Thursday, December 02, 2021

Split Florida Supreme Court upholds imposition of maximum sentence based in part on defendant's claim of innocence

Via a lengthy divided ruling, the Florida Supreme Court handed down some interesting opinion today in Davis v. Florida, No. SC19-716 (Fla. Dec. 2, 2021) (available here).  Because the various judges fight over how to characterize the case and the ruling, I will just reprint the words of the leading opinions.  First the majority, via Chief Justice Canady:

We accepted jurisdiction to answer the certified question, but because the district court did not pass upon the entirety of the question as framed, we first rephrase it based on the specific circumstances presented by this case: 

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE SENTENCING HEARING, VIOLATE THE DEFENDANT’S DUE PROCESS RIGHTS BY CONSIDERING THE DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR HIS ACTIONS?...

We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. Thus, we answer the rephrased question in the negative and approve the result in the decision on review.

Now the chief dissent via Justice Polson:

I dissent from the majority’s decision holding that a trial court can punish a defendant for his lack of remorse during a sentencing proceeding.  This result is inconsistent with our precedent interpreting article I, section 9 of the Florida Constitution, the consensus among the district courts of appeal, and has no basis in our statutory sentencing scheme. Showing remorse is admitting you did something wrong — an admission of guilt.  And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt.  Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.  Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.

Notably, more two decades ago, the US Supreme Court held Mitchell v. US, 526 U.S. 314 (1999), that it was unconstitutional to use "petitioner’s silence against her in determining the facts of the offense at the sentencing hearing."  Presumably that ruling in part explains why the majority hear makes much of the defendant voluntarily choosing to allocute and assert innocence.  

December 2, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, November 30, 2021

"Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System"

The title of this post is the title of this new paper authored by Anna D. Vaynman and Mark Robert Fondacaro now available via SSRN. Here is its abstract:

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process.  This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial.  The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. 

This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power.  Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows.  The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

November 30, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Friday, November 26, 2021

Pervis Payne has death sentences set aside (based on intellectual disability) three decades after SCOTUS affirmed them (with focus on victim impact evidence)

This local article reports on a notable development in a capital case that caught my attention because it involves a defendant who was involved in a major development in Supreme Court capital jurisprudence more than 30 years ago.  The press piece is headlined "Pervis Payne death penalty set aside, judge will decide if life sentences are concurrent or consecutive," and here are excerpts:

Rolanda Holman remembers being 13 years old, listening to the judge sentence her brother, Pervis Payne, to death by the electric chair. The judge said, “May God have mercy on his soul," Holman recalled.

Thirty-four years later, Holman and her family know that Payne won't be dying by the death penalty after Judge Paula Skahan signed an order Tuesday vacating his capital sentence....

Skahan's action came after the Shelby County District Attorney's office announced Thursday that it was dropping its pursuit of the death penalty against Payne after a state expert examined Payne and records "and could not say that Payne's intellectual functioning is outside the range for intellectual disability," according to a news release.

Both the U.S. and Tennessee supreme courts have ruled that it is unconstitutional to execute someone with an intellectual disability. In April, Tennessee legislators created a law allowing death row inmates like Payne to appeal their sentences on intellectual disability grounds. Since the court finds that Payne is a person with intellectual disability, his capital sentence must be vacated, Skahan wrote in her order....

Payne will serve two life sentences in prison for the murders of Charisse and Lacie Christopher. However, whether those sentences will be concurrent or consecutive is currently being debated.

Steve Jones, assistant district attorney, argued Tuesday that a transcript of the original sentencing 34 years ago shows the judge saying that Payne's sentences ought to be served consecutively.

That, [attorney Kelley] Henry said, would make Payne ineligible for parole until he is 85. Henry argued, however, that precedent shows the court has the discretion to rule his sentences should be carried out at the same time, which would make him eligible for parole in about six years. “Consecutive sentencing would be an effective life without parole for Mr. Payne and we suggest that would not be justice for him and his family," Henry said. "Elder Carl Payne deserves a chance to hug his son as a free man. And we will continue our fight to exonerate Mr. Payne.”

A hearing will be held Dec. 13 to determine whether the life sentences should be held consecutively or concurrently.

Payne, who is being held in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

It is quite remarkable that it took newly 20 years for Payne to be moved off death row after the US Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment precluded the execution of the intellectually disabled.  But it is perhaps even more remarkable that this is the same defendant whose case made it all the way to the Supreme Court more than 30 years ago. In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court reversed prior precedents limiting victim impact evidence and held "that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar."  Is this a fitting time for the aphorism "what goes around comes around," especially if it is a capital case?

November 26, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Thursday, November 18, 2021

"How to be a Better Plea Bargainer"

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

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context.  The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.

The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

November 18, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Lamenting "Biden's do-nothing approach to clemency" as we approach holiday season

Rachel Barkow and Mark Osler have this new Hill commentary, headlined "Biden can't let Trump's DOJ legacy stifle reform," that focuses on Prez Biden's current disappointing clemency record.  I recommend the full piece, and here is a snippet:

We are almost 10 months into his administration, and all signals point to Biden giving the department free rein to set criminal justice policies that should rest with him instead.

It is no small wonder that this approach has so far resulted in the first increase in the federal prison population in years. The DOJ is poorly situated to take the lead on whether to support legislation to reform sentencing and federal charges because its prosecutors inevitably want laws that make their jobs easier — even when the public interest and Biden’s commitment to reform criminal justice points in a different direction.  Nothing Trump did challenges the urgent need to take DOJ out of its lead policymaking role on criminal law reform — in fact, criminal law reform in the form of the First Step Act was one of his very few bipartisan accomplishments and was accomplished without the imprimatur of the DOJ.

And then there is Biden’s do-nothing approach to clemency, which he seems to have delegated entirely to the DOJ.  Biden inherited 14,000 pending clemency cases when he took office, and there was widespread agreement among those who studied the issue that the solution to the logjam requires moving clemency out of DOJ.  Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades.  That backlog is now 17,844.

So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War?  The only apparent answer is that Biden does not want to look like he is interfering with DOJ.  But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

Prior recent related post:

November 18, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, November 16, 2021

New OIG report assails BOP failures in implementation of FIRST STEP Act

This new Forbes article highlights key features of this detailed new memorandum from the Office of Inspector General criticizing the Bureau of Prisons on various failing that disrupted implementation of the FIRST STEP Act. Here is how the Forbes piece gets started:

On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs.  It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented.  The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.

According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner.  Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person.  This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.

November 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 14, 2021

"Racial, Gender Disparities and Prosecutorial Discretion: Evidence from Blakely v. Washington"

The title of this post is the title of this paper I just recently saw on SSRN that is authored by Andy Yuan and Spencer Cooper. Here is its abstract:

We investigate the causal effects of restricting prosecutorial discretion on racial and gender disparities.  Blakely v.Washington, 542 U.S. 296 (2004) exogenously introduced a significant constraint on North Carolina state prosecutors' discretion in seeking sentence enhancements by raising their burdens of proof from "preponderance of evidence" to "beyond a reasonable doubt."   Through a regression discontinuity design, we find striking evidence that restricting prosecutorial discretion eliminated the entire preexisting gender gap of men being 28% more likely to receive sentence enhancements than women.  However, we find no evidence suggesting a racial gap of sentence enhancements both pre and post Blakely.

November 14, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, November 10, 2021

Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another

Two new Politico articles provide updates on the latest sentencing news from the prosecution of persons involved in the January 6 Capitol riot.  Here are links and excerpts:

"N.J. man hit with toughest sentence yet in Jan. 6 attack":

A federal judge on Wednesday imposed the most serious sentence yet in connection with the Jan. 6 Capitol riot, ordering a New Jersey man to serve almost three-and-a-half years in prison for punching a police officer in the face during the melee.

Scott Fairlamb, 44, a former MMA fighter and gym owner, is the first defendant charged with assaulting an officer during the attack to face sentencing. The judge, Royce Lamberth, said he expected Fairlamb’s 41-month sentence would end up lower than others also facing charges for assaulting police that day.

That’s because Fairlamb was the first to plead guilty to such an assault and, despite initially celebrating the attack, has since expressed remorse that both prosecutors and Lamberth himself described as “genuine.”

Some of many prior related posts:

November 10, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 08, 2021

"Resurrecting Arbitrariness"

The title of this post is the title of this new article authored by Kathryn Miller available via SSRN.  Here is its abstract:

What allows judges to sentence a child to die in prison?  For years, they did so without constitutional restriction.  That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders — the “permanently incorrigible.”  By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it shut.

Rather than restrict the discretion of a judge to throw away the key in sentencing child defendants, the Court in Jones increased that discretion.  It recast Miller as a purely procedural decision that only required a barebones “consideration” of a defendant’s “youth and attendant circumstances” to fulfill its mandate of individualized sentencing. Jones further held that judges need not engage in any formal factfinding before sentencing a child to die in prison, which renders these sentences nearly unreviewable.  This article argues that, through these two jurisprudential moves, Jones created conditions that will maximize arbitrary and racially discriminatory sentencing outcomes nation-wide, resembling the unconstitutional death sentences of the mid-twentieth century.

This article is the first to comprehensively analyze Jones, contending that the decision represents an embrace of unfettered discretion in the sentencing of children facing life without parole.  Given the Supreme Court’s gutting of the Eighth Amendment, I contend that state solutions are the way forward.  I propose that states join the national trend of abandoning life without parole sentences for children.  Short of abolishing the sentence, I offer three procedural interventions.  First, states should enact “genuine narrowing” requirements that establish criteria designed to limit eligibility for life without parole sentences for children to the theoretical “worst of the worst.”  While inspired by the narrowing requirement in capital sentencing, “genuine narrowing” relies on meaningful and concrete criteria that seek to achieve the mandate of Miller that such sentences be uncommon.  Second, states should require jury sentencing, which ensures that sentences will be imposed by multiple, and typically more diverse, voices than what currently occurs with judicial sentencing.  Third, states should go beyond merely telling sentencers to take youth into account in their sentencing decisions, but should instead inform them that the characteristics of youth are “mitigating as a matter of law,” and when pre-sent, must weigh against an imposition of life without parole.

November 8, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, November 05, 2021

SCOTUS grants cert on two (consolidated) cases to consider physician criminal liability for unlawfully dispensing prescription drugs

The Supreme Court this afternoon issued this new short order list that grants certiorari in a few new cases, including a (consolidated) pair of criminal matters involving whether and when doctors can be criminal liable for unlawfully dispensing prescription drugs.  The two cases are Ruan v. US, No. 20-1410, and Kahn v. US, No. 21-5261, and here is the question presented in the first of these:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

November 5, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

"Specialization in Criminal Courts: Decision Making, Recidivism, and Re-victimization in Domestic Violence Courts in Tennessee"

The title of this post is the title of this new paper now available via SSRN authored by Aria Golestani, Emily Owens and Kerri Raissian. Here is its abstract:

Local governments increasingly rely on “specialized” or “problem solving” courts as a way to improve the provision of criminal justice.  Using administrative data on misdemeanor DV cases between 2000 and 2006, we exploit the arbitrary courtroom assignment of low-income defendants to evaluate the social impact of specialized domestic violence courts in the General Sessions Court of Metropolitan Nashville and Davidson County, Tennessee.  We find that, compared to traditional court, defendants assigned to specialized court are less likely to be convicted, but no more likely to be charged with a future crime 1 to 3 years later.  This offender-focused measure of recidivism masks a potentially important increase in safety.  Police records suggest that victims in cases assigned to specialized court are less likely to be involved in a future domestic incident.  Conditional on future police involvement, these same victims appear to be more willing to cooperate with police and prosecutors.

November 5, 2021 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Thursday, November 04, 2021

Split Sixth Circuit panel finds multiple errors in district court's reduction of LWOP sentence via 3582(c)(1)(A)

The Sixth Circuit yesterday handed down a notable split panel opinion reversing the grant of compassionate release to a defendant who had been serving a life without parole sentence in US v. Bass, No. 21-1094 (6th Cir. Nov. 3, 2021) (available here).  Here i how the majority opinion gets started:

In 2003, John Bass, a local drug kingpin in the state of Michigan, was convicted of murdering a hitman whom Bass had hired to kill Bass’s half-brother.  Though the Government sought the death penalty, Bass was ultimately sentenced to two concurrent terms of life imprisonment without the possibility of release.  In 2020, Bass moved for compassionate release due to COVID-19.  The district court granted Bass’s request in January 2021 and ordered his immediate release.  In March, a divided panel of this court granted the Government’s emergency motion to stay the release.  In this merits appeal, the Government argues that the district court abused its discretion when it granted Bass’s request for immediate release.  Because the district court’s decision rested upon legal errors, its decision to release Bass constituted an abuse of its discretion.  On remand, moreover, the district court must reevaluate the compassionate release request based on current facts and circumstances, which have materially changed.

The "legal errors" identified by the majority relate largely to how the district court framed and balanced various 3553(a) factors, but the seriousness of the crime seems to be driving much of the analysis:

The district court also reasoned that, balancing Bass’s crimes “with the circumstances under which they were committed,” his twenty-two-year incarceration was “‘sufficient, but not greater than necessary,’ to fulfill the purposes of his punishment.” Bass, 514 F. Supp. 3d at 984 (quoting 18 U.S.C. § 3553(a)).  This conclusion does not fit the facts of Bass’s case.  Bass’s crimes were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.  Bass, 460 F.3d at 834.  The district court justified Bass’s release by repeatedly emphasizing Bass’s commitment to rehabilitation and education.  Bass, 514 F. Supp. 3d at 984-88.  But the district court failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release. This sentence would have ensured that the fifty-two-year-old Bass would remain in prison for the rest of his life, which could conceivably extend for several decades.  In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that Bass could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release.  This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release.  We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced.  But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to Bass’s efforts at rehabilitation after only twenty-two years in prison.

Notably, as detailed here, a few months ago in US v. Hunter, 12 F. 4th 555 (6th Cir. 2021), a unanimous Sixth Circuit panel reversed a life sentence reduced to "only" 21 years in prison based on questionable conclusions that certain factors could never permit a sentence reduction via 3582(c)(1)(A).  Here the reversal is focused on the weighing of 3553(a) factors, and that reality in part drives  the dissent that Judge White penned here.  Her opinion starts and ends this way:

I would not have granted Bass’s motion for compassionate release, but under the compassionate-release jurisprudence this court has developed over the past year and a half or so, our disagreement with a district court’s exercise of its discretion is expressly excluded as a ground for reversal. We require district courts to provide only the most minimal explanation, see, e.g., United States v. Quintanilla Navarro, 986 F.3d 668, 673 (6th Cir. 2021) (affirming a district court's single-sentence order), and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own, see United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020); United States v. Hogg, 858 F. App’x 816, 818 (6th Cir. 2021); United States v. Keefer, 832 F. App'x 359, 362–65 (6th Cir. 2020)....

As I said at the outset, I would not have granted this motion.  However, the district court adequately explained its decision and did not abuse its discretion in concluding otherwise.  We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision.  “Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies a [compassionate-release motion].” Bass, 843 Fed. App’x at 740.

November 4, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Should veteran status justify reducing or increasing the sentences of January 6 rioters?

The question in the title of this post is prompted by this lengthy new AP piece headlined "Feds seek tougher sentences for veterans who stormed Capitol."  The piece merits a full read, and here are excerpts:

During his 27 years in the U.S. Army, Leonard Gruppo joined the Special Forces, served in four war zones and led a team of combat medics in Iraq before retiring in 2013 as a lieutenant colonel.

During his six minutes inside the U.S. Capitol on Jan. 6, Gruppo joined a slew of other military veterans as a mob of pro-Trump rioters carried out an unparalleled assault on the bastion of American democracy.  He’s among dozens of veterans and active-service members charged in connection with the insurrection.

Now, cases like his are presenting a thorny question for federal judges to consider when they sentence veterans who stormed the Capitol: Do they deserve leniency because they served their country or tougher punishment because they swore an oath to defend it?

The Justice Department has adopted the latter position. In at least five cases so far, prosecutors have cited a rioter’s military service as a factor weighing in favor of a jail sentence or house arrest.  Prosecutors have repeatedly maintained that veterans’ service, while commendable, made their actions on Jan. 6 more egregious....

Prosecutors’ arguments about rioters’ military service didn’t sway one of the first judges to hear them — at Gruppo’s sentencing hearing last Friday.  “I don’t view his military service that way. I just can’t bring myself to do that,” Chief U.S. District Judge Beryl Howell said before sentencing Gruppo to two years of probation, including 90 days of house arrest....

In most criminal cases, judges typically view a defendant’s military service as a mitigating factor that favors leniency, said James Markham, a professor of public law and government at the University of North Carolina at Chapel Hill.  But he recognizes how the Justice Department could conclude that rioters with military experience should be held to a higher standard than those without it.  “It’s obviously not related to their military service directly, but it’s also not entirely conceptually unrelated that somebody who is a veteran or had military service could be viewed as having a more refined understanding of the importance of civilian control and electoral stability,” said Markham, a lawyer and Air Force veteran.

More than 650 people have been charged in the Jan. 6 attack. Some of the rioters facing the most serious charges, including members of far-right extremist groups, have military backgrounds.  A handful of riot defendants were on active duty, including an Army reservist who wore a Hitler mustache to his job at at a Navy base.

More than 100 riot defendants have pleaded guilty, mostly to misdemeanors punishable by a maximum of six months of incarceration. Two dozen had been sentenced as of Friday.  At least three of the sentenced defendants are veterans, according to an Associated Press review of court records.

In September, U.S. District Judge James Boasberg sentenced Air Force veteran Derek Jancart to 45 days in jail for joining the riot.  Prosecutors had sought a four-month jail sentence for Jancart, an Ohio steelworker....  Another Air Force veteran, Thomas Vinson, was sentenced on Oct. 22 to five years of probation.  Prosecutors had recommended three months of house arrest for Vinson, a Kentucky resident who served in the Air Force from 1984 through 1988....

At least two other rioters who served in the military are scheduled to be sentenced in the coming days.  Prosecutors have recommended two months in jail for Boyd Camper, who served in the U.S. Marines from 1987 to 1990...  Prosecutors are seeking two months of house arrest for Air Force veteran Jonathan Ace Sanders Sr., who is scheduled to be sentenced on Thursday. 

Some of many prior related posts:

November 4, 2021 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, November 03, 2021

"The Gladue Analysis: Shedding Light on Appropriate Procedures and Sanctions"

The title of this post is the title of this interesting-looking new paper about an interesting aspect of Canadian sentencing practice. This piece was authored by Marie-Andrée Denis-Boileau, is available via SSRN, and here is its abstract:

This paper intends to give practical tools to legal actors to better implement the second part of the s 718.2(e) of the Criminal Code analysis for sentencing Indigenous people, as first laid out in the Gladue case of the Supreme Court of Canada.  Following this, when sentencing an Indigenous person, judges have to pay attention to “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”.  Drawing from case law, research and the work of Commissions and Public Inquiries in Canada, the author intends to provide practical tools to legal actors to support them in fully engaging with it.  The paper identifies and describes three elements that must be considered by courts in this analysis: (1) the community’s perspectives, needs and alternatives to incarceration, (2) The Aboriginal Perspective, which was interpreted as including the "laws, practices, customs and traditions of the group” and (3) Culturally sensitive, appropriate and responsive sentences addressing the “underlying cause of the criminal conduct”. Its main focus is on Indigenous law and providing practical and clear ways for judges and legal actors to consider it.

The content of this paper was first developed for Legal Aid BC’s Best Practices Guide for Writing Gladue Reports and Understanding Gladue Principles, with the intent to support Gladue writers in providing more information to courts with regard to this part of the Gladue analysis and support anyone who is interested in better understanding Gladue principles.  This paper should support legal actors in better engaging with it.

November 3, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (0)

Tuesday, November 02, 2021

Oklahoma board recommends clemency for Julius Jones who claims innocence from death row

This local article reports on a notable development in a high-profile case in Oklahoma involving the next death row inmate scheduled to be executed in the coming weeks. Here are the details:

The Oklahoma State Pardon and Parole Board on Monday recommended clemency for death row inmate Julius Jones.  The board voted 3-1 in favor of granting clemency for Jones, who has been on death row for more than 20 years for the 1999 murder of Edmond businessman Paul Howell.  One board member recused themselves from the vote.

Along with clemency, the Oklahoma Pardon and Parole Board recommended commuting Jones' death sentence to life with the possibility of parole.

"The Pardon and Parole Board has now twice voted in favor of commuting Julius Jones’s death sentence, acknowledging the grievous errors that led to his conviction and death sentence," Jones' lawyer, Amanda Bass, said in a news release.  "We hope that Governor Stitt will exercise his authority to accept the Board’s recommendation and ensure that Oklahoma does not execute an innocent man."

"My son Julius has been on death row for over twenty years for a murder he did not commit, and every day of that has been a waking nightmare for my family," Jones' mother, Madeline Davis-Jones, said in a news release....

Gov. Kevin Stitt will now decide Jones' fate.  He has not said how he plans to decide in the case, only saying that he wouldn't decide until after the clemency hearing.  His office released the following statement to KOCO 5: "Governor Stitt is aware of the Pardon and Parole Board’s vote today. Our office will not offer further comment until the governor has made a final decision."

Jones spoke during Monday's clemency hearing, giving his account of the night Howell was killed, the days after and his trial.

The recommendation comes more than a month after the same Pardon and Parole Board recommended that Jones' sentence be commuted, which set up Monday's clemency hearing. It also came less than a week after Oklahoma resumed executions for the first time since 2015.  The state put John Grant to death last week.  Although a decision on Jones' fate is up in the air, his execution is scheduled for Nov. 18.

Jones has gained a lot of support over the past few years, especially from several high-profile celebrities, including Kim Kardashian and Baker Mayfield.  Howell's family said before the clemency hearing that they hoped the Pardon and Parole Board would vote based on facts instead of Hollywood fiction.  His daughter spoke with KOCO 5 in October, saying a lot of misinformation had spread about Jones and the case.

November 2, 2021 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, November 01, 2021

Some notable dissents and a statement together with SCOTUS criminal justice cert denials

The merits cases scheduled to be argued before the Supreme Court this week on topics like abortion and gun rights are rightly getting a lot of attention.  But the week has started with this order list in which Court has 5+ pages listing cases on which certiorari has been denied.  In three cases involving criminal-law related issues, some Justices penned statements concerning these denials.  Via How Appealing, here are the basics with links:

In Simmons v. United States, No. 20-1704, Justice Sonia Sotomayor issued a statement, in which Justice Elena Kagan joined, respecting the denial of certiorari.

In Coonce v. United States, No. 19–7862, Justice Sotomayor issued a dissent, in which Justices Stephen G. Breyer and Kagan joined, from the denial of certiorari.

And in American Civil Liberties Union v. United States, No. 20–1499, Justice Neil M. Gorsuch issued a dissent, in which Justice Sotomayor joined, from the denial of certiorari.

The lengthiest and most notable of these separate opinions is in the Coonce case, where Justice Sotomayor starts her 11-page dissent this way:

Petitioner Wesley Paul Coonce, Jr., was convicted in federal court of murder. Facing the death penalty, he argued that his execution would violate the Eighth Amendment because he has an intellectual disability.  See Atkins v. Virginia, 536 U. S. 304 (2002).  The District Court denied Coonce’s Atkins claim without a hearing, the jury sentenced him to death, and the Eighth Circuit affirmed.

In denying Coonce relief without a hearing, the courts relied on the definition of intellectual disability by the American Association on Intellectual and Developmental Disabilities (AAIDD), which then required that an impairment manifest before age 18.  It is undisputed that Coonce’s impairments fully manifested at age 20.  After Coonce petitioned for certiorari, the AAIDD changed its definition to include impairments that, like Coonce’s, manifested before age 22.

The Government urges us to grant certiorari, vacate the judgment below, and remand (GVR), conceding that it is reasonably probable that the Eighth Circuit would reach a different result on reconsideration given the significant shift in the definition that formed the basis of its opinion. Instead, the Court denies certiorari.  Because Coonce is entitled to a hearing on his Atkins claim, and because our precedents counsel in favor of a GVR, I respectfully dissent.

One of many notable aspects of this case is highlighted by this observation in the dissent:

In light of the above, the material change in the AAIDD’s leading definition of intellectual disability plainly warrants a GVR.  To my knowledge, the Court has never before denied a GVR in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.

I believe the defendant in this case will still be able to bring a 2255 motion, so the Justices voting to deny cert may be content to have these "execution competency" issues addressed in that setting. But Justice Sotomayor closes her dissent explaining why that seems to her insufficient:

I can only hope that the lower courts on collateral review will give Coonce the consideration that the Constitution demands. But this Court, too, has an obligation to protect our Constitution’s mandates. It falls short of fulfilling that obligation today. The Court should have allowed the Eighth Circuit to reconsider Coonce’s compelling claim of intellectual disability, as both he and the Government requested. I respectfully dissent.

November 1, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 28, 2021

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.

October 28, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, October 27, 2021

"Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge"

The title of this post is the title of this interesting new research brief from Arnold Ventures and the CUNY Institute for State & Local Governance which is part of the Reducing Revocations Challenge, a national initiative on probation supervision seeking to reduce its impact on mass incarceration. Here is part of the research brief's introduction:

There has been growing agreement among practitioners, policymakers, and the general public that there are far too many people under probation supervision in the United States.  Since 1980, the number of people on probation has increased more than 215 percent, from 1.2 million to 3.5 million in 2018.  Today, approximately one in 57 adults (roughly two percent of the U.S. adult population) is under community supervision on any given day, and unnecessarily long probation terms are required by law in many states around the country.  Indeed, together with parole, probation supervision accounts for the large majority of individuals under correctional control in this country....

Probation was designed to be an alternative to incarceration, yet for many people under supervision it turns out to be a pathway that inevitably leads them there.  Although research has highlighted a range of evidence-based strategies over the years, from graduated responses to risk-needs-responsivity supervision models to reporting kiosks for low-risk individuals, success rates have not improved over time.  We still know very little about how to most effectively manage and support people on probation in a manner that reduces revocations, maximizes success, and works to achieve community safety and well-being.  This is in part because our understanding about the factors, circumstances, and behaviors that drive probation revocations to jail or prison — including the role of technical violations and new criminal activity and what is considered in decisions to violate and/or revoke — remains limited.  We also know very little about how to respond to people on probation in ways that prevent new criminal activity without over-punishing less harmful behaviors or exacerbating racial and ethnic disparities....

With this in mind, in 2019 the CUNY Institute for State & Local Governance (ISLG) launched the Reducing Revocations Challenge (Challenge), a national initiative that aims to increase the success of those on probation by identifying, piloting, and testing promising strategies grounded in a robust analysis and understanding of why revocations occur. With the support of Arnold Ventures, over the past two years, the Challenge has supported research in 10 jurisdictions around the country to explore three key questions about local probation practices:

  1. Who is most likely to have a violation of their probation filed or have their probation revoked?
  2. Which types of noncompliance most often lead to probation revocation?
  3. What factors are driving these outcomes and what are the potential solutions? In each jurisdiction, the work was carried out by an action research team composed of a probation agency and a local research partner.
This brief summarizes the findings from the research work across jurisdictions. It begins with an overview of the Challenge and participating sites.  From there, we present key themes that emerged from the research in two subsections.  The first discusses trends that reaffirm prior learnings or assumptions about supervision revocations, especially with respect to factors and circumstances that influence who has probation violations filed and/or is revoked.  The second highlights new insights that emerged in key areas that have been more difficult to explore in the past despite being critical for enhancing success on supervision.  The brief ends with a discussion of policy and practice implications.

October 27, 2021 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 26, 2021

"How to be a Better Plea Bargainer"

The title of this post is the title of this new article authored by Cynthia Alkon and Andrea Kupfer Schneider recently posted to SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. 

The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.  The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

October 26, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 25, 2021

"Open Prosecution"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon L. Garrett, William Crozier, Elizabeth Gifford, Catherine Grodensky, Adele Quigley-McBride and Jennifer Teitcher. Here is its abstract:

The U.S. Supreme Court has recognized, where the vast majority of criminal cases are resolved without a trial, that: “criminal justice today is for the most part a system of pleas, not a system of trials.”  While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated; or discriminatory, self-interested, and arbitrary, with very little oversight or sunlight.

For years, academics and policymakers have called for meaningful plea-bargaining data to fill this crucial void.  In this Article, we describe opening the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining.  This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team.  We began collecting systematic data in two prosecutor’s offices, with a third to follow shortly.  We describe how the data collection system was designed, piloted, and implemented, and what insights it has generated.  The system developed can readily be adapted to other offices and jurisdictions.  We conclude by developing implications for prosecutors’ practices, defense lawyering, judicial oversight, and public policy.  Open prosecution has further constitutional and ethical implications, as well as still broader implications for democratic legitimacy.  An open prosecution approach is feasible, and, for the first time in the United States, it is in operation.

October 25, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, October 23, 2021

Making the case for bringing back parole in Illinois and elsewhere

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which in part lamented the federal sentencing system's decision to abolish parole back in 1984.  That essay came to mind as I read this new New York Times commentary authored by Ben Austen and Khalil Gibran Muhammad headlined "Let the Punishment Fit the Crime."  Here are excerpts:

Senate Bill 2333 would entitle people imprisoned in the state who serve at least 20 years to a parole review.  There are 2,500 people who have already spent two decades in prison in Illinois; many thousands more will eventually surpass that mark.  Under the proposed law, they wouldn’t be automatically released; a parole board would evaluate them, assessing the risks and benefits of restoring their freedom.

Both of us have visited and studied prisons in other Western countries, where 20-year sentences are considered extreme and are exceptionally rare.  In Germany, according to a 2013 Vera Institute of Justice report, fewer than 100 people have prison terms longer than 15 years; in the Netherlands, all but a tiny percentage are sentenced to four years or less.  In U.S. prisons, life sentences are routine. 

The pending Illinois law, if passed, might lead other states to follow suit, chipping away at one of the many pillars of mass incarceration. The legislation is a hopeful sign of changing sensibilities about people whose transformed lives have meant very little in the machinery of mass punishment.

Parole has a complicated history in this country, one that helps explain how we got into the crisis of mass incarceration and maybe how we might find a way out. When it began in the United States in the 19th century, parole was envisioned as a means of rehabilitating people in prison by encouraging good behavior with the possibility of early release.

By the 1970s, though, parole boards were under attack. Conservatives pointed to rising crime and civil disorder and denounced parole as overly lenient. They said discretionary release invariably sent dangerous people back onto the streets and encouraged more crime, since soft punishments failed as deterrents.

On the other end of the political spectrum, people behind bars were busy protesting prison conditions. They said parole boards lacked transparency and systematically discriminated against petitioners of color. They and their supporters believed that clearly defined fixed prison terms would be less susceptible to a parole board’s bias, racism and indifference, and that as a result these sentences would be shorter. They were wrong.

Sixteen states and the federal government eventually got rid of or severely curtailed their existing parole systems. Other states soon restricted parole eligibility to a small subset of their prison populations. But eliminating and restricting parole turned out to be the first of the sentencing reforms in the country’s punitive turn.

The floodgates opened onto mandatory minimums, truth-in-sentencing, three strikes and you’re out. More people were sentenced to prison, and the fixed terms grew longer and longer. The number of people in state and federal prisons ballooned to a peak of 1.6 million in 2009 from 200,000 in the 1970s. The numbers have fallen moderately since.

A large body of evidence has documented the destruction caused by long prison terms. Not only are people over 50 the fastest-growing segment in U.S. prisons, but they are also exposed to ever-greater mental and physical health risks with each passing year — a crisis made even more apparent during the Covid-19 pandemic.

One of us was a contributor to a 2014 National Research Council report on the creation and consequences of mass incarceration. The report recommends a return to a principle of parsimony, the sensible idea that a punishment should be only as severe as is required to prevent future offending. Too much punishment, the report noted, can have the opposite effect, when “justice institutions lose legitimacy.”

Many legal scholars and criminologists now agree that whatever prisons are supposed to accomplish — whether it’s incapacitation, accountability, rehabilitation or deterrence — it can be achieved within two decades. The nonprofit Sentencing Project argues that the United States should follow the lead of other countries and cap prison terms at 20 years, barring exceptional circumstances. The Model Penal Code of the American Law Institute, a century-old organization led by judges, law professors and legal experts, proposes reviewing long sentences for resentencing or release after 15 years.

In Virginia, there’s also a movement to reinstate parole eligibility. A bill in New York State would grant those 55 and older who have served at least 15 years the right to a hearing. Expanding parole consideration in Illinois and elsewhere won’t be enough to roll back the destructive effects of mass incarceration. But it would be an important step in continuing efforts to reduce prison numbers, and it could usher in other necessary changes.

October 23, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, October 22, 2021

Oregon Gov uses clemency power to give certain juve offenders opportunity for parole after non-retroactive statutory reform

As reported in this HuffPost piece, "Oregon Gov. Kate Brown (D) commuted the sentences of dozens of people convicted of crimes they committed as kids on Wednesday, potentially reducing their prison time by hundreds of years and marking major progress in a broader reform effort that recognizes people who committed crimes before they were adults have a unique capacity for change." Here is more (with links from the original):

Brown’s clemency order lists more than 70 people who committed crimes before they were 18 years old and are serving sentences of 15 years or more in prison.  They were selected because they were excluded from a 2019 juvenile justice reform bill that dramatically changed the way the state punishes people who commit crimes when they are kids.  Those individuals, many of whom were previously facing life sentences — some without the chance of parole — now have the opportunity to petition the state’s Board of Parole and Post-Prison Supervision for release after 15 years in prison.  Brown instructed the board to consider each individual’s age and immaturity at the time of the crime and whether they have subsequently shown maturity and rehabilitation.
The clemency order excludes individuals who are serving sentences for crimes they later committed as adults and those who have a release date of 2050 or later — although these individuals can still petition the governor for clemency.

The governor’s move comes months after a HuffPost story about Kipland Kinkel, one of Oregon’s most infamous juvenile offenders, and the ways his high-profile case has been used to justify extreme sentencing for other people who committed crimes when they were kids.  In 1998, when Kinkel was 15 years old and experiencing symptoms of a severe undiagnosed mental illness, he killed his mother, his father, two students at his school, and wounded 25 others.  He was sentenced to nearly 112 years in prison without the chance of parole.

With a projected release date of 2110, Kinkel is not part of Brown’s clemency order.  The 2050 cutoff in Brown’s order appears to be designed specifically to exclude him, although it does impact a handful of other people....

Brown’s clemency action is an effort to correct some of the sentencing inequities created by the state legislature with the non-retroactive reform bill....  Juvenile justice reform advocates praised Brown’s decision to give a second chance to people who have grown up and dramatically changed since the time of their crimes....

Brown outlined her clemency plan in a September letter to Oregon’s Department of Corrections in which she requested a list of names of people in its custody for crimes they committed as juveniles who were sentenced before S.B. 1008 went into effect and who met a set of criteria. 

“SB 1008 takes into account the fact that these youth are capable of tremendous transformation,” Brown wrote in the letter, citing the fact that many who commit crimes during their youth complete college degrees and treatment programs while in youth custody before they even age into adult prison. “For these reasons, I have no doubt that the above-referenced list will be comprised of many individuals who have demonstrated exemplary progress and considerable evidence of rehabilitation, and who — unfairly — did not benefit from the effects of SB 1008.”

Brown’s juvenile clemency plan is two-pronged, according to the September letter.  One part involves providing clemency that enables individuals who are serving a sentence of 15 years or more to get a parole board hearing — which she did on Wednesday.  The second part involves reviewing the sentences of people who were under 18 at the time of their crime and who will have served 50% of their sentences by next December.

For the roughly 200 people in that group, the governor’s office “will engage in an individualized review process to determine whether the youth has made exemplary progress and if there is considerable evidence of rehabilitation, as well as taking into account input from the [district attorney] and victims, if any,” Merah wrote in an email. “If the Governor determines that a commutation is warranted, the youth will be granted a conditional release.”  Both parts of Brown’s clemency plan exclude individuals who are currently in prison for a conviction they subsequently committed as adults.

October 22, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Alabama completes execution of intellectually disabled man 30 years after his robbery/murder

As detailed in this lengthy local article, an execution was completed in the Yellowhammer State on Thursday night bringing to a conclusion a capital case raising a host of modern legal issues.  Here are some of the details:

Alabama Death Row inmate Willie B. Smith III was executed by lethal injection Thursday night at William C. Holman Correctional Facility in Atmore, even as the state did not dispute that Smith had significantly below-average intellectual functioning, according to the U.S. Supreme Court.

The execution date was set by the Alabama Supreme Court last month and came after several months of delay, due to a U.S. Supreme Court ruling from February saying Smith could not be executed without his personal spiritual advisor present in the room with him.  That ruling came on the evening Smith was first set to be put to death, on Feb. 11.

Smith was sent to death row after being convicted of killing 22-year-old Sharma Ruth Johnson, the sister of a police detective, on Oct. 27, 1991 in Birmingham.  Prosecutors said Smith abducted Johnson at gunpoint from an ATM, stole $80 from her and later took her to a cemetery, where he shot her in the back of the head.

The execution was set to happen at 6 p.m. but did not start until shortly after 9:30 p.m. because the state was waiting on a ruling from the nation’s highest court.  Smith’s official time of death was 9:47 p.m....  The state allowed a personal pastor in the chamber, Pastor Robert Wiley, who appeared to pray with Smith and put hand on his leg at the beginning of the execution....

The U.S. Supreme Court denied Smith’s request for a stay of execution and petition for a writ of certiorari, or a request to review the case, at approximately 8:30 p.m.  Justice Sonia Sotomayor released a statement respecting the denial of the petition.  She said she shared the same concerns as a lower court judge, who “identified serious concerns with the way the ADOC has administered the Alabama Legislature’s directive to allow those on death row to choose nitrogen hypoxia as their means of execution.”...

Issues of Smith’s mental capacity have been brought up several times throughout the years-long appeals process.  Smith’s lawyers, Allyson R. du Lac, Spencer Hahn and John Palombi of the Federal Defenders for the Middle District of Alabama, said in a recent court filing that Smith has an IQ in or below the 70s and should have received help under the ADA to understand a form related to the selection of an execution method.  Previous appeals in Smith’s state case showed that a state expert put his IQ at 72; a defense expert placed it at 64.

In the 11th Circuit’s ruling, the court stated: “In making its determination, the district court found that: (1) Mr. Smith is a qualified individual with a disability, (2) Mr. Smith failed to demonstrate that he lacked meaningful access to the ADOC’s Election Form service, and (3) Mr. Smith did not request an accommodation from the ADOC or show that his need for an accommodation was so obvious and apparent that the ADOC should have known he required one.”...

Lawyers for the state have argued that Smith never gave any indication that he wanted to request nitrogen; but according to the defense attorneys, “(the state) clearly violated Mr. Smith’s rights when they failed to provide him with an accommodation when handing out the form in June 2018.”  The filing continues, “Mr. Smith has submitted an affidavit making clear that ‘[i]f he had understood the Election Form, [he] would have signed it and handed it in in June 2018.’”

In a different matter last month, the ADOC agreed to allow Smith’s pastor to hold his hand during the lethal injection -- a settlement made to end litigation over the issue.  The issue of allowing inmates’ personal spiritual advisors in the execution chamber has been a point of contention.  Before April 2019 the ADOC required its Christian chaplain to be in the execution chamber.  That policy was changed after a Muslim inmate, Domineque Ray, requested and was denied the presence of his imam (an Islamic spiritual advisor) when he died.  He was executed anyway.

October 22, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2)

Wednesday, October 20, 2021

"The policy lessons learned from the criminal justice system response to COVID-19"

The title of this post is the title of this notable new essay authored by Alex Piquero just published by Criminology & Public Policy.  Here is part of the essay's introduction (with cites removed):

Since the onset of the novel coronavirus, criminologists have researched how the virus and its policy responses have affected crime and criminal justice, with the most significant findings indicating: (1) a steady increase in specific forms of violence, including primarily homicides/community gun violence and domestic violence; (2) reductions or stability in virtually all property crimes, but the acceleration of certain types of offending, such as fraud and cybercrime, due in large part to increased reliance on the internet and related platforms; (3) the emergence of new crime types, such as public health violations for breaking COVID-19 safety protocols; (4) a reduction in prison and jail populations — especially in the first 6–9 months of the pandemic; (5) a rapid spread of viral infections in jails and prisons; (6) a substantial increase in opioid use and fatalities; (6) the creation of gaps in the delivery of needed medical and mental health screening and treatment; and (7) an initial reduction in police stops, citations, and arrests — particularly in the first few months of the pandemic as many departments pulled back on patrol and limited contact with the public in large part due to viral spread, lockdowns — leading to fewer persons out in public, and a lack of protective equipment.

These research efforts have been important in documenting changes in crime and the criminal justice response and have provided important baseline information to compare against as criminologists continue to track changes in crime in the COVID-19 era.  Yet, one of the glaring omissions from the research accumulated thus far — and not necessarily the fault of criminologists per se — has been the lack of policy-relevant discussion surrounding the effects of all-things-COVID on the criminal justice system.  This essay takes a step in that direction.

In the sections that follow, I highlight what was the nonexistent policy playbook and initial response by the various actors of the criminal justice system and the subsequent policy decisions and lessons learned as the system navigated the viral outbreak in real time with little — or constantly changing guidance — from state and federal officials.  Not only were communities ravaged by the virus — and the racial/ethnic health injustices brought to light, but so to were police, court, and correctional systems and personnel as many became infected, hospitalized, and died — all the while the wheels of the justice system continued at a slower pace (with respect to policing) and in some cases stalled or stopped altogether for a period of time (such as the court system).  Following this section, I turn to some of the early experiences as to how policing, courts, and corrections made decisions to adapt to the spread of the virus.  The essay closes with some lessons learned by criminal justice agencies, some policy considerations, and importantly how the COVID-19 pandemic in concert with calls for social and racial justice within the justice (and health) system(s) have hopefully moved the dial to reform and reimagine what criminal justice could look like and should like with respect to trust, legitimacy, accountability, and transparency.

October 20, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Will guilty pleas and apology reduce odds that Nikolas Cruz is sentenced to death for Parkland school mass murder?

The question in this post is prompted by today's events in a Florida courtroom covered in this CNN article headlined "Nikolas Cruz pleads guilty to murder charges and apologizes for Parkland high school massacre."  Here are excerpts:

Nikolas Cruz, the gunman who carried out the massacre of students and faculty members at Marjory Stoneman Douglas High School in February 2018, pleaded guilty in a Florida courtroom Wednesday to 17 counts of murder and 17 counts of attempted murder.  Cruz, 23, faces a minimum of life in prison and maximum of the death penalty, which will be decided by a jury in the upcoming sentencing phase of the trial.  The prosecution has said they plan to seek the death penalty.

In court, Cruz wore a collared shirt, black vest, face mask and large, thick-framed glasses. He stood at the court lectern and answered Judge Elizabeth Scherer's series of questions with a "yes ma'am" or "no ma'am," and assured her, "I know what's going on." He said he had depression and anxiety, and that he was experiencing anxiety in court, but he said he was able to proceed.

Cruz then responded "guilty" when each of the 34 charges were read to him. Afterward, he apologized to the victims in a short speech.  "I am very sorry for what I did, and I have to live with it every day.  If I were to get a second chance, I would do everything in my power to try to help others," he said. "I am doing this for you, and I do not care if you do not believe me.  And I love you, and I know you don't believe me, but I have to live with this every day, and it brings me nightmares and I can't live with myself sometimes, but I try to push through because I know that's what you guys would want me to do.

"I hate drugs, and I believe this country would do better if everyone would stop smoking marijuana and doing all these drugs and causing racism and violence out in the streets," he continued.  "I'm sorry, and I can't even watch TV anymore.  And I'm trying my best to maintain my composure, and I just want you to know I'm really sorry, and I hope you give me a chance to try to help others.  I believe it's your decision to decide where I go, and whether I live or die.  Not the jury's.  I believe it's your decision. I'm sorry."

The judge then asked Cruz if he understood that a jury, and not the victims' families, would have the legal power to decide his sentence, and he confirmed that he understood. "What I meant was I believe they should have the right to choose, the victims themselves, on whether I should take life or death," Cruz said.

He was then placed in handcuffs, fingerprinted and escorted from the courtroom.  Jury selection in the penalty phase is scheduled for January 4.

The plea comes more than three and a half years after the Valentine's Day shooting in Parkland, Florida, in which he killed 17 students and faculty members and injured 17 others in what is the deadliest high school shooting in US history.  A dozen law enforcement officers filled the courtroom Wednesday while media, victims, and the family of victims watched the proceedings, some of whom were seen wiping their eyes as the judge detailed the counts and penalties to Cruz.

Tony Montalto, the father one of the slain students, Gina Montalto, called Cruz's apology "ridiculous." "If he wanted to apologize, he shouldn't have murdered Gina and 16 other people that day," Tony Montalto told CNN. Asked about the prospect of the death penalty for Cruz, Montalto said, "We need to deprive these mass murderers of the notoriety they seek. . . . We need to remember the victims for the wonderful and vibrant people that they were.  I think he deserves as much of a chance as he gave my daughter and everyone else on February 14 of 2018."

In court the prosecution laid out the harrowing timeline of the shooting, which began when Cruz, then 19, grabbed his AR-15-style rifle and magazines and rode in an Uber to his former high school. There, he took out his rifle and loaded it, and when a student walked near, Cruz offered a warning. "You better get out of here," he told the student. "Something bad is about to happen." Cruz then wandered through the halls of the school and fired indiscriminately at various students and staff in hallways and classrooms, prosecutors said. He eventually left the school and was taken into custody several miles away....

Cruz's defense team had long ago offered a guilty plea in exchange for life in prison without the possibility of parole -- but only if prosecutors took the death penalty off the table. Prosecutors had rejected that, saying they were seeking the death penalty....

Cruz's guilty plea comes just after a $25 million settlement was reached between the Broward County School Board and 52 victims of the massacre, according to an attorney for some of the victims.  Attorney David Brill said the settlement of the lawsuit includes all of the families of the 17 who died, 16 of 17 victims who were shot but survived, and 19 victims who suffer from PTSD or other ailments.

Some prior related posts:

October 20, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, October 19, 2021

New report examines aftermath of Baltimore's no-prosecution policy for minor drug possession and prostitution

As reported in this new release, a "new report from researchers at Johns Hopkins Bloomberg School of Public Heath found that Baltimore’s no-prosecution policy for minor drug possession and prostitution, enacted at the start of the COVID-19 pandemic, led to fewer new low-level drug and prostitution arrests, almost no rearrests for serious crimes for those who had charges dropped, and fewer 911 calls."  Here is more:

The findings suggest the new policies did not result in increased public complaints about drug use or sex work, and that those who had charges dropped did not go on to commit serious crimes.

Baltimore State’s Attorney Marilyn Mosby announced that Baltimore would stop prosecuting low-level drug and drug paraphernalia possession and prostitution in March 2020, chiefly as an infection-reduction measure at the start of the COVID-19 pandemic.  A year later she announced that the policy would remain in place — even after the pandemic winds down — as a way of reducing the burdens on city police and on the poorer, predominantly Black city residents who are traditionally arrested for such crimes....

The report’s key findings, covering the 14 months following the policy change (April 2020 to May 2021), include:

  • An estimated 443 new drug/paraphernalia-possession and prostitution arrests were averted as a result of the new no-prosecution policy, 78 percent of which were averted in the Black community. This analysis was based on Baltimore Police Department arrest data.
  • Of the 741 people whose drug and prostitution charges were dropped, six—less than 1 percent—had new arrests for serious crimes during the study period. This analysis was based on Maryland Courts Judicial Information System data.
  • Calls to 911 about drug/paraphernalia and prostitution declined significantly in the post-policy change period.

The full report, titled Evaluation of Prosecutorial Policy Reforms Eliminating Criminal Penalties for Drug Possession and Sex Work in Baltimore, Maryland,” is available at this link.

October 19, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence"

The title of this post is the title of this notable new empirical paper now available via SSRN and authored by Keith A. Findley, Camila Angulo Amaya, Gibson Hatch and John Smith. Here is its abstract:

Critics of plea bargaining have long contended that it has an innocence problem — that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty.  While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining's innocence problem.

Utilizing original empirical data, this article begins to fill that void.  Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high.  We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals.  To address these questions, we collected a wide-range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010-2020.

In broadest terms, the data reveal that, in post-conviction litigation involving defendants with a high likelihood of being actually innocent and wrongly convicted, prosecutors offered plea bargains in 23 percent of the cases.  Moreover, when prosecutors made plea offers, the plea concessions they offered were uniformly steep.  Prosecutors on average offered to knock off close to half of the original sentences (45 percent off the original sentence).  The effect was that they offered to erase more than 90 percent of the total time the defendants had left to serve; the remaining years the defendants had to serve represented on average 6 percent of the original maximum imposed sentence.  Indeed, in 88 percent of the cases, the effective remaining years on the sentence derived from the plea offer was zero, as most prosecutors offered time served.  The data also show that in total, 56 percent of the defendants accepted these hard-to-refuse bargains.  Finally, in most cases in which defendants rejected plea offers prior to adjudication of their post-conviction motions, and in every case in which they rejected plea offers made after they had won a new trial, they nonetheless prevailed in obtaining relief from their convictions.

Examining these patterns through the lens of the shadow-of-the-trial theory of plea bargaining, our data provide preliminary evidence that some prosecutors do indeed bargain strategically in the shadow of a trial, discounting the maximum sentence sought by the perceived likelihood of conviction, and they do so even when the likelihood of conviction appears virtually nil.  Hence the data also offer support for the concern that some prosecutors are using their leverage in plea bargaining to preserve convictions in serious cases, even when they know the chances of conviction at trial are quite low and therefore the possibility of innocence is unusually high.  Finally, this article explores possible reforms to mitigate the harmful consequences of these patterns in a system ostensibly designed to seek the truth and protect the innocent.

October 19, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 17, 2021

"Doing Justice in Sentencing"

The title of this post is the title of this short new article by Michael Tonry now available via SSRN.  Here is its abstract:

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit.  The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance.  To people sentenced, their families, and others who love them it is devastatingly important.  Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

October 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Continuing capital commentary as SCOTUS considers Marathon bomber's capital process

In prior posts here and here, I rounded up press coverage just before and just after the Supreme Court heard oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed three and injured hundreds during the 2013 version of the Boston Marathon.  Not surprisingly, the SCOTUS argument has prompted a number of thoughtful folks to have thoughtful comments on the case and much that surrounds it.  Here is a partial round-up of some of this recent commentary:

From Erwin Chemerinsky, "Biden’s death penalty hypocrisy"

From Chris Geidner, "Supreme Court couldn't consider death penalty case if not for Biden's broken promise"

From Thaddeus Hoffmeister, "Tsarnaev Supreme Court appeal: Do unbiased jurors exist in an age of social media?"

From Karen J. Pita Loor, "The perplexing case of Biden, Tsarnaev and the death penalty"

From Amelia Wirts, "Death penalty can express society’s outrage – but biases often taint the verdict"

October 17, 2021 in Criminal justice in the Biden Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, October 15, 2021

"Sentencing Commission Data Tool Is Deeply Flawed"

The title of this post is the headline of this new Law360 commentary by Michael Yeager which provides an important and critical discussion of the US Sentencing Commission's new JSIN sentencing tool.  This piece develops and details some of the concerns flagged here when JSIN was first released, and here are excerpts from the piece:

In some respects, [JSIN] an improvement from the Sentencing Commission's annual reports and past data tools. For example, past annual reports have provided an average of all fraud sentences; that method lumps all frauds together, whether they involve $1 million or $100 million.

JSIN is more focused than that and thus closer to the guidelines calculation that judges must actually perform at sentencing. But the most important numbers that JSIN reports — the average and median sentences for a particular position on the sentencing table — are inflated by a series of choices to exclude large chunks of the commission's own dataset.

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Prior related JSIN posts:

October 15, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, October 13, 2021

SCOTUS argument suggests Justices likely to reinstate reversed death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

When the US Supreme Court back in March decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, a smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looks even smarter after today's Supreme Court argument where the Justices questions and comments revealed the predictable ideological split and strongly suggested that a majority of Justices will be voting to reinstate Tsarnaev's death sentence.

The headlines from various press and blog coverage reports on most of the essentials:

From CNN, "Supreme Court conservatives appear ready to endorse death sentence for Boston Marathon bomber Dzhokhar Tsarnaev"

From Crime & Consequences, "SCOTUS Appears Poised to Re-Instate Death Penalty for Boston Marathon Bomber"

From Fox News, "Boston Bomber case: Kavanaugh, Kagan clash in rare testy exchange over mitigating evidence"

From NBC News, "Supreme Court appears likely to allow death sentence for Boston Marathon bomber"

From SCOTUSblog, "Justices appear to favor reinstating death penalty for Boston Marathon bomber"

Interestingly, the second of the two questions presented in the case captured most of the Justices' attention as they explored "Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted."  Some of the questioning on this issue suggested that the Court might have to, or might want to, say something significant about the evidentiary rules that attend the penalty phase of a capital trial.  If they do speak to this issue broadly, the significance of the Tsarnaev case could extend beyond this defendant's awful crimes and ultimate punishment.

October 13, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

October 13, 2021 in Celebrity sentencings, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Making the case for deferred federal sentencing for individuals (like corporations)

The Hill has this notable new commentary by Joel Cohen, somewhat poorly titled "Why not defer individual jail sentences?," that develops the case for allowing federal defendants facing prison time to have a presentencing period to demonstrate reform and their true character.  Here are excerpts:

[S]trictly speaking, nothing in federal criminal procedure necessarily enables an individual to have the court postpone his sentence so that the judge, if so inclined, can consider two or three more years of personal growth and “turnaround” on the part of the defendant.

Oddly, by contrast, a corporate defendant can get such a benefit.  If a prosecutor accords an indicted corporate defendant a deferred prosecution agreement, the case typically is put on hold for months, maybe a year or more, so that the corporation can show the court that it is, indeed, “cleaning up its act.”  Perhaps, ideally, during that period it has established a corporate compliance program calculated to monitor the type of misconduct that got the corporation into trouble. Under the agreement, if approved by the court, the indictment typically would be fully dismissed when the monitoring period ends.

So, why isn’t something similar available for individual defendants?  I’m not suggesting an outright dismissal of a person’s case after an agreed-upon (somewhat court-monitored) period of “good behavior.”  Instead, I’m proposing that a defendant’s sentence be postponed (at the request of, or with the consent of, the defendant), with the judge receiving periodic, informal reports about the defendant’s ongoing conduct.  During this period, the sentencing judge becomes the defendant’s “probation officer” by being able to determine whether the person is walking the straight and narrow.

Is there a better means to determine if the defendant is truly being rehabilitated?  Not only that, doesn’t it also incentivize rehabilitation when the judge will continue to maintain the gavel for use after this period of sentence postponement ends?

To be sure, some defendants will run afoul of the judge’s beneficence in having granted such a continuance.  If so, however, the judge would be positioned to remand the defendant immediately to begin his sentence.  And that sentence likely would not be particularly lenient — maybe even more harsh than it otherwise would have been.  That’s the price a person should pay if given a second chance and he blows it.

Yes, the procedure proposed here would place added duties and time burdens on judges whose calendars already are overburdened, and likely for probation officers, too, if the judge decides to direct the probation department to periodically report the defendant’s progress.  Still, wouldn’t the judges who employ this procedure be making valuable contributions to criminal justice in helping to rehabilitate defendants and lowering the need for incarceration in an overloaded federal prison system?   Most importantly, the suspense period would give the defendant every impetus to straighten up and live a law-abiding life.

Yes, in some cases it might be painful for a defendant to wait two or three years for his “day of judgment,” not knowing if he will have satisfied the judge when sentencing day finally arrives.  The ball is in his court, though. He can opt out, or never ask his lawyer to request that the judge put the case on hold....

I did not initiate this idea in my imagination. U.S. District Judge Emmet Sullivan of the District of Columbia occasionally employs this “suspense” practice in cases where it makes sense to him.  And, as I understand it, he sometimes proposes it if an informed defendant affirmatively requests it.  It seems to be working.  I suspect it probably doesn’t require the government’s consent, although obviously that would be preferable. It’s something for other judges to think about.

October 13, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, October 12, 2021

SCOTUS to hear argument over First Circuit's reversal of death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Yesterday, the 2021 version of the Boston Marathon took place.  Tomorrow, the Supreme Court will hear oral argument in US v. Tsanaev to consider whether the First Circuit erred when reversing the death sentence given to the bomber who killed  three and injured hundreds during the 2013 version of the Boston Marathon.  (I have done dozens of posts on crimes and punishments of Dzhokhar Tsarnaev, and below are a few of the most recent ones.)

There is a lot of media coverage of the case as it gets to the Justices for oral argument, and here is a sampling:

From the AP, "Marathon bomber faces revived death sentence in high court"

From Courthouse News Service, "Fate of Boston Marathon bomber faces Supreme Court reckoning"

From Reuters, "Boston Marathon bombing victims split on death penalty in Supreme Court case"

From SCOTUSblog, "Justices to consider government’s appeal to reinstate death penalty for Boston Marathon bomber"

From Time, "Boston Marathon Bomber Supreme Court Case Exposes Split Between Biden and Justice Department on Death Penalty"

From WGBH, "Will The Supreme Court Reinstate A Death Sentence For Boston Marathon Bomber?"

A few many prior recent related posts:

October 12, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

What do we know about JSIN and its use in federal sentencing proceedings two weeks after its release?

In this post two weeks ago, titled "USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns," I reported on the release by the US Sentencing Commission of a new sentencing data tool for federal sentencing judges. The Judiciary Sentencing INformation (JSIN) data tool is described this way by the USSC:

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....
JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.

I mentioned in my prior post that JSIN seemed relatively easy to navigate and quite useful, but I also expressed concern that the JSIN tool was possibly constructed with built-in and systemic "severity biases" due to certain data choices.  I keep hoping some others might soon write about JSIN and the role it could or should play in federal sentencings, but to date I have seen no press coverage or any other commentary about JSIN.  I have heard some positive review from a few federal district judges, though that may just reflect the tendency of all thoughtful sentencing judges to find any and all additional sentencing data to be helpful to their work.

Given that well over 1000 persons are sentenced ever average week in the federal sentencing system, I am now wondering if the USSC or anyone else is collecting any data on whether and how JSIN is being used in current federal sentencings.  Are any probation offices including JSIN data in presentencing reports?  Are federal prosecutors and defense attorneys using JSIN data in sentencing briefs and arguments?  Are federal sentencing judges referencing JSIN data in their sentencing decision-making?

October 12, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Does Prez Trump's statement to clemency advocates to "get this guy home" constitute an enforceable commutation?

The question in the title of this post is the question explored in this recent lengthy Washington Post article discussing a notable new filing by lawyers representing James Rosemond.  The article is headlined "Trump granted hip-hop manager clemency but left him in prison, lawyers claim," and here are excerpts (with links to key filings):

The waning days of Donald Trump’s presidency saw a carnival of celebrities and those with personal connections to him jostling for clemency. Trump obliged many of them, granting pardons to rappers Kodak Black and Lil Wayne and longtime allies Stephen K. Bannon and Roger Stone.

And then there was James Rosemond, known as “Jimmy Henchman,” a once-major player in the hip-hop industry who represented artists such as Salt-N-Pepa, the Game, Akon and Brandy before he was condemned to nine life terms for drug trafficking and murder for hire.

For years, Rosemond’s attorneys and a cadre of celebrity advocates — including retired National Football League great Jim Brown and the actor Michael K. Williams, who died last month — had argued that Rosemond was unjustly convicted, campaigning for President Barack Obama and then Trump to grant him clemency.  Late last year, it appeared to Rosemond’s advocates that they had succeeded. 

On Dec. 18, Trump called Brown and his wife, Monique, according to legal affidavits signed by the Browns. “Let’s get this guy home for Christmas,” Trump told the staff in his office during that call, the Browns said.

By the end of the conversation, the Browns said, they had no doubt that Trump meant he was commuting Rosemond’s sentence. Rosemond’s representatives say that they were told his family should go pick him up the following week and that loved ones traveled to West Virginia to be there when he walked out of prison after a decade inside.  But he never emerged, they say.  The family returned home devastated, and Trump left office two months later.

The Browns’ affidavits are now central to a novel legal argument being advanced by Rosemond’s attorneys that speaks to the mad dash at the end of the Trump administration, when celebrity and influence injected even more uncertainty than usual into the unsettled, high-stakes law of presidential clemency.

In a petition filed Thursday afternoon in federal court in West Virginia, Rosemond’s attorneys claim that Trump’s conversation with Jim and Monique Brown constituted a public communication that he was commuting Rosemond’s sentence, which they said is all that is required to make the decision binding and irreversible.

“Rosemond is serving a sentence that no longer exists,” his attorneys write.  Though the 20-page petition cites obscure examples of informal presidential clemency decrees dating to President Abraham Lincoln’s handling of Civil War deserters, Rosemond’s attorneys acknowledge in the document that “this exact situation is unprecedented — it does not appear to have happened in the history of the United States.”

In a statement to The Washington Post, Rosemond attorney Michael Rayfield said that despite the lack of precedent, “it’s clear to me that Jimmy doesn’t belong in prison for another day.”...

Scholars of presidential clemency interviewed by The Post were split on whether Rosemond’s legal argument has merit.

Mark Osler, a professor of law at the University of St. Thomas in Minnesota who has argued for changes to the presidential clemency process, said that the argument “presents a fascinating question that hasn’t been addressed in modern times.”

“They’ve got a good point, which is that the Constitution does not set out a method to the granting of clemency,” Osler said.  While in other cases, presidents, including Trump, signed pardon warrants, “there’s no statute or constitutional provision that requires that.”

Margaret Love, who served as U.S. pardon attorney from 1990 through 1997, said that the petition, as described to her by a reporter, touches on “really interesting” questions about the legitimacy of a pardon or commutation only uttered by a president.  “I believe there’s no reason in principle that a president should have to write something down,” Love said.

But she said she believed Trump’s language, as she gleaned from the Browns’ affidavits, did not amount to a clear declaration that he was commuting Rosemond’s sentence.  “While the president indicated an intention to do the grant, it does not sound to me like he actually did the grant,” Love said.

October 12, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, October 11, 2021

Terrific review of some ugly realities of stash-house stings

I hope readers recall the series of posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  Those posts (which are linked below with a few others) provides one look at one ugly part of the drug war represented by stash-house sting.  And now Rachel Poser has this great lengthy article in the newest issue of The New Yorker discussing the stash house sting story as part of the broader realities of undercover law enforcement operations.

The article is worth a full read, and its title highlights its themes: "Stash-House Stings Carry Real Penalties for Fake Crimes; The undercover operations seem like entrapment, but their targets can receive long sentences — sometimes even harsher than those for genuine crimes."  Here is a small excerpt: 

In the past four decades, sting operations of all types have become a major part of law enforcement in the United States, and stash-house stings are perhaps the most extreme example of this trend, because of the harsh penalties they carry. They can result in longer sentences than real crimes of a similar nature....  No judge is required to sign a warrant, and law-enforcement officials do not have to provide any evidence that a person is already engaged in criminal activity before initiating an undercover investigation....

The A.T.F. claims that stash-house stings catch established crews who already have the means to commit armed robbery. “If we wanted to go out and cast a wide net, we could do one of these a week — that’s not what we want to do,” an agent said in 2014, according to the Los Angeles Times.  “This technique is designed to take trigger-pullers off the streets.” Through the years, the A.T.F. has targeted many men with long and violent criminal histories, some of whom have shown up on the day of the robbery armed with assault rifles and bulletproof vests....

Nevertheless, the agency has also ensnared low-level offenders, and even people with no criminal records.  I reviewed thousands of pages of court transcripts from more than a dozen stash-house cases and found that many of the so-called crews were haphazard groups of family members, acquaintances, or strangers thrown together at the last minute, as targets scrambled to find willing participants. Suspects in these cases frequently asked the undercover agents for help distributing cocaine or obtaining guns....

As large numbers of stash-house cases made their way to court, some judges began to voice concern about the A.T.F.’s tactics.  “In this era of mass incarceration, in which we already lock up more of our population than any other nation on Earth,” Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals, wrote in 2014, “it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them.”  But the difficulty of proving entrapment, combined with mandatory minimums for drugs, left judges little choice but to affirm the convictions.  “You guys are dragging half a million dollars through a poor neighborhood,” William Fletcher, another Ninth Circuit judge, said the same year.  “Now, the law’s the law and I’m going to follow it, but I think you guys are making a mistake.”

Some prior related posts:

October 11, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, October 09, 2021

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

October 9, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines | Permalink | Comments (2)

Friday, October 08, 2021

With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?

As reported in this Bloomberg piece, the first jury trial in the Varsity Blues prosecutions ended this afternoon: "Two parents accused of cheating to get their children into elite U.S. universities were found guilty of all charges, in the first trial stemming from a national college admissions scandal that ensnared dozens of families."  Here is more:

Former Wynn Resorts Ltd. executive Gamal Abdelaziz, 64, was convicted Friday of two counts of conspiracy by a Boston jury after prosecutors alleged he paid $300,000 in bribes to get his daughter into the University of Southern California as a purported basketball player.

Private equity investor John B. Wilson, 62, was convicted of conspiracy, bribery, fraud and filing a false tax return after prosecutors alleged he paid more than $1.2 million in bribes to get his son into the University of Southern California and his twin daughters into Stanford and Harvard as star athletes.

After a three-week trial, the jury deliberated for about 11 hours before rendering the verdict. Abdelaziz and Wilson will be sentenced in mid-February. For both men, the most serious charge carries a maximum prison sentence of 20 years.

The verdict is a victory for prosecutors who charged 57 parents, coaches and others for taking part in the alleged scheme, which involved doctoring entrance exam scores, faking athletic prowess and bribery to gain seats at universities. An FBI sting unveiled in March 2019 swept up several prominent figures, including “Desperate Housewives” star Felicity Huffman and former Pimco chief executive Douglas Hodge. The case unfolded as the nation debated questions of privilege and inequality.

Thirty-three of the parents have pleaded guilty, with prison sentences ranging from two weeks to 9 months. Former U.S. attorney for Massachusetts Andrew Lelling, who oversaw the case, said he hoped the dozens of jail sentences would deter would-be scammers. He acknowledged it wouldn’t change what he said was parents’ unhealthy obsession with colleges as brands.

During the trial, prosecutors alleged that both Abdelaziz and Wilson had worked with college counselor William “Rick” Singer, the admitted mastermind of the scheme. The U.S. said both paid Singer to guarantee a “bulletproof” way of getting their kids into elite colleges. Prosecutors called 14 witnesses and showed jurors scores of emails they said was proof both men knew and understood Singer’s plan....

The government never called Singer, who proved a problematic cooperator. He kept some of the money parents paid him, tipped some off about the investigation and erased about 1,500 text messages from his mobile phone. He made notes saying federal agents wanted him to “bend the truth” when drawing the parents out and “retrieve answers that are not accurate.” Lawyers for both defendants assailed Singer as a con man who duped them into believing their funds were legitimate donations going to schools or sports facilities....

Four more parents are due to go on trial next year. One father was pardoned by former president Donald Trump.

I have done numerous posts about some of the defendants who were among the first to plead guilty and received relatively short sentences in this high-profile college admissions scandal (some of those posts are linked below).  I have not closely followed some of the more recent sentencings, but the question in the title of this post highlights why I will have extra interest in how Abdelaziz and Wilson are treated by both the Justice Department and the sentencing judged.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.  From a quick scan, it does not appear that DOJ has sought a sentence in any of the plea cases of more than 18 months in prison; the longest imposed sentence has been nine months. 

I would guess that the DOJ sentencing recommendations for Abdelaziz and Wilson will longer than 18 months, but how much?  Does the high-profile nature of this case make it a bit less likely that DOJ will seek to go hard after these defendants, who seem like so many others save for their decision to test the government at a trial?  (The amount of money and number of kids involved in the Wilson case may the the reason DOJ will cite for a longer recommended term.)  In addition to wondering about DOJ recommendation, of course, it will be interesting to see how the sentencing judge decides to follow the requirement in 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."   It seems we have to wait until 2022 for final answers to these question, but I welcome speculation in the comments.

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

October 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Thursday, October 07, 2021

"Criminal Justice Secrets"

The title of this post is the title of this notable new paper authored by Meghan Ryan. Here is its abstract:

The American criminal justice system is cloaked in secrecy.  The government employs covert surveillance operations.  Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence.  Juries convict defendants on secret evidence.  Jury deliberations are a black box.  And jails and prisons implement clandestine punishment practices.   Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings.   Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns.  The accumulation of secrecy and the aggregation of these concerns create a real constitutional problem.

October 7, 2021 in Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, October 06, 2021

"Ring and Hurst Retroactivity: Deconstructing Divergent Doctrines"

The title of this post is the title of this recent article from Melanie Kalmanson and Nathan Molina available via SSRN.  Here is its abstract:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each opinion clarified capital defendants’ rights under the Sixth Amendment.  While the new rules announced in the opinions seemed clear at the time, courts have grappled with how to apply Ring and Hurst — specifically to defendants whose sentences were final when the opinions were issued. Courts have diverged on whether the new rules announced in Ring and Hurst apply retroactively.  This Article attempts to unravel the confusion surrounding why courts across the country have reached differing conclusions about whether these landmark decisions should apply retroactively.

Ultimately, this Article explains that the case law regarding retroactive application of Ring was mostly consistent. It was after the U.S. Supreme Court decided Hurst that four points of confusion arose surrounding retroactivity: (1) Was Hurst a direct result of Ring?  If so, should it apply retroactively?  (2) What role did the Eighth Amendment play in both Ring and Hurst?  (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?  (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense?  By exploring and explaining these sources of confusion, this Article aims to help clarify the broader landscape of modern capital sentencing jurisprudence.

October 6, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Speeding While Black: Black Motorists Face More-Serious Charges for Excessive Speeding than White Motorists Do"

The title of this post is the title of this short new research brief from RAND, which presents these key findings: 

In 25 U.S. states, motorists accused of excessive speeding can face either a criminal misdemeanor or a traffic infraction, and the charge is at the discretion of law enforcement officers and the courts.  Using data on speeding violations in 18 Virginia counties over a nine-year period, researchers found large racial disparities in who was convicted of a misdemeanor.

Black motorists cited for speeding were almost twice as likely as White motorists to be convicted of a misdemeanor when their speed was in the range that qualified for the more serious charge.

Whom Officers Charged Explained 55% of the Disparity: Among cited motorists speeding at an excessive level, Black motorists were more likely than White motorists to be charged with a misdemeanor instead of an infraction....

Whom Courts Convicted Explained 45% of the Disparity: Among motorists charged with a misdemeanor by law enforcement, Black motorists were more likely than White motorists to be convicted of a misdemeanor by the court.

The full 73-page RAND research report on which this brief is based, titled "Racial Disparities in Misdemeanor Speeding Convictions," is available at this link. Here is part of its initial summary:

Overall Racial Disparity

Among motorists cited for speeding in a range that qualified for a misdemeanor, Black motorists were almost twice as likely as White motorists to be convicted of a misdemeanor. White motorists were convicted of a misdemeanor 19 percent of the time, and Black motorists were convicted 36 percent of the time. 

Significant racial disparities were present at both the law enforcement and the court stages.  We found that 55 percent of the overall racial disparity in conviction rates could be explained by what happened at the law enforcement stage (i.e., by whom law enforcement charged with a misdemeanor), and the remaining 45 percent of the disparity was explained by what happened at the court stage (i.e., by whom the court convicted of a misdemeanor).

Racial Disparities at the Law Enforcement Stage

The county in which a motorist was cited explained almost half of the racial disparity in whom law enforcement charged with a misdemeanor.  Further analyses indicated that location explained such a substantial proportion of the overall disparity at this stage because law enforcement officers offered fewer charge discounts overall in the counties in which Black motorists made up a larger percentage of cited motorists.  We were not able to determine whether there was a race-neutral reason for why enforcement was stricter in these counties.

Almost half of the racial disparity in whom law enforcement charged with a misdemeanor was unexplained by any of the case characteristics that we could control for.  This remaining racial disparity might reflect either disparate treatment by law enforcement officers or underlying racial differences in omitted variables.

Racial Disparities at the Court Stage

About four-fifths of the racial disparity in whom the court convicted of a misdemeanor could be explained by observable case characteristics. In our study, one of the primary reasons that racial disparities occurred at the court stage was because Black motorists were significantly less likely than White motorists to attend the required court appearance to adjudicate a misdemeanor charge.  Although there are several potential policy options to address this — including text message reminders or the adjudication of cases through online platforms — the optimal option will depend on first understanding why this racial difference in court appearance rates occurs.  Another key reason that Black motorists were more likely to be convicted of a misdemeanor at the court stage was that they were less likely to have a lawyer present at their court appearance.  Having an attorney present significantly lowered the likelihood that a motorist was convicted of a misdemeanor, but in Virginia, attorneys are not provided by the court for these violations and must be retained at the motorist’s expense.

October 6, 2021 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Tuesday, October 05, 2021

Wooden it be remarkable if the Constitution again has something to say about applying ACCA?

For some reason, the Supreme Court's Wooden case concerning proper application of the Armed Career Criminal Act prompts me to make silly post titles.  My prior recent post, "Wooden, SCOTUS on the ACCA, not so free and easy," riffed poorly on song lyrics, while today I am trying a bad pun.  The question within the punny title here is driven by the fact that the Supreme Court has previously blown up part of ACCA based on Fifth Amendment vagueness problems (Johnson from 2015) and has also shaped its application of the statute based on Sixth Amendment jury right worries (Shepard from 2005).  So, perhaps unsurprisingly, during SCOTUS oral argument yesterday in Wooden, a number of Justices raised both Fifth and Sixth Amendment concerns about  courts having to figure out the reach of ACCA's extreme 15-year mandatory minimum for unlawful gun possession based on just whether and when a defendant on a prior crime spree has committed predicate offenses "on occasions different from one another."

I am disinclined to make bold predictions after listening to the oral argument, though I am tempted to predict that the defendant will prevail and the question is going to be on what ground(s). I reach that view because even Justice Alito seemed to be struggling to figure out how to give meaningful content to a key phrase that determines at least five years of federal imprisonment.  Here are a few choice quotes from Justice Alito: "This seems to me to be a nearly impossible question of statutory interpretation because the term 'occasion"' does not have a very precise meaning.";  "I have no idea what an occasion is or what a criminal opportunity is or what a criminal episode is."  If Justice Alito cannot come up with a pro-prosecution reading of the applicable statute, I doubt other Justices will be able to do so -- especially because many of the other Justices who generally tend to favor the government also tend to be fans of the Fifth and/or Sixth Amendment doctrines in play in this case (I am thinking here of the Chief Justice as well as Justices Thomas and Gorsuch).

For some other views on the argument, here is a round up of some of the press coverage I have seen:

From Bloomberg Law, "Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal"

From Courthouse News Service, "Burglary of many units in one facility poses counting challenge at sentencing"

From Law360, "Justices Dubious About Feds' 'Career Criminal' Interpretation"

From SCOTUSBlog, "A hypothetical-filled argument proves how tricky it is to define an 'occasion'"

October 5, 2021 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 04, 2021

SCOTUS releases first big order list of October Term 2021 ... with little of particular sentencing note

It is the first Monday in October, which means SCOTUS gets its first big day of the new Term started with this big order list full of a whole lot of denials of certiorari in cases that stacked up through the summer.  As noted in this prior post, the Justices released a short order last week in which it granted cert in a handful of new cases (including a crack resentencing case).  So, the new order list is just a few GVRs, more cert denials than I can count, and also a few statements by Justices Breyer and Sotomayor concerning a few criminal case cert denials.

Notably, especially because SCOTUS is hearing another ACCA case this morning, the case prompting the most GVRs on this new SCOTUS order list is the Borden ACCA case from last term (basics here).  In addition, one of the statements from Justice Sotomayor is in an ACCA case from the Sixth Circuit.  The Armed Career Criminal Act is clearly that confusing federal law that is the ugly jurisprudential gift that keeps on giving.

In this post last week, I flagged some notable sentencing issues on SCOTUSblog's "Petitions to Watch."  It appears that cert was denied in roughly half of the cases listed in that prior post, but the other cases do not appeal to be mentioned on this first order list.  If those other cases have been relisted for more consideration by the Justices, that bodes well for a few more notable sentencing cases being added to the SCOTUS docket this Term.  As always, stay tuned.

UPDATE: Over at Crime & Consequences, Kent Scheidegger has a brief criminal-justice review of the order list today titled "The Long List from the Long Conference"

October 4, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, October 03, 2021

Split Tenth Circuit panel upholds constitutionality of Colorado's indefinite sentencing of sex offender for 37 years

A helpful reader made sure I did not miss the interesting split panel ruling last week by the Tenth Circuit in Wimberly v. Williams, No. 20-1128 (10th Cir. Sept. 29, 2021) (available here). The majority opinion starts by setting out the essence of the case of the panel's ruling:

In 1984, Mr. Bruce E. Wimberly pleaded guilty to first-degree sexual assault.  The Colorado trial court accepted his plea and considered the sentencing options. One option was a conventional sentence: a determinate prison term up to 24 years. But the Colorado Sex Offenders Act of 1968 provided a second option: an indeterminate term of confinement lasting anywhere from one day to life imprisonment.  The court chose the second option, made additional findings required by the statute, and imposed an indeterminate term of confinement ranging from one day to life imprisonment.

More than 24 years have passed.  With passage of this time, Mr. Wimberly argues that the Constitution requires his release because he didn’t receive a new hearing at the end of the 24-year determinate term (that the trial court chose not to impose).  Without a new hearing, Mr. Wimberly claims that his continued confinement violates his rights to equal protection and due process.

The federal district court rejected Mr. Wimberly’s arguments, and so do we.  The state trial court provided adequate procedural safeguards when imposing the indeterminate term of confinement, and that term could last anywhere from a single day to the rest of Mr. Wimberly’s lifetime.  The State thus had no constitutional duty to provide a new round of procedural safeguards 24 years into Mr. Wimberly’s indeterminate term.

Judge McHugh dissents, arguing that Colorado functionally subjected the defendant to an unconstitutional form of civil confinement in an opinion that starts this way:

Petitioner-appellant Bruce E. Wimberly has been imprisoned for over 37 years, which is more than a decade longer than the maximum permissible sentence for his underlying crimes.  Over this past decade, Colorado has denied Mr. Wimberly the procedural protections it affords to civil committees in its custody.  The majority sees no constitutional problem with this; but I do. I therefore respectfully dissent.

The majority’s conclusion stems from its premise that “it doesn’t matter whether we call this a sentence or a criminal commitment.” Maj. Op. at 9.  I reject this premise.  Mr. Wimberly is presently confined under the Colorado Sex Offenders Act of 1968 (“CSOA” or the “Act”), which, in a section titled “Indeterminate commitment,” provides that courts “may, . . . in lieu of the sentence otherwise provided by law, commit a sex offender to the custody of the [Department of Corrections] for an indeterminate term having a minimum of one day and a maximum of his or her natural life.” Colo. Rev. Stat. § 18-1.3-904 (emphasis added). In my view, both U.S. Supreme Court precedent and Colorado state law support the conclusion that the CSOA provides for a scheme of criminal commitment, not sentencing.

From my premise that Mr. Wimberly is serving a criminal commitment, I further conclude Mr. Wimberly’s present confinement violates the Equal Protection Clause of the Fourteenth Amendment.

October 3, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wooden, SCOTUS on the ACCA, not so free and easy

The title of this post is my not-so-clever way of connecting the Supreme Court's new-Term opening case on the Armed Career Criminal Act to a depressing CSN&Y song.  The lyrics of the song "Wooden Ships" are only a bit more opaque than the language that SCOTUS has to sort out in Wooden v. US concerning the proper application of the severe sentencing mandatory minimum of the Armed Career Criminal Act.  Daniel Harawa at SCOTUSblog has a full preview of the case in this new post titled "What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer."  Here is an excerpt (with links from the original):

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act....

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum.  To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions.  Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes.  To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.”  Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government.  It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.”  To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.”  Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case.  Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.  The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

October 3, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

More great Inquest materials, including critical overview of federal drug control history

I hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so very blogworthy.  Since my last posting, the site has posted these great new reads:

From Sharlyn Grace, "‘Organizers Change What’s Possible’: Before bold, decarceral changes can become a reality, community organizers tirelessly move the policy needle in other ways. Here’s how they did it in Illinois."  

"‘We Are Men’: On the 50th anniversary of a flashpoint of the American penal system, the cries of Attica still resonate today."

From Patricia Richman & Diane Goldstein, "Follow the Science: Federal law enforcement has long called the shots in the field of drug scheduling. But in the case of fentanyl analogues, Congress has a chance to lead — by doing nothing."

The last of these pieces provides an especially effective account of the federal government's "50-year campaign to tilt the balance in drug-control decision making away from science and towards enforcement, criminalization, and incarceration."  Here is a taste (with links from the original):

Since the dawn of modern drug policy, the United States has pretended to hew to a dual approach to illicit drugs, one that emphasizes law enforcement and public health in roughly equal measure.  That duality is a farce: Federal funding for enforcement has historically dwarfed public health and other demand-reduction strategies, and 50 years of the same approach to drug policy have shown that the whole enterprise has been a spectacular failure.

To this day, headlines still abound with reported large-scale drug seizures and ever-present arrests, but none of this has reduced the demand that drives the supply.  The overdose crisis, which has run parallel to the war on drugs for decades, is “the clearest indictment so far of the failure of prohibition to curb drug use,” as experts in drug policy recently put it. Meanwhile, tens of millions of Americans continue to struggle with substance-use disorder and its consequences.  And enforcement policies have come at an unfathomable cost, sending far too many young men of color to crowd our prisons, leaving broken families and communities in their wake.

October 3, 2021 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 30, 2021

Examining "life-or-death lottery for thousands of federal inmates" from compassionate release

Ai2html-graphic-desktop.93a75d10This lengthy new CNN article, Headlined "Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic," takes a deep dive into the realities of compassionate release processes and outcomes. Here are excerpts:

Judge Danny Reeves ... has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves' district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period -- including some for inmates with far less serious medical conditions.... [The image shows darker colors based on percentage of motions for compassionate release that were granted, by judicial district.]

Federal judges in all of these districts are applying the same laws, which allow compassionate release in "extraordinary and compelling" cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates' vaccination status as a reason to oppose their release. "Judges are looking at the same law and policy but interpreting it differently," said Hope Johnson, a researcher with the UCLA School of Law who's studied compassionate release cases. "There's an arbitrariness in the way these decisions are being made."...

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take "the pernicious effect of Covid" into account in deciding compassionate release cases. "You need a national standard," Breyer told CNN, adding that without one, "it creates a vacuum and it creates uncertainty, and most importantly it creates disparity."

September 30, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, September 28, 2021

USSC releases interesting (but problematic?) new JSIN platform providing data on sentencing patterns

Jason-voorhees-friday-the-13th_1I had heard rumors that the US Sentencing Commission was working on a new sentencing data tool for federal sentencing judges, and today the USSC unveiled here what it calls the Judiciary Sentencing INformation (JSIN).  Here is how the USSC generally describes JSIN (which is called "jason" in the helpful video the USSC has on its site):  

The Judiciary Sentencing INformation (JSIN) platform is an online sentencing data resource specifically developed with the needs of judges in mind.  The platform provides quick and easy online access to sentencing data for similarly-situated defendants.  JSIN expands upon the Commission’s longstanding practice of providing sentencing data at the request of federal judges by making some of the data provided through these special requests more broadly and easily available....

JSIN provides cumulative data based on five years of sentencing data for offenders sentenced under the same primary guideline, and with the same Final Offense Level and Criminal History Category selected.  

This all sounds great and interesting, and JSIN seems relatively easy to navigate and quite useful until one notices these notable data choices spelled out in the FAQ provided by the USSC (with my emphasis added):

After excluding cases involving a §5K1.1 substantial assistance departure, JSIN next provides a comparison of the proportion of offenders sentenced to a term of imprisonment to those sentenced to a non-imprisonment sentence....

JSIN reports the average and median term of imprisonment imposed in months for cases in which a term of imprisonment was imposed. Probation sentences are excluded.

Though I am not a data maven, I can understand the general logic of excluding the 5K and probation cases from the JSIN data analysis. But, perhaps because I am not a data maven, I greatly fear that these data exclusion choices result in the JSIN platform being systematically skewed to report statistically higher average and median terms of imprisonment.  For example, if 94 imprisonment cases have an average prison term of, say, 50 months and 6 more cases were given probation, I think the true average sentence is 47 months, but JSIN is seemingly built to report an average of 50 months.  Though less predictable, I fear the exclusion of 5K cases also may create a kind of severity bias in the data reporting.

IN addition, I did not see any way to control for the application of mandatory minimum statutes, which also serve to skew judicial sentencing outcomes to be more severe.  If a case have a guideline range of 30 for a first offender, meaning a range of 97-121 months under the guidelines, but a 10-year mandatory minimum applies, the judge is duty-bound to impose a sentence of at least 120 months even if he might want to give 97 months or something a lot lower.  If that sentence of 120 months is treated in the averages like every other sentence, it looks like the judge wanted to give the top of the guideline range even though he gave the lowest sentence allowed by law.  In other words, without controlling for the distorting impact of mandatory minimums, these averages may not really reflect judicial assessments of truly justified sentencing outcomes but rather averages skewed upward by mandatory minimums.

I am not eager to beat up on the USSC for creating a helpful and easy-to-use data tool and for making this tool accessible to everyone online.  And I am hopeful that the exclusions and mandatory minimum echoes may only impact the data runs in relatively few cases and only a small amount.  But even if the impact is limited, I think it quite worrisome if this JSIN tool has a built-in and systemic "severity biases" due to its data choices.  If it does, when hear about JSIN, I am not going to imagine the heroic Jason Bourne, but rather the nightmarish Jason Voorhees.

September 28, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)