of appealability from the District Court and, later, the United States Court of Appeals for the Fifth Circuit. Accordingly, the Court of Appeals was not fairly presented with the opportunity to resolve the issue that petitioner now presents to this Court. For this reason, I do not dissent from this Court’s denial of certiorari. The re-review procedure adopted by the Louisiana courts, however, raises serious due process concerns.  I expect that lower federal courts will examine the issue of what deference is due to these decisions when it is properly raised.

Concerning the denial of cert in Cottier v. United States, No. 18-9261, Justice Sotomayor stated, inter alia:

On appeal, the Court of Appeals for the Eighth Circuit observed that the court in which Cottier was prosecuted “routinely” sends unredacted factual-basis statements into the jury room.  908 F.3d 1141, 1149 (2018).  I agree with the Eighth Circuit that this practice is “troubling.” Ibid.  By presenting the jury with a factual-basis statement signed by the Government, the prosecution improperly expresses its “‘personal belief ’” in the truth of the witness’ statements — a stamp of approval, an assurance from the Government itself, that the witness is to be believed.  United States v. Young, 470 U.S. 1, 7–8 (1985).  In this case, however, Cottier’s attorney did not object to the statements’ admission and used them as part of Cottier’s defense.  For that reason and others expressed by the Eighth Circuit in affirming Cottier’s convictions, I do not dissent from the denial of certiorari but instead echo its admonition that the admission of such statements “is not a favored practice.” 908 F.3d, at 1149.

December 9, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, December 06, 2019

SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

The Supreme Court on Friday night released this short order in response the the Department of Justice's request to lift an injunction the precludes federal executions scheduled to start early next week:

The application for stay or vacatur presented to THE CHIEF JUSTICE and by him referred to the Court is denied. We expect that the Court of Appeals will render its decision with appropriate dispatch."

Along with the order comes an interesting little "Statement ... respecting the denial of stay or vacatur" authored by Justice Alito and joined by Justices Gorsuch and Kavanaugh. Here is part of that statement:

The Government has shown that it is very likely to prevail when this question is ultimately decided.  The centerpiece of the District Court’s reasoning was that Congress referred to the “manner” and not the “method” of execution, but there is strong evidence that this reading is not supported either by the ordinary meaning of these two terms or by the use of the term “manner” in prior federal death penalty statutes.  Moreover, the District Court’s interpretation would lead to results that Congress is unlikely to have intended.  It would require the BOP to follow procedures that have been attacked as less safe than the ones the BOP has devised (after extensive study); it would demand that the BOP pointlessly copy minor details of a State’s protocol; and it could well make it impossible to carry out executions of prisoners sentenced in some States.

Vacating the stay issued by the District Court for the District of Columbia would not necessarily mean that the prisoners in question would be executed before the merits of their Administrative Procedure Act claim is adjudicated. They remain free to seek review on other grounds.  Nevertheless, in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.

The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days.  The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team.  For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.

December 6, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 05, 2019

Lots of notable headlines as possible resumption of federal executions approaches

As noted in this AP piece, on Monday night the US Department of Justice formally asked the Supreme Court to stay or vacate a lower court preliminary injunction now blocking scheduled federal executions that are scheduled to take place starting on the morning of December 9.  These developments have, unsurprisingly, started generating ever more news and commentary.  Here are a few piece that caught my eye:

December 5, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, December 03, 2019

Honored to be helping Ohio Gov. DeWine with new "Expedited Pardon Project"

Fc30ff87-f68e-4eff-8986-b34c9efb8eaa-large16x9_OhioGovernorsExpeditedPardonProjectI am just back from an exciting gubernatorial press conference that was, conveniently, held in the building in which I work.  Ohio Governor Mike DeWine held the press event at The Ohio State University Moritz College of Law because OSU's Drug Enforcement and Policy Center (DEPC) is playing a big role in the Governor's new "Expedited Pardon Project." 

As the name suggests, this project aspires to expedite the process by which people apply for a pardon under Ohio's laws.  The Project was established in collaboration between Ohio Governor Mike DeWine, DEPC and the Reentry Clinic at The University of Akron School of Law.  The universities and the governor’s office have already worked together with the Ohio Department of Rehabilitation and Correction to create an expedited pardon application process, and the project was officially announced by Gov DeWine this afternoon.  This local press article provides some context and particulars:

Saying many ex-criminals deserve “a second chance to reach their full potential,” Gov. Mike DeWine on Tuesday announced a streamlined process for those who have served time in prison or jail to obtain a pardon.

The governor’s Expedited Pardon Project seeks to accelerate the clemency process for those who have proven themselves to become contributing members of society but whose criminal record bars them from employment, housing, or other aspects of their life.

The program is only open to those who have: A specific reason for seeking a pardon; Already been released from prison or jail; Not committed any additional crimes (other than minor traffic violations) in the past 10 years; Made good-faith efforts to pay any restitution or fines they owe; Have a post-offense job history or a compelling reason why they haven’t been working; Performed volunteer work or community service; Not been convicted of a number of disqualifying offenses, including murder, rape, and a number of other violent and/or sex-related crimes....

In some cases, the existing process for obtaining a pardon can take years.  DeWine said he hopes this program will reduce that wait time to six months.

Under the project, law-school students at Ohio State University and the University of Akron will help qualified applicants to prepare their pardon paperwork, then submit their information to the Ohio Department of Rehabilitation and Correction for extensive background checks.  The Ohio Parole Board will then hold a hearing for each applicant, during which victims, judges and prosecutors involved with his or her case can offer their thoughts.  The Parole Board will then vote the same day about whether to recommend clemency to the governor, who alone has the power under the Ohio Constitution to issue pardons....

Neither DeWine nor Annette Chambers-Smith, director of the state’s prison agency, knew how many people are eligible for the program.  DeWine said it will take about a year before he and other state officials can see how the program is working.

To learn more about the Expedited Pardon Program or to apply, visit ohioexpeditedpardon.org.

I have already learned a lot about pardon policies and practicalities in just the last few months as we have worked to help get this new "Expedited Pardon Project" launched.  I am hopeful I will be able to share my continuing education in this space in the months to come (while also reporting on what I hope will be a lot of successful pardon applications). 

December 3, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining"

The title of this post is the title of this new paper on SSRN authored by Andrea Kupfer Schneider and Cynthia Alkon. Here is its abstract:

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States.  As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight.  Yet we actually know very little about what happens during that process — a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims.

Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system.  More information — more data — would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power.  Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

December 3, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 02, 2019

Intriguing (mostly procedural) criminal justice issues up for SCOTUS arguments as 2019 winds down

The US Supreme Court begins its December sitting on Monday morning, and a handful of cases scheduled for oral arguments over the next two weeks ought to be of interest to criminal justice fans.  Here are the ones that I will be watching (with links and descriptions via SCOTUSblog):

New York State Rifle & Pistol Association Inc. v. City of New York, New YorkNo. 18-280 [Arg: 12.2.2019]

Issue(s): Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

Banister v. DavisNo. 18-6943 [Arg: 12.4.2019]

Issue(s): Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019]

Issue(s): Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Holguin-Hernandez v. U.S.No. 18-7739 [Arg: 12.10.2019]

Issue(s): Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

McKinney v. ArizonaNo. 18-1109 [Arg: 12.11.2019]

Issue(s): (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

For the usual reasons, the Second Amendment/gun control case out of New York and the Eighth Amendment/death penalty case out of Arizona seem likely to get the most attention among this bunch.  But, ever the federal sentencing nerd, I am especially interested to see if the Holguin-Hernandez argument might hint at the case being a possible sleeper.  Remarkably, the Justices have not said much of anything about reasonableness review of sentences in over eight years(!) since its March 2011 ruling in Pepper v. US.  And the Justices have not really said anything really important about reasonableness review in a dozen years since the 2007 trio of opinions in Rita, Gall and Kimbrough.  I am not really expecting much from Holguin-Hernandez, but even a the prospect of a thimble of jurisprudential water can be exciting in a reasonableness desert.

December 2, 2019 in Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, December 01, 2019

Father of Parkland school shooting victim urges state prosecutors to abandon capital prosecution of shooter

This opinion piece from Florida, headlined "Parkland parent: Drop death penalty for shooter, let him rot in jail," provides a notable plea to prosecutors from Michael Schulman.  Here are excerpts:

On February 14, 2018, my son, Scott J. Beigel, was murdered by this active shooter at Marjory Stoneman Douglas High School in Parkland....  I read the Nov. 24 Sun-Sentinel editorial, “Delay the Nikolas Cruz trial or accept his plea,” — and could not agree more.

To put the students and faculty through the trauma of reliving that horrible day is cruel and unnecessary. “Going for the death penalty” will not bring our loved ones back to us.  It will not make the physical scars of those wounded go away.  In fact, what it will do is to continue the trauma and not allow the victims to heal and get closure.

Understand, that in order to get the death penalty, the state has to take the trial for the murder of our family members to conclusion.  In all likelihood, that means many of us would have to testify at the trial and relive February 14, 2018, again and again, as we all sit in a courtroom for weeks.

We would be putting ourselves through this for the chance that the shooter would get what we all believe he deserves: the death penalty.  Yet, even following a trial, the shooter could be sentenced to life without parole — the same sentence the shooter has already agreed to accept for in exchange for a guilty plea.  Pursuing the death penalty means subjecting ourselves to the trauma of a trial, reliving the murder of our loved ones for a result we could have obtained without that trauma.

Now let’s imagine the jury finds that the shooter should be put to death. The average time an inmate in Florida spends on death row prior to execution is more than 16 years, according to the Florida Department of Corrections. During those 16 years of time, there will be numerous appeals. Imagine if the shooter wins just one of those appeals and a court judge orders a new trial. We will then have to go back to court and re-open our wounds by testifying again. This is not healthy. This will not help us heal and get any kind of closure....

To State Attorney Michael Satz, and to the living victims of the Marjory Stoneman Douglas massacre, let the shooter rot in jail for the rest of his life. Let us try and get some closure! Let us try and move forward with our lives.

Prior related posts:

December 1, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, November 27, 2019

Deputy AG Rosen continues his hypocritical attacks on local prosecutors for "nonenforcement of the law"

In this post a few weeks ago, I noted and criticized this speech delivered by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  In my post, I noted that the speech emphasizes making the reduction of violent crime a priority and then assailed local DAs for giving less attention to non-violent crimes.  The speech also complained about DAs adopting non-prosecution strategies for certain low-level offenses without addressing the fact that the federal government for a full decade has formally or functionally adopted non-prosecution strategies with respect to state-compliant federal marijuana offenses.  

Well, DAG Rosen is at it again, this time with this new Washington Post piece run under the headline "'Social justice reform' is no justice at all."  Here are excerpts:

Unfortunately, a trend is emerging that could threaten the hard-fought progress in public safety. A small but troubling number of state and local prosecutors are vowing that they will not enforce entire categories of core criminal offenses as part of a misguided experiment in “social justice reform.”

A prosecutor has a vital role: to enforce the law fairly and keep the public safe. These purportedly progressive district attorneys, however, are shirking that duty in favor of unfounded decriminalization policies that they claim are necessary to fix a “broken” system.

The Philadelphia district attorney, for instance, has in effect decriminalized thefts of up to $500.  Boston’s district attorney actually campaigned, before her election last year, with a list of crimes her office would not prosecute — including drug distribution, “larceny under $250,” receiving stolen property, trespassing, malicious destruction of property and resisting arrest.

In San Francisco, the new DA has vowed not to prosecute “quality of life” crimes such as public urination and prostitution. And the new DA in Fairfax County said during his campaign that he wouldn’t prosecute as a felony any larceny below $1,500 (ignoring the state threshold of $500), would not seek cash bail for felonies and would charge unlawful immigrants more leniently than U.S. citizens for the same crimes in order to circumvent the immigration consequences of the crimes.

While the Trump administration is dedicated to enforcing federal criminal law, as shown by the record number of violent crime prosecutions during the past two years, not every state crime is prosecutable as a federal offense. Contrary to the belief that inspires these so-called social justice policies, the “system” is not broken. Just as violent crime rates are near historic lows, national incarceration rates have also fallen 13 percent over the past decade, hitting a 20-year low, according to a 2019 report by the Bureau of Justice Statistics.

Those who still believe that certain criminal laws hinder “social justice” should vote for a legislature, not a prosecutor, to address their concerns.  Outright nonenforcement of the law is an affront to the separation of powers.  The legislative branch writes the law. The judicial branch interprets the law. And the executive branch — of which these prosecutors are a part — enforces the law.

Prosecutors have discretion to decide what individual cases to bring and how best to resolve them.  But the categorical refusal to enforce basic laws geared toward public safety goes far beyond prosecutorial discretion, violates the duty to enforce the laws as passed by the legislature and flies in the face of the fundamental concept that no one part of government exercises total control.

Prosecutorial policies that disregard core criminal laws — and the inflammatory rhetoric that often accompanies those practices — also erode respect for the rule of law.  These prosecutors risk demeaning the very institutions they are appointed to lead and fueling mistrust by promoting false narratives about the criminal-justice system and law enforcement.  The prosecutors are essentially flipping the script, casting criminals as victims and police as villains.  This distortion is not only demoralizing to law enforcement but also emboldens hostility toward both the rule of law and those entrusted with enforcing it.

As a general matter, I continue to be intrigued and troubled by an unelected federal prosecutor making proclamations about how elected local prosecutors ought to apply state laws.  Notably, the Philadelphia, Boston and San Francisco DAs all clearly articulated their planned prosecutorial policies during their campaigns and they will continue to be directly accountable to local voters.  But DAG Rosen was not elected by anyone and is not really directly accountable to anyone, and his appointed responsibility concerns only the application and enforcement of federal law.

And speaking of federal law, DAG Rosen ought to explain his own work in his own backyard before attacking state and local prosecutors.  Beyond the fact that the federal government has been formally or functionally engaging in "outright nonenforcement" of (state-compliant) federal marijuana offenses, in just Washington DC alone a simple Google search reveals dozens of marijuana offenders advertising in plain sight.  Of course, DAG Rosen is seemingly okay with "categorical refusal to enforce" federal marijuana law in these settings because there are very sound political and practical reasons for federal prosecutors to allocate its limited resources elsewhere.  But, as I commented in the prior post, apparently in the view of DAG Rosen, what is good for the (unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Prior related post:

November 27, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Monday, November 25, 2019

Maryland Gov grants parole to juve LWOPers, marking first such parole in state in nearly a quarter century

I am pleased to report on this Baltimore Sun article headlined "Larry Hogan grants parole to juvenile lifers, the first time a Maryland governor has done so in decades." Here are details:

For the first time in 24 years, individuals sentenced to life in a correctional facility for crimes they committed before turning 18 are being paroled by a Maryland governor.  The action by Gov. Larry Hogan, a Republican, hasn’t been exercised since the administration of William Donald Schaefer, Maryland’s governor from 1987 to 1995.  It comes after courts have weighed in on juvenile sentencing and state lawmakers have attempted to remove the governor from the process in recent years.

Hogan’s decision to implement parole for juvenile lifers comes after 24 years of rejections for this group by the previous three governors, a trend that started with Gov. Parris Glendening in 1995.  “The governor talked about this issue in his original campaign, and it’s something that he gives serious attention to,” Hogan Administration Deputy Legal Counsel Chris Mincher said in an interview with Capital News Service.

Navarus Mayhew, 42, is scheduled to be released this month after 24 years in prison for first-degree murder, robbery and gun charges.  Robert Davis, 54, who served 37 years for first-degree felony murder and handgun charges has been recently released, a Maryland Department of Public Safety and Correctional Services spokesman said Thursday.  Shawn Delco Goodman, 42, will likely be released in December after 27 years behind bars for first-degree murder and robbery charges, according to Maryland Parole Commission records. Hogan approved paroles for two of the men and allowed the third to happen without his signature.

Prisoners sentenced to life in prison as both adults and juveniles have been released through other measures of executive clemency, like commutation, which allows the governor — rather than the parole commission — to set the terms of release.  Until the Hogan administration, parole hadn’t been implemented for any lifer — adult or juvenile — since Gov. Schaefer, a Democrat and Glendening’s immediate predecessor.  A number of inmates’ life sentences had been commuted, however....

In 2016, the ACLU of Maryland filed a federal class action lawsuit against Hogan on behalf of the Maryland Restorative Justice Initiative and three incarcerated juvenile lifers.  The three juvenile lifers in the ACLU suit are not the 2019 parolees.  The lawsuit states that Maryland’s process of juvenile lifer parole denied “meaningful opportunity for release,” therefore violating constitutional protections against cruel and unusual punishment.

There are currently more than 300 individuals sentenced to life who are imprisoned for crimes they committed before the age of 18 in Maryland facilities.  The ACLU suit is pending....

Hogan has commuted the sentences of four juveniles and 17 adults as of last month, and has approved parole for eight adult and three juvenile lifers.  Nine other individuals were released for medical parole.  This happens when a lifer is chronically ill and expected to die, and are no longer considered a threat to society.  They are released to a hospital, hospice care or family members....

There have been attempts to remove the governor’s hand from the state’s process in recent years.  In 2017, parole reform legislation that would dismiss the governor from the process was passed in the state House of Delegates, but failed to advance in the Senate.  This past session, a similar bill made little headway in either chamber.

Legislators are turning their eyes to 2020 — some with the hope that more advancement could be made this time around.  The bill’s former House sponsor, Del. Pam Queen, D-Montgomery, said in an interview with Capital News Service last month that there are plans for similar legislation in the upcoming session, and is looking to the Senate and its new president, Bill Ferguson, D-Baltimore, to determine what will or won’t make it through....

In 2018, Hogan signed an executive order addressing juvenile lifers specifically, requiring that the governor weigh the same elements as the Maryland Parole Commission when considering parole, as well as the inmate’s age at the time of the offense and any signs of maturity or transformative rehabilitation.

UPDATE: A helpful reader made sure I saw this follow-up editorial from the Baltimore Sun headlined "Kudos to Maryland’s Gov. Hogan for paroling three ‘juvenile lifers,’ but we wish he weren’t involved at all." Here are excerpts:

We applaud Gov. Larry Hogan’s decision to honor the recommendations of the Maryland Parole Commission and allow the release of three men sentenced to life in prison for crimes committed as minors.... [I]t’s been almost a quarter century since this last occurred — since William Donald Schaefer held the governor’s post — and Mr. Hogan deserves praise for having the common sense to take action where his largely Democratic predecessors haven’t.

Forgive us, however, if the tribute is tepid.

The men Mr. Hogan allowed to be paroled — two by direct approval, and a third by declining to deny parole — amount to less than 1% of those currently in Maryland correctional facilities serving life sentences for crimes committed when they were under 18. And the action was a long time coming.  It’s been more than three years since the ACLU of Maryland filed a federal class action suit against Mr. Hogan on behalf of a different set of juvenile lifers, claiming the state’s parole process denies them “meaningful opportunity for release" in violation of the Eighth Amendment’s ban on cruel and unusual punishment.  That case is still pending in the courts.

And, as we’ve said numerous times, we’d prefer Mr. Hogan weren’t required to take any action at all.  Maryland is one of only three states in the country, alongside Oklahoma and California, that requires the governor’s input in parole decisions, unnecessarily politicizing the process.  In 47 other states — many far less progressive than Maryland — the parole commission is trusted to review and assess an inmate’s suitability for release on its own. That’s how it should be here, as well.  The state legislature has for several years sought and failed to pass bills removing the governor from the process.  A similar measure is under consideration for the legislative session starting in January, and we urge its passage.

November 25, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of comments from SCOTUS on various issues in holiday week order list

Order lists from the Supreme Court so far this Term have been mostly free of short rulings or separate statements from the Justices.  But this morning, the Court issued this order list full of comments in the form of a per curiam GVR in a First Amendment case from the Ninth Circuit and a number of statements about denials of review.  One of the denials came in the delegation case involving sex offender registries from last Term, Gundy, and Justice Kavanaugh has a short comment in a companion case.  Here is how it starts:

I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States, 588 U.S. ___ (2019).  I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.

Criminal justice fans are likely to be most interested in a statement by Justice Sotomayor in a capital case from Arkansas in which cert was denied.  Here are parts of her three-page statement:

After Isom was granted parole three years into his sentence, Prosecutor Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but to no avail.

Seven years later, a jury convicted Isom of capital murder in a case presided over by Pope himself — now a Drew County judge.  Isom sought postconviction relief, which was denied, also by Judge Pope....

The allegations of bias presented to the Arkansas Supreme Court are concerning. But they are complicated by the fact that Isom did not raise the issue of Judge Pope’s prior involvement in his prosecutions, either at his capital trial or for nearly 15 years thereafter during his postconviction proceedings.  Although the Arkansas Supreme Court did not base its recusal decision on this point, it is a consideration in evaluating whether there was an “unconstitutional potential for bias” in this case sufficient to warrant the grant of certiorari.  I therefore do not dissent from the denial of certiorari.  I write, however, to encourage vigilance about the risk of bias that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.

November 25, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 24, 2019

How quickly could litigation over federal execution procedures get to SCOTUS?

The question in the title of this post is prompted by this AP article serving as follow-up to this past week's news, noted in this post, that a federal district court has halted pending scheduled federal executions based claim that planned execution protocol "exceeds statutory authority."  The AP piece is headlined "DOJ would take halted executions to high court" and here are excerpts:

Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary. Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.

He said the five inmates set to be executed are a small portion of 62 death row inmates. “There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.

The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.

U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process. “It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.

Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”...

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.

He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.

On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from. “I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.

Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said....

The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state. Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.

I was certain that DOJ would be inclined to appeal this ruling to the DC Circuit and even to SCOTUS as needed in order to try to move forward with executions.  But I am quite uncertain about just how quickly this litigation (and other litigation surrounding these capital cases) would move forward.  It is not uncommon for capital litigation to move though federal courts quickly on the eve of a scheduled state execution, but that often comes after an array of issues have first been reviewed by state court and often come with a deferential standard of review under applicable law.  It has been a very long time since any federal courts have had to consider any modern claims for relief on the eve of a scheduled federal execution. I have no idea if DOJ is going to press for an expedited appeal schedule or if the DC Circuit or SCOTUS will be inclined to fast-track these matters.

Though I am not following all of the relevant litigation, I assume that objections to the federal execution protocol is just one of a number of claims being brought by the death row prisoner with executions dates. As flagged in this post from July, I am especially interested to know how these particular defendants were put in the front of the execution queue and whether this selection process was constitutionally sound. And I suspect the lawyers representing those of federal death row have a lot of other question they are bringing to court in this process.

Prior related posts:

November 24, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 22, 2019

"Let’s pardon prisoners, not turkeys"

Regular readers know that I cannot let a holiday season go by without remarking repeatedly on the fact that clemency grants for cleverly named Turkeys are more consistent and predictable than for actual human beings this time of year.  I will start this season's clemency kvetching by spotlighting some passages from this new Washington Post commentary by Mark Osler with the same headline as the title of this post:

At some point before Thanksgiving, President Trump will likely pardon a pair of turkeys.  The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.

It’s painful to watch.  Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue....

There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity....

The Trump administration inherited a clemency review process that is seemingly designed to result in good cases not getting to the president.  Bureaucrats in the Office of the Pardon Attorney — which is buried deep in the Justice Department — review the cases when petitions are received.  Part of their job is to solicit the view of local prosecutors, the very people who sought the sentence in the first place, and Justice Department standards direct that the views of those prosecutors be given “considerable weight” in determining a recommendation.  From the start, there is a thumb on the scale.  That reviewer passes the case to the pardon attorney, who passes it to an official in the office of the deputy attorney general, who passes it to the deputy attorney general himself.  Then it goes to a staffer in the White House counsel’s office, then to her boss and finally to the president.  There is no evidence this system is working at all.  It is a pipe with seven valves that all must be opened at once by seven busy people with very different interests; we shouldn’t be surprised that nothing is flowing through.

Meanwhile, a more informal clemency process has emerged. This one is simple: A television channel, Fox News, makes recommendations directly to Trump, an avid watcher.  Most recently, two military officers received full pardons and another had his rank restored via this route. Previous recipients of Fox News-Trump clemency have included Joe Arpaio, I. Lewis “Scooter” Libby and Dinesh D’Souza.  I don’t begrudge any of them the break they received (though others do).  Alexander Hamilton was right to call clemency “the benign prerogative”; at worst, it produces mercy. My argument is for more clemency, not less.  The problem is that we have two systems, one formal and one informal, that both fail to deliver the level of mercy our history of retribution and over-incarceration requires.

November 22, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 21, 2019

"Prosecuting Opioid Use, Punishing Rurality"

The title of this post is the title of this new paper authored by Valena Elizabeth Beety no available via SSRN. Here is its abstract:

The opioid crisis spotlights rural communities, and accompanying that bright light are long-standing, traditional biased tropes about backwards and backwoods White Appalachians. These stereotypes conflate rurality with substance use disorder as the next progression in dehumanizing stereotypes.  Widespread attention to our nation’s use disorder crisis, however, also brings an opportunity to recognize these fallacious stereotypes and to look more closely at the criminal legal systems in rural communities.  In this Article, I use drug-induced homicide — what has become a popular prosecutorial charge in response to the opioid crisis — as a prism to identify and critique the failings in rural criminal courts more broadly.  This Article includes modest recommendations that acknowledge and respond to these inadequacies while attempting to preserve people’s constitutional rights and decrease opiate-related overdoses.

November 21, 2019 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority"

As explained in this Politico article, a federal district "judge has blocked the scheduled executions of four federal death row inmates, effectively freezing the Trump administration’s effort to resume imposing the death penalty in a federal system that saw its last execution more than a decade and a half ago."  Here is a link to the ruling and a summary from this press account: The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month.

The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month. The only other execution that officials had put on the calendar, also for December, was blocked last month by the 9th Circuit U.S. Court of Appeals.

In July, Attorney General William Barr announced plans to resume executions at the federal penitentiary in Terre Haute, Ind. He suggested the practice had been allowed to languish for too long and said it would deliver justice in cases involving what he called the “worst criminals.” Barr announced a new federal death penalty protocol that would use a single drug, pentobarbital, in lieu of a three-drug “cocktail” employed in the most recent federal executions.

In the wake of Barr’s announcement, a series of death row prisoners joined a long-dormant legal challenge to that previous method and asked Chutkan to block their execution under the new protocol until their legal challenges to it were fully adjudicated.

In her ruling Wednesday, Chutkan said the death row inmates appeared likely to prevail on their arguments that the new protocol violates longstanding federal law because the procedures to be used vary from state law. A 1994 federal statute says federal executions shall be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”

Justice Department attorneys argued that the use of lethal injection was sufficiently similar regardless of the drugs used or other details of the execution protocol, but Chutkan ruled that the law likely requires federal authorities to adopt the same drugs or drugs and a similar process.

“Requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices. For all these reasons, this court finds that the FDPA [Federal Death Penalty Act] does not authorize the creation of a single implementation procedure for federal executions,” wrote the judge, an appointee of President Barack Obama. “There is no statute that gives the [Bureau of Prisons] or DOJ the authority to establish a single implementation procedure for all federal executions,” Chutkan added.

In granting the injunction, Chutkan noted the obvious fact that permitting the executions would deprive the inmates of their ability to pursue their legal challenges. She also turned aside the Justice Department’s claim that time was of the essence, noting that revisions to the federal death penalty protocol languished for years after shortages developed of at least one drug used in the earlier cocktail.

The earliest of the five executions that federal officials planned to carry out in the coming weeks was scheduled for Dec. 9. “While the government does have a legitimate interest in the finality of criminal proceedings, the eight years that it waited to establish a new protocol undermines its arguments regarding the urgency and weight of that interest,” the judge wrote.

When AG Barr announced the planned resumption of executions back in July and set five execution dates, I fully expected that some or all of the executions would be delayed by litigation. This particular basis for delay strike me as especially interesting because it will force the Justice Department to debate whether to appeal this ruling or to just try to adjust its protocols in light of the concerns expressed in this ruling. Either way, I am now inclined to confidently predict that we will not see a federal execution in 2019 and probably not in 2020.

November 21, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 20, 2019

Medical disputes before federal court as high-profile, white-collar prisoner seeks compassionate release

This NBC News article, headlined "NY prosecutors suggest former WorldCom CEO Bernie Ebbers is faking illness to get out of jail time," reports on an interesting dispute as a high-profile defendants seeks a sentencing reduction thanks to the FIRST STEP Act.  Here are the details:

Federal prosecutors say 78-year-old former WorldCom CEO Bernie Ebbers may not be in as bad physical shape as indicated in court filings seeking his early release from prison due to health concerns.

In a letter Monday to U.S. District Judge Valerie Caproni, Assistant U.S. Attorney Gina Castellano cites a note from a prison psychologist who listened in on phone calls between Ebbers and his daughter in recent weeks.  Joy Ebbers Bourne has said in a sworn declaration that her father has dementia.  “In the calls, he was alert, aware and oriented to person, place, time and situation,” the psychologist is quoted as saying, adding that Ebbers was asking about his daughter’s efforts to get him out of prison.  He is being held at the prison medical center in Fort Worth, Texas....

In a response filed in court Tuesday, Ebbers attorney Graham Carner said the alleged discrepancies can be explained by factors that have nothing to do with fakery.  “It is commonly known that people suffering from dementia (which can have many forms) can experience symptom fluctuation (i.e., ‘good days and bad days’),” Carner wrote.

The response, which notes that cognitive issues have not been the focus of Ebbers’ legal motion, cites other parts of his medical records that Carner says demonstrate Ebbers “has a substantially diminished ability to provide self-care in prison.”  Carner noted that Ebbers has suffered multiple falls, and that according to the medical report, he weighed just 148 pounds last week, down from 200 pounds in July.  “Objective medical findings show that his age and medical condition qualify as extraordinary and compelling reasons for compassionate release,” Carner wrote.

Caproni, a judge on the U.S. District Court for the Southern District of New York, had given the government until Monday to supply the additional medical data, most of which were filed under seal.  In addition to asking for any tests as to whether Ebbers was malingering, or faking his memory loss, the judge asked for information on Ebbers’ rapid weight loss — the former bouncer has reportedly withered to around 160 pounds.  Castellano said an abdominal ultrasound performed late last month found “no definitively worrisome or sonographically acute findings,” but further tests are scheduled next month.

Ebbers has served about 13 years of his 25-year sentence for orchestrating the $11 billion accounting fraud by the defunct telecommunications company. With good behavior, he is scheduled for release in 2028.

Before the FIRST STEP Act, Ebbers' request for compassionate release almost surely would have been rejected by the Bureau of Prisons and that would be the end of the matter. Now, thanks to FIRST STEP, Ebbers' can get a federal judge to consider these matters.

November 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 17, 2019

Texas Court of Criminal Appeals issues stay of execution so trial court can examine Rodney Reed's "Brady, false testimony, and actual innocence claims"

As noted in this prior post, many questions have been raised about the guilt of Texas death row inmate Rodney Reed, who had been scheduled to be executed on November 20.  But, as this Hill piece reports, that execution was stayed late Friday:

The Texas Court of Criminal Appeals ruled Friday to stay indefinitely the upcoming execution of Texas inmate Rodney Reed, who had been convicted in a 1996 slaying.

Citing an appeal filed by Reed’s attorney’s this week that claimed, among other things, that the state provided false testimony, the court ruled to halt the execution scheduled for Wednesday “pending further order of this Court.”

The decision came shortly after the Texas Board of Pardons and Paroles on Friday unanimously recommended delaying Reed’s execution.

The developments come amid national scrutiny over Reed’s case, as supporters of the inmate say newly uncovered evidence raises serious doubts about his guilt in the case of the killing of 19-year-old Stacey Stites.

Prosecutors accuse Reed of raping and strangling Stites in Bastrop, Texas, more than 20 years ago. However, in an application for clemency, Reed’s attorneys wrote that new evidence has “contradicted and, in all key respects, affirmatively disproven, every aspect of the State’s expert-based case against Mr. Reed” and implicates Stites’s then-fiance.

Efforts to stop the execution have been aided by high-profile calls from celebrities including Beyoncé, Kim Kardashian West, Oprah Winfrey, Rihanna, Questlove and more.

The TCCA's oder is available at this link, and here is a key passage:

On November 11, 2019, Applicant filed the instant subsequent writ application in the convicting court.  Applicant raises four claims in this application: (1) that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that the State presented false testimony in violation of due process; (3) that Applicant’s trial counsel were ineffective; and (4) that Applicant is actually innocent.

After reviewing the application, we find that Applicant’s Brady, false testimony, and actual innocence claims satisfy the requirements of Article 11.071 § 5.  Accordingly, we remand those claims to the trial court for further development.

November 17, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, November 16, 2019

Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A)

I am pleased to be able to report on a great new district court ruling granting a sentence reduction using 18 U.S.C. § 3582(c)(1)(A) in order to under the now-repealed harshness of severe stacking of mandatory minimum 924(c) counts.  (As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds, and perhaps many thousands, of federal prisoners to have excessive prison sentences reduced.)

This new ruling comes in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). In this case, Judge Camp begins by noting that because of the severe stacking rules in place at the time of the crime, Urkevich's sentence "(848 months) is forty years longer than the sentence he likely would have received (368 months) if he were sentenced under the law (18 U.S.C. § 924(c)(1)(C)) as it now exists." Then, after noting that the "Government does not dispute that Urkevich has demonstrated post-offense rehabilitation, and the Government does not argue that he poses a current danger to the safety of any other person or to the community," Judge Camp concludes:

If this Court reduces Urkevich’s sentences on Counts III and V to 60 months each, consecutive, he will not be eligible for immediate release.  His sentence would total 368 months, and he would have served somewhat more than half that sentence.  Nonetheless, the Court does not consider the Motion premature.  A reduction in his sentence is warranted by extraordinary and compelling reasons, specifically the injustice of facing a term of incarceration forty years longer than Congress now deems warranted for the crimes committed. A reduction in the sentence at this juncture will help Urkevich and the Bureau of Prisons plan for his ultimate release from custody and may assist him in his pending efforts to seek clemency from the Executive Branch.  This Court will not intervene in that process.

After consideration of all the factors set forth in 18 U.S.C. § 3553(a), especially § 3553(a)(2)(A) (“the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”) and § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”), as well as applicable Sentencing Commission policy statements, the Court finds extraordinary and compelling reasons for a reduction of the Defendant’s sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  The Court further concludes that the Defendant has demonstrated that he poses no current danger to the safety of any other person or to the community. Accordingly, the Defendant’s sentences on Counts III and V of the Indictment will be reduced to 60 months each, consecutive.

The statement above by Judge Camp that the sentence reduction motion here is not premature is a reference to (and disagreement with) the reasoning of Judge Pratt in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), a similar case noted and lamented in this post.  In Brown, the court seemed to essentially conclude that the movant had demonstrated extraordinary and compelling reasons for a sentence reduction and seemed to conclude the 3553(a) factors justified such a reduction, but the court rejected the motion for a reduced sentence seemingly because conforming a reduced sentence based on the terms of current statutory law would not lead to the defendant's immediate release.  I am quite pleased that this Urkevich case recognizes why a congressionally-authorized sentence reduction that is statutorily justified is always timely.

Some prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:

November 16, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Friday, November 15, 2019

SCOTUS grants cert on yet another ACCA case and also on statute of limitation on military rape charges

Via this new order list, the Supreme Court has added four new cases to its merits docket.  The big one of the bunch is a case involving Google and copyright issues concerning computer code, but the others are criminal cases.  One has SCOTUS focused on the application of the Armed Career Criminal Act yet again, and two combined others deals with statutes of limitation.  Here are descriptions of the new criminal cases via this post at SCOTUSblog (with paragraphs rearranged): 

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case. He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.

The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

The justices also granted two requests by the government to weigh in on the statute of limitations for old rape charges against members of the armed forces.  The question arises in the case of Michael Briggs, a captain in the U.S. Air Force who in 2014 was charged with the 2005 rape of a member of his squadron.  Under the version of the Uniform Code of Military Justice that was in effect when Briggs was charged, there is no statute of limitations for rape.  At his court-martial proceeding, Briggs was found guilty, but an appeals court later ordered that the charge be dismissed.  It reasoned that under a 2018 ruling by the same court, the five-year statute of limitations for the version of the UCMJ in effect in 2005 applied to Briggs’ offense.  The court also ruled that a 2006 law that specifically provides that there is no statute of limitations for rape does not apply to rapes committed before 2006.

The government filed a separate petition for review in the case of two other members of the Air Force.  Richard Collins was an instructor at an Air Force base in Texas.  In 2016 he was found guilty of the August 2000 rape of a student in his course.  As in Briggs’ case, an appeals court reversed Collins’ conviction, pointing to a 2018 decision by the same court.  Humphrey Daniels was convicted in 2017 of the 1998 rape of a civilian near the North Dakota Air Force base where he was stationed; his conviction was also reversed.

The government appealed to the Supreme Court, asking the justices to grant both petitions.  The government told the justices that sexual assault is “devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover.”  The request was supported by a “friend of the court” brief by Harmony Allen and Tonja Schultz — the victims of Collins and Daniels. Today the justices agreed to take up the case.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 14, 2019

Tales of extreme state drug mandatory minimums (and non-retroactive reforms) from Florida

The Miami Herald has this lengthy article discussing an array of extreme sentences resulting from Florida's (now somewhat reformed) mandatory minimum drug laws.  The piece is headlined "Hundreds languish in Florida prisons under outdated mandatory minimum drug sentences, " and I recommend it in full.  Here is a taste:

It’s not enough that Jomari DeLeon calls every day, asking her 8-year-old daughter about school and reminding her that “mommy misses you.” The child still asks when she’s coming home, believing her mom’s been gone all these years because of a stint in the military. That would explain the barbed wire surrounding the compound that she visits every month.

In reality, DeLeon is four hours away in this privately run women’s prison in the Panhandle town of Quincy, serving the third year of a 15-year sentence. If she had committed her drug crime in 2016, rather than eight years ago, she would be free by now. Up to 1,000 Florida inmates find themselves in the same legal purgatory....

[DeLeon was involved in two small non-violent drug] deals — a grand total of 48 pills for $225.... Under Florida law in 2013, the possession or sale of about 22 hydrocodone pills — less than one prescription’s worth — would trigger a trafficking sentence of 15 years...

Similar drug cases were playing out across the state. In Orange County in 2009, a man named William Forrester was handed a 15-year sentence for oxycodone trafficking after he was caught falsifying prescriptions to support his habit....

In 2010, a woman named Nancy Ortiz asked an Osceola judge that rehabilitation be included in her sentence to ease her addiction to crack. She had sold two bottles of hydrocodone pills to an undercover cop. Instead, the judge sentenced her to 25 years. “I take no pleasure in imposing this sentence,” the judge told Ortiz. “But I don’t have any discretion in the matter.”

For years, people caught with prescription painkillers in Florida received tougher penalties than those with the same weight in street drugs. In some cases, they received five times the sentence because that’s what the law required....

[P]ublic defenders from around the state went to Tallahassee to lobby the Legislature to change the law .. [and] even the state prosecutors’ association — those pursuing convictions for drug crimes — joined the public defenders in pursuit of lighter sentences for those selling prescription pills. MO<Finally, lawmakers listened. Sen. Rob Bradley, R-Fleming Island, a former prosecutor, sponsored a bill in 2014 that increased the number of hydrocodone or oxycodone pills needed to trigger the lengthy mandatory sentences. To get 15 years for hydrocodone, for example, would now take about 77 pills, rather than about 22....

The Legislature’s 2014 law could not apply to DeLeon’s sentence because, at the time, the Florida Constitution explicitly prohibited changes in sentencing laws to apply retroactively.... [That was changed in 2018 when] voters approved Amendment 11 last year.

At Gadsden Correctional Facility, it was cause for celebration. Another prisoner serving 15 years, also for hydrocodone, told DeLeon that the change in Florida’s Constitution could mean their freedom. “This is exactly what’s going to help us get out of here,” she told DeLeon. DeLeon’s family was so excited for her re-sentencing hearing, they started preparing for her to come home, buying canvasses for her to paint.

In July, however, the judge explained his hands were tied. Her motion for a new sentence was denied because state lawmakers first need to lay out a framework for judges to follow. It’s unclear when, or if, lawmakers will do so.

Earlier this year, lawmakers again increased the number of hydrocodone pills required to trigger mandatory sentences. Bradley, the state senator who sponsored the 2014 drug sentencing change, said he would be open to easing sentences for old drug cases. But he said he doesn’t consider it a priority....

Hundreds of people like DeLeon are in prison serving outdated sentences for hydrocodone or oxycodone trafficking that would not have been handed down if they committed the same crimes today.

One analysis by the Crime and Justice Institute, a nonpartisan group that’s done policy analysis for the Florida Senate, found that up to 640 current inmates fall into this category, while researchers with the Project on Accountable Justice housed at Florida State University found up to 935 inmates. Both estimates have not been previously published.

For one year, it costs Florida $20.7 million to incarcerate 935 people, according to “full operating cost” data from the Department of Corrections. Multiply that expense over their entire sentences, and the cost to taxpayers balloons to more than a hundred million dollars.

November 14, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 13, 2019

"Defending Progressive Prosecution"

The title of this post is the title of this new book review by Jeffrey Bellin now available via SSRN.  Here is its abstract:

“Progressive prosecutors” are taking over District Attorney’s Offices in cities across the nation, with a mandate to reform the criminal justice system from the inside.  Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice.

This Book Review Essay highlights the importance of Charged to modern criminal justice debates, and leverages its concrete framing of the issues to offer a generally applicable theory of prosecutor-driven criminal justice reform.  The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power.  It also offers the potential to broaden the movement’s appeal beyond progressive jurisdictions.

November 13, 2019 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, November 12, 2019

"Why are bureaucrats undermining the president on criminal justice?"

The question in the title of this post is the headline of this notable new Hill commentary authored by Holly Harris.  The piece laments developments, previously reported here and here, relating to the implementation of one part of the FIRST STEP Act.  Here is are excerpts:

Justice Department bureaucrats have been quietly working to undermine President Trump and Congress by obstructing federal criminal justice reforms.  It is not surprising, and it is not the first time.  But it is a shame....

The Justice Department, according to various reports, is inexplicably spending taxpayer resources trying to find ways of bringing some of the prisoners released under the First Step Act back into federal custody.  An investigation by Reuters found dozens of instances in which the Justice Department argued against releasing these prisoners early, usually basing their new cases on some technicality like “the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.”

It is no secret that the Justice Department zealously opposed the First Step Act, but I remained hopeful when its officials promised to fully and faithfully implement the law.  I applauded when they had issued progress reports on each of the provisions of the First Step Act.  But never once in these reports nor anywhere else did the Justice Department publicly disclose their plan to direct prosecutors to oppose release petitions.

Fortunately, most of those attempts to keep these individuals behind bars, or to reincarcerate them after the fact, have been struck down by federal judges.  But that is not stopping obstructionists within Justice Department ranks from continuing to thwart the will of President Trump, the will of Congress, and the will of the people to implement the First Step Act.

The Justice Department has long acted on an island, separate from the administration and accountable to no one.  The surreptitious obstruction of First Step is just the latest in a long line of unilateral actions aimed at undermining badly needed reforms to our broken criminal justice system.  Others questionable federal actions include reopening for profit prisons, directing prosecutors to charge all defendants with the highest provable offenses, and eliminating the investigations of police departments that repeatedly violate the civil rights of those they are sworn to protect.

Predictably, the latest obstruction of the popular First Step Act is not sitting well with leaders on both sides of the aisle. Democratic Senator Richard Durbin of Illinois told Reuters, “The notion that the Department of Justice is just going to keep nagging at them and appealing these cases is not what we have ever had in mind.”  Republican Senator Mike Lee of Utah likewise told the Washington Post, “It would be a shame if the people working under the president failed to implement the bill as written.”...

In the face of this obstruction, Congress may finally be willing to push back hard against Justice Department attempts to act as a fourth branch of government.  Too many are invested in the success of the First Step Act to overlook attempts to undermine it.  I urge the leaders in the House and Senate to vigorously exercise their oversight authority over an institution that has operated on an island for far too long, and ensure that their own groundbreaking efforts to restore some justice to a broken system is not thwarted by the very officials who pledged to faithfully implement it.

Prior related posts:

November 12, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 11, 2019

"Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness"

The title of this post is the title of this notable new paper authored by Eve Brensike Primus now available via SSRN.  Here is its abstract:

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems.  But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake.  Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four.  If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds.  This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies.  Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well.  Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true.  Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.

November 11, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ironies abound as Deputy AG complains about "whole categories of drug crimes ... being ignored and not enforced" by prosecutors

I just had some time today to review this notable speech delivered this past Friday by Deputy Attorney General Jeffrey Rosen at the Wake Forest School of Law.  As always, I recommend the speech in full because there is too much in the DAG's remarks for me to reprint and engage them all here.  But, as I read though the speech's laments about the failure to enforce drug laws, I could not help but wonder if the DAG gave any thought to DOJ's own persistent disinclination to prosecute the many thousands of (federally illegal) recreational marijuana businesses that operate openly in nearly a dozen US states.  This thought was among the many ironies I saw as DAG Rosen in this speech praises federal crime fighting efforts while criticizing the work of some local prosecutors. Here are some extended excerpts followed by a bit more commentary:

At the Department of Justice, reducing violent crime is one of our top priorities....  So let me start this discussion about violent crime with this simple observation: To understand what works in combating crime, one need look no further than the highly successful efforts of state and federal law enforcement over recent decades.  In the early 1990s, crime reached an all-time high.  Violent crime and murder rates in particular had steadily increased over the preceding decades. Many major American cities and communities were not safe places to live or work.

In response to this troubling trend, legislatures increased penalties for gun offenders, prosecutors pursued stiff penalties for violent criminals, and the Department of Justice did its part by launching a series of nationwide initiatives to stem the tide of rising crime.  For instance, in 1991, the Department created Project Triggerlock, a highly successful program that vigorously pursued firearms cases by targeting the most-violent offenders.  A decade later, the Department launched Project Safe Neighborhoods or “PSN.”  As a crime reduction strategy, PSN focuses federal and state resources on the most pressing violent crime problems in our communities, and each district develops comprehensive solutions to address them....

After reaching a peak around 1993, crime steadily declined for the next 20-plus years.  Violent crime was cut in half.  A study published in 2009 concluded that PSN successfully reduced violent crime with case studies showing reductions as high as 42 percent in certain locations.

Unfortunately, after decades of improvement, a reversal took place, with stunning increases in violent crime in 2015 and 2016.  Homicides alone increased by more than 20 percent.  Concerned that we were at risk of losing ground, the incoming Trump Administration and the Justice Department snapped into action and returned to tried-and-true strategies for reducing crime.

In his first month in office, President Trump issued a series of executive orders “designed to restore safety in America.”  In response, the Attorney General announced the reinvigoration of Project Safe Neighborhood as a centerpiece of the Administration’s strategy to reduce violent crime.  In October 2017, Attorney General Sessions directed all 93 U.S. Attorneys to implement enhanced violent-crime reduction programs and to reinvigorate partnerships with state, local, and tribal law enforcement.... Since redoubling our efforts in this way, we have increased federal firearm prosecutions by over 40 percent compared to the last two years of the previous administration. The joint state-and-federal efforts have worked, and the objective statistics prove it.

The FBI recently released its annual crime statistics for 2018, and, for the second consecutive year, the number of violent crimes decreased nationwide.  In 2018, the violent crime rate decreased 3.9 percent from 2017, and the rate for nearly every type of violent crime decreased as well....

Unfortunately, a dangerous trend is emerging that threatens to blunt the progress we’ve made in reducing crime.  Despite the obvious successes, a small but increasing number of state and local district attorneys have vowed not to enforce entire categories of core criminal offenses as part of a misguided experiment in social justice reform.  From Philadelphia in the East to Dallas in the middle and Seattle in the West, a curtain of non-enforcement policies has descended on some unfortunate cities and counties.

It’s a problem Attorney General Barr highlighted in a speech to the Fraternal Order of Police in August.  There, he spoke of “the emergence in some of our large cities of District Attorneys that style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”

The radical decriminalization policies these social-reform DAs have publicly announced and implemented are truly shocking when they are made transparent.  Despite a decade of record-level drug overdose fatalities, whole categories of drug crimes, including several distribution offenses, are being ignored and not enforced.  Likewise, criminals who commit theft below certain thresholds, such as below $500, are given a free pass.  In several jurisdictions, reform DAs have effectively decriminalized prostitution, making it more difficult to fight human trafficking.  If those weren’t surprising enough, social-reform DAs have announced that the categories of malicious destruction of property, and shoplifting, will go unprosecuted.  The same with regard to criminal threats.  Even offenders who resist arrest and assault law enforcement officials are skating prosecution under these DAs’ non-enforcement policies.

At the Justice Department, we emphasize working closely with our state and local law enforcement colleagues.  But I am concerned that these social reform DAs are falling down on the job.  A prosecutor’s duty is straightforward — enforce the law fairly and impartially and keep the public safe.  By refusing to prosecute basic offenses, social reform DAs are failing to fulfill that vital obligation.  No society can have justice when stealing has been effectively licensed, open-air drug markets are allowed to flourish, and neither victim nor police officer trust that those who break the law will be held accountable....

Not only will these non-prosecution strategies inevitably make communities less safe, they also undermine our constitutional system of separation of powers.  It doesn’t take a law degree from a fine institution like Wake Forest to understand the principle that the legislative branch writes the law; the judicial branch interprets the law; and the executive branch enforces the law. District attorneys, of course, are part of the executive branch, responsible for enforcing the law. By refusing to prosecute broad swaths of core criminal offenses, social-reform DAs are ignoring duly-enacted laws in favor of their own personal notions of what they think the law should be....

Now, with regard to these DA’s personal policy preferences, let me turn briefly to the issue of prosecutorial discretion. There is no question that prosecutors have discretion to decide what cases to prosecute and how to spend their limited resources.  But these DAs are not making individualized decisions based on the facts and circumstances of particular cases. They are predetermining whole categories of offenses for non-enforcement.  They are effectively legislating through inaction.  And the offenses they are unilaterally striking from the books are not antiquated or rare; they are basic criminal laws directed at maintaining public safety.  These DAs’ decriminalization strategies go far beyond prosecutorial discretion and fly in the face of the fundamental concept that no one part of the government exercises total control of our legal system. If you believe in the rule of law, that is a problem....

Some have argued that recent criminal justice reform legislation like the First Step Act represents a repudiation of historical law enforcement practices.  Not so. There was wide bi-partisan support for the First Step Act.  Among other things, that legislation focuses on reducing recidivism, to help prevent future crimes. The Department of Justice and our Bureau of Prisons have made implementing that legislation a priority, as Attorney General Barr and I have both emphasized.

Let me give you a few illustrations: In addition to sentence reductions that have resulted in the release of more than 4,700 inmates, we have updated policies for inmates to obtain “compassionate release,” and since the Act was signed into law, 107 inmates have received compassionate release, compared to 34 in 2018.  We launched a pilot program that has allowed over 260 elderly or terminally-ill inmates to transition to home confinement.  We have further individualized drug-treatment plans, so about 16,000 inmates are now enrolled in recovery programs.  And to reduce recidivism, we are advancing re-entry programming to help past offenders find work and relaunch their lives.

But here is the key point about these improvements from the First Step Act: It is only because of the success of the law enforcement approaches of the last several decades that we had the opportunity to consider and implement these improvements to the criminal justice system. And a key part of fighting crime and protecting victims is helping to make sure that when these prisoners are released — as many of them will be, after serving their sentences — we give them the best possible chance at not re-offending. It’s about public safety, plain and simple....

Finally, let me address one other aspect of the non-enforcement policy problem.  Some defenders of reform DAs claim that the non-prosecution strategies merely reflect the will of the communities that elected them.  If that were so, one wonders why those communities’ legislators would not simply change the laws to reflect their constituents’ views. Indeed, one reason greater transparency about these non-enforcement policies is warranted is that it is far from clear that the public knows and wants prosecutors to tolerate crimes like burglary and theft without enforcement.

Do you think Americans really want prosecutors who won’t enforce whole categories of laws?  It can be hard to overlook that some of these social reform DAs were elected in low-turnout primaries backed by unusual funding from out-of-state ideological advocates.  But elections are up to voters, so I do not mean to address any individual jurisdiction or any particular DA; my question is what kind of system will we have if our laws are simply to be ignored?  And I am especially focused on the problem that non-enforcement policies present to the goal of continuing to reduce violent crime and make our communities safer.

I find jarring that this speech starts with an emphasis on making the reduction of violent crime a priority and then assails local DAs for giving less attention to non-violent crimes. It seems deeply misguided to say in blanket terms that "non-prosecution strategies inevitably make communities less safe" when the non-prosecution policy involves, say, low-level marijuana offices.  Of course, the biggest irony here is that the federal government for the last decade has been pursuing various "non-prosecution strategies" with respect to state-compliant federal marijuana offenses.  Notably, the range of non-enforcement policies adopted by the feds have obviously not undermined "the goal of continuing to reduce violent crime and make our communities safer."  But apparently, in the view of DAG Rosen, what is good for the (essentially unelected) federal prosecutors in terms marijuana non-enforcement is no good for the (locally elected) state prosecutors.

Adding to the ironies here is DAG Rosen's praise and commitment to the FIRST STEP Act.  I am so very pleased to see DAG Rosen praise the reduction of thousands of federal sentences, the early releases to home confinement, the individualized drug-treatment plans, and other efforts to advance re-entry programming to help past offenders.  But I surmise that this work is in much harmony with what progressive prosecutors are committed to doing: finding alternatives to excessive prison terms, addressing public health problems like addiction outside the criminal justice system, and helping offenders "find work and relaunch their lives."  I also think progressive prosecutors would generally acknowledge that low crime rates help provide "the opportunity to consider and implement these improvements to the criminal justice system."  In other words, I believe progressive prosecutors are concerned about "public safety, plain and simple," but they reasonable believe that they can achieve that end without turning to law enforcement and the prison system to address every societal issue.

November 11, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Friday, November 08, 2019

Spotlighting again how the Justice Department is resisting broad applicability of certain FIRST STEP Act provisions

In this post from July, I noted this Reuters article on some of the court skirmishes over the crack sentencing retroactivity provisions of the FIRST STEP Act.  That piece carried this headline: "As new U.S. law frees inmates, prosecutors seek to lock some back up."  Now the Washington Post has this lengthy piece in a similar vein under this headline: "Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison." I recommend the piece in full, and here are excerpts:

The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including [Gregory] Allen, who was convicted of cocaine trafficking in 2001.

The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.

The president has repeatedly pointed to the First Step Act as one of his administration’s chief bipartisan achievements and one for which he is personally responsible. But cases like Allen’s expose a striking rift between the White House allies who supported the law and the Justice Department officials now working to limit the number of inmates who might benefit from it.

“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law. Harris noted that, before the law’s passage, then-Attorney General Jeff Sessions was a vocal critic of reducing prison sentences. His successor, William P. Barr, expressed similar reservations before his appointment.

The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.

But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

The department has told federal prosecutors that when determining whether to challenge an application for early release, they should consider not the amount of crack an inmate was convicted of having or trafficking — but rather the amount that court records suggest they may have actually had, which is often much larger.

A Justice spokesman, Wyn Hornbuckle, defended that interpretation, though he declined to discuss the department’s guidance to prosecutors or to say when it was disseminated. He did not respond to questions about the split between the department and the White House allies who pushed for the law. Hornbuckle said that in years past, prosecutors could secure lengthy prison sentences without having to prove an offender had large amounts of drugs. Under today’s laws, he said, those same offenders would probably be charged with crimes involving larger quantities. “The government’s position is that the text of the statute requires courts to look at the quantity of crack that was part of the actual crime,” Hornbuckle said. “This is a fairness issue.”

In the vast majority of cases reviewed by The Washington Post, judges have disagreed with the Justice Department’s interpretation. Some of the people involved in writing the legislation also disagree, including Brett Tolman, a former U.S. attorney in Utah. He and other supporters of the law note that the text of the legislation does not explicitly instruct courts to consider the actual amount of crack an offender allegedly had. “This is not a faithful implementation of this part of the First Step Act,” said Tolman, who was appointed by President George W. Bush. “At some point, they figured out a way to come back and argue that it wouldn’t apply to as many people.”

Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, accused the Justice Department at a congressional hearing last month of “trying to sabotage” the law by interpreting it in this way. Sen. Mike Lee of Utah, a key Republican sponsor of the law, declined to comment on the department’s stance on inmate eligibility but told The Post he had concerns about how other aspects of the law are being implemented. “It would be a shame if the people working under the President failed to implement the bill as written,” Lee said in a recent statement to The Post....

“The people that did the deal, including President Trump, wanted to help guys like me,” said Allen, 49, whose case was mentioned in a Reuters story in July about efforts by some prosecutors to clamp down on First Step Act relief. “But on the flip side, you have federal prosecutors who wake up every day trying to keep guys like me locked up.”...

The First Step Act was championed by a bipartisan coalition that spanned the political spectrum, from the conservative megadonor Koch brothers toracial-justice activist Van Jones. The legislation forbids federal jailers from shackling pregnant inmates and grants judges new powers to free sick and elderly prisoners. One of the most consequential parts of the law was the provision allowing federal inmates such as Allen to apply for early release. The mandatory sentencing policies those offenders faced are among the factors that have led the United States to incarcerate more people than any other nation, experts say....

Trump has made criminal justice reform a chief talking point in recent months, and several of his advisers — including Kushner — believe it could play an important role in his reelection bid, said Doug Deason, a prominent donor to the Trump campaign. A senior campaign official added that the Trump campaign plans to tout the First Step Act in the hopes of attracting black voters in key states such as North Carolina and Florida.

The legislation has earned Trump goodwill from unlikely corners, something he craves amid an impeachment inquiry. Last week, he beamed onstage in Columbia, S.C., as he was presented with an award from a bipartisan advocacy group of black elected officials. “I told him, ‘You ought to go and get that award,’” Sen. Lindsey O. Graham (R-S.C.) said in an interview. “There ain’t many people giving you an award these days.”

Backstage, Trump talked up the idea of another such law, asking Steve Benjamin, the city’s mayor, whether he should call it the Second Step Act, the mayor recalled. Yet even as Trump toasts himself for the legislative victory, defense attorneys and advocates are frustrated that the White House is not doing more to ensure that the law is implemented as intended.

“The irony of this administration working against itself is mind-boggling,” said Brittany Barnett, a defense attorney who has worked on several of the First Step Act cases championed by Kardashian. “Especially with lives on the line.”

In the weeks after the bill became law, many federal prosecutors allowed inmate petitions for early release to go unchallenged. Then, at the direction of officials in Washington, prosecutors began to reverse course, court records show. In March, Assistant U.S. Attorney Jennifer Bockhorst asked federal judges in West Virginia to place a hold on more than two dozen applications for relief — some of which she had not previously opposed. She wrote that she expected to oppose at least some of those applications based on new guidance from the Justice Department.

In a brief phone interview, Bockhorst said the government shutdown that began soon after the bill passed and lasted until late January delayed the guidance from Washington. “We didn’t have the benefit of any kind of coordinated position,” she said. Similar reversals took place in New York, where prosecutors agreed in April that certain inmates were eligible — only to change their position in May. In one case, a judge found the reversal striking enough to ask what prompted it.

Prior related post:

November 8, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 07, 2019

"Taking a second look at life imprisonment"

The title of this post is the headline of this notable new Boston Globe commentary authored by Nancy Gertner and Marc Mauer. Here are excerpts:

While there has been a great deal of attention in recent years to the impact of the drug war on growing prison populations, in fact, the main drivers of the prison system now are excessive sentences for violent offenses.

The statistics are troubling.  There are as many individuals [in Massachusetts] serving life sentences as the entire state prison population in 1970, and more than half are black or Latino. Of the 2,000 lifers in the state, about half are not eligible for parole.  Barring executive clemency, they will die in prison after spending decades behind bars.

Since 90 percent of lifers nationally have been convicted of serious violent crimes, supporters of lifelong incarceration argue that incapacitating such people is an effective crime-control mechanism.  In fact, it is the opposite: It is counterproductive for public safety.

Criminologists know that individuals “age out” of crime.  Any parent of a teenager understands that misbehavior, often serious, is all too common at this stage.  FBI arrest data show that the rate of arrest for teenage boys rises sharply from the mid-teen years through the early 20s but then declines significantly. Arrests for robbery, for example, peak at age 19 but decline by more than half by age 30 and by three-quarters by age 40. The same is true for other violent crimes.

The reason is clear.  As teenage boys enter their 20s, they lose their impulsivity, get jobs, find life partners, form families, and generally take on adult roles.  Violent behavior becomes less attractive.

For public safety purposes incarcerating people past age 40 produces diminishing returns for crime control; less and less crime is prevented by incapacitation each year.  This impact is magnified by resource tradeoffs.  National estimates for the cost of incarcerating an elderly person are at least $60,000 a year, in large part due to the need for health care.  With finite public safety resources, these costs are not available to invest in family and community support for the new cohort of teenagers, for whom proactive initiatives could lower the risk of antisocial behavior.

Legislation introduced by Representative Jay Livingstone of Boston and Senator Joe Boncore of Winthrop, along with 34 cosponsors, would help to ameliorate this problem in Massachusetts.  Under the bill’s “second look” provision, individuals serving life without parole would be eligible for a parole review after serving 25 years....

Recently, there has been a bipartisan critique of the effects of mass incarceration, particularly on low-income communities of color.  State policy makers across the country are exploring ways to reduce excessive prison populations without adverse effects on public safety.  The proposed “second look” provision offers one significant alternative.  It should be passed.

November 7, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 06, 2019

Notable Wall Street Journal commentaries decry injustices highlighted by college admission scandal prosecutions

I have blogged a lot about the college admission scandal prosecutions because they provide a high-profile setting for shinning a bright light on some ugly features of criminal justice in America.  The Wall Street Journal editors this week have been eager to do such light-shinning as evidenced by these two notable new commentaries in its pages:

Authored by William McGurn, "Free Lori Loughlin: The feds are treating the actress as if she and her husband were Bonnie and Clyde." Some excerpts:

If convicted of all the charges federal prosecutors have piled up against them, Ms. Loughlin and her husband could be sentenced to as much as 45 years in prison.  This is nuts.

The same operation that caught Ms. Loughlin also snared dozens of other high-powered people, including CEOs, lawyers and venture capitalists.  They too are accused of paying fixer William “Rick” Singer either to cheat on their kids’ college entrance exams, to present them fraudulently for college admission as athletes, or both.  But Ms. Loughlin’s celebrity status has ensured that she and fellow actress Felicity Huffman remain the face of the scandal for most Americans.

With this difference: While Ms. Huffman pleaded guilty, apologized profusely and served out her sentence (14 days, but released after 12 because it was a weekend) at the Federal Correctional Institution in Dublin, Calif., Ms. Loughlin and Mr. Giannulli are insisting, perhaps unwisely, on taking their case to a jury.  Meanwhile, in the same way the sans-culottes jeered Marie Antoinette on her way to the guillotine, today’s equivalent — Twitter mobs and gossip sheets — are thirsting to see this icon of Tinseltown wealth and privilege cut down to size by a stint in federal prison.

Now, it may well be standard procedure for prosecutors to add new charges when their targets refuse to plead. But does anyone else think it a stretch to argue that two California residents bribing their children’s way into a private California university are committing a crime against the federal government? Or that the statutes she’s accused of violating, such as bribery or money laundering in connection with a program that receives federal funding, were really intended to go after people such as Ms. Loughlin?

All of which has yours truly hoping Ms. Loughlin and her husband prevail. Not because they are innocent. But because the case reeks of overreach, as well as my unease with the idea that the FBI and Justice are the vehicles to deliver fairness in college admissions....

There are many ways to punish Ms. Loughlin. Some of them have already happened even without a conviction: The Hallmark Channel severed all ties; Netflix will film the last season of the reboot “Fuller House” without her; and her daughters were forced to leave USC under humiliating circumstances.  Ms. Loughlin, remember, is a nonviolent first-offender.  By all means, stick her with a fat fine and community service. But it’s just overkill for federal prosecutors to be devoting so much of their time and resources to make sure this woman goes to prison.

Authored by Alan Dershowitz, "Most Plea Bargains Are Unconstitutional: Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment." Some excerpts:

When is a constitutional right not a right? When you’re punished for exercising it.  If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say.  Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual — even by the Supreme Court.

In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them.  A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial.  He rejected the plea offer because he believed he was innocent and had expert testimony to back him up.  In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial....

Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”

In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.”  Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.  As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).

Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights.  Any judge would see through the maneuver.  So why do the courts invoke the same meaningless distinction when it comes to the right to trial?

Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty.  If the penalty were held unconstitutional, it could overwhelm the system.  But is that a good enough reason to trample a constitutional right?  Under America’s Constitution, rights are the absolutes to which practical considerations must adapt.  We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial.  We can also decriminalize many actions that are today treated as crimes, beginning with drug use....  

The time has come to end the unconstitutional trial penalty.

November 6, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Acquitted Conduct Should Not Be Considered At Sentencing"

The title of this post is the title of this notable recent Law360 commentary authored by Robert Ehrlich, the former governor of Maryland. I recommend the full piece, and here are excerpts:

John Adams famously declared, “Representative government and trial by jury are the heart and lungs of liberty." Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty....

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice....

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.

A few of many recent and prior related posts on the acquitted conduct:

November 6, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, November 05, 2019

Very different looks on criminal justice reform for governors in Oklahoma and New York

As spotlighted in prior posts here and here and here, Oklahoma this week saw a series of interesting and important criminal justice reform efforts culminate in the release of more than 400 prisoners as part of the largest mass commutation in U.S. history (details here).  Thanks to Twitter, I saw this video clip of persons being released from the Eddie Warrior Correctional Center.  Notably, in addition to being greeted by friends and families, the released individuals also saw Governor Kevin Stitt and First Lady Sarah Stitt awaiting their release to congratulate them.

Not long after I saw this video and the heartening involvement of Oklahoma Governor Stitt in this historic criminal justice reform story, I saw this press article discussing the disheartening work of New York Governor Cuomo is a much more discouraging criminal justice story.  The piece is headlined "Gov. Cuomo's Program for More Clemency Applications Appears to Stall, As Prisoners Wait and Hope for a Second Chance," and here are excerpts:

Governor Andrew Cuomo’s program to help more prisoners apply for clemency in New York State appears to be stalled and the Governor’s office is declining to explain why.

In 2017, Cuomo asked lawyers to volunteer to help identify prisoners worthy of his mercy, and assist them in making their best case for a shortened sentence. More than two hundred lawyers stepped up. But two years and thousands of pro bono hours later, Governor Cuomo has neither approved nor denied any of the 107 clemency applications filed through the program.

“It’s discouraging. We’ve put a lot of resources into it.” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which partnered with Families Against Mandatory Minimums and the State at the Governor’s request. “We put people away for ridiculous amounts of time, often for mistakes they made when they were very young,” Reimer added.

Lawyers involved in the NACDL/FAMM project tell News 4 because there has been no action in these cases, they are reluctant to take on new prisoners. More than 1,600 prisoners are currently waiting to be assigned attorneys through the project. “The idea that you can’t find a single one of those to grant is inconceivable to me. There’s just no greater feeling than giving somebody freedom,” said NYU Law Professor Rachel Barkow and author of "Prisoners of Politics."

The power to commute a prisoner’s sentence rests solely with the Governor. NACDL says the Cuomo administration has been highly cooperative, producing records and helping to vet cases.

Cuomo administration insiders familiar with the clemency review process say the problem is not that these cases are being ignored. Sources with first hand knowledge say the cases submitted by NACDL/FAMM were carefully reviewed by a team of attorneys inside the office of the Counsel to the Governor. They say the team identified a group of worthy candidates for a possible mid-year clemency grant this past Spring, but the Governor did not act.

Timing, they speculated, may have played a role, citing pushback from some law enforcement groups for Cuomo’s role in the early release of Judith Clark in May 2019. Clark was the getaway driver in the deadly 1981 Brink’s robbery and the Governor commuted her sentence to make her eligible for early parole. One person who has discussed the project at length with the Governor’s senior staff described a sense that politically speaking, “the bang was not worth the buck.”

Several sources familiar with the internal review process say the Governor’s office may have been taken aback by the large number of applications lawyers submitted on behalf of prisoners who committed violent felonies. These cases are more politically sensitive for a governor, because it is not uncommon for district attorneys, law enforcement groups and family members of victims to oppose early release.

But Norman Reimer says if the severity of the crimes is the reason for Cuomo’s inaction, that’s not how the governor’s office promised to approach this process. “What I like about Governor Cuomo’s initiative is he didn’t limit it based on the nature of the crime," said Reimer. "We pressed that issue and it was an affirmative decision by them to let the person’s record of rehabilitation speak the loudest, even in violent crimes.”

Governor Cuomo’s office did not respond to repeated requests for an explanation for his inaction on the NACDL/FAMM cases, nor for a breakdown of the clemency grants he has issued. According to public reports, Cuomo has commuted at least 18 sentences in almost nine years, including three in 2018.

Barkow says compared with some other Democratic governors, Cuomo has used his executive clemency powers sparingly. Gavin Newsom of California commuted the sentences of 23 prisoners since September of this year, including prisoners involved in violent felonies....

In last year's primary, the progressive wing of the Democratic party hammered Cuomo for what they considered insufficient criminal justice reforms. “The people who care about these issues want to see real results,” said Professor Barkow. “They want to see that people are walking the walk and not just kind of throwing talk out there.” As for Cuomo’s record on justice issues like clemency and marijuana legalization, Barkow added “It seems like the pattern is to wait and just make sure where the political winds are blowing.”

November 5, 2019 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 04, 2019

South Dakota completes execution after delays awaiting final SCOTUS appeals

As reportedin this AP piece, in South Dakota "Charles Rhines was executed by lethal injection at 7:39 p.m., after the U.S. Supreme Court denied to halt his execution despite three late appeals."  Here are more details of the crime and appeals:

Rhines, 63, ambushed 22-year-old Donnivan Schaefer in 1992 when Schaefer surprised him while he was burglarizing a Rapid City doughnut shop where Schaeffer worked. Rhines had been fired a few weeks earlier.  Rhines ambushed him, stabbing him in the stomach. Bleeding from his wound, Schaeffer begged to be taken to a hospital, vowing to keep silent about the crime; instead, he was forced into a storeroom, tied up and stabbed to death.

Steve Allender, a Rapid City police detective at the time of the killing who is now the city's mayor, said Rhines' jury sentenced him to death partly because of Rhines' "chilling laughter" as he described Schaeffer's death spasms. "I watched the jury as they listened to the confession of Charles Rhines on audiotape and their reaction to his confession was appropriate. Any human being would be repulsed by the things he said and the way he said them," Allender told KELO....

Media witnesses to the execution said Rhines appeared calm, and it took only about a minute for the pentobarbital used by the state to take effect. They said when he finished speaking, he closed his eyes, then blinked, breathed heavily and died.

Rhines had challenged the state's use of pentobarbital, arguing it wasn't the ultra-fast-acting drug he was entitled to. A circuit judge ruled it was as fast or faster than other drugs when used in lethal doses and speculated that Rhines wanted only to delay his execution.  The U.S. Supreme Court rejected that appeal, as well as his arguments that he was sentenced to die by a jury with an anti-gay bias and that he wasn't given access to experts who could have examined him for cognitive and psychiatric impairments.

Intriguingly, the appeal concerning access to experts related to the operation of South Dakota clemency process, and it prompted a short statement from Justice Sotomayor respecting the denial or cert.  Here are excerpts from that statement:

In order to assist them in preparing a state clemency application, Rhines’ federal habeas attorneys retained medical experts to evaluate Rhines.  State officials, as well as a state court, refused to grant the experts access to Rhines in prison.  The Federal District Court below also denied Rhines’ request for access....

It is unclear from this record whether an expert evaluation is necessary to Rhines’ clemency application.  Although Rhines’ experts believed there were additional grounds for investigation — including traumatic events that Rhines suffered earlier in his life — Rhines, as the State notes, has already been evaluated by several psychiatric experts in a different context.  For that reason, I do not dissent from the denial of certiorari.  I write separately, however, to note that this Court’s denial of certiorari does not represent an endorsement of the lower courts’ opinions.  I also write separately to emphasize that clemency is not “a matter of mercy alone,” but rather is the “‘fail safe’ in our criminal justice system.”  Harbison v. Bell, 556 U. S. 180, 192 (2009) (quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)).  By closing the prison doors in this context, a State risks rendering this fundamental process an empty ritual.

November 4, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Experimental Punishments"

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

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice.  The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage.  This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces.  It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear.

This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted.  First, the degree of stable reception the punishment achieves over time indicates whether society has accepted the punishment as consistent with the overall tradition.  The Eighth Amendment is premised on the idea that long usage is the most reliable method of determining what is cruel and what is not.  The longer a practice is used, and the more universally it is received, the more likely it is to comport with the demands of justice.  On the other hand, failure to achieve long usage may be powerful evidence that a punishment is cruel.  Second, usage over time can reveal more clearly how harsh the effects of the punishment are in comparison to traditional punishments. Innovations in punishment such as long-term solitary confinement, involuntary sterilization, and three-drug lethal injection all appeared “progressive” and “humane” when first adopted, but usage over time has shown their effects to be unjustly harsh in comparison with the practices they have replaced.

November 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, November 01, 2019

"The Decline of the Judicial Override"

The title of this post is the title of this notable new paper now on SSRN authored by Michael Radelet and G. Ben Cohen.  Here is its abstract:

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness.  In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence.  Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus.

In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences.  The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts.  Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

November 1, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 30, 2019

"The Case for Race-Based Sentencing"

The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: "In a case that could change how judges punish Black people, Ontario's top court will soon decide how much systemic racism should be taken into account when sentencing." Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing....

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”

October 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Monday, October 28, 2019

Upon SCOTUS remand, Indiana Supreme Court remand Timbs after setting out excessiveness standards

In Timbs v. Indiana, the US Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause applies to the states, but then remanded the case back to the Indiana courts to figure out just how that Clause should apply in Tyson Timbs' case.  Today, the Indiana Supreme Court issued this opinion in which it further remands the case to the state trial court with the help of a lengthy opinion explaining its approach to the Clause.  Here is how the opinion starts and concludes:

Civil forfeiture of property is a powerful law-enforcement tool.  It can be punitive and profitable: punitive for those whose property is confiscated; and profitable for the government, which takes ownership of the property.

When a civil forfeiture is even partly punitive, it implicates the Eighth Amendment’s protection against excessive fines. And since that safeguard applies to the states through the Fourteenth Amendment, we now face two questions left open by the Supreme Court of the United States.  First, how should courts determine whether a punitive, in rem forfeiture is an excessive fine? And second, would forfeiture of Tyson Timbs’s vehicle be an excessive fine?

We answer the first question with an analytical framework similar to those of almost all courts to have addressed the issue.  For the second question, we remand for the trial court to determine, based on that framework, whether Timbs has cleared the hurdle of establishing gross disproportionality, entitling him to relief....

Conclusion

Over twenty-five years ago, the Supreme Court of the United States unanimously held that in rem forfeitures can be punitive and, thus, fines subject to the Eighth Amendment’s excessiveness limitation.  It left to lower courts the task of establishing the appropriate measure of excessiveness — a task that we take up today.

We accordingly hold that a use-based in rem fine is excessive if (1) the property was not an instrumentality of the underlying crimes, or (2) the property was an instrumentality, but the harshness of the punishment would be grossly disproportional to the gravity of the underlying offenses and the owner’s culpability for the property’s misuse.

Here, Timbs’s Land Rover was an instrumentality of the underlying offense of drug dealing.  But we remand for the trial court to answer the question of gross disproportionality based on the framework we set out.

October 28, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 26, 2019

Philadelphia Inquirer provides detailed coverage of "The Probation Trap"

The local paper in the City of Brotherly Love has this important new series highlighting that the Keystone State is not very loving when it comes to how it treats people caught up in community supervision. The series is titled "The Probation Trap" and here is the subheading for the coverage: "Pennsylvania has one of the nation's highest rates of supervision, driven by unusual laws that leave judges unchecked.  But many people fail, ending up in jail or in a cycle of ever more probation." 

Here is some of the introduction explaining "The Problem with Probation":

In Pennsylvania, as across the country, crime rates have fallen to their lowest point in decades. But over that same time, the rate of incarceration in Pennsylvania state prisons and county jails nearly quadrupled, while the number on probation or parole also grew almost four times larger, to 290,000 people.

Counting jail, prison, probation, and parole, Pennsylvania now has the nation’s second-highest rate of people under correctional control. Probation and parole account for three-quarters of that — a phenomenon critics of mass incarceration call “mass supervision.”

Nationwide, one in 55 adults is on probation or parole. In Pennsylvania, that’s one in 35 adults. In Philadelphia: one in 23 adults.

African American adults in Philadelphia are disproportionately impacted. One in 14 is under supervision. Philadelphia’s county supervision rate is the highest of any big city — and 12 times the rate of New York City. ‍

What’s driving this? To find answers, we watched hundreds of hearings, interviewed scores of people, and analyzed 700,000 case dockets from 2012 to 2018.

What we found is a system virtually ungoverned by law or policy, resulting in wildly disparate versions of justice from one courtroom to the next.

We found a system that routinely punishes poverty, mental illness, and addiction. We met a woman who was jailed two months for failing to report to probation because she wasn’t permitted to bring her newborn child and couldn’t afford a babysitter. We met a man who was locked up because he didn’t have $227 to pay for a court-ordered drug evaluation.

As a result, some people remain under court control for years after being convicted of low-level crimes, resentenced two, three, four, or five times over for infractions including missing appointments, falling behind on payments, or testing positive for marijuana. Probation and parole violations are flooding the court system, filling city jails and driving up state prison populations.

Many other states, recognizing similar problems, have reformed their systems. Can Pennsylvania?

Here are the main articles in the series:

"Living in Fear:  Probation is meant to keep people out of jail. But intense monitoring leaves tens of thousands across the state at risk of incarceration."

"Judges Rule: When it comes to probation, Pennsylvania has left judges unchecked to impose wildly different versions of justice."

"Punishing Addiction: Courts recognize substance-use disorder is a disease. Yet some judges continue punishing relapse with ever-longer probation and even prison."

October 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Retroactive application of Oklahoma sentencing reforms sets up record-setting day for commutations

This recent article from Oklahoma, headlined "‘Largest single-day commutation in nation’s history’ expected to take place in Oklahoma next month," reports on a notable example of an interesting process being used to make a criminal justice reform initiative retroactive in the Sooner state.  Here are the basic details:

More than 400 Oklahoma prison inmates are expected to pass through an “expedited” commutation process on Nov. 1, a number believed to be the largest one-day total in United States history, Oklahoma Pardon and Parole Board Executive Director Steve Bickley said.

The accelerated process is thanks to House Bill 1269, a bi-partisan bill which was passed this summer and made retroactive a number of criminal justice reforms that reclassified some drug and property crimes.

The new law goes into effect Nov. 1 and the Pardon and Parole Board is holding a special meeting that day where it will review nearly 900 inmates the law makes eligible for the expedited docket. “All the research I’ve done, this will be the largest single-day commutation in the nation’s history,” Bickley said....

The Nov. 1 hearing differs from the normal commutation process in a number of ways, Bickley said. Rather than the typical two-step process that often takes several months, the hearing is expected to take less than an hour. “It’s definitely going to be a much faster up-and-down process,” he said. Inmates who pass through the expedited process are expected to be released from prison in November.

Gov. Kevin Stitt, in a statement, offered praise for the entities preparing for the large number of commutations. “I applaud the hard work of the Pardon and Parole board and the staff as they prepare for this historic day. The board is wisely implementing a thorough process to ensure their actions on Nov. 1 reflect the intentions of Oklahomans who voted for State Question 780, while also prioritizing the safety of our communities. The Department of Corrections has also been a committed partner in putting people first in this process by hosting transition fairs inside state prisons to connect non-violent offenders with the resources they need to succeed when they re-enter society.”

When State Question 780 was made into law in 2016, it made possession of “personal use” amounts of most drugs a misdemeanor and upped the felony threshold for property crimes from $500 to $1,000.  But it wasn’t until the passage of HB 1269 earlier this year that those changes were made potentially retroactive for those still in prison for those crimes.

The new law mandates that, rather than strict retroactivity, the Pardon and Parole Board must decide which inmates affected by HB 1269 get an accelerated commutation and which inmates must go through the standard commutation process, Bickley said.

There are two dockets on Nov. 1, one for 793 inmates on the “drug possession” docket and one for 99 inmates on the “property crime” docket. Everyone on those two dockets is technically eligible for accelerated commutation, though the list will be whittled down extensively, Bickley said.

First, there are a number of inmates on the two lists who will not be recommended for accelerated commutation due to misconduct while in prison. Bickley said some inmates on the lists were involved in the events that led to the recent lockdowns at a number of state prisons, and those inmates would not receive recommendations. Additionally, district attorneys across the state can file challenges to specific commutations that may affect whether an inmate gets a recommendation, Bickley said, and as of Wednesday the Pardon and Parole Board had heard from only three of the more than 20 district attorneys across Oklahoma.

“And of course you could have some who receive recommendations and are signed off on by the governor, but they have additional sentences to serve or a detainer by another agency who will not be able to leave prison due to those factors,” Bickley said. Still, he expects “more than 400 and less than 500” inmates to be granted commutations by the end of the hearing, he said.

October 26, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 25, 2019

Despite Sixth Circuit approval of existing execution protocol, Ohio Gov Mike DeWine signals his plans to delay another scheduled execution

Despite having many execution dates scheduled, Ohio has not completed an execution in more than a year because of concerning about lethal injection problem that prompted outgoing Gov John Kasich and new Gov Mike DeWine to keep pushing back executions dates. But after a Sixth Circuit ruling blessed the state's reliance on the drug midazolam in its execution protocol (details here), I had thought the Buckeye state might seek to restart its machinery of death. But this new local article, headlined "Gov. Mike DeWine says Ohio’s next scheduled execution will ‘probably’ be delayed," suggests the state will not likely go forward with an execution planned for December. Here are the details:

Gov. Mike DeWine indicated Friday that he will delay yet another upcoming Ohio execution, citing — as he has with past postponements — problems with finding lethal-injection drugs.  DeWine told reporters Friday that it’s “highly unlikely” that the execution of murderer James Galen Hanna will proceed as planned on Dec. 11. “That’s probably not going to happen,” the Greene County Republican said.

DeWine noted the state’s ongoing issues with finding a pharmaceutical company willing to sell drugs for use in executions. The governor repeated his concern that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs. “We are in a very difficult situation,” DeWine said Friday.

The governor didn’t say how long he might delay the execution date for Hanna, a Warren County resident who fatally stabbed a cellmate with a paintbrush handle in 1997.  If Hanna’s execution date is pushed back, the next death-row inmate set to die is Kareem M. Jackson on Jan. 16, 2020.  Jackson was initially scheduled to be put to death in July, but earlier this year DeWine moved back the execution dates for Jackson and two other condemned inmates.

Late last month, the governor moved back the execution date of murderer Cleveland Jackson from Nov. 13 to Jan. 13, 2021 after the Ohio Supreme Court’s disciplinary arm filed a complaint alleging that his lawyers abandoned him.

Since taking office in January, DeWine has moved back a number of scheduled executions amid a years-long struggle by Ohio officials to find new lethal-injection drugs as European pharmaceutical companies have cut off further sales of previously used drugs on moral and legal grounds.

After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs. (The execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV. Campbell died in his cell a few months later).

However, last January, federal magistrate Judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — likely violate the U.S. Constitution’s Eighth Amendment guarantee against “cruel and unusual punishment.”  While an appeals court later overruled Merz’s conclusion, the ruling led DeWine to order state prisons officials to look at other lethal-injection drugs.  The governor has even suggested that state lawmakers consider abandoning the lethal-injection process altogether and pick another method of execution.

This story has me thinking of the old phrase "Where there's a will, there's a way." In this context, though, the parallel force seems to be in play. I sense many Ohio official really do not have much of a will to move forward with executions, and thus it seems they keep struggling to find a way to do so.

A few (of many) prior recent related posts:

October 25, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 24, 2019

"Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process"

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

Objection rules enforced by forfeiture penalties make the right to appeal contingent on whether the party injured by an opponent’s or judge’s error made a timely objection or motion in the trial court.  “No procedural principle is more familiar” than that a party who does not challenge an error at trial forfeits, partially or wholly, its entitlement to appellate review.  This policy of procedural default puts the duty to care to prevent errors on injured parties.  The rationale is instrumental: the threat of losing the right to correct errors will make parties take greater care to prevent errors at trial, which is immensely more efficient than correcting errors later, should minimize adjudication errors overall.

Yet in most applications, that ubiquitous logic fails on its own terms.  Placing the burden of care on injured parties generally is not the optimal approach to minimizing errors.  In most circumstances, the better policy is to place the duty of care to prevent errors on the party who commits the error or who benefits from the judge’s error.  The key is to recognize that, analytically, error prevention in adjudication is much like accident prevention in other contexts.  As in tort law, the goal is to minimize the cost of harms in bilateral activities — those in which two parties interact and either alone could prevent the harm.  Litigants’ error-prevention efforts are substitutes rather than complements; it is not necessary for both parties to exercise care.  For that reason, procedural law should place the duty of care — and the cost of harms — on the party who can most cheaply prevent the harm.

Courts and rule makers perpetuate suboptimal rules for preventing errors by ignoring this insight, and a related one: in bilateral settings, liability rules create incentives for both sides.  Putting the duty to prevent errors to one party encourages the other to commit errors.  This article develops this critique and offers an alternative: putting the duty on parties to prevent their own errors rather than their opponent’s.  It also explains why standard procedural default rules have prevailed for so long in light of their deficiencies. One key reason is that, despite an ostensible commitment to instrumental analysis focused on adjudicative efficiency, judicial reasoning is permeated with moralistic judgments about the unfairness of permitting appeals for unpreserved errors.  This normative view distorts courts’ instrumental analysis.

October 24, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Many Colorado sentences now uncertain after court ruling precluding imposition of imprisonment for certain offenses and probation for others

A helpful reader alerted me to this interesting story from the Denver Post headlined "Hundreds of prisoners can seek new trials, freedom after Colorado Supreme Court rules sentences illegal." Here are the details of a shock being sent through the state's criminal justice system:

The Colorado Supreme Court has ruled the sentences of hundreds — perhaps thousands — of criminal defendants serving time in Colorado prisons, some for violent sexual crimes, are illegal, giving many of them a renewed shot at freedom.

The court last month stunned the state’s judicial system when it ruled that defendants cannot be sentenced to both prison and probation for charges in the same case, deeming the sentences illegal and unenforceable.  The ruling applies to any defendant sentenced to prison followed by a probation term, and gives each the right to force prosecutors to start over.  Those already out of prison theoretically could request their plea deal be overturned, legal experts said.

“This is going to result in a ton of litigation,” defense attorney Scott Robinson said. “This appears clearly to go against what many defense lawyers and prosecutors have assumed to be true for years, that different types of sentences can be imposed on different charges in the same case.”

Prosecutors in at least four judicial jurisdictions, including Denver, have relied on the dual sentence as part of the plea agreement process, mostly for sex crimes where a defendant could be sentenced to an indeterminant number of years in prison and authorities wanted to ensure lifetime supervision should the defendant be released.

“My biggest concerns are that we can no longer do this and what do we do with those we’ve already done it to? What if they’re already in prison? Are they all released?” asked Mesa County District Attorney Daniel Rubinstein.  “If the sentence is invalidated, we could be back at square one, or worse.”

The high court’s decision is based on a 2014 Boulder County case in which a jury found Frederick Allman, 67, guilty of various theft and forgery crimes.  He was sentenced to 15 years in prison and a 10-year probation term that was to be concurrent with the parole he’d serve upon his release.  The Supreme Court, in a 7-0 decision, said the 2015 sentence by District Judge Andrew Macdonald was illegal.  [The decision is available at this link.]

“…The determination that probation is an appropriate sentence for a defendant necessarily requires a concordant determination that imprisonment is not appropriate,” Justice Brian Boatright wrote in the court’s opinion issued Sept. 23. “The probation statute gives courts guidance and discretion in choosing to grant probation.  However, it requires a choice between prison and probation. … The legislature intended to allow courts to choose only one or the other.  Probation is an alternative to prison.”

Attorney General Phil Weiser’s office has until Oct. 28 to file a petition for the court to re-hear the case.

The court’s decision primarily affects defendants who signed plea agreements, a number that could reach into the thousands as 95% of all criminal cases are settled with plea deals. Defendants convicted by a jury, as was Allman, would simply be resentenced since the jury verdict remains unchanged.

Prosecutors explain that a plea agreement would be handled differently than a guilty verdict because a defendant agreed to a specific outcome in exchange for the plea. Because the sentence is deemed illegal, defendants can rescind their original agreement. “If the sentence is invalidated, we would go back to reaffirm the plea agreement, or even start over,” Rubinstein said.

The Colorado District Attorney’s Council said a majority of the state’s 22 judicial districts won’t be affected, but at least four of them — 2nd (Denver), 18th (Arapahoe, Douglas, Elbert, Lincoln), 20th (Boulder) and 21st (Mesa) — have used sentences that fit those under scrutiny.

Attorney Tom Carberry, who won an earlier appeal for a client with a similar illegal sentence, said he’s uncovered at least 56 other cases with illegal sentences, the majority of them sexual assaults.  Three others are drug cases and two involve economic crimes.  All are in Denver. “Each of these defendants has the right to a lawyer appointed at state expense,” Carberry said of the breath of the Supreme Court decision.  “That will run into the millions” of dollars.

Denver DA Beth McCann did not elaborate on the scope of the problem in her jurisdiction, but said she’d rather not have to find out.  “We are very supportive of the Colorado attorney general’s plan to ask the court to reconsider its decision,” McCann said in an emailed statement. “We are concerned that if the decision stands, it will significantly impact many cases that have already been resolved.”

Other prosecutors are also trying to determine what the decision will mean for them.  “This decision will have a significant impact, for offenders and victims,” Boulder District Attorney Michael Dougherty said in an emailed statement to The Post.  “A defendant could come back to court seeking a hearing to correct an illegal sentence, or file motions alleging ineffective assistance of counsel. For survivors of sexual assault, this decision will be particularly harmful because they thought the case was over and the outcome certain.”...

In the 18th Judicial District, hundreds of cases could be impacted, many of them involving children, some going back years, according to Chief Deputy District Attorney Chris Gallo, who heads the special victims unit that handles about 500 cases a year.  “For several years now, we’ve been pursuing resolutions where there were prison and probation components, trying to balance a punishment aspect and a longer supervisory aspect to the sentence,” Gallo said.  “I can’t even fathom the ultimate outcome of this decision, how many could be released, or its impact.  But more than half of our cases would be affected.”

Mesa County’s Rubinstein said although only about a half-dozen cases in his jurisdiction are affected, they are significant.  “The pleas would be invalidated, and it could be that a new offer is rejected,” Rubinstein said, noting prosecutors cannot change the terms of the agreement without beginning the case anew. “How does that work for a guy with five years in prison already.”  

Judges could theoretically say they’re not bound by the plea agreement and a defendant could take his chances with a new sentence, Rubinstein said. “(A judge) might think there’s been substantial time (in prison) and a judge won’t want to load up with additional punishment,” he said, “and the defendants might say they’ll take their chances with the judge.”  A good defense attorney, however, could find exploitable cracks, he said.  “They’ll look to see if the case is, perhaps, worse,” Rubinstein said.  “Witnesses move, they die, they don’t wish to participate. The chances of a trial could be better from their viewpoint.”

October 24, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 22, 2019

"Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases"

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

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.  The U.S. Supreme Court has repeatedly stressed the importance of mitigating factors in capital cases.  For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating.  But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant’s sentence as mitigating evidence.

This Article begins with the Supreme Court decisions regarding mitigating factors and proportionality, noting how the Court has stressed the importance of fairness in death penalty cases.  This Article additionally examines how courts are currently split on the issue of whether a codefendant’s prison sentence should be weighed as a mitigating factor.  Several state courts have treated this factor as mitigating while others have not.  Although some U.S. courts of appeals have upheld lower court decisions rejecting this mitigating factor, most of those appellate court decisions were applying a deferential habeas corpus standard of review to uphold the lower court decision.  Thus, the issue itself remains unresolved. This Article concludes by explaining why logic and Supreme Court precedent dictate that courts should allow capital defendants to present this mitigating factor to juries.  Jurors should be able to weigh the evidence and use it to make a decision when they are choosing between a sentence of death and a sentence of life in prison.

October 22, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

The trial penalty on fine display as parents in college admissions scandal get hit with new federal bribery charges

As reported in this new Los Angeles Times article, headlined "New bribery charge leveled against Lori Loughlin and other parents in college admissions scandal," federal prosecutors are ramping up the potential consequences of refusing to plead guilty for some parents in the college admission scandal. Here are the details:

Already charged with fraud and money laundering, 11 of the 15 parents who have maintained their innocence in a federal investigation of college admissions fraud were indicted Tuesday on new bribery charges, the U.S. attorney’s office in Boston said.

The newly indicted parents — a group that includes actress Lori Loughlin and her husband, Mossimo Giannulli, a fashion designer — were charged in an indictment returned by a grand jury in Boston, alleging they conspired to commit federal program bribery to secure their children’s fraudulent admissions to USC.

Prosecutors had warned parents last week they could face a bribery charge if they didn’t plead guilty by Monday to the fraud and money laundering conspiracy charges they already faced. Four parents — Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a Newport Coast philanthropist whose family invented the Hot Pocket; and Manuel Henriquez, a San Francisco Bay Area venture capitalist, and his wife, Elizabeth Henriquez — pleaded guilty Monday to conspiracy to commit fraud and money laundering, avoiding indictment on the bribery count.

The federal program bribery charge can be lodged against anyone accused of bribing an employee or agent of an organization that receives $10,000 or more in funding from the federal government, and who obtains something valued at $5,000 or more in exchange.

For parents charged with using an athletic recruitment scam offered by Newport Beach college consultant William “Rick” Singer, prosecutors have argued they conspired with Singer to bribe coaches into giving up admissions slots, which are property of the universities that employed them. Singer has admitted misrepresenting the children of his clients to elite universities as promising athletic recruits for sports they didn’t play competitively or at all.

Virtually every university, public or private, receives more than the $10,000 in federal funding needed to trigger the bribery statute in research grants or financial aid. Prosecutors will likely say that admission to the elite schools to which Singer peddled access — Stanford, Georgetown, USC and UCLA, among others — exceeded $5,000 in value.

The coaches or athletic officials charged in the scheme were also indicted Tuesday on new fraud conspiracy charges, the U.S. attorney’s office in Boston said. Three of them — Jorge Salcedo, the former UCLA men’s soccer coach, Donna Heinel, a former athletics administrator at USC and Gordon Ernst, the former tennis coach at Georgetown — were also charged with committing federal program bribery.

Also worth mentioning is the possibility of a higher (advisory) sentencing range under the federal sentencing guidelines if and when these parents are found guilty and subject to the bribery guideline.

October 22, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)