Monday, January 27, 2020

Sixth Circuit panel declares one-day prison sentence (plus 10 years on supervised release) for large child porn possession substantively unreasonable

In a series of rulings in recent years, most notably United States v. Bistline, the Sixth Circuit has found sentences for child porn possession that lacked some significant prison time to be unreasonable.  Another such ruling was handed down this past on Friday in United States v. Demma, No. 18-4143 (6th Cir. Jan 24, 2020) (available here).  The 15-page panel ruling, authored by Judge Gilman, gets started this way: "This is yet another case raising the issue of whether a one-day sentence for a defendant convicted of possessing child pornography is reasonable. For the reasons set forth below, we determine that it is not."  The full opinion is worth a read, and here are some key passages:

At the sentencing hearing, the district court focused almost entirely on Demma’s individual characteristics in deciding not to impose a term of incarceration. It relied, in particular, on the testimony of Dr. Peterson and Dr. Tennenbaum, both of whom opined that Demma’s use of child pornography was directly caused by his service in the military and his resulting PTSD.

To be sure, the district court did not err by recognizing Demma’s military service and PTSD diagnosis under § 3553(a)(1) as considerations relevant to his sentence.  See United States v. Reilly, 662 F.3d 754, 760 (6th Cir. 2011) (explaining that the defendant’s military service and lack of criminal history were “permissible considerations in the ‘variance’ determination under 18 U.S.C. § 3553(a)”).  But the court in the present case gave these considerations unreasonable weight in deciding to vary downwards to an essentially noncustodial sentence....

Moreover, in focusing on the role of Demma’s military service as purportedly causing his crimes, the district court cast Demma more as the victim than the perpetrator, stating that Demma’s crimes were “the result of his voluntary service to his community and his country” and “an unintended consequence” of his decision to serve in the Army.  This court has explained, however, that “[k]nowing possession of child pornography . . . is not a crime that happens to a defendant.”  Bistline I, 665 F.3d 758, 765 (6th Cir. 2012)....

Our overall conclusion is that, based on the totality of the circumstances, the district court weighed some factors under § 3553(a) too heavily and gave insufficient weight to others in determining Demma’s sentence.  This is not to say that some other defendant possessing far fewer and less offensive images over a much shorter period of time might justify such an extreme downward variance, but that is not Demma’s case.  As this court noted in United States v. Elmore, 743 F.3d 1068 (6th Cir. 2014), a United States Sentencing Commission report states that “fully 96.6 percent of first-time child-pornography-possession convictions led to at least some prison time.” Id. at 1076 (emphasis in original).  We find no basis in the record for Demma to not become part of this overwhelming statistic.  

January 27, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

SCOTUS dismisses Walker ACCA case after death of petitioner (and after robust amicus efforts)

As noted in this post, back in November the Supreme Court granted cert in Walker v. United States to consider whether a criminal offense that can be committed with only a reckless mens rea can qualify as a "violent felony" under the Armed Career Criminal Act.  Even more than the average ACCA case, the Walker case caught my attention because it involved an elderly man, James Walker, who received 15 years in prison under ACCA based on his possession of 13 bullets that he had found while cleaning a house.

Though the cert grant in Walker involved ACCA statutory interpretation concerning predicate prior offenses, I have long been troubled by any application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  (Indeed, long-time readers may recall I helped file an amicus brief in the Sixth Circuit and another amicus brief in support of a cert petition in a similar case, US v. Young, a few years ago.)  After seeing the cert grant in Walker, I reached out to some law professor colleagues and we filed earlier this month this SCOTUS amicus brief in US v. Walker, and here is part of the brief's Summary of Argument:

This Court’s interpretation of the reach of the Armed Career Criminal Act (ACCA), if properly informed by constitutional principles, must avoid application to Petitioner of the ACCA’s fifteen-year mandatory minimum prison term based on his possession of thirteen bullets in violation of 18 U.S.C. § 922(g)(1).  Because mere possession of ammunition is the most passive of crimes — in fact, most States do not even criminalize this behavior and it almost never results in severe punishment — a mandatory fifteen-year prison term is arguably disproportionately harsh.  That Petitioner possessed a small amount of ammunition, that he lacked any vicious or menacing mens rea, and that his prior convictions are decades old serve as additional factors suggesting that a mandatory minimum fifteen-year federal sentence for Petitioner’s offense is constitutionally suspect under any and all jurisprudential approaches to the Eighth Amendment.

As this Court has explained, the “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)....  Given extensive litigation over what predicate offenses qualify for ACCA’s enhanced penalties, there is little question that this Court confronts ambiguous statutory language in this case.  In turn, because any sound approach to the Eighth Amendment suggests serious constitutional doubts about the application of a fifteen-year mandatory sentence for “one of the most passive felonies a person could commit.”  Solem v. Helm, 463 U.S. 277, 296 (1983), the canon of constitutional avoidance provides support for the narrower interpretation of ACCA advanced by Petitioner.  Further, the absence of a modern Court application of the Eighth Amendment to a federal non-capital adult sentence suggests that this constitutional right is precisely the kind of constitutional norm that cautions judicial restraint when interpreting an ambiguous statute.

As this case highlights, broad interpretations of ACCA present a heightened risk of constitutionally questionable mandatory minimum sentences.  This Court should limit that risk by adopting the ACCA interpretation put forward by the Petitioner.

Notably, though I believe our amicus brief was the only one to raise Eighth Amendment issues, another half dozen amicus briefs were filed earlier this month supporting the petitioner.

But, sadly, petitioner's counsel filed this notice last week reporting that James Walker passed away on January 22, 2020.  In accord with its practice, the Supreme Court via this morning's order list, dismissed the writ of certiorari in this case.  I suspect that SCOTUS will before too long take up a replacement case to address the ACCA statutory issue, though I sincerely hope there are not a lot of other cases in the pipeline that also involve application of ACCA's extreme 15-year mandatory minimum term to simple possession of a small amount of ammunition.  If there are, I surely will continue to complain about this extreme sentencing provision.

January 27, 2020 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Sunday, January 26, 2020

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

January 26, 2020 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Friday, January 24, 2020

Reversing state precedent, Florida Supreme Court cuts back on reach of SCOTUS Sixth Amendment capital ruling in Hurst

A little more than four years ago, the US Supreme Court declared unconstitutional Florida's death penalty procedure in Hurst v. Florida, No. 14–7505 (S. Ct. Jan. 12, 2016) (available here), and that ruling raised a host of tough questions about what Hurst meant for roughly 400 persons then on death row in Florida.  I have not been able to follow closely all the Florida state rulings seeking to apply Hurst over the last four years, but a helpful reader made sure I did not miss the latest consequential ruling from the Florida Supreme Court, Florida v. Poole, No. SC18-245 (Fla. Jan. 23, 2020) (available here), which was handed down yesterday.  This local press article, headlined "Florida Supreme Court says unanimous jury not needed for death penalty in major reversal," provides some of the details and context:

In a stunning reversal of a previous decision, the Florida Supreme Court ruled Thursday that a unanimous jury should not be required to sentence someone to death. Federal law, and every state that has the death penalty except Alabama, require unanimous juries for the death penalty, rather than a simple majority.

Florida law used to only require that a majority of the jury make a recommendation to the judge on whether to sentence a defendant to die. The judge then issues a final ruling based on that recommendation. But after a decision by the Florida Supreme Court in 2016 struck down that model in a case called Hurst v. State, the Legislature changed its law to mandate a unanimous jury.

But Thursday’s ruling opens the door for state lawmakers, if they wish, to return Florida to one of the few states that don’t require a unanimous jury to impose the death penalty. “It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices states. But, “in this case we cannot escape the conclusion that ... our Court in Hurst v. State got it wrong.”

In the majority opinion, the justices wrote that their own court’s prior decision was made in error, because the justices at the time had misinterpreted a U.S. Supreme Court ruling that found Florida’s death sentencing process unconstitutional.

The U.S. Supreme Court’s ruling did not, in fact, mean that a jury had to unanimously sentence a person to death, they wrote. Rather, that court only said that a jury had to unanimously find that a defendant was eligible for the death penalty, because of so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or was committed against a child under 12. But the final decision of whether a defendant should be sentenced to die does not require unanimity, Florida’s highest court said.

What does this decision mean? For one, it means the man, Mark Anthony Poole, who brought this case to the Supreme Court after he was sentenced to death with only the majority of a jury, will once again get the death penalty, after his sentence was previously vacated. He has been convicted of first degree murder, attempted first degree murder, sexual battery, armed burglary and armed robbery.

There are 157 death row cases where the person was eligible for a new sentence under the 2016 ruling. Since then, those cases have been going through various stages of re-sentencing, according to the Washington-based Death Penalty Information Center....

In a blistering dissent, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." He was the lone dissent. There are currently only five justices on Florida’s Supreme Court, because two of Gov. Ron DeSantis’ three appointments were recently promoted to federal courts.

“In the strongest possible terms, I dissent,” Labarga wrote. “Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. ... this Court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida."

Labarga also noted that Florida “holds the shameful national title as the state with the most death row exonerations” — all the more reason to keep the unanimous jury safeguard in place. Twenty-nine people on death row in Florida have been exonerated since 1973, according to the Death Penalty Information Center.

Responding to Labarga’s dissent, Justice Alan Lawson wrote that this decision does not change Florida’s state law, which requires the unanimous jury. “The majority today decides constitutional questions, not political ones,” Lawson wrote. “If the Florida Legislature considers changing (the law) to eliminate the requirement for a unanimous jury recommendation before a sentence of death can be imposed, the fact that this legislative change would make Florida an ‘outlier’ will surely be considered in the ensuing political debate.”

I presume the capital defendant here, Anthony Poole, will appeal this ruling to the US Supreme Court.  Notably, SCOTUS is actively considering jury unanimity issues this term in Ramos v. Louisiana and capital sentencing procedure in McKinney v. Arizona.  So, stay tuned.

January 24, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, January 20, 2020

SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument

In this post a few years ago, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".   That post and that question was prompted by the headaches I get when trying to make sense of the the modern federal court jurisprudence over application of the Armed Career Criminal Act as it relates to whether a defendant's prior conviction qualities as a "violent felony."  But the US Supreme Court is due to hear oral argument tomorrow in Shular v. United States wherein the petitioner is presenting this question:

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.

Over at SCOTUSblog in this post titled "Argument preview: Category is: the categorical approach," Leah Litman sorts through the arguments made by the petitioner and the government.  Here are parts of the start and the end of her intricate discussion:

Most of the Supreme Court’s ACCA cases address the meaning of ACCA’s various definitions of “violent felony.”  But Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.”  In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The probation office determined that Shular’s prior Florida convictions were serious drug offenses and recommended that Shular be sentenced under the ACCA.  Shular objected, arguing that Congress defined “serious drug offense” as a series of generic offenses (manufacturing, distributing or possessing with intent) that do not match Florida’s drug offense.  (Specifically, Shular argued that the generic definitions of the drug offenses contain mens rea, or criminal intent, elements, while Florida’s drug laws do not.)....

There is a good amount of text and structure for the Supreme Court to work with in this case.  But the court may be interested in the implications of both sides’ interpretations. Shular is offering the court a tried-and-true approach that has come under fire in recent years.  The government is asking the court to venture into new terrain, but also does not want the court to consider some of the harder questions and greyer areas that might result from the government’s approach.  Oral argument could allow the justices to test out how the government’s proposed interpretation might work.

January 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, January 15, 2020

Dispute over legality of new federal execution protocol up for argument in DC Circuit

As noted in this post, roughly six weeks ago the US Supreme Court refused the Justice Department's request to vacate a district court stay of scheduled federal executions.  That stay, as reported here, was based on the district court's conclusion that DOJ's new execution protocol "exceeds statutory authority."  Notably, the short SCOTUS order upholding the stay indicated that the Court expected the Court of Appeals to review the merits of the stay "with appropriate dispatch."  The DC Circuit's dispatch, as reported in this Bloomberg Law article, has led to oral argument today in front of a three-judge panel.  Here are the details:

The Trump administration’s quest to resume federal executions faces its latest hurdle on Wednesday when an appellate panel hears arguments in a case that was at the U.S. Supreme Court previously and soon may be headed back there.

Though the broader political themes that accompany capital punishment lurk in the background of the dispute, the three judge panel at the U.S. Court of Appeals for the District of Columbia Circuit is tasked with looking at a narrower issue: essentially whether any difference between the words “method” and “manner” is enough to derail several executions for now....

Judges hearing the case are Bill Clinton appointee David Tatel and Trump appointees Gregory Katsas and Neomi Rao. Rao replaced Supreme Court Justice Brett Kavanaugh on the D.C. Circuit.

They’re reviewing the Nov. 20 ruling from Washington district judge Tanya S. Chutkan, who granted a preliminary injunction to federal death row prisoners Alfred Bourgeois, Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken. The uniform lethal injection protocol announced by the Department of Justice last year to carry out all federal executions likely violates the Federal Death Penalty Act, Chutkan found....

The death penalty act says that the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” The act “provides no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” Chutkan said in effectively blocking the executions.

The statute’s use of the word “manner” includes not just execution method but also execution procedure, she said. The judge rejected the government’s argument that the law only gave the states the authority to decide the “method” of execution, like whether to use lethal injection or an alternative. But “manner” in the context of the federal act means “the method of execution,” the Justice Department said in a brief filed Jan. 13.

What’s more, the government says, Chutkan’s and the prisoners’ reading of the act leads to absurd results, like potentially causing the federal government to use less humane methods of execution than those used in some states, and giving states the power to “make it impossible to implement some federal death sentences.”

After Chutkan’s November injunction, the Justice Department appealed quickly to the D.C. Circuit, which declined to overturn it. The government then appealed that denial to the Supreme Court, which upheld the D.C. Circuit on Dec. 6 but sent the case back down for further review.

If the case is appealed back to the Supreme Court by whichever side loses in the D.C. Circuit this time, at least three of the nine justices are poised to side with the government. Samuel Alito, Neil Gorsuch, and Kavanaugh issued a statement accompanying last month’s order, saying that the government “has shown that it is very likely to prevail when this question is ultimately decided.”

The D.C. Circuit’s decision could come relatively quickly after Wednesday’s argument. The high court said in its order that it expects the appeals court to “render its decision with appropriate dispatch,” and the separate statement from Alito, Gorsuch, and Kavanaugh said there’s no reason the appeals court can’t rule within the next 60 days, which is less than a month from now.

Prior related posts:

January 15, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, January 14, 2020

Splitting with other state courts, Georgia Supreme Court upholds use of preponderance standard in LWOP sentencing determination for juve murderer

Yesterday the Georgia Supreme Court rejected a procedural attack on a life without parole sentence given to a 17-year-old murderer and created an interesting little split on the application of Miller and Montgomery in the process.  The unanimous ruling in White v. Georgia, No. S19A1004 (Ga. Jan. 13, 2020) (available here), covers a couple of issues, and here is the key passage dealing with the procedure for imposing a LWOP sentence on a juvenile murderer after Miller and Montgomery:

White argues that, as a matter of due process, the State must prove permanent incorrigibility beyond a reasonable doubt in order for the trial court to sentence him to life without parole.  At oral argument, White’s counsel cited Mathews v. Eldridge, 424 U.S. 319 (96 SCt 893, 47 LE2d 18) (1976), which some courts have relied on to conclude that due process demands a finding of permanent incorrigibility beyond a reasonable doubt before a juvenile may be sentenced to life without parole. See Davis v. State, 415 P3d 666, 682 (Wy. 2018); Commonwealth v. Batts, 163 A3d 410, 454-455 (Pa. 2017). But those decisions ignore United States Supreme Court precedent. That Court has made clear that Mathews does not apply in the context of a state criminal case.  See Medina v. California, 505 U.S. 437, 443 (112 SCt 2572, 120 LEd2d 353) (1992) (“[T]he Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which . . . are part of the criminal process.”).  Rather, a state criminal procedure is not prohibited by the federal Due Process Clause “unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 445 (citation and punctuation omitted).  The United States Supreme Court has held that “application of the preponderance standard at sentencing generally satisfies due process.” United States v. Watts, 519 U.S. 148, 156 (117 SCt 633, 136 LE2d 554) (1997).  And no Supreme Court decision of which we are aware — much less that White cites — holds that juvenile sentencing of the sort at issue here is an exception to that rule.  White has not shown that the burden of proof applied by the trial court here violated his rights under the federal Due Process Clause.

I do not know if Dakota Lamar White might appeal this ruling to the U.S. Supreme Court, but the paragraph above spotlights the clean split in state courts over this issue. of course, SCOTUS is now working toward a decision in the Malvo case dealing with retroactive application in Miller, and it is possible (though not really all that likely) that other Miller application issues could get addressed directly or indirectly in that coming ruling.

January 14, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 10, 2020

Reviewing uncertainty still surrounding earned-time credits created by the FIRST STEP Act

Alan Ellis, Mark Allenbaugh, and Nellie Torres Klein have this new Bloomberg Law piece headlined "The First Step Act — Earned Time Credits on the Horizon." The piece is an important reminder that, even a full year after the enactment of the FIRST STEP Act, there is still uncertainty surrounding the operation of one of the biggest part of the legislation.  Here are excerpts:

One of the remaining programs to be implemented under the First Step Act is set to begin shortly, enabling some prisoners to earn time credits. But some impediments still exist. As of January, all inmates in the Bureau of Prisons (BOP) custody will have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to the First Step Act.

By January 2022, it is anticipated the BOP will begin providing all eligible inmates recidivism reduction programming based on their identified needs.  As an incentive for participating in such programming, the First Step Act directs that eligible inmates be able to earn time credits which, while not expressly reducing their sentence, under some circumstances can be used toward increasing pre-release custody (e.g., halfway house and/or home confinement).  The BOP has stated it will post available programming opportunities on its website soon....

In theory, these time credits can then be redeemed by eligible inmates for early transfer into a halfway house, home confinement, or supervised release.  Earned time credits thus do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.

Importantly, potentially large categories of inmates will not be eligible to receive earned time credits based on the crime they committed.  Additionally, non-citizens with immigration detainers will not be able to benefit.... Offenders who complete rehabilitative programs serving sentences for offenses not eligible to receive earned time credits are nonetheless eligible for other incentives including increased telephone and email time, expanded visitation and more options at the commissary.  Incentives for privileges will be decided by individual wardens at each institution.

The current limits on time in a halfway house (up to 12 months) and home confinement (six months or 10% of the sentence, whichever is less) will not apply to earned time credits.  Thus, a person can be released to a halfway house and/or home confinement even earlier, meaning, inmates can spend more than 12 months in a halfway house or more than ten percent of their sentence in home confinement after accumulating earned time credits....

If properly implemented, this aspect of the First Step Act could not only significantly lower the number of inmates in an already over-crowded and under-staffed system, but actually reduce recidivism and thereby provide important insights to criminal justice professionals and legislators on best practices for keeping people out of prison.  As of now, no one can earn time credits for completing the program or productive activities until the DOJ completes and releases PATTERN, and the BOP creates or expands existing evidence-based programming or productive activity.  As a result, earned time credits received prior to the implementation of the Risk Assessment Tool will not be eligible for redemption until the Tool is implemented.

Unfortunately, the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.  PATTERN was the subject of a House Judiciary Committee Oversight Hearing where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” 

The DOJ has been somewhat circumspect as to how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.”  Nonetheless, indications are that inmates will begin being scored under a preliminary version soon.

Another potential impediment to full implementation will be the availability of half-way house beds.  In certain parts of the country, there is a shortage of available half-way house beds for federal inmates.  The act did not mention any additional funding or resources for the BOP to implement this program.  This obviously could potentially delay or otherwise limit the implementation of other aspects of the program.  Congress’ intent under the First Step Act is well-intentioned, but without adequate funding, it may not benefit qualifying inmates it was designed to serve.

January 10, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, January 09, 2020

"Should Judges Have to Weigh the Price Tag of Sending Someone to Prison?"

The title of this post is the title of this new Mother Jones piece with this subheadline: "A handful of reformist DAs think so. But they’re meeting plenty of resistance."  Here is the start of a long piece (with good links) that merits a full read:

There’s one trial that Buta Biberaj will never forget. Biberaj, a former defense attorney, remembers how Virginia jurors in 2017 requested 132 years of prison for a man who stole car tires.  The jurors may have been unaware that taxpayers could pay more than $25,000 a year to keep someone incarcerated — so by proposing their sentence, they were also suggesting that society fork over $3 million. For tires.

Last week, Biberaj started her term as district attorney in Virginia’s Loudoun County. As part of a wave of progressive candidates that swept district attorney elections in Virginia in November, Biberaj is calling for changes that reformers elsewhere have championed, like ending cash bail and letting marijuana crimes go.  But she’s also touting a proposal that goes a step beyond what most liberal district attorneys have floated: She wants courts to grapple with the financial toll of incarcerating people.

Normally, if someone commits a felony like rape or murder, a prosecutor from a district attorney’s office tells a jury or judge why the victim deserves to see the offender locked away.  Prosecutors are often evaluated by the number of convictions they receive and the types of lengthy sentences they secure, with some touting their toughness to win reelection.

Biberaj, during her 25-plus years as a defense lawyer and more than a decade as a substitute judge, came to believe that the sentencing process is flawed. So now as district attorney, she wants her office to tell juries exactly how expensive it is to send people to prison.  “If we don’t give them all the information, in a certain way we are misleading and lying to the community as to what the cost is,” she said in an interview before the election.

Biberaj is not the first prosecutor to suggest such a policy.  In 2018, Philadelphia District Attorney Larry Krasner, one of the country’s most famous progressive prosecutors, launched a similar experiment.  Shortly after his election, he instructed his office’s attorneys to tell judges how much recommended prison sentences would cost, noting that a year of unnecessary incarceration in the state rang in at about $42,000—around the salary of a new teacher, police officer, or social worker.  “You may use these comparisons on the record,” he told them. Chesa Boudin, the former public defender elected as district attorney in San Francisco in November, says he plans to implement a similar policy after taking office this week....

But so far, other than Biberaj and Boudin, the idea hasn’t caught on widely.  While more progressives are running, about 80 percent of prosecutors go unopposed in elections, meaning that many tough-on-crime district attorneys maintain their seats.

And some judges don’t want to know how much a prison term will cost. They argue that money has no place in decisions about punishment and justice.  Choosing a sentence, they say, should involve weighing the specific situation and needs of the offender and victim, irrespective of budget. And if elected judges feel pressure to save money for taxpayers, it could skew their opinions, argues Chad Flanders, a professor at Saint Louis University School of Law.  “Asking judges to make budgetary decisions in sentencing is just another way of asking them to be politicians,” he wrote in a paper on the subject in 2012.  Some judges in Philadelphia have asked Krasner’s attorneys not to share the cost data with them.

January 9, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Thursday, January 02, 2020

Deep dive into parole history and modern parole practice in California

The New York Times Magazine has this very long new piece on parole under this full headline "Can You Talk Your Way Out of a Life Sentence?: California is giving a second chance to thousands of inmates who had no hope of parole. But first they have to prove to a panel of strangers that they’ve truly changed." The lengthy piece merits a full read, and here is a snippet from its early sections:

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

All of this makes discretionary parole a far cry from the equation proposed in 1870, in which demonstrated behaviors would result in predictable outcomes. Instead, Reitz has found that parole commissioners are dominated by fears of releasing an inmate who goes on to commit a terrible crime. That’s exactly what happened on March 19, 2013, when a parolee, Evan Ebel, murdered Tom Clements, the executive director of Colorado’s Department of Corrections. When he interviewed parole board members in Colorado, Reitz says, he found the specter of that murder loomed over every decision they made: “Board members told me, ‘If I let someone out and he does something horrible, that’s on me.’ ” So parole-board members have little motivation to release inmates, no matter how deserving they seem.

January 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, December 27, 2019

Fitting criticisms of unfit attack on Washington DC's proposed Second Look Amendment Act

The revised sentencing provisions of the ALI's Model Penal Code include a section, titled "Modification of Long-Term Prison Sentences," calling upon jurisdictions to allow resentencing of all individuals sentenced to long terms after they have served 15 years in prison.  Senator Cory Booker has introduced a federal Second Look Act which would allow all persons to petition for resentencing after having served at least 10 years in prison.

Against backdrop, the proposed Second Look Amendment Act being considered by the Washington DC Council might look quite modest; it will allow only persons serving lengthy sentences who committed their crimes before age 25 to petition for a reduced sentence after having spending 15 years in prison (and DC law already allows this for those who committed their crimes before age 18).  But this recent Washington Post editorial, headlined "A bill to reduce sentences for violent D.C. felons goes too far," launches an immodest attack on the proposal. The very headline of this editorial had me troubled, as the DC bill does not itself actually reduce any sentences, it just provides a chance for some individual offenders serving extremely long terms to seek sentence reconsideration.

The text of the WaPo editorial is no more accurate.  In a closing paragraph, for example, the editorial asserts that "the measure would embrace a radical rejection of transparency in sentencing and straight dealings with victims."  Huh?  Given that this proposal is less ambitious than what the MPC now urges, there is really nothing "radical" about what this bill proposes.  Plus, the operation of the proposed sentence reconsideration would by entirely "transparent" and should operate with crime victims having an opportunity to be involved in sentencing reconsideration.   (Indeed, an article linked in the WaPo editorial highlights that some victims have been supportive of resentencings in the past.)

Helpfully, I have see two astute criminal justice commentators already busy on Twitter criticizing many more aspects of this WaPo editorial.  Scott Hechinger here has multiple tweets highlighting the problems in the language used throughout the editorial.  And John Pfaff here has multiple tweets highlighting how extreme US sentencing policies and practices are compared to the rest of the world.  Pfaff's tweet thread concludes with this fitting final thought: "the attitudes embodied in this editorial — the cruel punitiveness that doesn’t even require a trace of justification — is why we are where we are, and why we risk staying here indefinitely."

December 27, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, December 20, 2019

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

The title of this post is the title of this notable new article authored by Adam Gershowitz just posted to SSRN. Here is its abstract:

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

December 20, 2019 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Thursday, December 19, 2019

Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum

A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019) (available here).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker's partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors. 

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant's lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers' vision of the jury right and explained: "Just as the right to vote sought to preserve the people's authority over their government's executive and legislative functions, the right to a jury trial sought to preserve the people's authority over its judicial functions." But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

December 19, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, December 17, 2019

Fifth Circuit joins others saying offense of conviction, not claims about underlying conduct, determines eligibility for retroactive relief under FIRST STEP Act

A helpful reader made sure I did not miss a notable opinion from a Fifth Circuit panel yesterday in US v. Jackson, No. 19-20346 (5th Cir. Dec. 16, 2019) (available here).  The defendant in Jackson ultimately loses in his battle to benefit from the Fair Sentencing Act retroactivity provision of the FIRST STEP Act, but in so doing the Fifth Circuit addresses an important eligibility war that has been ranging in courtrooms nationwide.  Here is part of the panel's discussion:

The first inquiry in evaluating a motion under section 404 is whether the defendant has a “covered offense.”  See FSA, § 404(a).  The FSA defines such an offense as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” Id.

The government’s view of the meaning of “covered offense” is less than clear.  At the district court, the government appeared to contend that Jackson’s offense wasn’t covered because the presentence investigation report (“PSR”) found him responsible for 402.2 grams of crack, meaning that he exceeded even the new 280-gram requirement.  But the government’s briefing on appeal seems to concede that Jackson’s offense is covered.

In other cases, the government has contended that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.”  United States v. White, 2019 WL 3228335, at *2 (S.D. Tex. July 17, 2019) (quotation marks removed).  On that theory, if the jury convicts on a count requiring a showing of fifty or more grams, but the PSR later finds that, say, 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.  See id.

That approach doesn’t comport with the ordinary meaning of the statute, however.  As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” FSA, § 404(a) (emphasis added). The “penalties clause” is the portion in italics. For the government’s approach from previous cases to work, the penalties clause must modify “violation,” not “Federal criminal statute.” But for at least three reasons, the better reading is that it modifies “Federal criminal statute.”  It follows that whether an offense is “covered” depends only on the statute under which the defendant was convicted....

We thus conclude that whether a defendant has a “covered offense” under section 404(a) depends only on the statute under which he was convicted.  If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”  The only other circuits to have confronted these arguments agree.

December 17, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, December 16, 2019

"Algorithmic Risk Assessment in the Hands of Humans"

The title of this post is the title of this new empirical paper authored by Megan Stevenson and Jennifer Doleac.  Here is its abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing.  We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores.  However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less.
Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use.  Judges systematically grant leniency to young defendants, despite their high risk of reoffending.  This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability.  Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors.  Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. 
We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm.  Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23.  In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

December 16, 2019 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, December 14, 2019

A Kentucky clemency controversy captured in headlines

Just under two decades ago, Prez Bill Clinton created a huge stir when granting 140 pardons and a few commutations on his very last day of office.  That controversy comes to mind as I see news about former Kentucky Gov. Matt Bevin's clemency spree as he relinquished power in the last few weeks.  This Kentucky clemency controversy has many elements, so I figured I would use headlines of numerous press pieces to provide an overview:

From NPR, "Outgoing Kentucky Gov. Matt Bevin Issues 428 Pardons, Many Which Are Controversial"

From CNN, "Former Kentucky governor pardons convicted child rapist"

From the Louisville Courier Journal, "Kentucky governor pardons convicted killer whose brother hosted campaign fundraiser for him"

Also from the Louisville Courier Journal, "Senate President Robert Stivers wants feds to investigate Matt Bevin's pardons"

From The Hill, "McConnell: Bevin pardons 'completely inappropriate'"

Also from The Hill, "Former Kentucky Gov. Bevin defends pardons amid backlash"

Also from NPR, "Kentucky Lawmaker Wants Constitutional Amendment to Reform Governor's Pardoning Power"

December 14, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

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 (1)

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)