Thursday, October 17, 2019

"Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles"

The title of this post is the title of this notable new report coming from folks at UCLA.  This webpage provides this overview of the report's coverage:

Work, Pay, or Go to Jail: Court-Ordered Community Service in Los Angeles is the first study to analyze a large-scale system of court-ordered community service in the contemporary United States.  It finds that court-ordered community service functions as a system of unregulated and coercive labor, which worsens the effects of criminal justice debt and displaces paid jobs.

Among other discoveries, the report finds:

  • Over 100,000 people in LA County register to perform mandated community service each year.  Because they are classified as volunteers, workers do not receive wages or labor protections from safety hazards, discrimination, or harassment.
  • Workers face widespread barriers to completing their community service.  Over two thirds of people from criminal court and about two in five from traffic court did not complete their hours in time.  Their inability to finish often led to penalties that court-ordered community service was established to avoid.
  • Community service annually supplants approximately 4,900 jobs in LA County, replacing 1,800 positions in the government sector alone.

Report authors recommend rolling back the threats of jail and court debt that force people into community service; expanding alternative sanctions that do not rely on forced, extractive labor; and transforming punitive mandatory community service into economic opportunity through paying jobs.

October 17, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, October 16, 2019

Usual suspects playing usual roles in Malvo argument over juve LWOP sentencing

In recent SCOTUS history, Eighth Amendment cases in the Supreme Court tended to be pretty predictable with certain Justices as regular votes for defendants, others as regular votes for the state, and Justice Kennedy (and sometimes the Chief Justice) being the key swing voter.  But Justice Kennedy is now gone, and it appear from this SCOTUS review of the oral argument in Mathena v. Malvo that Justice Kennedy's replacement, Justice Kavanaugh, may be slipping into the swinger shoes:

Kavanaugh asked both Heytens and Spinelli about the broader question of how courts should approach sentencing of juveniles.  If Miller and Montgomery require the sentence to consider a defendant’s youth to determine whether he is incorrigible (and therefore should be sentenced to life in prison without parole) or instead simply immature (and therefore should have at least the possibility of parole), Kavanaugh asked, would that requirement be satisfied by a discretionary regime that includes the defendant’s youth among the factors that the sentence must consider or that allows the defense counsel to raise the issue?  That proposal seemed to draw support from an array of justices, including Kagan, Justice Sonia Sotomayor and perhaps even Chief Justice John Roberts.

Over at Crime & Consequences, Kent Scheidegger has this accounting of possible head-counting:

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing.  I would be surprised if she has a majority for that.  I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery.  I doubt they have a majority for that.  Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing.  The Fourth Circuit assumed that was correct.  They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

The full transcript of the argument is available at this link.

October 16, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Another LWOP federal drug sentence reduced under § 3582(c)(1)(A) after FIRST STEP Act

Regular readers may already be tired of many prior posts in which I have made much of a key provision of the FIRST STEP Act that now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  But I continue to see value in highlighting developing jurisprudence under this provision largely because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

Last week, I flagged in this post a notable recent ruling in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), which rejected a § 3582(c)(1)(A) motion to reduce an extreme sentence for a federal drug offender.  Today, thanks to seeing this press report headlined "Judge in Oregon grants compassionate release for 76-year-old man serving life sentence for drug conspiracy," I can report on a successful § 3582(c)(1)(A) motion to reduce an extreme (LWOP) sentence for a federal drug offender.  The ruling US v. Soears, No. 3:98-cr-0208-SI-22, 2019 WL 5190877 (D. Ore. Oct. 15, 2019), is well described in the above-linked press piece:

A judge has ordered the release of a 76-year-old man who was sentenced to life and served nearly 21 years behind bars for running a large cocaine distribution ring, finding he meets the “extraordinary and compelling’’ reasons for compassionate release.

Despite objections from prosecutors, U.S. Judge Michael H. Simon found Adolph Spears Sr. suffers from potentially terminal health problems and is no longer a danger to the community. "In light of the age of Spears’ previous convictions, Spears’ age, and Spears’ physical and medical condition, the Court does not find that at this time Spears poses a significant risk to the community," Simon wrote in a 13-page opinion Tuesday.

The judge’s ruling is a direct result of changes to federal law from a criminal justice bill called the First Step Act, which passed late last year and allows federal courts to directly reduce sentences if an inmate meets the criteria for compassionate release....

Because of his medical problems, Spears was moved in May from the federal prison in Sheridan to the Butner Medical Facility in North Carolina. "While he has been at Butner, family members have made regular cross-country visits to see him, believing that each one may be the last," his defense lawyer Lisa Ludwig wrote to the court. "Allowing him to spend the time he has left being cared for by the family who loves him will be an act of compassion to Mr. Spears, but also to the family who cares so deeply for him."

Spears has multiple chronic serious medical ailments, a limited life expectancy and depends on a wheelchair to get around, according to one of his medical experts. He was diagnosed with an aggressive form of prostate cancer in June 2018. He also suffers from poorly controlled diabetes, cataracts, pain from spinal surgery, chronic kidney disease, limited mobility and difficulty swallowing. Three of his daughters, a daughter-in-law and granddaughters have offered to house Spears if he’s released and provide medical and financial support.

Spears submitted his release request to the prisons bureau on Sept. 13, the same day he filed a motion with the court. On Sept. 30, the prisons bureau denied Spears’ request, and said he could appeal or wait until 30 days after his initial request was made to file a motion with the court. The judge said he waited until Tuesday, more than 30 days after Spears made his request to the prisons bureau, to consider the motion.

The judge said Spears’ deteriorating physical health met the requirements for compassionate release, and said it appeared that the federal prisons bureau failed to consider anything beyond whether Spears had a terminal illness. The U.S. probation office, at the judge’s request, approved the home of one of Spears’ daughters for his release, finding her suitable as his caregiver.

Prosecutors had argued that Spears remains a danger, largely because he was convicted of a significant drug conspiracy and he possessed guns during his drug trafficking activities. He also previously was convicted of conspiracy to commit murder and was sentenced to 25 years after he offered a man $500 to burn down an IRS agent’s house while he was being investigated in 1978 for tax evasion, according to court records.

Federal prosecutors argued that Spears’ age and medical condition don’t render him "so incapacitated" that he couldn’t resume his criminal conduct, pointing out he was leading a drug ring in his late 50s. Simon said he took into account Spears’ criminal history but noted that Spears’ most recent drug conviction is more than 19 years old and his last conviction for a crime of violence is more than 40 years old.

It’s unlikely Spears would have faced as serious a sentence today if convicted of the same conduct, Simon noted. He was convicted of distributing crack cocaine when sentences for such drug crimes were much higher and judges had less discretion, Simon wrote. Since then, Congress has made changes to avoid sentencing disparities in such drug cases. The judge said he’ll order new conditions for Spears’ release and a lifetime of federal supervision.

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

October 16, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, October 15, 2019

Rounding up some previews of SCOTUS consideration of DC sniper Lee Malvo's juve LWOP sentence

Tomorrow afternoon, the US Supreme Court will hear oral argument in Mathena v. Malvo, a case that calls upon the Justice to continue struggling with the application of the Eighth Amendment limits on LWOP sentences that was set out in Miller v. Alabama and given retroactive effect in Montgomery v. LouisianaThis SCOTUSblog page has links to all the briefing in this case and sets out this question presented as framed by the state of Virginia:

Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

The intricacies of this question presented highlights that the Justice could approach the Malvo case as a small technical matter only about the proper application of prior settled decisions.  But because the crimes of Lee Malvo were horrific and the rulings in Miller and Montgomery contentious, there are advocates who wonder and fear that certain Justices may be eager to use this case to cut back on the Court's recent Eighth Amendment jurisprudence.

I have seen a number of notable previews and commentary concerning the Malvo case, and here is a sampling:

October 15, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Lots more cert denials and Rehaif GVRs in second SCOTUS order list of OT19

The Supreme Court this morning has released this relatively short order list, although the list of cases in which certiorari has been denied still runs about 10 pages.  The order list, like the one last week, starts with a list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals."  But all the Supreme Court's GVR work this week — six cases to be exact — relates to its mens rea ruling in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).   In his Rehaif dissent, Justice Alito fretted that "great many convictions will be subject to challenge...."  Indeed.

October 15, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 14, 2019

"There Are Way Too Many Prosecutors in the Federal Judiciary: It’s time for a moratorium."

The title of this post is the headline of this notable new Slate commentary authored by Clark Neily discussing this notable recent report he did with the Cato Institute.  Here are excerpts from the Slate piece:

It’s no secret that federal judges do not, by and large, look like the rest of us.  They are whiter than average, more male, and more likely to have attended elite schools and worked at big law firms.  But there’s another quirk of the judiciary that hasn’t gotten nearly the attention it deserves: the wild imbalance between judges who used to represent the government in court and judges who used to challenge the government in court.

According to conventional wisdom, the surest way to become a federal judge is to first be a prosecutor.  But is that really true?  Until now, no one had ever examined the professional background of every sitting federal judge to see whether former prosecutors are in fact overrepresented on the federal bench.  So we at the Cato Institute did, and they are — massively.  But our study didn’t just look at former prosecutors.  We also broadened our scope to compare judges who served as courtroom advocates for the government in any capacity — criminal or civil — versus the judges who cut their teeth litigating against the government as public defenders, other criminal defense attorneys, and public interest lawyers.

Focusing just on former prosecutors versus former criminal defense attorneys (including but not limited to public defenders), the ratio on the federal bench is 4 to 1. Expanding the scope to include all former courtroom advocates for the government (but not other kinds of government lawyers, such as agency heads and general counsels), and comparing that to former public defenders, private criminal defense attorneys, and public interest lawyers, the ratio jumps to an astonishing 7 to 1. President Donald Trump’s judicial nominees, many of whom are committed originalists and supporters of constitutionally limited government, reflect these same ratios....

Of course, the fact that someone worked as a prosecutor, a defense attorney, or a public interest lawyer doesn’t necessarily mean they will be biased in that direction while serving as a judge.  Still, most of us have a strong intuition that a person’s prior professional experiences are likely to influence not only their worldview but also their approach to particular cases.  That’s why prosecutors routinely use their peremptory strikes to remove defense attorneys from the jury pool in criminal cases — and defense attorneys do the same thing to prosecutors.  It’s nothing personal; they simply recognize, as we all do, that experience inevitably informs judgment.

Given the government’s vast resources, nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice.  To further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases.  If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1.  Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea.  But neither is it wise to continue doing nothing while the imbalance runs the other way.  It is perfectly understandable that current government officials wish to stock the courts with former government advocates.  But it’s a bad deal for the rest of us and a doubtful way to ensure equal justice under law.

October 14, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, October 12, 2019

Deep dive into the deep human realities surrounding DC second look laws and policies

A helpful reader alerted me to this great extended article from the Washington City Paper about second look sentencing players and practices in DC. The piece, which I recommend in full, is headlined "How to End a Sentence: Juvenile sentencing reforms have sparked a face-off between the D.C. Council and U.S. Attorney over who should be released, and when."  Here are excerpts:

The [Incarceration Reduction Amendment Act] IRAA allows people who committed violent crimes before they turned 18 to ask a judge for a reduced sentence, as long as they’ve served at least 15 years. A D.C. Council bill introduced in February, the Second Look Amendment Act, would expand the law to include people who committed crimes before their 25th birthdays. An estimated 70 people have asked for a new sentence, and the bill could expand the number of eligible offenders to more than 500, the USAO believes.

This legislation comes as so-called “second look laws” are gaining momentum across the country and follow the precedent set by multiple U.S. Supreme Court rulings curtailing harsh sentences for juveniles. The high court’s decisions rely on a growing body of research showing brain development continues into a person’s mid-20s.

The Model Penal Code, a project of the American Law Institute that provides a template for criminal justice policy makers, suggests that offenders of all ages receive a second look after serving 15 years in prison. The latest version, revised in 2017, explains that America relies on the heavy use of lengthy prison sentences more than any other Western democracy. The U.S. has the highest incarceration rate in the world, despite two decades of falling crime rates.

D.C. Superior Court Judge Ronna Beck agrees that long sentences deserve another look. “I wish there were an opportunity for judges to be able to review everyone’s sentence after a significant period of time,” Beck said during Flowers’ resentencing. “Many people will not qualify for the sentence reduction that you did, but I think that it would be beneficial to our system to be able to have a review like this so that when people have really transformed their lives, as you seem to have done, that there was an opportunity to adjust a sentence that was imposed many, many decades earlier.”

A majority of the D.C. Council supports the Second Look Amendment Act—as does Mayor Muriel Bowser’s administration and Attorney General Karl Racine. But [Jessie] Liu, the Trump-appointed U.S. Attorney, is not a fan. Her office has encountered few IRAA petitions that it likes. Since the original law took effect in 2017, federal prosecutors, who have jurisdiction over felony crimes in D.C., have opposed nearly every request for resentencing.

They’ve argued that offenders are too dangerous to be released, their crimes are too heinous, they haven’t accepted responsibility for their crimes, their release undermines “truth in sentencing,” and that, although prison records showing a dedication to education are admirable, they are to be expected.

At a recent hearing for Mustafa Zulu, a man who spent 20 years in solitary confinement starting when he was 20, Assistant U.S. Attorney Jocelyn Bond argued that Zulu’s “very very impressive” list of educational courses and accomplishments does not outweigh his sins in and out of prison. “Education is not a panacea for violence,” Bond said. “It does not fix someone’s character … It doesn’t change someone’s underlying violent character.”

In September, as part of its campaign opposing the Second Look Amendment Act, the U.S. Attorney’s Office hosted a meeting for the public and a group of advisory neighborhood commissioners. Liu stood against the wall while representatives from her office made their case against the bill, emphasizing the impact on victims and concerns that the Council is expanding the law too quickly without sufficient evidence that those released won’t commit new crimes.

During the meeting, John Hill, a deputy chief and career prosecutor, cited data from the Bureau of Prisons showing a recidivism rate of about 35 percent among people released from 2009 to 2015 who would be eligible under the Second Look Amendment Act. Hill ignored City Paper’s request for the underlying data, and the USAO has refused to release it. Hill also presented incorrect data on D.C.’s incarceration rate, which the office later corrected in a tweet.

Nazgol Ghandnoosh, a senior researcher for The Sentencing Project, a nonprofit organization that promotes criminal justice reform, points out that the BOP’s definition of recidivism includes technical parole violations for missing a meeting or smoking weed. “A recidivism measure that separates these factors from new offenses gives people a better sense of public safety risk,” Ghandnoosh says.

Sarah McClellan, chief of the USAO’s victim witness assistance unit, explained at the September meeting that the new law reactivates trauma for victims and their families, many of whom have spoken passionately in opposition to offenders’ release.  At least two advisory neighborhood commissioners have published editorials opposing the second look bill, including Darrell Gaston, whose 15-year-old godson, Gerald Watson, was gunned down earlier this year. Malik Holston, 16, is charged with first-degree murder in Watson’s death.

October 12, 2019 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 09, 2019

Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act

As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.

But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction."  I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence.  But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but then still decides not to grant a reduction for reasons that do not seem justified by the provisions of § 3582(c)(1)(A).

This new ruling comes in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), and it is authored by Senior District Judge Robert Pratt.  Notably, Judge Pratt was the district judge in the Gall case who gave full effect to the Booker ruling and whose non-incarcerative decision there was ultimately vindicated by SCOTUS.  In this new Brown case, Judge Pratt writes an extended, thoughtful opinion about compassionate release and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act.  In so doing, Judge Pratt states that "much about Defendant's situation is extraordinary and compelling" and yet still "the Court concludes it cannot exercise its discretion to grant release at this time."

The Brown opinion explains the basis on which Daniel Brown claims his situation is "extraordinary and compelling": (a) his behavior for a dozen years in prison was "exemplary," (b) he "suffered a botched surgery while incarcerated" (though he can still care for himself in prison) (c) "his daughter is without a parent" (though an adult who cares for herself) and (d) "he faces a sentence far longer than he would ever receive under modern law."  This last point is a function of Brown having received an extra 300 months (25 years!) because of stacked 924(c) gun counts that would no longer stack now after the FIRST STEP Act.  On this point, Judge Pratt further notes that the judge who originally sentenced Brown "concluded the additional 300 months' imprisonment from the second § 924(c) count was 'far greater than was necessary to achieve the ends of justice'."  And for good measure, as Judge Pratt notes, Brown's "co-defendant, who eventually ran his own drug operation, was released in April 2018."

This all sure seems to me to be "extraordinary and compelling reasons [that] warrant a reduction" under 18 U.S.C. § 3582(c)(1)(A), and Judge Pratt essentially says as much.  But, disappointingly, after making a strong factual record on Brown's behalf, Judge Pratt declines any reduction of Brown's original 510-month sentence with this reasoning: 

In this case, compassionate release nevertheless is premature because even if the First Step Act applied retroactively, Defendant would still be in prison.  With a lone § 924(c) count, Defendant still faced 210 months in prison.  ECF No. 118.  Even rounding up to the nearest month and including good conduct credits, Defendant has served 167 months. That is a long stretch by any measure, and perhaps more than appropriate for Defendant's crimes.  Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an “extraordinary and compelling reason” for compassionate release.  Thus, despite discretion to consider a broad range of factors, the Court declines to grant Defendant's motion at this juncture.

This reasoning seems deeply misguided to me: Daniel Brown has not moved in this case for the First Step Act to be applied retroactively, because (disappointingly) Congress has not provided for the Act to be applied retroactively.  Rather, Brown has moved for a sentence reduction under § 3582(c)(1)(A) because Congress has provided for judges to be able to "reduce [his] term of imprisonment" if and whenever a judge finds "extraordinary and compelling reasons warrant such a reduction."  Judge Pratt suggests Brown has made such a showing and he even suggests that Brown has already served more time than is appropriate for his crimes.  But, still, Judge Pratt refuses to use the legal tool available to him to reduce Brown's sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.

Critically, though 18 U.S.C. § 3582(c)(1)(A) is often called a "compassionate release" provision, there is no requirement in the statute that a judge order a sentencing reduction in the form of a "time served" sentence.  All the statute says is that a judge is authorized to "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction."  If Judge Pratt's concern was that section 3553(a) factors did not justify reducing Brown's sentence below 210 months, he still could have granted him relief by reducing his sentence from 510 to 210 months.

Because Judge Pratt used terms like "not yet" and "at this juncture" and "at this time," I am hopeful that Judge Pratt could and would entertain a renewed § 3582(c)(1) from Brown in four years when he has served 210 months of imprisonment.  Notably, there is no clear law right now about whether and when there are limits on how many times a defendant can bring a motion for sentence reduction pursuant to § 3582(c)(1)(A).  But since I think the law clearly supports granting his motion now, I am disappointed Judge Pratt did not exercise his discretion in this case in a manner similar to how he did in Gall.

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

UPDATE:  I was able to secure a copy of the ruling in Brown, which can be accessed here: Download Brown Compassionate release

October 9, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, October 08, 2019

US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

In various settings, we often hear expression of concern that celebrity criminal defendants may receive a different form of justice than us regular folk.  But this recent article reporting comments by the US Attorney in charge of the college admission prosecutions, headlined "Lori Loughlin faces 'substantially higher' prison sentence than Felicity Huffman if convicted, U.S. attorney confirms," provides a useful and usefully candid reminder that celebrity defendants are subject to being penalized for exercising their trial rights just like all other defendants. Here are excerpts from the piece (with two sentences emphasized):

Andrew Lelling, whose office is prosecuting the Operation Varsity Blues case, gave a rare interview over the weekend praising "classy" Felicity Huffman ahead of prison. He also confirmed that Lori Loughlin faces a "substantially higher" amount of time behind bars if convicted.

The Boston prosecutor, who was appointed U.S. attorney by President Trump in 2017, was asked why he proposed a prison sentence of only one-month for Huffman, who pleaded guilty to one charge of fraud conspiracy. During an interview with On the Record on WCVB Channel 5, Lelling called Huffman "probably the least culpable of the defendants who we've charged in that case."

"One of the things we looked at was money involved. She spent about $15,000 to have her daughter get a fake SAT score," he explained. "She took responsibility almost immediately.  She was contrite, did not try to minimize her conduct. I think she handled it in a very classy way and so, at the end of the day, we thought the one-month was proportional."

Ultimately, Huffman was sentenced to 14 days in prison, 250 hours of community service and a fine of $30,000. "I think the two weeks she actually got was also reasonable, we were happy with that," Lelling said. "I think it was a thoughtful sentence."

Lelling said a person receiving a lesser sentence after pleading guilty is "almost always" the outcome. "If people take responsibility for their conduct and they take responsibility for their conduct early on, then it will probably go better for them," he shared.  "What I value in the Felicity Huffman sentence is that I think it sent a clear message to the other parents involved that there really is a good chance that if you're convicted of the offense, you are going to go to prison for some period of time because the least culpable defendant who took responsibility right away, even she got prison."

Lelling was asked specifically about Lori Loughlin and her husband, Mossimo Giannulli, who are accused of paying around $500,000 to get their daughters into USC as crew recruits, even though neither rowed. He confirmed what legal experts speculated to Yahoo Entertainment last month — that Loughlin will spend more time in prison than Huffman if convicted.

"If she's convicted... we would probably ask for a higher sentence for her than we did for Felicity Huffman," Lelling said. "I can't tell you exactly what that would be. The longer the case goes, let's say she goes through to trial, if it is after trial, certainly, we would ask for something substantially higher. If she resolved it before trial, something lower than that."

Loughlin and Giannulli are some of the parents implicated in the college admissions scandal that are fighting the charges against them. They pleaded not guilty to two charges: conspiracy to commit money laundering; and conspiracy to commit mail and wire fraud and honest services mail and wire fraud.  They were hit with an additional charge when they didn't agree to a plea deal....

Loughlin, Giannulli and the other parents fighting federal charges are due back in court in January.

I do not want to unduly bash US Attorney Lelling for his candor here, especially because I think he merits praise for a lot of his work in these cases (and especially for only seeking a month in prison for Felicity Huffman).  Moreover, he does a reasonable job giving a reasonable spin to the best arguments for a "plea discount" at sentencing when he talks of the importance of being contrite and of the sentencing value of having defendants "take responsibility for their conduct early on." 

But I find it grating when US Attorney Lelling says his office will see a "substantially higher" sentence the "longer the case goes" for Lori Loughlin; it suggests that more is at work here than just rewarding remorse for those who are contrite.  Of course, to those familiar with the day-to-day realities of the criminal justice system, there is no surprise to seeing that potential exercise trial rights coming with a potentially significant sentencing price.  In the end, US Attorney Lelling is just being candid and honest about how the system really works for both celebrity and non-celebrity defendants.  But the fact that the trial penalty is so common and impacts more than just commoners still does not make it any less distasteful.

October 8, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Reviewing SCOTUS arguments on insanity defense and non-unanimous juries

As noted in this recent post, yesterday the Supreme Court kicked off its new Term with oral arguments in two very interesting criminal justice cases: Kahler v. Kansas on whether the Constitution permits a state to abolish the insanity defense, and Ramos v. Louisiana on whether the 14th Amendment fully incorporates for states the Sixth Amendment's guarantee of a unanimous jury verdict.  Here are the oral argument transcripts in Kahler and in Ramos.

Based on various reviews of the arguments, it sounds as though the defendant is likely to prevail in Ramos and perhaps not in Kahler.  Here is a round-up of some reviews:

From the AP, "Court seems ready to require unanimous juries as term opens"

From SCOTUSblog, "Argument analysis: Justices open new term with questions and concerns about insanity defense"

From SCOTUSblog, "Argument analysis: Justices weigh constitutionality of non-unanimous jury rule"

From Slate, "The Supreme Court Looks Poised to Outlaw Split Jury Verdicts"

From USA Today, "Supreme Court, trying to remain above the partisan fray, opens 2019 term with a debate about insanity"

October 8, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, October 07, 2019

Series of state court stays slows down Texas machinery of death

Texas has completed seven executions in 2019 through the end of September, and it had four more executions scheduled for October. But, as of late last week, state courts in Texas have halted the executions of three of the condemned prisoners who were facing October execution dates. Here are links to press reports on these three stays:

From the Texas Tribune, "Texas court halts the execution of Stephen Barbee to consider U.S. Supreme Court precedent: The Texas Court of Criminal Appeals issued a stay in Barbee's case. He was scheduled to be executed Oct. 2."

From the Texas Tribune, "Judge halts execution for man convicted of killing two Henderson County deputies: Randall Mays was scheduled to be executed Oct. 16, but the judge removed the death warrant amid questions that Mays may not be mentally competent to be put to death."

From the Dallas Morning News, "Texas Seven's Randy Halprin has execution stayed after attorneys allege judge was anti-Semite: Halprin, one of seven men who escaped from the John B. Connally Unit on Dec. 13, 2000, was scheduled to die Thursday for his role in the slaying of Irving police officer Aubrey Hawkins." 

Because Texas has five more executions already scheduled for the rest of 2019, the state is still likely on pace for another double-digit execution year. But it now seems likely that the state will have fewer executions than the 13 it had last year, and it is now possible that the US as a whole will end up with fewer total executions in 2019 than occurred in 2018.

October 7, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another update on Chicago "stash-house sting" litigation showcasing feds ugly drug war tactics

Via a series of posts last year, I was able to report updates from 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.  In this 2017 post, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," on this topic. 

I now see that the Chicago Tribune has this new lengthy article, headlined "Convicted in a controversial stash house sting operation, Leslie Mayfield is struggling to rebuild his life after prison." which focuses on one stash-house defendant while also telling the broader stories of these cases.  I recommend the new Tribune article in full, and here are excerpts:

Leslie Mayfield wasn’t used to entering a courtroom except in shackles.  Over the years, through his trial for conspiring to rob a drug stash house, his sentencing to a decades-long prison term and his long-shot fight to overturn his conviction on entrapment grounds, Mayfield had always been escorted into court by deputy U.S. marshals from a lockup in back....

But recently, he took a seat in U.S. District Judge Edmond Chang’s courtroom gallery, whispering to his attorney that it all felt strange as he waited for his name to be called....  Reviewing reports on Mayfield’s progress, Chang noted that since his release from prison, he’d found a job, reconnected with his family and maintained a strong motive to stay straight.  Then the judge made the transformation official, agreeing that Mayfield, 51, no longer needed court supervision.

The ruling marked a quiet milestone in the widely criticized sting operations in which the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives used informants to lure unsuspecting targets into a scheme to rob drug stash houses — an undercover ruse concocted by the government.

For years, the stings were considered a smashing success, touted as a law enforcement tool to remove dangerous criminals from the streets.  But the practice came under fire in 2014 when attorneys for the University of Chicago Law School mounted a legal challenge on behalf of nearly four dozen Chicago-area defendants alleging the stings disproportionately targeted African Americans and Hispanics.

Both the ATF and the U.S. attorney’s office staunchly defended the operations in court, saying they followed rigorous guidelines to ensure the stings were lawful.  While the legal effort to prove racial discrimination fell short, the tactics drew sharp rebukes from many judges.  Prosecutors began quietly dismissing the more serious charges, and over the next year or so, most of the defendants — including Mayfield — were sentenced to time served.

As the first to be cleared of all court supervision, Mayfield could be viewed as a success story, but he’s struggled in many ways.  Like so many ex-cons, Mayfield is learning how hard it can be to rebuild his life after prison. He also continues to fight guilt over the plight of his brother and cousin — both of whom he recruited into the scheme and are still serving decadeslong prison sentences....

The outlines of each stash house sting followed the same basic pattern: ATF informants identified people they believed would commit a drug-related robbery.  If the target met certain criteria — including a violent criminal background — agents approved the sting.

The elaborate operations included a fake stash house location, fictitious amounts of money and drugs, and other made-up details of a robbery plot.  An undercover agent posing as a disgruntled drug dealer followed a script aimed at convincing the target to agree on secret recordings to take part in the robbery, pledge to bring guns — and use them if necessary.

Since agents claimed that massive quantities of drugs were involved, the prosecutions often carried eye-popping sentences, sometimes even life behind bars.  Nearly all the targets, though, turned out to be African American or Hispanic — many of whom had minimal criminal histories....

Mayfield was convicted at trial in 2010 and handed a 27-year sentence.  His brother, with only a nonviolent drug conviction in his past, and his cousin both were given 25-year prison terms.

In 2014, the University of Chicago’s Federal Criminal Justice Clinic led an effort to have charges against 43 defendants dismissed on grounds that the cases were racially biased.  In a landmark hearing in December 2017, nine federal judges overseeing the cases heard testimony from dueling experts on policing who came to dramatically different conclusions.

The U.S. attorney’s office denied that the stings disproportionately affected minorities, arguing that targets were selected by their propensity for violence, not race.  For instance, while out on bond, two men facing stash house-related indictments were charged in separate shootings, including the wounding of a Chicago police officer.

But many judges overseeing the cases had clear concerns that the ends did not justify the means.  In a decision that wasn’t binding but served as a guide for other judges, then-U.S. District Chief Judge Ruben Castillo said the stings shared an ugly racial component and should “be relegated to the dark corridors of our past.”

While Castillo stopped short of dismissing the case before him, his 2018 ruling had a ripple effect.  At the urging of Castillo and other judges, the U.S. attorney’s office began offering plea deals and dropping counts that involved stiff mandatory minimum sentences.

The results were startling. While many of the 43 defendants faced mandatory sentences of 15 to 35 years in prison if convicted, 32 instead were released with sentences of time served after pleading guilty to lesser charges.  Most of the others received prison terms that were significantly below federal sentencing guidelines.

While the cases hadn’t been thrown out of court, Alison Siegler, the Federal Criminal Justice Clinic’s founder, noted in an April report to the 7th Circuit Bar Association that "the U.S. Attorney’s Office and the ATF have entirely stopped bringing stash house cases in Chicago, even as those cases continue to be prosecuted elsewhere in the country.”

Some prior related posts:

October 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

So many cert denials, and lots of Davis and Rehaif GVRs, in first big SCOTUS order list of OT19

The Supreme Court this morning has released this 78-page order list that resolves lots and lots of the cases that pile up at the Court during its summer recess.  The list of cases in which certiorari has been denied runs dozens of pages, and I was a bit surprised that this order list does not have any statements from any Justices about any of these denials.  (In all likelihood, any cases the Justices thought debatable have been relisted for possible comment in later order lists.)

The order list start with a long list of cases in which "certiorari is granted, [t]he judgment is vacated, and the case is remanded" to the relevant Court of Appeals." The vase majority of the GVRs cite the Supreme Court's work in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here).  These GVRs are not surprising, as I wondered aloud in this post back in June about the likely mess and challenge that Davis and Rehaif  surely presented for lower courts.  As is their custom, the Justices are eager to send cases back to the lower courts to start the clean up effort.

October 7, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, October 04, 2019

"Inmate Responses to Experiences With Court System Procedural and Distributive Justice"

The title of this post is the title of this recently published work authored by Mike Vuolo, Bradley Wright and Sadé Lindsay.  Here is the piece's abstract and concluding paragraph:

According to criminal justice theories, perceptions of procedural and distributive justice drive opinions on fairness, subsequently affecting behavior. We contend that such perceptions also affect the emotional states of incarcerated individuals, identifying court experiences as the focus of our study.  Through fieldwork at a male maximum-security prison, we find that inmates expressed negative emotional responses associated with three factors: trial, public defenders, and appeals.  Participants described perceived fairness through personal comparisons to alternative procedures and outcomes often connected to socioeconomic resources and related perceptions to emotions such as frustration, regret, resentment, and hopelessness. We situate our findings within theories of fairness and inmate adjustment research....

The effects continue well beyond the prison walls, however, as incarceration has lasting effects on health (Massoglia, 2008).  This study demonstrates that the court system experience warrants further examination as a source of negative emotions and, potentially, prisoner adjustment to incarceration.  The three factors outlined in our research illustrate that processes and procedures, occurring both prior to and during imprisonment, had enduring effects on incarcerated persons.  These aspects of the court system and the relationship to negative emotions could easily go overlooked, as prisoners’ voices are seldom heard. Our fieldwork allowed for a unique approach to studying this hard-to reach-population (Wacquant, 2002).  This investigation demonstrated that such voices are important in efforts to reform certain aspects of the court system in a manner that would reduce distress and alleviate some of the negative aspects of corrections and its enduring effects. These psychological effects are all the more important as increasing numbers of prisoners return home in an era of mass incarceration.

October 4, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3)

Mass Supreme Judicial Court vacates manslaughter conviction based on merely providing heroin to person who overdosed

As reported in this local article, the top court in Massachusetts has vacated "the involuntary manslaughter conviction of a man who provided drugs in a fatal overdose."  Here is the context and commentary from the press piece: 

Jesse Carrillo was convicted two years ago for the 2013 fatal heroin overdose of fellow UMass Amherst student Eric Sinacori, who was 20 when he died. On Thursday, the state's Supreme Judicial Court vacated Carrillo's manslaughter conviction, arguing that the prosecution did not provide sufficient evidence that Carrillo knew the heroin would cause a fatal overdose.

Northwestern District Attorney David Sullivan said in a statement that it's "disheartening that the Supreme Judicial Court does not believe heroin use carries a high probability of substantial harm or death." He added: "The families who have lost loved ones to this brutal epidemic would surely disagree with the Court’s analysis, as do we.”

But Northeastern University law professor Leo Beletsky says if the case were upheld, it would have set a dangerous precedent. "If the government could charge every person who shares drugs with someone who subsequently dies, the way that the government had argued this case previously would essentially turn those friends, those partners, those co-users into potential murderers," he said.

The full unanimous ruling of the Massachusetts Supreme Judicial Court is available at this link, and it my be of particular interest to law profs and 1Ls now getting to the homicide unit in their CrimLaw classes (and to many others). Here are excerpts from the opinion's introduction: 

To find a defendant guilty of involuntary manslaughter caused by wanton or reckless conduct, our case law requires proof beyond a reasonable doubt that the defendant engaged in conduct that creates "a high degree of likelihood that substantial harm will result to another."  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Selling or giving heroin to another person may be wanton or reckless conduct where, under the circumstances, there is a high degree of likelihood that the person will suffer substantial harm, such as an overdose or death, from the use of those drugs.  And in many cases the circumstances surrounding the distribution of heroin will permit a rational finder of fact to find beyond a reasonable doubt that the transfer of heroin created a high degree of likelihood of substantial harm, such as an overdose or death. But not every case will present circumstances that make such conduct "wanton or reckless." This is one such case.

We conclude that the mere possibility that the transfer of heroin will result in an overdose does not suffice to meet the standard of wanton or reckless conduct under our law. The Commonwealth must introduce evidence showing that, considering the totality of the particular circumstances, the defendant knew or should have known that his or her conduct created a high degree of likelihood of substantial harm, such as an overdose or death.

Here, no evidence was presented during the Commonwealth's case-in-chief that would permit a reasonable jury to conclude that the inherent possibility of substantial harm arising from the use of heroin -- which is present in any distribution of heroin -- had been increased by specific circumstances to create a high degree of likelihood of substantial harm.  For instance, the Commonwealth did not present evidence that the defendant knew or should have known that the heroin was unusually potent or laced with fentanyl; evidence that Sinacori was particularly vulnerable to an overdose because of his age, use of other drugs, or prior overdoses; or evidence that the defendant knew or should have known that Sinacori had overdosed but failed to seek help.  In the absence of any such evidence, we conclude that the Commonwealth did not meet its burden of producing sufficient evidence for a reasonable jury to conclude that the defendant's conduct in this case created a high degree of likelihood that Sinacori would suffer substantial harm, such as an overdose or death, from his use of the heroin.  The defendant's conviction of involuntary manslaughter must therefore be vacated, and a required finding of not guilty entered.

As many of my former students likely recall, the Welansky case is still one of my favorite cases to teach during 1L Criminal Law. I find it fascinating to see that tragic case and the legal precedent that it set still of great importance 75 years later in very different sad setting.

October 4, 2019 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, October 03, 2019

"The Eighth Amendment Power to Discriminate"

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

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences.  While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing.  The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion.  This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it.  It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency.  Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

October 3, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, October 02, 2019

"An Ode to the Categorical Approach"

The title of this post is the title of this new paper just posted to SSRN and authored by Amit Jain and Phillip Warren. Here is its abstract:

In United States v. Davis, a narrow majority of the U.S. Supreme Court adhered to the so-called “categorical approach” for determining which criminal convictions trigger additional federal penalties. But this approach, which requires courts to consider an individual’s crimes as defined by law instead of the facts of the person’s conduct, has increasingly come under fire.  An ever-louder chorus of jurists argues that the approach is unworkable and allows individuals with criminal records to escape harsh consequences that can include decades of added incarceration, registration as a “sex offender,” or mandatory deportation.

These complaints are overstated.  The categorical approach — a time-weathered component of American jurisprudence for over a century — is far from the nonsensical nightmare its naysayers portray it to be.  Although the aforementioned federal penalties compromise the states’ historic role in defining and prosecuting crimes, in a world where such penalties exist, the categorical approach respects statutory text, avoids administrative challenges, protects Sixth Amendment rights, advances fair notice, and promotes uniformity.  In addition, the approach offers an under-recognized federalist counterweight to the undue expansion of federal and state criminal law.  In particular, it gives state leaders a unique, subtle incentive to ensure that the most serious crimes focus on the most serious conduct, lest these crimes cease to qualify as predicates for federal penalties.

Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy.  Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.

October 2, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Texas jury imposes 10 year prison term on Amber Guyger for murdering Botham Jean

As reported in this prior post, yesterday a Dallas County jury convicted Amber Guyger of murdering Botham Jean in his apartment last year in a high-profile case that has made headlines for many months.  Today the case made another headline when, as reported here, the jury returned its sentence: "Amber Guyger sentenced to 10 years for murdering neighbor Botham Jean."  Here are some of the jury sentencing details:

Amber Guyger, the former Dallas police officer convicted of murder for fatally shooting her unarmed neighbor in his apartment, was sentenced Wednesday to 10 years in prison. Guyger, 31, learned her fate after a sentencing hearing that included emotional testimony from the family of victim Botham Jean and revelations that she shared racist and offensive texts and social media posts.

Prosecutors had asked jurors to sentence Guyger to at least 28 years — symbolic because Jean would have turned 28 last Sunday.

Guyger did not testify during her sentencing, but has the opportunity to appeal the conviction in the unique case that has gripped the city of Dallas and shattered the idea that law-abiding citizens can be safe in their own homes.

The jury was allowed to consider whether Jean's death was the result of "sudden passion," which meant Guyger acted in the heat of the moment. It carried a lesser sentence of two to 20 years behind bars....

During the sentencing hearing Wednesday, Guyger's mother, Karen Guyger, 66, testified and said that her then-boyfriend had molested Guyger when she was 6. She said she reported it to the police and he was arrested. NBC News was unable to immediately learn the outcome of the case.

Karen Guyger added that her daughter was distraught after killing Jean. "She feels very bad about it," Karen Guyger said through tears.

Dallas County prosecutors built a case through Guyger's police disciplinary records, texts and social media posts to speak to her character and argue she is undeserving of a lenient sentence.

Jurors were shown three Pinterest posts that Guyger had saved to her account and commented on. They included the picture of a military sniper with text that read: "Stay low, go fast; kill first, die last; one shot, one kill; no luck, all skill." In another Pinterest post, Guyger commented under a picture of a Minion from the movie "Despicable Me": "People are so ungrateful. No one ever thanks me for having the patience not to kill them," the comment read.

New texts were also shown to jurors between Guyger and her married work partner, Officer Martin Rivera, with whom she had been having an affair. Prosecutors had revealed their sexually explicit texts during the trial, although the defense downplayed them, saying the two were already "ramping down" their relationship by the time the shooting occurred. Rivera texted in March 2018 to Guyger: "Damn I was at this area with 5 different black officers !!! Not racist but damn." She responded: "Not racist but just have a different way of working and it shows."

Guyger texted with another officer last year about the Martin Luther King Jr. parade in Dallas. "When does this end lol," the officer wrote to Guyger. "When MLK is dead … oh wait …," she joked.

Two days before Guyger fatally shot Jean, she texted with someone who had adopted a German Shepherd. The dog's owner wrote of the animal: "Although she may be racist." Guyger responded, "It's okay .. I'm the same," and later added: "I hate everything and everyone but y'all."

During the sentencing phase, defense attorney Toby Shook asked the jury to think about how Guyger helped others as an officer, and largely glossed over the derogatory texts that prosecutors had introduced earlier. "Through these horrible series of events, she went into his apartment by mistake," Shook said. "She pulled that trigger in an instant — an instant she will regret for the rest of her life. ... She didn't go there seeking to kill him."...

The jury, made up of mostly women and people of color, deliberated for about five hours to convict Guyger and has been sequestered during the trial, which began Sept. 23. Guyger was taken into custody at the end of the first day of the sentencing phase, which started after the verdict was read Tuesday. She was booked into the Dallas County jail.

Prior related post:

October 2, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Monday, September 30, 2019

Hopeful that the Democratic Prez hopefuls might engineer a clemency revival

Long-time readers know I have lamented under-use of Presidential clemency powers for the 15+ years I have been blogging (e.g., consider this 2004 post lamenting "Bush's stingy pardon practice").  In 2010, I wrote this law review article lamenting Prez Obama's poor early clemency track record and urging him to make structural changes to the federal clemency system.  To his credit, Prez Obama upped his clemency game in the tail end of his second Term, but he failed to engineer any systemic changes to a problematic process.  And Prez Trump, after an (overly) interesting early start to clemency work, has failed to vindicate his big talk last summer about big clemency plans.

Against this backdrop, I cannot help but get a little excited by this little CBS News article headlined "Clemency debate takes shape in 2020 Democratic race — advocates say it hasn't gone far enough."  Here are excerpts: 

Advocates for criminal justice reform argue 2020 candidates aren't spending enough time discussing clemency.  Inmates are behind bars who shouldn't be, they say, and the next president has the power to change that without Congress.

Senator Cory Booker brought attention to the issue at the Democratic presidential debate earlier this month, saying if he were elected president, he would commute the sentences of roughly 17,000 non-violent drug offenders on his first day.

Booker first proposed the idea in June to reduce sentences for those who would have received less time if guidelines under the First Step Act — passed in December 2018 — had been in effect.  "If 87 members of the United States Senate say these sentences are way too long — and we changed it — but we didn't make it retroactive, we could literally point to the people that are in jail unjustly right now," Booker said at the debate in Houston....

A petition historically goes through multiple rounds of approval within the Department of Justice and the White House before reaching the president's desk.  It's a lengthy process that can be easily stalled.

Experts argue there are political forces at play that can taint the process since the majority of the system is housed under the attorney general's purview.  "The DOJ is comprised of the people that put these people behind bars in the first place," said Joe Luppino-Esposito, the director of Rule of Law initiatives at the Due Process Institute.  "It's a little odd the clemency process happens within the same department."

However, at least six Democratic hopefuls — Booker, Mayor Pete Buttigieg, Senator Kamala Harris, Senator Amy Klobuchar, Senator Bernie Sanders and Senator Elizabeth Warren — say they would address these issues through an independent commission, which could both speed up and depoliticize the process....

Klobuchar was the first candidate to introduce the idea. Her plan establishes a bipartisan advisory board to review petitions and make recommendations to the president. "For the first time, we have candidates proposing changing the process," said Mark Osler, a professor at the University of St. Thomas. "They'd be smart to take a look at it very closely at this point."...

The Obama administration attempted to streamline the process by introducing specific eligibility criteria, however, an internal report by the Department of Justice last year found the initiative was "poorly implemented." ...

Presidents and governors are often wary about the risk of being criticized if someone with a commuted sentence goes on to commit a highly-publicized crime.  Many attribute this to the "tough on crime" climate ushered in after the Willie Horton campaign ad during the 1988 election.  In 2012, former Republican nominee Mitt Romney boasted that he granted zero pardons while he served as governor of Massachusetts.

I won't get too excited about all this clemency reform talk unless and until we actually have a would-be reformer in a place to walk the clemency reform walk. But it is still encouraging to see how the political discourse has evolved in recent years, and perhaps an evolution of the actual law will not be too far behind.

September 30, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noticing Justice Sotomayor's persistent voice as SCOTUS turns away capital cases

Adam Liptak has this new New York Times piece headlined "In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’." Here are brief excerpts:

The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night.  There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.”  The inmates who had filed the applications were put to death within hours.

In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake.  That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine.  She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied....

There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas....  “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case....

Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.

September 30, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, September 29, 2019

Pennsylvania Supreme Court opts to dodge broadside challenge to state's death penalty

As noted in this post from July, Philly DA Larry Krasner filed a notable state court brief urging the Pennsylvania Supreme Court to declare state's death penalty unconstitutional.  But, as set forth in this brief order released on Friday, the Pennsylvania Supreme Court decided to "decline[] to exercise its extraordinary King’s Bench jurisdiction," and so the applications were "DENIED on this basis." This local article provides some more context and reactions:

The Pennsylvania Supreme Court on Thursday rejected a petition by two death row inmates to find the state’s death penalty unconstitutional, a request that some advocates had hoped would lead to a historic ruling.  In its one-page order, the court left the door open for individual review of death penalty cases. “Discrete review of properly presented claims will proceed in the individual cases, subject to the jurisdictional limits of the post-conviction courts,” its ruling said.

The Supreme Court case centered on a petition filed by federal defenders in August 2018 on behalf of two inmates, Jermont Cox of Philadelphia and Kevin Marinelli of Northumberland County, but had the potential to affect the approximately 130 others on death row.

Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office in Philadelphia, which represents Cox and Marinelli, said in a statement Friday: “We are disappointed that the Pennsylvania Supreme Court declined to hear this important case at this time.  As noted by the order of the court, we will continue to litigate the unconstitutionality of Pennsylvania’s capital punishment system in individual cases.  There is overwhelming evidence that Pennsylvania’s death penalty system is broken — unfair, inaccurate, and unlawful under the constitution of the commonwealth.”...

On Sept. 11, the seven justices heard the appeal arguments in the cases of Cox and Marinelli.  During that hearing, Tim Kane, an assistant federal defender, argued that the death-penalty system is unreliable and thus violates the state constitution’s ban on cruel punishment.

The Philadelphia District Attorney’s Office, which represents the state in Cox’s appeal, also contended that the death penalty, as applied, has been unreliable and is thus unconstitutional.  Paul George, assistant supervisor of the Philadelphia district attorney’s law division, referred to a recent study by his office that found that 112 of 155 death penalty sentences — or 72% — from 40 years through 2017 were overturned.  Most were overturned because the defendants had ineffective counsel, he said.

George, like Philadelphia District Attorney Larry Krasner, is a former criminal defense attorney who has opposed the death penalty.  Krasner, who took office in January 2018, had campaigned on “never” seeking the death penalty. In practice, the District Attorney’s Office under Krasner has agreed or signaled a willingness to vacate the death penalty for more than one-third of the 45 inmates from Philadelphia on death row in May, an Inquirer analysis showed.  Under Krasner and George’s leadership, the office has not asked for the death penalty in any cases that have come up for resentencing....

The Pennsylvania Attorney General’s Office, which represents the state in Marinelli’s case, has taken a different stance from the District Attorney’s Office. Ronald Eisenberg, senior appellate counsel in the Attorney General’s Office, argued before the justices that there was no immediate need for the high court to take up its so-called King’s Bench power to review the matter, and suggested that other avenues exist to address issues regarding lawyers determined to be ineffective in capital cases....

The Pennsylvania District Attorneys Association issued a statement Friday afternoon supporting the order. “The extraordinary relief sought by petitioners was the wrong mechanism for this type of challenge, and it was properly denied,” the statement said. “The appeals process in Pennsylvania exists to ensure this rare punishment is applied properly — and that process will continue to be utilized by individuals sentenced to death.  While no prosecutor takes joy in seeking the death penalty, we believe today’s ruling is the right result for the citizens of this commonwealth.”

In the state legislature, Sen. Sharif Street and Rep. Chris Rabb, both Philadelphia Democrats, are among lawmakers who in April announced a plan to introduce legislation to end the state’s death penalty, saying it is unsuccessful as a crime deterrent, costly, and flawed. Sen. Katie Muth, a Democrat who represents parts of Montgomery, Chester, and Berks Counties, is a prime joint sponsor of the proposed Senate bill. Her legislative director, Sonia Kikeri, said Friday that Muth hopes to introduce the bill in the fall session.

Republican Rep. Francis X. Ryan of Lebanon County, who considers himself one of the most conservative members in the state House, is a prime joint sponsor of Rabb’s bipartisan effort. “I do think it needs to be abolished,” Ryan said Friday. Rabb said in a separate interview that they would plan to introduce their bill “when we have a few more co-sponsors on both sides of the aisle.... We have our work cut out for us if we want to introduce it by the end of this year.” He said they would have until November 2020 to introduce a bill in the current legislative session.

Cox was convicted of three separate drug-related murders in Philadelphia in 1992 and ordered to die for one of them. Marinelli was sentenced to death for a 1994 killing in Northumberland County.  Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed by the state was the Philadelphia basement torture killer Gary Heidnik, in 1999.

Gov. Tom Wolf in 2015 imposed a moratorium on the death penalty in Pennsylvania.

Prior related posts:

September 29, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, September 26, 2019

Senators Durbin and Grassley introduce "Prohibiting Punishment of Acquitted Conduct Act of 2019"

I am so very pleased to be able to blog about a new effort to prohibit the ugly practice of using "acquitted conduct" in the federal sentencing system.  Specifically, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Long-time readers know I have been a long-time opponent of federal courts' use of acquitted conduct at sentencing (e.g., here is a post from 11 years ago on the issue, which itself links to more than a half-dozen prior posts on the topic).  I have also been involved in preparing briefs assailing the use of acquitted conduct in a number of circuit courts, and I was especially proud of this amicus brief that I prepared in support of certiorari in the Antwaun Ball case reference above.  So, I am fully supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing.

Thankfully, lots of other folks are also supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing, as revealed by these new policy group postings:

From Americans for Tax Reform, "ATR Joins Coalition Supporting the Prohibition of Punishing Acquitted Conduct"

From the Cato Institute, "Addressing the Gross Injustice of Acquitted Conduct Sentencing"

From FreedomWorks, "Support the Prohibiting Punishment of Acquitted Conduct Act, S. 2566"

From the National Association of Criminal Defense Lawyers, "National Association of Criminal Defense Lawyers"

September 26, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thoughtful commentary on the back-end realities and challenges of the criminal justice system

This week I have seen a number of important and thoughtful commentaries about important aspects of the back-end of modern criminal justice systems.  Here are two I recommend with brief excerpts:

From Joe Griffin and Arthur Rizer in the Tulsa World, "Probation and parole violations — often for technical offenses — are filling Oklahoma prisons, and it's time to do something about it":

A 2017 report drafted by the Council of State Governments shows roughly 24% of Oklahoma prison admissions were due to probation violations. That translates to roughly 3,000 people behind bars. Of those 3,000, more than half are in prison for a technical violation, such as staying out past curfew or missing a meeting. The annual cost to incarcerate these individuals is approximately $32 million.

If someone violates their terms of supervision, there should be consequences. Even more, if one poses a legitimate danger to the community, prison may be the best solution. But is sending a large number of individuals to prison who violate only the technical aspects of their supervision effective for public safety or fiscally responsible?

From J.J. Prescott and Sonja Starr in the Detroit News, "Clean-slate legislation strengthens Michigan":

For years, Michigan has offered certain offenders a chance to set aside their criminal records through expungement. But this path has been long, narrow and rocky at best, so few people have been able to take advantage of it. Now, the state Legislature is considering adopting a package of new bills to expand set-aside access. We strongly urge it to do so.

We recently conducted a major study of the effects of Michigan’s set-aside procedure. We found that while very few people with records get set-asides, those who do have great outcomes. In particular, we find that expungement is associated with large improvements in employment opportunities. Wages increase by close to 25% in just a year as people who had been unemployed became able to find stable work.

We also find nothing to suggest that granting someone a set-aside puts the public at risk, as skeptics have sometimes suggested. Those who receive set-asides are less likely to commit a new crime than the general adult population of Michigan. The rate of serious or violent re-offending is almost zero.

UPDATE: I just saw this AP article in this same vein headlined "Prosecutor aims to help people clear records of drug crimes." It starts this way:

Thousands of people in Utah’s largest county would be able to clear their records of drug crimes under a push announced Tuesday that advocates say goes further than many similar efforts around the nation.

The move by Salt Lake County District Attorney Sim Gill, which is expected to be approved by a judge, could make about 12,000 people eligible to expunge their records and remove obstacles to getting jobs, housing and education, he said. “Having a criminal record is the modern-day equivalent of being forced to wear a scarlet letter,” Gill said. “If we’re going to have any meaningful reform, we must first make sure when you have paid your debt to society these barriers are eliminated.”

The push comes amid a wave of criminal justice reforms in the U.S. A number of states and cities have moved to allow people with marijuana-related convictions to clear their records in places where the drug has been legalized.

In Utah, one of the most conservative states in the country, the GOP-dominated Legislature has passed a law allowing many misdemeanor crimes to be automatically expunged for people who stay out of trouble for a set period.

The move by Gill, a Democrat, would turn thousands of felony convictions into misdemeanors, allowing them to be automatically wiped away when the new state law goes into effect next year.

The plan goes further than many reforms elsewhere in the country because it includes a wide range of drug-related convictions, some dating back two decades, said Miriam Krinsky, executive director of the group Fair and Just Prosecution, which works with prosecutors around the country on criminal justice reform. The Utah effort is extraordinary, she said. Gill’s office sorted through drug-related convictions from 1997 through 2015, looking for people with misdemeanors and low-level drug possession felonies who had stayed out of trouble for at least five years.

September 26, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, September 25, 2019

"How Mandatory Minimums Enable Police Misconduct"

The title of this post is the title of this notable new New York Times commentary authored by Scott Hechinger. I recommend the piece in full, and here are excerpts:

Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the recommendation of a Police Department judge, underscores why.

But the near impossibility of getting fired is only part of the crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing.

In criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals. They do so because the alternative is to risk the steep mandatory minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of these mandatory minimums to their advantage by offering comparatively less harsh plea deals before pretrial hearings and trials begin.

The result is not only the virtual loss of the jury trial — today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront police misconduct in criminal proceedings.  In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing.  A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false arrest because a plea of guilty serves as an admission that the officers’ arrest was justified....

The framers of the Constitution envisioned a far different system.  They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing crimes presented unique risks for abuse.  While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power should be vigorously challenged, without fear of reprisal or punishment, at every turn when it threatens the liberty of individuals. This original intent becomes meaningless if defendants cannot seek and receive judicial protection.  As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”...

We must abolish mandatory minimum sentences.  Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Fortunately, there is a growing national conversation among forward-thinking district attorneys and prosecutors to take police accountability more seriously.  District attorneys like Larry Krasner in Philadelphia and Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility or misconduct.  If more prosecutors start rejecting arrests from bad officers, a strong message can be sent and their ability to continue hurting people can be stymied.

Prosecutors must also end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts.  A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights.  A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.

September 25, 2019 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Sunday, September 22, 2019

"Justice sometimes needs a do-over"

The title of this post is the headline of this Washington Post commentary authored by James Forman Jr. Here are excerpts:

The D.C. Council is considering the Second Look Amendment Act, which builds on the Incarceration Reduction Amendment Act of 2016 (IRAA).  That law allows people convicted of serious crimes before they turned 18 to ask judges to review their sentences after they have served 15 years.  The proposed law expands eligibility for sentence review to all those who committed crimes before age 25 and have served at least 15 years in prison....

The core idea behind this is that everybody — including people in prison — grows and matures with time. Social science research shows that most people who commit violent crimes do so while they are young....

Of course, some people in prison remain a threat.  That’s why D.C.’s Second Look Amendment Act would not give judges carte blanche to shorten every sentence that comes before them.  Instead, the law instructs them to consider a long list of factors, including evidence of maturity and rehabilitation, medical and mental health reports, prison disciplinary records, victim impact statements and the views of the U.S. attorney’s office.

The Second Look Amendment Act offers a promising corrective to the harsh — and ineffective — practices once commonplace in courthouses across America.  But while the law has the support of the majority of the city’s elected officials, the unelected U.S. attorney is leading a campaign to scuttle it.

I’m not surprised by this opposition.... But I am disappointed by the office’s willingness to mislead the public in making its case.  Consider one of its central criticisms of IRAA and the Second Look Amendment Act: It says that the laws eliminate a judge’s ability to consider the nature of the crime when deciding whether to reduce a sentence.  In fact, the laws do nothing of the kind.  Though a change to IRAA this year removed “the nature and circumstances of the offense” from a list of factors that judges must consider, nothing in the law prevents judges from engaging in such consideration, and several provisions still in force effectively require them to do just that.

Don’t take my word for it.  The U.S. attorney’s office has made this very point in court.  Last month, when prosecutors opposed a sentence reduction in the case of United States v. Momolu Stewart, the U.S. attorney’s office told the judge that he must consider the defendant’s crime because it is “essential context for evaluating other factors that remain relevant under the IRAA.” It appears that the U.S. attorney’s office wants to have it both ways. In court, prosecutors tell judges they are logically bound to consider the crime, while in the press and community meetings, they frighten voters by telling them that the law doesn’t allow that.

The Second Look Amendment Act gives the D.C. Council a chance to restore a measure of fairness to a criminal system often lacking it.  Standing up to the U.S. attorney’s office may not be easy, but the D.C. Council did so when it rejected that office’s scare tactics and eliminated mandatory minimums for drug offenses in the 1990s. That decision now is universally admired.  If the council is willing to embrace reason over fearmongering again, I am confident the Second Look Amendment Act will be recognized as another proud accomplishment.

September 22, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, September 21, 2019

"Jury Sentencing in the United States: The Antithesis of the Rule of Law"

The title of this post is the title of this new article authored by MaryAnn Grover now available via SSRN.  Here is the abstract:

The well-documented randomness and arbitrariness that plagues capital sentencing stems from the wide discretion granted to sentencing actors, namely jurors.  However, this wide discretion exists in the non-capital sentencing context as well.  Accordingly, arbitrary sentences are not confined to the capital sentencing context. Instead these arbitrary sentences result from structural choices designed to insulate jurors from the impact of their decisions.

This article explores how the statutory jury sentencing schemes used in the six states that retain jury sentencing contribute significantly to the arbitrary nature of sentences imposed.  This article further provides practical ways in which jurors could be made to feel responsible for the sentences they impose, leading them to impose less arbitrary sentences.

September 21, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, September 18, 2019

Without discussion of 3553(a) factors, Eleventh Circuit needs just one sentence to declare 120 years (LWOP) imprisonment for child porn offenses reasonable

Earlier this month in this post, I flagged the Sixth Circuit panel ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), which concluded that a month-long sentence was unreasonably short after an intricate multi-page analysis of § 3553(a) factors.  The detailed circuit analysis especially faulted the district court's consideration of personal factors and the failure "to address the risk of sentence disparities."  In my post about the Boucher ruling, I noted that I favor reviewing courts conducting robust and searching forms of reasonableness review, but I  lamented the fact that circuit courts often seem much more interested in seriously questioning 30-day sentences when federal prosecutors appeal than in questioning 30-year sentences when federal defendants appeal.  

Interestingly, today I was alerted to a new Eleventh Circuit panel ruling in which it is not a 30-year sentences, but actually a 120-year sentence(!), that gets short shrift in the reasonableness review process.  Specifically, in US v. Kirby, No. 18-11253 (11th Cir. Sept. 17, 2019) (available here), the defendant was convicted after trial of three counts of producing child pornography and two counts of possessing child porn.   As described by the Eleventh Circuit panel, the defendant had a large (but not enormous) number of child porn images and he created (but did not distribute) many images of his "thirteen-year-old stepdaughter, either captured by hidden cameras in bathrooms or taken while Kirby was assisting his stepdaughter with stretches due to a sports injury [and also had one] pornographic image of a friend of [his] stepdaughter."  This is serious criminal behavior, but the district court responded (based it seems on a maxed-out guideline range of life) by maxing out all the counts to the statutory maximum and running the terms consecutively to arrive at sentence of 1440 months (120 years) of imprisonment.

In addition to making a technical challenge to how the guideline range of life was used by the district court, the defendant here contended that his sentence was substantively unreasonable.  After discussing the technical issues for a number of pages, here is the full substance of the Kirby panel's response to the reasonableness claim:

As an initial matter, Kirby’s argument is largely predicated on the erroneous conclusion that the district court imposed an above-guidelines sentence.  Regardless, the sentence was not unreasonable.  Before imposing the longest sentence that it could, the district court thoroughly discussed Kirby’s particularly heinous conduct and direct participation in the creation of child pornography, his breach of public trust as a police officer, and his total failure to take responsibility for his actions.

Without seeing the full factual record or the parties' briefs, I am disinclined to assert that the substantive judgment of reasonableness here was obviously wrong.  But where is the circuit concern in this case for the district court's consideration of personal factors and the failure to address the risk of sentence disparities?   And what does strike me as obviously wrong is the obvious fact that there is such a contrast in the amount of attention and deliberation given to the reasonableness claims in cases like Boucher and Kirby.  As long as reviewing courts (and so many others) are so much more likely to worry so much more about undue leniency than about undue severity, over-incarceration will still define our criminal justice systems.

September 18, 2019 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, September 17, 2019

"Tinkering With the Machinery of Death: Lessons From a Failure of Judicial Activism"

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

The Supreme Court’s jurisprudence on capital sentencing is a mess.  That may be the only proposition that draws a consensus in this sharply divisive area.  Critics and supporters of capital punishment agree that the system created by the Court fails to achieve its goals, although for different reasons.  The entire body of case law is an exercise in judicial activism.  That is, it consists of the decisions by the Supreme Court creating rules that shifting majorities believed were good policy at the time, unsupported by any demonstrable connection to the original understanding of the Eighth Amendment. 

I contend that the worst aspect of this body of case law — both in constitutional illegitimacy and in harmful effects — is the rule of Lockett v. Ohio that the defendant must be allowed to introduce and have considered virtually unlimited evidence in mitigation. The Court’s inability to agree with itself from one year to the next on what this rule means has caused many wrongful reversals of well-deserved sentences.  The unlimited potential it creates for attacking the competence of defense counsel continues to cause massive delay and expense, and all for evidence of limited probative value.  This is a massive failure of judicial activism. I propose that the Court prune back the rule to only the circumstances of the crime, youth, and lack of a criminal record and return the question of the admissibility of all other mitigation to the people and the democratic process.

September 17, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, September 16, 2019

Noting efforts to apply reduced sentencing rules under New York's new Domestic Violence Survivors Justice Act

This press release from May 2019 reports on the signing of New York's Domestic Violence Survivors Justice Act and describes the law this way:

The Domestic Violence Survivors Justice Act ... codifies more meaningful sentence reductions for domestic abuse survivors in the criminal justice system and a key initiative in the Governor's 2019 Women's Justice Agenda.  Current law allows judges to administer indeterminate sentences for domestic violence survivors who have committed a crime only in relation to their abuser under certain circumstances.  The Domestic Violence Survivors Justice Act will build upon this law by adding offenses committed due to coercion by an abuser, as well as offenses committed against or at the behest of an abuser who does not share a household or family with the survivor — preventing further victimization of individuals who have endured domestic and sexual violence at the hands of their abusers.

But this New York Post piece, headlined "Mom found guilty of murdering boyfriend seeks lighter sentence under new law," reports on some of the challenges this law has presented in application:

In a matter of weeks, Poughkeepsie mom Nikki Addimando could become the first person in New York state to receive a lighter murder sentence under a new law that shields survivors of domestic abuse. In April, a jury found Addimando guilty of second-degree murder of 29-year-old Christopher Grover — her live-in boyfriend and the father of her two children.

She admitted shooting and killing Grover in September 2017, but said it was in self-defense after years of physical and sexual abuse. In her testimony, Addimando, 30, said Grover would use a hot metal spoon to burn her. Images of burns, lacerations and bruises on her body and face, some taken by medical staffers, were shown during the trial.

Addimando shot Grover in the head 24 hours after Child Protective Services visited their apartment, tipped off that Addimando had bruises on her body. The night of the shooting, Grover took out his gun and threatened to shoot her, telling her “he could kill me in my sleep,” she testified....

Under the new Domestic Violence Survivors Justice Act — signed by Gov. Cuomo on May 14 — Addimando, who currently faces a maximum of 25 years to life in prison, could have her sentenced reduced to five to 15 years.

A three-day hearing to convince state Supreme Court Justice Edward McLoughlin that she was a domestic violence victim concluded Wednesday.  Addimando’s friends have created a We Stand With Nikki website which calls excessive punishment “unjust.”...

The judge will render a decision in November.  “In that decision, he will advise us whether he is sentencing under the act or if he deems a conventional sentence would not be unduly harsh,” said Addimando’s lawyer Benjamin Ostrer.  “Which is ultimately within the judge’s discretion.”

The new law looks at “the extent of the abuse, the degree of the abuse and you have to be able to establish that the abuse led to whatever act that was committed,” according to defense attorney Anthony Cillis, who has handled domestic violence cases.  According to Ostrer, “There’s very little guidance in the act to instruct either the litigants or the court concerning the burden of proof.”

The first defendant to attempt to use the new law failed.  Taylor Partlow, a 26-year-old Buffalo resident who was convicted of stabbing her boyfriend in the chest in 2018, sought a sentence reduction.

The judge decided that Partlow, despite witnesses who saw her boyfriend beating her and dragging her across the floor by her hair, did not qualify.  “The abuse, No. 1, was not substantial abuse and not a significant contributing factor to your behavior,” said state Supreme Court Justice Russell Buscaglia said at a Sept. 8 hearing.  “But I do agree there was domestic abuse.”

There are many interesting substantive elements to this New York DVSJA law providing for lower sentences for domestic violence survivors convicted of offenses related to their abuse.  But I am also intrigued by how the law procedurally seems to require (without any clear proof burden) that a judge must make certain findings in order to have authority to reduce a sentence.  Structured this way, this law seems to set out a structured mitigation sentence-reduction rule that evade the jury finding and proof requirement that Apprendi jurisprudence creates for aggravating sentence-enhnancing laws.

September 16, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Sunday, September 15, 2019

Federal officials reportedly considered using fentanyl for executions when restating machinery of death

As reported in this post from July, federal officials have scheduled as series of executions starting in December of this year and have announced the creation of a new "Federal Execution Protocol Addendum, which ... replaces the three-drug procedure previously used in federal executions with a single drug — pentobarbital."  But according to this new Reuters report, another notable drug was considered by federal officials as they worked to restart the federal machinery of death:

The U.S. Department of Justice examined using fentanyl in lethal injections as it prepared last year to resume executing condemned prisoners, a then untested use of the powerful, addictive opioid that has helped fuel a national crisis of overdose deaths.

The department revealed it had contemplated using the drug in a court filing last month, which has not been previously reported. In the end, it decided against adopting the drug for executions.  Attorney General William Barr announced in July his department instead would use pentobarbital, a barbiturate, when it resumes federal executions later this year, ending a de facto moratorium on the punishment put in place by the administration of U.S. President Barack Obama.

But the special consideration given to the possibilities of fentanyl, even as federal agents were focused on seizing illegal imports of the synthetic opioid, show how much has changed since the federal government last carried out an execution nearly 20 years ago.  Many pharmaceutical companies have since put tight controls on their distribution channels to stop their drugs being used in executions.

As old supply chains vanished, many states, and the federal government in turn, have been forced to tinker with their lethal recipes.  They have experimented with different drugs, in some cases leading to grisly “botched” executions in which the condemned prisoners have visibly suffered prolonged, excruciating deaths, viewed by some as a breach of the constitutional ban on “cruel and unusual” punishments.

In 2017, Nebraska and Nevada announced they would use fentanyl, which is 100 times more powerful than morphine, in new multi-drug execution protocols.

By 2018, the U.S. Justice Department was also examining the “use of fentanyl as part of a lethal injection protocol,” according to a three-page internal memorandum from March 2018 by the director of the department’s Bureau of Prisons.

The Justice Department revealed the memo’s existence in an August court filing after a federal judge ordered it to produce a complete “administrative record” showing how it arrived at the new pentobarbital execution protocol announced in July.

The full contents of the memo are not public. It is not known why the department decided to examine fentanyl, what supply channels were considered or why it ultimately rejected fentanyl as a protocol.  The government’s court filing shows the only other named drug examined as the subject of a department memo was pentobarbital, the drug it now says it wants to use in December and January to kill five of the 61 prisoners awaiting execution on federal death row....

Doctors can prescribe fentanyl for treating severe pain.  In recent years, illegal fentanyl has become a common additive in bootleg pain pills and other street drugs, contributing to the tens of thousands of opioid overdose deaths in the country each year.  Even tiny quantities can slow or stop a person’s breathing.

Earlier this year, an Ohio lawmaker proposed using some of the illegal fentanyl seized from drug traffickers to execute condemned inmates....

In August 2018, Carey Dean Moore became the first person in the United States to be executed using a protocol that included fentanyl.  Nebraska prison officials injected him with fentanyl and three other drugs. Moore took 23 minutes to die. Witnesses said that before succumbing, Moore breathed heavily and coughed and that his face turned red, then purple.

Prior recent related posts:

September 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

California Gov Newsom commutes 21 sentences to make offenders eligible for parole

In his first year in office, California Gov Newsom has not been afraid to use his clemency power in various ways. This local article highlights his latest work in this arena, starting this way: "Gov. Gavin Newsom is commuting the sentences of 21 violent offenders incarcerated in California prisons, including four men who have convictions related to homicides in Sacramento County, the governor’s office announced Friday." Here is more:

Jacoby Felix, Crystal Jones, Andrew Crater and Luis Alberto Velez were convicted of separate murders in the 1990s. All four, now granted commutations by Newsom, were convicted in Sacramento County and sentenced to life in prison without the possibility of parole.

The clemency action was announced Friday in a statement from the governor’s office, which describes the crimes committed by those four men and 17 other state prisoners, and explains the reasoning for commuting their sentences.

“The Governor carefully reviewed each application and considered a number of factors, including the circumstances of the crime and the sentence imposed, the applicant’s conduct while in prison and the applicant’s self-development efforts since the offense, including whether they have made use of available rehabilitative programs and addressed treatment needs,” a statement from Newsom’s office said.

Youth offender status was another important factor considered, with 15 of the 21 total commutations involving inmates convicted before the age of 26. The four Sacramento County grantees were all between ages 18 and 26 at the time of their crimes....

Newsom’s commutations would make each offender eligible for suitability hearings with the state Board of Parole Hearings.

The commutations can be upheld or rejected by the California Supreme Court. The court blocked 10 clemency actions by former Gov. Jerry Brown in his final weeks in office, marking the first time since 1930 that a California governor’s commutation requests had been denied.

But Velez and Jones’ cases have already been reviewed and recommended by both the Board of Parole Hearings and the California Supreme Court, according to Friday’s news release. Those advance reviews are required by law for any commutation case involving an applicant with multiple felony convictions.

Velez, Felix and Crater would be eligible for parole suitability hearings in 2020. Jones would be eligible in approximately 2023 after serving 25 years of his life sentence.

Also included in Newsom’s commutations are Marcus McJimpson, who has served 31 years of two life terms for a 1988 Fresno County double murder, and 80-year-old Doris Roldan, who has been imprisoned since 1981 for the first-degree murder of her husband. Roldan of Los Angeles County – who now uses a wheelchair, as noted in the governor’s statement – was recommended for clemency by her warden.

The Gov's office has this overview statement about all the commutations and detailed discussions of each case appears in gubernatorial clemency certificates available here.

Prior related post about Gov Newsom's clemency work:

September 15, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, September 11, 2019

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

Prior related posts:

September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, September 10, 2019

Previewing another dynamic SCOTUS criminal justice docket

Though we are still nearly a month away from the first Monday in October, it is not too early to start gearing up for what may be another dynamic and interesting Supreme Court Term for criminal justice fans.  Wonderfully, Rory Little has already put together this lengthy preview post at SCOTUSblog under the heading "Overview of the court’s criminal docket for OT 19 — sizeable and significant."  I highly recommend Rory's post in full, and I can excerpt here his intro and conclusion along with a few sentencing-related highlights (with links from the original):

The Supreme Court has already granted review in 50 cases for the term that opens on Monday, October 7.  More will be granted when the court returns for its “long conference” (following the summer recess) on October 1.  By my broad definition (which includes immigration and civil-related-to-criminal cases), 20 of the 50 cases already granted (40%) involve criminal-law or related issues. After consolidations, this represents 16 hours of argument — and 10 of those hours will occur in the first two months.  From this end of the telescope, the cases look important, and a few will certainly have broad impact.

Monday, October 7, will open with two very significant criminal-case arguments, one before and one after lunch (with a patent case sandwiched in the middle).

First, the justices will consider whether a state may (as Kansas has) constitutionally eliminate any defense of insanity to criminal charges.  This presents both due process and Eighth Amendment questions, and involves intricate mental gymnastics regarding the difference(s) between insanity and a permissible defense of lacking criminal mens rea....  After lunch, the court will address the likely far easier question whether the “unanimous verdict” requirement for criminal jury trials under the Sixth Amendment necessarily applies to all the states under the 14th Amendment’s incorporation doctrine....

On October 16, in Mathena v. Malvo, the court will consider the life-without-parole (LWOP) sentence imposed on the juvenile “D.C. sniper,” Lee Malvo, who with an adult partner (since executed) shot and killed 10 people in the Washington, D.C., area in 2002.  The constitutionality of LWOP sentences for juveniles under the Eighth Amendment has bedeviled the court twice previously: Such sentences have been declared unconstitutional when mandatory, but not when discretionary.  This case will examine what exactly that means.  The year-old retirement of Justice Anthony Kennedy, who authored the most recent decision on the issue, makes the outcome difficult to predict....

[A]t least one death-penalty case is almost always on the court’s annual docket.  OT 19 is no exception. In McKinney v. Arizona the justices will address questions revolving around the use and evaluation of mitigating evidence in capital cases....

In Shular v. United States, the justices will once again confront the much-critiqued “categorical approach” to evaluating which state offenses count as predicates for enhanced federal sentencing.

Somewhat refreshingly, the court granted review on a typewritten pro se prisoner petition for certiorari in Banister v. Davis, a habeas case.  Once the court requested a response from Texas, Banister enlisted a former assistant solicitor general and clerk to Justice Sonia Sotomayor to represent him, and the case, although dry, will be significant to the habeas bar....

The Supreme Court’s docket is a bit of an optical illusion: it always looks very different at the start from the way it is perceived by the following July.  Big cases argued in October are decided by early spring and by then are overshadowed by new grants of review, which we now perceive, “if foreseen at all, … dimly.” So stay tuned.  The sense of imminence and uncertainty is one reason the court and its machinations provide such an irresistible attraction!

September 10, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"A Fair Fight: Achieving Indigent Defense Resource Parity"

DefenderParityCoverThe title of this post is the title of this notable new report authored by Bryan Furst, who serves as counsel and the George A. Katz Fellow with the Brennan Center's Justice Program. Here are excerpts from the report's start:

Many of the issues that affect our criminal justice system today — overly long sentences, racial bias, wrongful convictions — are exacerbated by overwhelmed indigent defense systems.  In this moment of bipartisan support for reform, creating resource parity between prosecutors and indigent defenders could help achieve transformative change and lend needed credibility to our criminal justice system....

A functioning adversarial legal system requires two adequately resourced opposing sides.  But American prosecutors, while sometimes under-resourced themselves, are the most powerful actors in the U.S. legal system.  In addition to better funding, there are numerous structural advantages a prosecutor holds that worsen the resource disparity.  For example, harsh mandatory minimums and widespread pretrial incarceration create conditions in which people have essentially no choice but to accept whatever plea deal the prosecutor offers.

Historically, improving the resource disparity for defenders has been politically difficult because of the cost and the fear of looking “soft on crime.”  This might not be as true today, when 71 percent of voters think it is important to reduce the prison population and 66 percent support the use of government tax dollars to provide indigent defense.

In addition, the fiscal costs of indigent defense reform are not nearly as high when one accounts for the savings it can bring.  Issues exacerbated by defender resource disparity — pretrial incarceration, overly long sentences, wrongful convictions — are extremely expensive.  The Prison Policy Initiative estimates that the United States spends $80.7 billion on corrections each year, while pretrial detention alone costs $13.6 billion.  From 1991 to 2016, Texas paid out over $93 million to wrongfully convicted people.

Providing better indigent defense does not always mean spending more money.  State indigent defense systems are often structured in extremely inefficient ways that cost states more than necessary and lead to worse outcomes for people accused of crimes.  Restructuring for those jurisdictions may require an up-front investment but can lead to savings in the long term.

At the heart of defender resource disparity is the chronic underfunding of indigent defense — a phenomenon that is widespread and well-documented.  But fixing the problem will require more than simply increasing funding, and the question demands thinking broadly about the many issues that drive it.  This report identifies five key challenges that contribute to defender resource disparity:

  • Improperly structured indigent defense systems
  • Unsustainable workloads
  • Defender-prosecutor salary disparity
  • Insufficient support staff
  • Disparate federal funding as compared to law enforcement

Many of the solutions presented in this analysis will improve resource parity, requiring increased up-front spending.  Some will produce savings in the long term through cost sharing between indigent defense offices or reduced levels of incarceration, while others, such as mandating open discovery, will cost almost nothing to implement.

This analysis identifies various characteristics of the justice systems that contribute to defender resource disparity and presents solutions to move toward parity.  It seeks to build upon and elevate the work of many others in the multi-decade effort to realize the right to counsel in this country — one of many necessary reforms required to dismantle the systems of mass incarceration.

September 10, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, September 09, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, September 08, 2019

More reason to think Justice Gorsuch might help SCOTUS pioneer criminal justice reforms

Regular readers have seen my regular postings about Justice Neil Gorsuch's notable votes in favor of the claims of federal criminal defendants (some of which I have linked below).  His work to date in criminal cases has me thinking that Justice Gorsuch could be a key vote and important voice helping SCOTUS pioneer many needed criminal justice reforms.  And this new USA Today article, headlined "Supreme Court Justice Neil Gorsuch decries lack of access to justice for many Americans," reinforces my hopefulness in this arena.  Here are excerpts:

Lawyers cost too much. Getting to trial takes too long.  Juries promised by the Constitution are rarely used.  And just try counting all the criminal laws on the books.

Those are among the provocative criticisms made by the Supreme Court's youngest associate justice, Neil Gorsuch, in a USA TODAY interview and his new book, "A Republic, If You Can Keep It."

Gorsuch, 52, is convinced that warning — reportedly issued by Benjamin Franklin after the Constitutional Convention — can be met, and the republic will be preserved. But the problems he observes in the justice system and what he describes as the nation's "crisis in civility" are obstacles he would like to see removed....

The book is, like the justice himself, a study in contrasts.  Folksy and self-deprecating, the court's lone westerner came from Colorado in 2017 with rhetorical guns blazing, amply filling the late conservative Associate Justice Antonin Scalia's seat on the bench.  It took him only two terms to lead his colleagues in dissents.

At the same time, Gorsuch has made peace with the court's liberals, often siding with Associate Justices Sonia Sotomayor and Ruth Bader Ginsburg in defense of the "little guy" being surveilled, accused, tried or convicted of a crime.

Gorsuch doesn't offer solutions for all the problems he identifies in the book.  But he expresses confidence that his judicial methodology — strictly following the words in the Constitution and federal laws rather than his preferred policies — is winning the day.  It's a method decried by many liberals as a means to produce conservative results, to which Gorsuch has a simple reply: "Rubbish!"...

Yet Gorsuch is anything but a go-along-to-get-along guy, as made clear by his expressed desire to fix what ails the nation's justice system.

Most Americans can't afford to hire a lawyer —  "I couldn’t afford my own services when I was in private practice," he writes — nor endure months or years of legal wrangling to reach trial. Too often, he says, defendants are forced to cut a deal with prosecutors or accept a judge's ruling rather than face a jury of their peers.

In a span of seven weeks last term, Gorsuch dissented twice from the court's refusal to hear Sixth Amendment challenges to criminal prosecutions.  One involved evidence he said was not subjected to proper testing and cross-examination.  The other involved a decision on restitution based on findings by a judge, not a jury.  He was joined both times by Sotomayor, perhaps the court's most liberal justice....

Still, Gorsuch has been a reliable member of the court's five-man conservative majority in major cases over the past two terms.  Those include 5-4 decisions upholding Trump's ban on travel from several majority-Muslim nations, barring public employee unions from collecting "fair share" fees from non-members, and removing federal courts from policing even the most extreme partisan election maps.

And when Chief Justice John Roberts joined the court's four liberal justices to deny the Trump administration's effort to add a question on citizenship to the 2020 census, Gorsuch joined the other conservatives in dissent.

During the interview, however, he highlighted cases in which he sided with liberals or when the justices' votes were jumbled beyond ideological explanation.  In most years, he notes, about 40% of cases are decided unanimously.  “Get nine people to agree on where to go to lunch!" he dares his inquisitor.  "It happens through collegiality and hard work and persuasion and thoughtfulness.”

A few prior related posts:

September 8, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Why America Needs to Break Its Addiction to Long Prison Sentences"

The title of this post is the headline of this recent Politico commentary authored by Ben Miller and Daniel Harawa." The piece carries the subheadline "Shorter sentences will end prison crowding and even reduce crime," and here are excerpts:

[A] pressing ... problem in our criminal legal system [is the] lack of meaningful mechanisms in place to allow people in prison to obtain release once they have proven to no longer pose a danger to our communities....  We have forgotten that our justice system is supposed to rehabilitate people, not just punish them....  Though some may point to parole as an option, the potential for release on parole has proven slim, with the federal government and 14 states having eliminated it completely.

For decades, while we made it increasingly difficult to obtain release, we have sent people to prison for longer and longer.  We became reliant on extreme sentences, including mandatory minimums, “three-strike” laws, and so-called truth-in-sentencing requirements that limit opportunities for people to earn time off their sentences for good behavior. As a result, the United States laps the world in the number of people it incarcerates, with 2.2 million people behind bars, representing a 500 percent increase over the past four decades, with 1 in 9 people in prison serving a life sentence....

[I]f we want to significantly reduce the number of people this country incarcerates, legislation is needed at the federal level and in every state to allow everyone after a certain period in prison the opportunity to seek sentence reductions. Sentence review legislation recognizes that as we have increased the length of prison sentences and limited the ability to obtain release, our prisons have become overwhelmed with people whose current conduct proves further incarceration is not in the public interest.

We increased sentence lengths and made it more difficult for people to be released because we were told it was needed for public safety.  But sending people to prison for long periods does not reduce crime. In fact, longer sentences, if anything, create crime.  David Roodman, a senior adviser for Open Philanthropy, reviewed numerous studies on the impact of incarceration and concluded that “in the aftermath of a prison sentence, especially a long one, someone is made more likely to commit a crime than he would have been otherwise.”

Not only are lengthy prison sentences ineffective at reducing crime, but they have devastated low-income and minority communities.  As the Vera Institute aptly put it: “We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms.”  While black people are just 13-percent of the country’s population, they account for 40 percent of the people we incarcerate.

If the ineffectiveness of long prison terms or the impact on poor communities of color is not reason enough to revisit lengthy prison sentences, the financial drain of long prison terms is staggering.  For example, U.S. prisons spend $16 billion per year on elder care alone.  Billions of dollars are diverted to prisons to care for the elderly who would pose no real risk if released when that money could be going to our schools, hospitals, and communities.

Given this reality, we need to pursue every option that would safely reduce our prison population.  One proposal by the American Law Institute recommends reviewing all sentences after a person has served 15 years in prison.  Another example is the bill Sen. Cory Booker (D-N.J.) and Rep. Karen Bass (D-Calif.) introduced that would provide sentence review for anyone who has served more than 10 years in prison or who is over 50 years old.  Notably, neither proposal is restricted by the type of offense, which is critical, because to combat mass incarceration, to echo the Prison Policy Initiative, reform has “to go further than the ‘low hanging fruit’ of nonviolent drug offenses.”

The opposition to any sentence review policy is predictable.  Opponents will decry the danger of releasing “violent” people into the community.  This criticism is straight out of the failed tough-on-crime playbook that created the country’s mass-incarceration crisis in the first place.  It was this same message that pushed legislators and prosecutors for years to enact and seek extreme sentences that have overburdened prisons across the country.  This criticism rings hollow.

Measures that promote sentence review would not automatically release anyone.  Instead, people would be given a chance to show a court that they are no longer a danger to public safety.  A judge — after weighing all relevant circumstances, including hearing from any victims and their families — would then decide whether a person should be released....

Robust sentence review legislation that would help reduce both our prison population and the strain on government budgets must be part of every discussion about criminal justice reform.  Sister Helen Prejean has often said, “People are worth more than the worst thing they've ever done.”  Our policies should reflect the ability of people to change over the course of years — or decades — of incarceration.

September 8, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Friday, September 06, 2019

After gun mandatories deemed unconstitutionally severe, former Blackwater guards get much lower terms at federal resentencing

This New York Times article, headlined "Three Ex-Blackwater Guards Are Resentenced in Iraq War Massacre," reports on high-profile resentencings that followed a (too-rare) ruling that the application of a severe federal mandatory minimum statute violated the Eighth Amendment.  The DC Circuit's significant Eighth Amendment ruling from 2017 is discussed in this post, and here is part of the press report on the resentencing:

Three former Blackwater security contractors were sentenced on Thursday to roughly half of their original 30-year prison terms for the deadly 2007 shooting of unarmed Iraqi civilians in Baghdad’s Nisour Square, widely seen as one of the darkest moments of the Iraq war.

The three former contractors — Dustin L. Heard, Evan S. Liberty and Paul A. Slough — had been convicted in 2014 of multiple counts of manslaughter for their roles in the massacre.  But in 2017, a federal appeals court vacated their sentences, saying the trial judge, Royce C. Lamberth of the Federal District Court for the District of Columbia, erred in invoking a law that requires 30-year sentences for such offenses that involve machine guns....

Prosecutors on Thursday nevertheless asked Judge Lamberth to resentence Mr. Slough to 30 years, and the other two men to slightly less.  Defense lawyers asked him to instead sentence their clients to the roughly five years they had already served.  The three defendants, dressed in orange prison garb, asked to be sent home to their families.

But after a hearing that lasted most of the day and played out before a courtroom packed with dozens of family members, friends and other supporters of the men, the judge rejected those ideas. He instead sentenced Mr. Heard to 12 years and seven months; Mr. Liberty to 14 years; and Mr. Slough to 15 years. In the United States, Judge Lamberth said, “We hold our armed forces and our contractors accountable for their actions.”...

The government had hired Blackwater Security to escort State Department officials through a chaotic war zone in Iraq.  Shortly after the convoy pulled into Nisour Square, the contractors began shooting civilians with machine guns and firing grenades. While the contractors claimed they had come under fire by insurgents, prosecutors said — and a jury agreed — that the evidence showed there had been no incoming fire.

Prosecutors at the hearing on Thursday emphasized that the firing went on for 20 minutes, indicating that a moment of panic had turned into reckless disregard for human life. But they acknowledged that the security contractors had stopped firing at different times.  Prosecutors said that Mr. Slough was jointly responsible for 13 of the deaths and 17 of the wounded, Mr. Liberty for eight of the deaths and 11 of the wounded, and Mr. Heard for six of deaths and 11 of the wounded.

The jury found that the chaotic hail of machine-gun fire and grenades targeting civilians began when another contractor, Nicholas A. Slatten, shot the driver of a white Kia without provocation. Mr. Slatten was retried and convicted of first-degree murder last year, and Judge Lamberth sentenced him last month to life in prison.

During the hearing, Judge Lamberth praised the character of the three defendants before him, calling them “fine young men” but for the aberration of their poor judgment and reckless actions in Nisour Square. But he said he had to balance that assessment against the significant loss of life that resulted from their recklessness and poor judgment, as well as the need to uphold the rule of law.

While the defense objected to the sentences, making clear that another appeal was likely, they and the judge also discussed the possibility that he would recommend to the Bureau of Prisons that it waive certain security restrictions associated with manslaughter convictions.  If those are waived, the three could benefit from a rule permitting certain inmates with less than 10 years left on their sentences to serve the remainder in minimum-security prison camps....

One of the legal issues facing the judge was prosecutors’ contention that each of the defendants should receive an additional 10 years under the law that enhances penalties for crimes involving the use of a firearm.  Defense lawyers said that law should not apply to a war zone case for the same reason that the appeals court rejected the use of the machine-gun law in the case, and Judge Lamberth agreed with the defense.

Still, the judge also quoted lines from the appeals court’s 2017 opinion saying the defendants can and should be held accountable for the death and destruction they had caused: “We by no means intend to minimize the carnage attributable to Slough, Heard and Liberty’s actions.  Their poor judgments resulted in the deaths of many innocent people.  What happened in Nisour Square defies civilized description.”

Prior related post:

September 6, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, September 05, 2019

"Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform"

The title of this post is the title of this new report from The Criminal Justice Policy Program at Harvard Law School Here is how the 80-page report is described on this webpage:

Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform sets forth a new vision for the role courts must play in ensuring proportionate policies and practices for imposing and enforcing monetary sanctions.  This report is a tool for judges, lawmakers, practitioners, and advocates who are pushing for changes in state and local courts, and offers concrete reforms that judges can implement on their own, without legislative action, to ensure that financial sanctions are more proportionate and fair, and to prevent the worst harms that excessive fines and fees can create for poor people.  Adoption of CJPP’s recommended reforms would, on the whole, transform judges’ thinking about monetary sanctions and their impact on the poor.

Overall, the goal of this new framework is to move judicial culture away from the punitive nature of current systems, and towards policies and practices built on proportionality, fairness, and the desire to see individuals complete their sentences and move on with their lives.  While recognizing the need for certain foundational changes (such as eliminating all revenue-raising fees and surcharges, and decreasing the number of cases in the system through decriminalization and diversion), this report details specific actions that can and should be taken immediately by the courts to reduce the consequences of disproportionate monetary sanctions, absent legislative action. Using CJPP’s experience working with different jurisdictions and other reform efforts nationwide as a guide, this report advocates for holistic, comprehensive, and meaningful changes to how courts think about proportionate sentencing, alternatives to payment, monitoring of payment, responses to non-payment, and punitive enforcement mechanisms.  If implemented robustly, these reforms would radically change individuals’ experiences with criminal legal systems.

September 5, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, August 31, 2019

Another indication from Oklahoma of how jurors are keeping the death penalty mostly dormant

With more than 100 executions in the modern capital era, Oklahoma used to be one of the most active death penalty states.  But this new local article, headlined "Jury deadlock latest example of death penalty's decline," highlights how the state has functionally (though not formally) turned away from capital punishments.  Here is an excerpt:

Deputy David Wade died in service to you," District Attorney Laura Austin Thomas told jurors Thursday in asking for the death penalty for his murderer, Nathan LeForce. "Let the punishment fit the crime."

The deputy had been making sure an evicted couple was moving out of a rural residence near Mulhall on April 18, 2017, when LeForce — who was visiting there — pulled out a gun from a piece of furniture and began firing.  The first shot hit the deputy in the vest, spinning him around and knocking him to the ground.  LeForce moved closer, shooting the deputy in the arm, armpit, back and, finally, the mouth, according to evidence presented at the trial.  LeForce fled in the deputy's patrol truck.

Calling the shooting cold-blooded, wicked and vile, the district attorney asked jurors if it did not merit the death penalty than what does. To choose another punishment, she said, would not honor or value the deputy's service.

Jurors, though, struggled with the decision.  After four hours, the foreman told District Judge Phillip Corley they were split 10-2. The judge instructed them to deliberate further.  He told jurors he would decide the sentence if they couldn't agree but explained his options could not include death. About 90 minutes later, jurors reported they were at an impasse, 11-1.  The judge thanked them and discharged them from duty.

The deadlock is the latest example of the death penalty's decline.  Death sentences have become increasingly rare in Oklahoma and nationwide as opposition to the punishment grows.  In May, New Hampshire became the 21st state to abolish the death penalty. Last week, the Ohio House speaker told reporters he's become "less and less supportive" of the death penalty....

Nationwide, a death sentence was imposed only 42 times last year, according to the Death Penalty Information Center.

In Oklahoma, only one death sentence was imposed last year and only one has been imposed so far this year. Executions remain on hold in the state while officials develop a protocol to use nitrogen gas.  The last lethal injection in Oklahoma murderer was on Jan. 15, 2015.

The deadlock Thursday night angered relatives of the victim and upset the sheriff and the almost two dozen deputies in the courtroom. It frustrated prosecutors, who believe the majority of jurors favored death.

August 31, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, August 28, 2019

Highlighting the need for community supervision to focus on rewarding success

Marc Levin has this new Hill commentary under the headline "Our justice system must reward success."  Here are excerpts:

Given that 4.5 million Americans are on community supervision, the question of how many of them no longer require government control has far-reaching implications, both from a government fiscal standpoint and societally.  Fortunately, policymakers are increasingly focused on creating standards for whether continued supervision is needed that focus not on the past, but on the future.  Since 2007, 18 states have implemented policies allowing individuals on probation to earn time for exemplary performance.

Robust earned time and early termination policies for community supervision have proven effective for both public safety and taxpayers who fund probation and parole agencies. In 2008, Arizona enacted a law giving people on probation 20 days credit for each month they make progress on their treatment plan and avoid new arrests.  In the subsequent two years, the number of people on probation convicted of new crimes substantially declined.

This is not surprising given that research reveals that most recidivism occurs during the initial part of the supervision period.  Multiple studies show that people are most likely to recidivate right after being released than at the end of their supervision.  Similarly, after New York City early terminated low-risk people on probation, they were less likely to be re-arrested for a new felony during their first year off supervision than similar individuals who had remained on supervision.

Moreover, removing people for whom monitoring isn’t likely to improve public safety from the supervision rolls frees up probation and parole officers to supervise those who are at greater risk of committing a new crime.  This means these officers can do more than shuffle the files of 100 people on their caseload and instead provide interventions such as motivational interviewing that addresses the attitudes and behaviors of those most at risk to recidivate.

Despite the progress some jurisdictions have made in providing incentives for success and focusing supervision on those who need it, many others do not allow earned time or early termination.  Additionally, excessive supervision periods remain, ranging from up to 40 years on probation for some in Minnesota to lifetime parole sentences in Nebraska.

When it comes to community supervision, we must focus on how well the system achieves rehabilitation, not on maximizing its duration.  Let’s reward success by allowing people to demonstrate they are not a threat and earn their way off supervision.  Intensive supervision has a place for those most at risk of going back to their old ways, but in many cases, government can accomplish more by doing less.

August 28, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

"Translating Crimes"

The title of this post is the title of this notable new article now available on SSRN authored by Eric Fish.  Here is its abstract:

Criminal history is all-important in the criminal and immigration systems.  A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, be targeted for immigration enforcement, lose or keep their immigration status, and face or avoid deportation, among many other consequences.  Yet despite the vital role that criminal history plays, judges, prosecutors, and other government lawyers know surprisingly little about the past crimes of the people they process.  Factually rich accounts of a person’s prior convictions are rarely available, and the system instead relies on rap sheets that record minimal facts — the charge, the date of conviction, and the sentence imposed.

Because of this information scarcity, the criminal and immigration systems use criminal history heuristics when determining the consequences of prior convictions.  Such heuristics include the number of past convictions, the types of crime charged, and the sentences imposed.  These heuristics are inputted into mechanical formulas that translate them into often-severe consequences like deportations and mandatory minimum sentences.  This way of using criminal history creates a number of serious problems in our system.  It causes irrational and unjust results, renders the system arbitrary to the people being processed, exacerbates racial disparities, and makes access to a competent lawyer vital.  This Article diagnoses these problems and proposes a number of reforms, including ending the convention of “time served” sentencing and rewriting state criminal laws to limit their immigration consequences.

August 28, 2019 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, August 27, 2019

Making the case for exempting juvenile offenders from being subject to adult mandatory minimums

Nila Bala and James Dold have this new commentary at The Hill under the headline "Mandatory minimums harm children." Here are excerpts:

An estimated 76,000 children are tried as adults every year.  These children end up in a system that is poorly equipped to serve them.  Children are fundamentally different from adults, which is why we do not let children vote in elections, join the military, or buy cigarettes.  Young people often make bad decisions without pausing to think about the consequences. But because their brains are still developing, they also have an incredible capacity for change, and who they are when they are teenagers is certainly not who they will be for the rest of their lives.  This is why the Supreme Court, in a series of rulings, has struck down the use of the death penalty for those under 18 and declared life without parole an impermissible sentence for the vast majority of children.

Yet, many children still face incredibly long sentences that are harmful to them and provide no commensurate benefit to public safety.  A few decades ago, a group of academics propagated the false notion that some young people could not be rehabilitated because they were so evil and remorseless that they should be termed “superpredators.”  This idea has been completely debunked.  Unfortunately, the bad policies that allowed children to be easily transferred into the adult criminal justice system in the wake of the superpredator era had a lasting impact across the country.  Children continue to be subject to lengthy mandatory minimum sentences when they are tried as adults, and their status as children is often not considered during sentencing.

The adult system is not the right place for children, who grow up without educational opportunities, age appropriate services, or treatment if they are placed in it.  In the adult system, they face far greater risks of physical and sexual abuse, and are far more likely to commit suicide than youth committed to the juvenile justice system.  Long sentences driven by mandatory minimums further compound the harm these children suffer.  When we prosecute children in the adult system, where the focus is on punishment instead of on treatment, we continue failing to address why kids end up committing crimes in the first place....

As the law stands now, the hands of judges are tied when sentencing under statutes that require harsh mandatory minimums that do not consider the capacity of children to change.  Under House Resolution 1949, however, judges would be required to consider how children are fundamentally different from adults and would be authorized, but would not be required, to depart up to 35 percent from the otherwise applicable mandatory minimum sentence.  Similar legislation has been championed at the state level by members of both parties, and most recently by Republican state lawmakers in Arkansas and Nevada.

I believe this commentary means to reference this bill, H.R. 1949.  But the text of the bill, though it does allow a judge "to impose a sentence that is 35 percent below a level established by statute as a minimum sentence so as to reflect the juvenile’s age and prospect for rehabilitation," does not actually expressly require a judge to consider how juvenile offender are different than adult.  

August 27, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 26, 2019

Feds officially commit to seeking death penalty for Pittsburgh synagogue mass murderer

As reported in this local article, the "Justice Department said Monday that it will seek the death penalty for Robert Bowers, accused of killing 11 at Tree of Life synagogue in Squirrel Hill and wounding six others last year in the worst attack on Jews in U.S. history." Here is more:

The move was expected. Within days of the Oct. 27 massacre, the U.S. attorney's office said it had started the approval process for seeking death for Mr. Bowers in consultation with DOJ's capital crimes unit and the U.S. attorney general, Jeff Sessions at the time.

In a court filing Monday, prosecutors said Mr. Bowers qualifies for the death penalty because he allegedly targeted vulnerable people out of religious hatred, killed multiple victims and tried to kill others, chose the site to make an impact and showed no remorse, among other factors.

The decision to seek death comes despite a request by two of the Jewish congregations targeted in the shootings to spare Mr. Bowers' life.  In a recent letter to Attorney General William Barr, the groups cited religious and personal objections to capital punishment.  They also expressed concern about a trial and penalty phase that would require testimony from survivors, exposing them to further trauma.

Stephen Cohen, co-president of New Light Congregation, who had written to Attorney General Barr urging he accept a guilty plea with a guaranteed life sentence, said it was “absolutely the wrong decision” to seek the death penalty.  A trial will not bring closure to victims, he said. They will have to testify in court and sit there while “this heinous person tries to prove he didn’t do something he obviously did,” Mr. Cohen said. There’s no guarantee of a conviction, he said, and even if there is a finding of guilt, “people stay on death row for years and years.”...

Death penalty cases are rare in the federal system and executions almost never occur. Only three people have been put to death federally since the death penalty was reinstated in 1988....  Mr. Bowers is only the fourth person to face death in the history of the Western District of Pennsylvania, which comprises 25 counties.  None was executed.

August 26, 2019 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems

Grant Pardon RatioRJ Vogt over at Law360 has this lengthy new piece discussing both federal clemency and one of my favorite parts of the FIRST STEP Act under the headline "How Courts Could Ease The White House's Clemency Backlog."  I recommend the piece in full, and here are some extended excerpts:

More than 11,430 federal prisoners, many of them nonviolent offenders serving life sentences, have commutation petitions pending at the U.S. Department of Justice’s Office of the Pardon Attorney, or OPA. Another 2,393 applications for presidential pardons, which are generally issued after someone completes a sentence, are also pending.

Both numbers mark record highs for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

Today, access to clemency is anything but. Sam Morison, a former OPA attorney who now helps clients file petitions, says the Justice Department uses its oversight to stymie petitions before they ever reach the president’s desk. “The DOJ is to blame for the backlog,” Morison said. “They view their role as protecting the prosecutorial prerogative because, let's face it, that's what they do.”

Some legal scholars believe the First Step Act, a landmark criminal justice reform bill President Donald Trump signed into law in December, created a way for inmates to bypass DOJ oversight by asking judges for sentence reductions based on the circumstances of their cases.

But the concept hasn’t been tested in large numbers yet, and in the meantime, the odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump....

Much of today’s epic backlog can be traced to President Barack Obama’s 2014 Clemency Initiative.

The project, which was designed to identify nonviolent federal prisoners who would not threaten public safety if released, got off to a rocky start when the DOJ sent the entire federal prison population a notice of the initiative and a survey to gauge inmate interest. The DOJ’s failure to “exclude inmates who were clearly ineligible for consideration” led to an overwhelming response, according to a 2018 inspector general report.

Over the last 33 months of Obama’s presidency, OPA received more commutation petitions than it had in the previous 24 years combined. At the same time, pardon petitions doubled, from a yearly average of 276 to an average of 521....

Shon Hopwood, a professor at Georgetown University Law Center, believes the First Step Act created a new path to commuted sentences... [H]e cited the First Step Act’s expansion of compassionate release as a more accessible option....

Under the First Step Act, a defendant no longer needs the bureau's backing. If the director won’t make the request for an inmate within 30 days of being asked, the new law allows the defendant to file a motion for resentencing directly in court. In a forthcoming law review article, Hopwood writes that judges can now consider “extraordinary” reasons for compassionate release without having to wait for Bureau of Prisons approval.

“Those serving long or life without parole sentences for marijuana trafficking offenses are the first to come to mind,” he wrote. “Another group ... might be those sentenced to harsh mandatory minimum sentences, even though the facts of their crimes made them far less culpable than someone committing a run-of-the-mill offense.”...

Margaret Love, U.S. pardon attorney from 1990-1997, told Law360 that the concept is “the hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention.”

“This has obviated the need for the clemency process to take care of the great majority of commutation cases,” she said.

Hopwood acknowledged that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload.

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

August 26, 2019 in Clemency and Pardons, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 22, 2019

Terrific review of localities that are "Addicted to Fines"

The latest (and sadly the last) issue of Governing magazine has this terrific lengthy cover story fully titled "Addicted to Fines: Small towns in much of the country are dangerously dependent on punitive fines and fees." I recommend the full extended article, and here is how it gets started:

Flashing police lights are a common sight all along Interstate 75 in rural south Georgia.  On one recent afternoon in Turner County, sheriff’s deputies pulled over a vehicle heading northbound and another just a few miles up on the opposite side of the interstate.  In the small community of Norman Park, an officer was clocking cars near the edge of town. In Warwick to the north, a police cruiser waited in the middle of a five-lane throughway.

These places have one thing in common: They issue a lot of tickets, and they finance their governments by doing it.  Like many other rural jurisdictions, towns in south Georgia have suffered decades of a slow economic decline that’s left them without much of a tax base.  But they see a large amount of through-traffic from semi-trucks and Florida-bound tourists.  And they’ve grown reliant on ticketing them to meet their expenses.  “Georgia is a classic example of a place where you have these inextricable ties between the police, the town and the court,” says Lisa Foster, co-director of the Fines and Fees Justice Center.  “Any city that’s short on revenue is going to be tempted to use the judicial system.”

This is by no means just a Georgia phenomenon. Throughout the country, smaller cities and towns generate major dollars from different types of fines, sometimes accounting for more than half of their revenues. Some places are known for being speed traps. Others prop up their budgets using traffic cameras, parking citations or code enforcement violations.

To get a picture of just how much cities, towns and counties rely on fines and fees, Governing conducted the largest national analysis to date of fine revenues and the extent to which they fund budgets, compiling data from thousands of annual financial audits and reports filed to state agencies. 

What we found is that in hundreds of jurisdictions throughout the country, fines are used to fund a significant portion of the budget.  They account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions.  In at least 284 of those governments, it’s more than 20 percent.  Some other governments allocate the revenues outside the general fund.  When fine and forfeiture revenues in all funds are considered, more than 720 localities reported annual revenues exceeding $100 for every adult resident. And those numbers would be even higher if they included communities reporting less than $100,000 in fines; those jurisdictions were excluded from our analysis.  In some places, traffic fine revenue actually exceeds limits outlined in state laws.

High fine communities can be found in just about every state, but they tend to be concentrated in certain parts of the country.  Rural areas with high poverty have especially high rates.  So do places with very limited tax bases or those with independent local municipal courts.  And these jurisdictions are far more common in the South than elsewhere.  The states that stood out in our analysis were Arkansas, Georgia, Louisiana, Oklahoma and Texas, plus New York.  Fines and forfeitures accounted for more than one-fifth of general revenues in the most recent financial audits for 52 localities in Georgia, and 49 in Louisiana.  By contrast, several Northeastern states with high property taxes had no localities exceeding the 10 percent threshold.

Notably, the big criminal justice reform plans released by major candidates for the Democratic Prez nomination all make brief mention of excessive fines of fees. But this Governing report provides an interesting insight into just how significant these matters can be for rural areas and their citizenry, and candidates eager to speak to the experiences of rural voters might want to give particular attention to this particular arena for needed criminal justice reforms.

August 22, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Wednesday, August 21, 2019

Texas completes its fourth execution of year, this time of a defendant who persistently proclaimed his innocence

As reported in this local article, headlined "‘Lord forgive ’em’: Larry Swearingen executed despite claims of innocence," the state of Texas carried out an execution this evening. Here are some of the details:

For two decades, Larry Ray Swearingen told anyone who would listen that he did not kill Melissa Trotter. He knew her, he said — but wasn’t the one who raped and strangled the 19-year-old college student before dumping her body among the trees of the Sam Houston National Forest.

But on Wednesday night, the courts all turned down his final claims and the 48-year-old Montgomery County man met his end on the gurney in Huntsville. He took his final breath at 6:47 p.m., becoming the fourth man executed this year in the Lone Star State. “Lord forgive ’em,” he said. “They don’t know what they’re doing.”

Eyes closed, he began narrating his own death: “I can hear it going through the vein — I can taste it,” he said, before describing a burning in his right arm. “I don’t feel anything in the left,” he added. At 6:35, he began snoring. Twelve minutes later, he died.

In the past, he’d always managed to eke out last-minute stays before each of his last five scheduled death dates - and for months he was skeptical that the Aug. 21 execution could really come to pass. “I don’t believe you’re going to kill me,” he told the Houston Chronicle in May, likening the case against him to a house of cards. “I believe I will pull that one single card and it’s gonna come tumbling down.”

But just before 6 p.m., the U.S. Supreme Court denied his final appeal and Swearingen’s hope for reprieve faded. The condemned man’s lawyers repeatedly decried the case as a wrongful conviction built on “junk science” and circumstantial evidence that they say left behind unanswered questions about everything from the expert testimony to cellphone forensics. “They may put Larry Swearingen under,” said Houston-based attorney James Rytting said before the execution. “But his case is not going to die.”

Still, Montgomery County prosecutors were confident in their conviction and the “mountain” of evidence against him - as was Sandy Trotter, the slain teen’s mother. For her, there was never a doubt who did it. “There are no winners in this,” she said Tuesday. “We’ll never have Melissa back.”...

In December of 1998, Melissa Trotter was a student at Montgomery College, where she hoped to hone her foreign language skills and eventually pursue a career in business. Before that she’d taught at vacation Bible school and grown into a “typical 19-year-old,” according to her mother.

She met Swearingen, eight years her senior, around town — “here and there,” by his account. They struck up a casual relationship. “The evidence really did establish the friendship,” Swearingen said, “and then they turned it into murder to support their conviction.”

The two were spotted together in the college library on Dec. 8, 1998 - the day the teen disappeared. A biology teacher saw Trotter leaving campus with a man, but Swearingen has maintained it wasn’t him. And, though forensic evidence later showed the teen had been in his car, Swearingen said it wasn’t necessarily that day.

During trial, the former electrician’s wife testified that she came home that evening to find their trailer a mess. In the middle of it all were Trotter’s lighter and a pack of her brand of cigarettes. The unexpected disarray could have been the sign of a struggle, but Swearingen chalked it up to a break-in, and later filed a police report saying his home had been burgled while he was gone.

But aside from the cigarettes and the chaos, authorities eventually found half a pair of pantyhose, which state experts later said matched the hosiery wrapped around Trotter’s neck. Hunters only found her decomposing body in the woods weeks later, but by that time authorities in Galveston had already arrested Swearingen for outstanding traffic tickets.

In the summer of 2000, he was sentenced to death. Following his conviction, Swearingen’s legal team strove to dismantle the case against him, which was always circumstantial: There was never any biological evidence tying Swearingen to the slaying.

August 21, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

"How Do Prosecutors (and the Rest of Us) Get Sentencing So Wrong?"

The title of this post is the title of this lengthy new commentary at The Crime Report authored by James Doyle.  Here are excerpts: 

When enlightened prosecutors are forming Conviction Integrity Units to reassess old convictions, initiating Sentence Review Units to re-examine distended sentences would save money, and lead to the release of prisoners who are no longer dangerous.  It’s a very good idea, even if the problem is not as simple as it might seem.  In many states, a D.A. who has identified a grotesquely excessive sentence has no procedural avenue available for cutting the sentence. New legal tools will have to be developed....

But [even if] we cut the prison population by reviewing old sentences and releasing prisoners, how do we avoid quickly replacing them?  Don’t we have to work to understand why the horrific sentences were imposed in the first place?  Why our predecessors zigged when we know that they should have zagged?

For me, the best way to approach this question is to take a few pages from the books of medicine and aviation and follow every finding of an unjust sentence with an all-stakeholders’ forward-looking, non-blaming learning review, focused on avoiding repetition.  When a D.A. uncovers a mistaken sentence it should be treated as a “Sentinel Event” — as an opportunity to learn by mobilizing the perspectives of all ranks, in all of the professional roles implicated: cops, prosecutors, defenders, probation offices, and courts.

And we should hear from the victims, from the communities the sentences were designed to protect, and from the researchers who marshal the data relevant to the decisions and their aftermaths. (It wouldn’t hurt to hear from the defendants too.)...

My prediction is that we will find that there was a moment in almost every case that a new Sentencing Review Unit identifies when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke....

What we actually face is the work product of hard-pressed cops, lawyers, probation officers, and judges trying to get through their days.  They were not driven by ideological commitments or racist theories.  But they were under pressure — from the politicians and the media, from their caseloads, the docket lists, their peers, and administrators thirsty for “outputs.”

They didn’t set out to do extraordinary harm to individual minority defendants; it’s worse than that.  The fact is they didn’t care enough about any individual minority defendant to target one. They barely saw them. These players were seeking their own safety as much as they are seeking anything, and their strongest allegiance was to the path of least resistance.

They wanted to get to get rid of the damned case without a trial, and to move on to the next one.  Then, tomorrow, they would be able to handle that next case in the same way, as long as they managed to preserve the “going rate” today.  Long prison sentences were a weapon in their daily struggles, not their goal.

Mass incarceration was not produced by a clap of legislative thunder; it was produced by a process of drift — even if that process was assisted by new legislative levers. Each day’s longer sentence became the new departure point for the next day’s — which, in turn, was just a little bit longer. So, the new prisoner would be there to be counted next year too.  Who brought that about?  Everybody....

New Sentence Reviews will find individual cases where a prosecutor decided on an extreme sentence and rammed it through.  But more often, an extreme sentence involves acts (and omissions) from across the range of criminal justice operators involved in a case.

Each participant in a sentencing — cop, probation officer, prosecutor, defender, judge — makes choices that affect everyone else’s work.  And all of these players are buffeted simultaneously by external environmental factors: caseloads rise, budgets fall, treatment programs close, spasmodic media pressure ratchets up, options narrow....

A Sentencing Review Unit can do crucial work in correcting injustices.  But we ought to remember what is an axiom to the people who work in the field of public safety: Nothing is ever permanently “fixed”; your “fix” is under attack by its environment the moment it you put it in place.

August 21, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)