Tuesday, August 20, 2019

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

August 20, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 19, 2019

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

August 19, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, August 18, 2019

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, August 16, 2019

"Gamble, Dual Sovereignty, and Due Process"

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

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast.  What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls.  At the center is the so-called “dual sovereignty” doctrine.  This principle holds that separate sovereigns may prosecute for what looks like the same “offence” — to use the Constitution’s language — because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play.  As a doctrine that relates to a right guaranteed by the Bill of Rights, it’s remarkably one-dimensional in favor of government.

In Gamble v. United States the Supreme Court reaffirmed and built upon this view, or what I have called a “jurisdictional theory” of double jeopardy.  This theory peels back the label “sovereign” to extract its underlying rationale; namely, sovereign means an entity with independent jurisdiction to make and apply law, or prescriptive jurisdiction, and that prescriptive jurisdiction authorizes independent jurisdiction to enforce law through a separate prosecution.  This terminological move from sovereignty to jurisdiction is not just semantic.  Rather, it opens up analysis.  The theory holds strong explanatory power for current double jeopardy law and practice as well as dynamic doctrinal and normative implications for double jeopardy law going forward, perhaps most of all for U.S. prosecutions relating to criminal activity abroad like human rights abuses, piracy, and various forms of terrorism.

It also imports a whole other part of the Constitution: The Due Process Clause, or Clauses — the Fourteenth Amendment for the states, and the Fifth Amendment for the federal government.  For any exercise of jurisdiction in this country must be measured against due process. In other words, if the sovereign has no jurisdiction over the offense, the sovereign cannot successively prosecute.  Here Gamble’s language that the United States might successively prosecute for crimes abroad when it has “interests” fits snugly into existing due process analyses because both the Fourteenth Amendment and the Fifth Amendment tests also involve interest analyses.

August 16, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

August 16, 2019 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Tuesday, August 13, 2019

"After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct"

The title of this post is the title of this notable new paper authored by Paul Robinson and Muhammad Sarahne now available via SSRN. Here is its abstract:

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals.  After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment.  This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense.

The essay considers how one might operationalize a system for giving special accommodation to such offenders.  Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

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

"Gatekeepers: The Role of Police in Ending Mass Incarceration"

The title of this post is the title of this lengthy new Vera Institute report.  Here is a paragraph from the report's introduction:

With a growing consensus that local jails are a primary locus of mass incarceration, data on arrest trends points to an urgent need to focus more deliberately on one of the problem’s primary points of origin: policing practices.... Police officers, as gatekeepers of the criminal justice system, hold almost exclusive authority — by way of citations, arrests, and even physical force — to enforce and regulate the law.  And they have increasingly been asked to do this in situations that involve societal problems that would be better resolved in the community — problems like homelessness, mental illness, and substance use.  Although arrest volume is down across almost all offense categories since its high-water mark of 15 million in 1997, nationally there are still roughly 28,000 arrests every day, which equates to one arrest every three seconds or approximately 10.5 million every year.  By virtue of their arrest, all these people face probable jail incarceration.  This volume does not reflect an increase in arrests for serious crimes.  In fact, the proportion of serious violent crimes among all arrests — less than 5 percent — has not changed in decades.  Rather, arrests most often occur in response to minor offenses — including drug use violations and disorderly conduct — which account for more than 80 percent of total arrests.  This mass enforcement of relatively minor law violations suggests that policing practices currently tend toward punitive approaches — that is, those that prioritize arrest and frequently lead to time behind bars—in ways that are often not necessary to achieve public safety.

August 13, 2019 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 12, 2019

"The Twenty-First Century Death Penalty and Paths Forward"

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

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States.  Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration.  While not abolished, in many states application of the death penalty is grinding or has ground to a halt.  If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.

This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators.  There at least three clearly discernable paths forward that states could follow.  One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison.  Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole.  Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.

In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states.  Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present.  In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves.  Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.

August 12, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment

As reported in this local article, a "federal court has ordered Missouri to overhaul how it handles the parole process for offenders who committed violent crimes as a minor."  Here is more about a notable ruling:

U.S. District Judge Nanette K. Laughrey issued declaratory and injunctive relief, ordering the Missouri Probation and Parole Board to improve transparency, accountability, and training for youthful offender parole hearings.

“Specifically, the Court found that a number of Defendants’ policies, practices, and customs combine to deprive those serving [juvenile life without parole] sentences of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the 23-page order states.

The judgment included nearly two dozen procedures — developed through mediation — the state is required to “promptly implement.”...  The Missouri Probation and Parole Board has already adopted some of the procedures, such as allowing note taking during hearings.

The extensive changes come as a result of a class action lawsuit, Brown v. Precythe, filed by the MacArthur Justice Center, targeting the parole board’s alleged failure to comply with state and federal law when it comes to juvenile offenders serving mandatory life without parole sentences.

“This is a significant and long-awaited victory,” said Amy E. Breihan, MacArthur Justice Center’s Missouri director. “Seven years after the Supreme Court invalidated these juvenile [life without parole] sentences, Missouri is finally being held accountable for providing impacted folks a meaningful and realistic opportunity for release.”...

In 2016, SB 590 was passed by the Missouri General Assembly and signed into law.  The bill, in part, allows offenders sentenced as a juvenile to life without parole prior to Aug. 28, 2016, to “submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole.”

The original lawsuit alleged the parole board treated those individuals “with arbitrary and cruel practices.”  The judge sided with the inmates, ordering an overhaul of how the parole hearings are handled.  “Perhaps the most important part of the order,” said Breihan, “is that it prohibits the Parole Board from denying parole based solely on the seriousness of the offense, and requires them to make decisions through a youth-focused lens. Indeed, these decisions should be based on who these men and women have become over time, not their worst act as children.”

The full 23-page court order can be found at this link.

August 12, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 10, 2019

Another two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post a few months ago, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And \these two additional pieces are now accessible to all (with a paragraph quoted here):

The Insidious Injustice of the Trial Penalty: “It is not the intensity but the duration of pain that breaks the will to resist. by Emma Andersson and Jeffery Robinson

Like most abusive practices in the criminal legal system, the trial penalty has a greater impact on people of color and the poor than it does on others. Although wealthy clients cannot buy their way out of a trial penalty, they can mitigate its impact by paying higher fines or penalties in exchange for shorter sentences. Bail pending resolution of the case can also impact the ultimate sentence — people who are out of custody at the time of sentencing tend to get shorter sentences that those who are in custody. Money and race play out in the bail system like they do in every other part of the criminal legal system. In addition to shorter sentences, the conditions of confinement faced by wealthy people (who can hire consultants to try to improve placement in a prison system) can be extraordinarily better than those generally faced by people of color and the poor.

Innocents Who Plead Guilty: An Analysis of Patterns in DNA Exoneration Cases by Glinda S. CooperVanessa Meterko and Prahelika Gadtaula

Since 1989, the year of the first DNA exoneration, more than 360 people have been exonerated based on DNA evidence. The vast majority (> 98 percent) had been wrongfully convicted of serious felonies involving homicide or sexual assault. These DNA exonerations represent 15 percent of the 2,359 exonerations documented in the United States. Among the many insights drawn from these wrongful convictions is the realization that a guilty plea is not an uncommon outcome for innocent people who have been charged with a crime: 11 percent of the DNA exonerees recorded by the Innocence Project pleaded guilty.  This paper explores demographic, crime-related, and sentencing factors associated with the decision of people to plead guilty to a crime they did not commit.

Prior related posts:

August 10, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (0)

Friday, August 09, 2019

"Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal."

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: "American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial." I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”...

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.

August 9, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, August 05, 2019

Are pretrial risk assessment algorithms really part of "socialist agendas that are sweeping this country"?

The question in the title of this post is prompted by this curious new Fox News commentary authored by US Senator John Kennedy under the headline "Bail, bond decisions are being made today with algorithms -- That puts your safety at risk."  Here are excerpts:

Jurisdictions across the U.S. are snapping up algorithms as tools to help judges make bail and bond decisions. They’re being sold as race- and gender-neutral assessments that allow judges to use science in determining whether someone will behave if released from jail pending trial.

Really, they’re a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.

The algorithms scare me because they’re being implemented for the same reason as the early release programs that are getting people killed.  The goal isn’t to protect public safety.  It’s to empty jail cells and release dangerous criminals on their own recognizance.

As a member of the Senate Judiciary Committee, I’m concerned about the recklessness of public policy that endangers people’s lives, especially in minority communities, where crime often is such a scourge.  These algorithms -- called pretrial assessment release tools -- are the equivalent of using a Magic 8 ball in courtrooms.  The results are disastrous to communities and great for criminals.

In my home state of Louisiana, New Orleans decided a few years ago to reduce the jail population. City officials started using a pretrial assessment release tool that was available for free from a nonprofit founded by a former hedge fund manager who became a billionaire through risky investments that turned into gold.

Do you know what happens when you allow a hedge fund manager to restructure your criminal justice system? You get a model that’s fraught with risk.

The new tool comes into play when someone is arrested on a felony charge, such as robbery or rape. The tool comes up with a score of one to five based on the defendant’s age, criminal history and several other factors. A “one” is considered a low risk to public safety. A “five” is considered justification for maximum supervision.

You would think that a risk level of “one” would be limited to people who jaywalk or shoplift. You would be wrong. In practice, a “five” apparently is reserved for people who kill busloads of nuns.  Ordinary thugs get a “one” as long as they promise that they’ll spend all their time in church and attend every court appearance.  They don’t have to regularly check in with a court officer or even call once a month....

The Metropolitan Crime Commission found that 37.6% of the people arrested for violent felonies in New Orleans during the third and fourth quarters of 2018 received the lowest risk level of “one.”  That included more than 32% of the people arrested for homicide and 36.5% of the people arrested for rape.

Algorithms diminish public safety in this country.  They ask us to pretend that lengthy arrest records and violent crimes don’t matter. They ask police to scoop up the bad guys only for the courts to immediately release them.  They turn us into a bad joke.

The use of risk assessment algorithms, whether pretrial or at sentencing or in the prison system, is an important modern criminal justice development that justifies much scrutiny and can be criticized on many grounds. But this commentary by Senator Kennedy reads a bit like a parody.

For starters, one of the main reasons risk assessments are appealing is because judicial decision-making without the help of data can itself often seem a lot like "Magic 8 ball" decision-making.  Moreover, all sound risk-assessment tools factor in arrest records and violent crimes, so they cannot properly be attacked for pretending that these past acts "don’t matter."  And, most amusingly, I cannot  quite fathom how efforts to make criminal justice decisions based on useful and relevant data amounts to part of "socialist agendas." 

I would welcome Senator Kennedy encouraging the Senate Judiciary Committee to hold hearings about the pros and cons of using risk assessment algorithms in modern criminal justice systems.  But, since he suggests giving judges more information is part of "socialist agendas that are sweeping this country," I worry he might think informing Senators more about these matters also somehow has mysterious sinister socialist undertones.

August 5, 2019 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (6)

Sunday, August 04, 2019

"Charging As Sentencing"

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

This Article connects two uncontroversial claims to support a novel and momentous thesis.  The first familiar claim is descriptive.  The most important determinant of an offender’s sentence is the discretionary selection of charges before guilty plea or trial.  The second familiar claim is doctrinal.  The Supreme Court has held that procedural due process requires that the discretionary selection of a sentence from within a statutory range be made by a neutral tribunal after notice and hearing.  Together, these humdrum observations imply that statutes delegating sentencing power to prosecutors — so-called “mandatory” minimum sentences -- are unconstitutional.  Part I presents the descriptive claim that charging, in many cases, simply is sentencing.  Part I also reviews the Supreme Court’s jurisprudence rejecting constitutional challenges to prosecutorial discretion, decisions premised on a statutory baseline, the long-discredited right-privilege distinction.  Part II reviews the Court’s sentencing cases.  These decisions rejected the right-privilege distinction by substituting a procedural for a statutory baseline.  These cases hold that procedural due process permits legislative delegation of sentencing discretion only to neutral tribunals.

The sentencing cases condemn sentencing by prosecutors as a violation of procedural due process.  Yet the Court has sustained prosecutorial charging discretion against multiple challenges, albeit not the one raised by this Article.  There are at least four possible resolutions of the conflict in the cases. Courts might: (1) deny the equation of charging and sentencing, because the effect of charging on sentencing is contingent; (2) bless the inconsistency in the cases by appealing to history; (3) regulate charging decisions via administrative law, or (4) declare prosecutorial discretion to bring charges carrying mandatory minimum penalties unconstitutional.  The rest of the Article argues against options (1), (2) and (3), and in favor of option (4).  Replies are offered to objections based on pragmatism or on politics.

August 4, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, August 02, 2019

Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.

August 2, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"Every D.A. in America Should Open a Sentence Review Unit"

The title of this post is the title of this notable new New York Times commentary authored by James Forman Jr. and Sarah Lustbader. Here are excerpts:

What can we do to shrink our prison population, the world’s largest?

Most answers to that question point forward: They look to reduce future arrests, prosecutions and sentences. But such changes, while desperately needed, do nothing for the hundreds of thousands of people who are already serving long sentences in America’s expensive and overcrowded prison system.

And make no mistake about it: There are a lot of people serving extraordinarily long sentences. The state prison population grew 222 percent from 1980 to 2010; the National Research Council attributes half of that growth to an increase in incarceration time. The Sentencing Project reports that one in seven American prisoners is serving either a life sentence or its functional equivalent. (In some states, the number is almost one in three.)  Once, parole boards could truncate some of these long sentences, but the decimation of parole has largely eliminated that possibility.

The explosion in sentence length has turned some prison wings into de facto nursing homes, with prisons responsible for providing costly medical care to a growing elderly population. Keeping people locked up for so long does little for public safety. Most people who commit crimes, including violent crimes, do so while young. Arrest rates for violent crimes peak during people’s late teens (rates for robbery, for example, are highest at age 19), and criminal careers for violent crime typically last only five to 10 years....

Fortunately there is growing momentum to reduce excessive sentences. Legislation authorizing sentence reductions in old cases has passed in California and the District of Columbia. Senator Cory Booker has proposed something similar at the federal level. And in July, more than 3,000 people were released from federal custody under the First Step Act, passed in December, which allows certain federal prisoners to earn early release for good conduct.

But there is another solution to this problem. Prosecutors can recognize their role in creating the crisis and work toward fixing it. They should start by opening “sentence review units,” which would consist of small dedicated teams of lawyers, investigators, data scientists and social workers within the prosecutor’s office. The details would vary by place, but each team would review past cases, and when they find sentences that seem particularly egregious, prosecutors would give these cases a second look....

The concept of sentence review units is not entirely unfamiliar; it builds on conviction review units that root out cases where an innocent person has been found guilty. Sentence review units are similar, but instead of wrongful convictions, they seek out cases where the sentence seems excessive. What counts as “excessive” is necessarily a judgment call, but examples include sentences that in retrospect seem disproportionate to the severity of the offense, or those that are far longer than what a person sentenced today would receive.

Why should prosecutors be the ones to lead the movement to cut down long sentences? Because they were, and in many places still are, a major driver of the country’s sentencing explosion. In the courtroom, they have pushed for maximum sentences and resisted appeals for leniency. In statehouses, they have lobbied legislatures for longer sentences and opposed reform efforts...

Larry Krasner, Philadelphia’s district attorney, intends to open a sentence review unit. “Sometimes extreme sentences reflect unscientific beliefs; sometimes they reflect racism; and sometimes they reflect judges who punish you 10 times harder if you went to trial,” he told us in an interview. In all these cases, he said, the upshot is the same: “There are a lot of people in jail who very clearly don’t need to stay in jail.”

For now, sentence review remains ad hoc. But demands from citizens and leaders can help these local efforts grow into a national movement. Cutting down excessive sentences will not, on its own, solve the crisis of mass incarceration or bring our prison population in line with the rest of the world. But failing to act will ensure that the wounds caused by those sentences never heal.

Regular readers will not be surprised to know I am a big fan of this idea. Indeed, I wrote an a short article on this very topic nearly a decade ago, titled Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers, 19 Temp. Pol. & Civ. Rts. L. Rev. 429 (2010).

August 2, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, July 31, 2019

Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And now I see that these two additional pieces are now accessible to all (with a few paragraphs quoted here):

The “Virtual Extinction” of Criminal Trials: A Lawyer’s View from the Well of the Court by Frederick P. Hafetz

Twenty-five years earlier, nearly 20 percent of defendants in the federal criminal justice system went to trial.  By the time the Lorenzos were indicted in 2004, only 4 percent went to trial. That number has since decreased even further so that now less than 3 percent go to trial.  Since the mid-1980s, as Manhattan federal judge Jed Rakoff states, federal criminal trials have undergone a “virtual extinction.”

This dramatic decline in the frequency of criminal trials in the federal system is mirrored in the state system as well.  While data in the state criminal justice systems on the number of trials is not maintained as comprehensively as it is in the federal system, available data and studies show a similar pattern of decline, although not as sharp as in the federal system.  In New York, California, and Illinois, for example, the percentage of defendants going to trial is less than-one half of what it was thirty years ago.

Why the Founders Cherished the Jury by Vikrant P. Reddy and R. Jordan Richardson

You would be hard-pressed to find a Constitutional issue that garnered more agreement among the Founders than the right to trial by jury.  As historian William Nelson notes, “For Americans after the Revolution, as well as before, the right to trial by jury was probably the most valued of all civil rights.”  Writing in 1788, Alexander Hamilton observed that among the “friends and adversaries of the plan of the [Constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Hamilton’s chief political rival, Thomas Jefferson, echoed these sentiments, and considered trial by jury as the “only anchor ever yet invented by man, by which a government can be held to the principles of its constitution.”

Prior related posts:

July 31, 2019 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (4)

"Federal Criminal Risk Assessment"

The title of this post is the title of this new paper authored by Brandon Garrett recently posted to SSRN. Here is its abstract:

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies.  However, in federal criminal law, risk assessments have been only haltingly adopted.  Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion.  Risk assessment instruments are currently used in federal courts pre-trial, post-conviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date.  The adoption of the FIRST STEP Act, which has the ambition to transform the federal prison system through use of risk instruments, has the potential to introduce a more legitimate, transparent, and validated approach, using instruments developed publicly and, ideally, implemented consistently.

Questions remain regarding whether the risk and needs instrument adopted will then be successfully and consistently implemented to assign inmates to programs, whether there will be adequate resources for those programs, and what the effectiveness of those programs will be.  Prior efforts in the federal system, including concerns raised by reports and audits of federal risk assessment, as well as evidence from efforts in states and locally, suggest reason for caution and care as this new system is implemented. Important lessons can be learned from the successes and the failures of prior efforts to improve outcomes in the criminal system.

July 31, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

As reported here six months ago, the Governor of Ohio has imposed something of a de facto moratorium on executions in the state not long after taking office because of concerns over the state's (historically troubled) lethal injection protocol.  But this new local article, headlined "DeWine now OK with ‘pouring fire in vein’ executions," reports on new developments suggesting new executions might go forward with an old execution protocol. Here are the details:

Despite saying in February that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine will consider using that same method in an upcoming execution, his spokesman said Tuesday.  The state’s lawyers have argued before a federal appeals court that Ohio’s current three-drug mixture can be used despite the lower court ruling likening it to waterboarding and pouring fire in the prisoner’s veins.

The governor earlier this year delayed four executions and ordered corrections officials to come up with a new death penalty protocol after a federal judge sitting in Dayton raised serious questions about the existing one.  Tuesday’s news comes after U.S. Magistrate Judge Michael Merz took the unusual step last week of ordering lawyers for the state to show DeWine a brief they filed in a death-penalty appeal. The brief appeared to be at odds with DeWine’s public position on Ohio’s controversial death-penalty protocol, Merz said in the order.

Merz is presiding in a lawsuit over whether Ohio’s death-penalty protocol violates constitutional protections against cruel and unusual punishment. He ruled in January that experts had convinced him that Ohio’s condemned were likely to experience severe pain using the protocol.  However, Merz did not stop the execution of Warren Keith Henness because, the judge ruled, Henness didn’t propose a viable alternative method of execution as required by a 2015 U.S. Supreme Court decision.

In response to Merz’s ruling, DeWine in January delayed Henness’s execution, saying the state would devise a new protocol.  Then in March, he delayed three more.  But now Henness’s new execution date is just six weeks away and the governor’s spokesman couldn’t say Monday how close the Ohio Department of Rehabilitation and Correction is to coming up with a new protocol.

A puzzled Judge Merz last week noted that in their appellate briefings the state’s lawyers voiced strong support for the death protocol that Merz — and presumably DeWine — found so problematic.  The state has “vigorously defended the existing protocol and criticized (Merz) for suggesting a stay of this litigation until the governor’s directions (to develop a new one) are carried out, as if it were (Merz’s) personal agenda rather than that of the governor,” Merz wrote, justifying his order that state lawyers show DeWine the appellate brief. “The court merely wishes to ensure that the governor has had an opportunity to see for himself whether he perceives this inconsistency.”...

But lawyers for Ohio said even if the condemned could feel pain after being injected with Midazolam, it still would not amount to constitutionally prohibited cruel and unusual punishment. “If hanging does not produce an unacceptable degree of pain even though it usually results in suffocation, then it follows that Midazolam does not cause ‘severe pain and needless suffering’ even if it is ‘certain or very likely to cause’ suffocation,” they wrote in their brief to the 6th U.S. Circuit Court of Appeals in Cincinnati.

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious....

Press secretary Dan Tierney said there’s nothing unusual about DeWine delaying executions over concerns about Ohio’s death penalty at the same time the state’s lawyers are in court defending it. “Their job is to defend the laws as valid and constitutional until they’re proven otherwise,” Tierney said. Tierney and the state’s lawyers are holding out the possibility that Henness might be executed using Ohio’s existing three-drug protocol — an issue that Tierney said has “not been fully litigated.”

Asked whether DeWine might restart executions using the current protocol if the state’s lawyers prevail in that litigation, Tierney said in an email, “Understand that these are hypothetical scenarios, but if the court overturns the factual record in the lower court, or the factual record otherwise changes through the legal proceedings, the governor will certainly review that new evidence regarding the protocol and take it under consideration.”

Henness and his lawyers might find that litigation difficult.  The Supreme Court — particularly it’s conservative majority — has since 2008 shown itself to be increasingly skeptical of prisoners’ claims that various methods of lethal injection amount to cruel and unusual punishment.  They’ve voiced suspicions that what prisoners and anti-death-penalty advocates really are aiming for is a backdoor abolition of execution.

A few (of many) prior recent related posts:

UPDATE: This new local article, headlined "Ohio can’t get drugs for a new execution method, DeWine admits," highlights how drug acquisition issues continue to cause problems for the Buckeye state's effort to get its machinery of death operational:

Ohio Gov. Mike DeWine said Wednesday that state prison officials are finding it impossible to find any company to supply drugs an execution alternative to one that essentially has been declared cruel and unusual. He said he would talk to Statehouse leaders about legislation allowing a different execution method.  Some Ohio death row inmates have been asking to be executed by firing squad, while two Tennessee inmates last year opted to be executed in the electric chair. Ohio’s “Old Sparky” has been in storage for years.

DeWine delayed four executions early this year after a federal judge in Dayton said Ohio’s current intravenous protocol came perilously close to violating constitutional protections against cruel and unusual punishment. One was rescheduled for Sept. 12, but DeWine on Wednesday said that was under review....

Ohio had been buying the drugs through its Department of Mental Health and Addiction Services and then driving them down to the death house at the Southern Ohio Correctional Facility without telling drug makers what the substances would be used for.  However, DeWine said the drug makers have told the state that if they suspect that any of their products would be used in executions, they would stop selling to the state altogether, potentially depriving tens of thousands of Ohioans of important medicine. “We are in a very difficult situation,” DeWine said.

July 31, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, July 30, 2019

"Public Perceptions of Plea Bargaining"

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

Several studies indicate that the public disapproves of plea bargaining, the most common method of resolving cases in the criminal system.  However, such studies assume a common understanding of plea bargaining with no basis for this assumption.  Although there are a few basic constitutional requirements for a plea bargain, what it is, why it is used, and how plea bargains are performed remains a matter of some debate.  Scholars, for instance, paint a particularly dark picture of plea bargaining, where, among other flaws, the innocent are regularly coerced into pleading.  This view of plea bargaining is quite different from the version portrayed on TV, where the guilty are punished, the innocent spared, and plea bargains provide only as much benefit to a defendant as a reasonable society can tolerate.  Given these disparate views, this essay asks: what does the public understand a plea bargain to be?

In (partial) response to this question, this essay does three things.  First, it examines the gulf between "insider" narratives, among practitioners and scholars, and "outsider" narratives, such as portrayals of plea bargaining on fictionalized legal dramas, about how and why plea bargaining happens.  Second, it asks: What narrative, if any, does the public believe about plea bargaining? It reviews the scholarship in the field of public perceptions of plea bargaining and finds that although the literature provides some evidence that the public disapproves of plea bargaining, the average person’s understanding of the plea bargain is essentially unknown.  In response to this lack of research, this essay lays out the findings of a study, conducted by the author, about perceptions of plea bargaining among a group of law students and finds that this population adopts pieces from each narrative in their understanding of plea bargaining.  Third, this essay concludes with an explanation of why it is critical to study the public’s understanding of plea bargaining and proposes some areas of future study.  Given that the criminal justice system touches the lives of so many people in the country and that plea bargaining is the primary means of resolving cases in the criminal system, the public’s conception about this secretive practice has meaningful implications for the legitimacy of the system itself.

July 30, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, July 29, 2019

Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing

A helpful reader made sure I did not miss the rich opinions coming today from the Michigan Supreme Court in People v. Beck, No. 152934 (Michigan July 29, 2019) (available here).  Here is part of the start of the majority opinion authored by Chief Justice McCormack:

In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted?  Such a possibility presents itself when a defendant is charged with multiple crimes.  The jury speaks, convicting on some charges and acquitting on others.  At sentencing for the former, a judge might seek to increase the defendant’s sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt.  But the jury might have thought it was somewhat likely the defendant committed them.  Or the judge, presiding over the trial, might reach that conclusion.  And so during sentencing, when a judge may consider the defendant’s uncharged bad acts under a lower standard — a mere preponderance of the evidence — the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway.  Is that permissible?

We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

Justice Viviano authored a lengthy solo concurrence that starts this way:

In every criminal trial, jurors are instructed, “What you decide about any fact in this case is final.”  But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes — here, based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him — a more accurate instruction would read: “What you decide about any fact in this case is interesting, but the court is always free to disregard it.” Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant’s sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

And Justice Clement authored an extended dissent for herself and two other that concludes this way:

The majority’s holding may be difficult to apply, and it directly contradicts existing precedent.  The presumption of innocence does not prohibit the trial court from considering conduct underlying acquitted charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any supporting precedent for its conclusion.  Accordingly, I dissent from this Court’s reversal of the judgment of the Court of Appeals.  I would have affirmed the holding of the Court of Appeals that the trial court did not err by considering conduct underlying defendant’s acquitted charge but reversed insofar as the Court of Appeals remanded this case for a Crosby hearing.  Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of Appeals so that it could determine whether the trial court abused its discretion by violating the principle of proportionality.

Based on my too-quick scan of these opinions, it seems that the majority's holding is grounded on federal constitutional law (rather than just on state constitutional law). This means the state of Michigan could reasonably opt to seek further review in the US Supreme Court. Give Justice Gorsuch's work to date on similar issues and Justice Kavanaugh's past statements about acquitted conduct, I really hope Michigan might try to garner the Justices' attention on this conceptual and practically important topic.

July 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Friday, July 26, 2019

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

July 26, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, July 24, 2019

Eleventh Circuit panel finds federal prisoner can file a second or successive § 2255 based on SCOTUS Davis ruling

A helpful reader made sure I did not miss that an Eleventh Circuit panel issued an intricate ruling yesterday in In Re: Wissam Hammoud, No. 19-12458 (11th Cir. July 23, 2019) (available here), concerning the potential retroactive application of the Supreme Court's recent important vagueness ruling in Davis. Here is part of the opinion that highlight what it is intricate:

In his present application, Hammoud contends that his § 924(c) conviction in Count 5 is no longer constitutionally valid.  Specifically, Hammoud asserts that § 924(c)(3)(B)’s residual clause is unconstitutional, in light of the new rule of constitutional law set forth in Davis, Dimaya, and Johnson, and that his companion solicitation conviction in Count 3 could have qualified as a “crime of violence” only under § 924(c)’s now-defunct residual clause.

To determine whether Hammoud’s proposed Davis claim meets the statutory criteria, we must first address three preliminary issues: (1) whether Davis announced a new rule of constitutional law; (2) if so, whether Davis has been made retroactively applicable to cases on collateral review by the Supreme Court; and (3) whether Hammoud’s Davis claim is barred under our precedent in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016).  Only after addressing these issues may we consider the merits of Hammoud’s claim

This prisoner makes it through all of these hoops, so that this opinion ends: "Accordingly, because Hammoud has made a prima facie showing of the existence at least one of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby GRANTED as to his Davis claim regarding his § 924(c) conviction in Count 5."

July 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 23, 2019

Spotlighting how some federal prosecutors are pushing back on some applications of FIRST STEP Act crack retroactivity

Reuters has this notable and lengthy new article on some skirmishes over the crack sentencing retroactivity piece of the FIRST STEP Act under the headline "As new U.S. law frees inmates, prosecutors seek to lock some back up." I recommend the piece in full, and here are excerpts:

Monae Davis walked out of prison on March 7, thanks to a new law that eased some of the harshest aspects of the United States’ war on drugs.  Now the U.S. Justice Department is trying to lock him back up.

As Davis, 44, looks for work and re-connects with his family, U.S. prosecutors are working to undo a federal judge’s decision that shaved six years off his 20-year prison sentence under the First Step Act, a sweeping criminal-justice reform signed into law by President Donald Trump last December.  “They’re prosecutors — it’s their job to make it hard on people,” he said. “Do I think it is right? No, it’s not fair.”

Even as thousands of prison inmates have been released by judges under the new law, federal prosecutors have fought scores of petitions for reduced sentences and are threatening to put more than a dozen inmates already released back behind bars, Reuters found in an analysis of these cases.  The reason: the Justice Department says the amount of drugs they handled was too large to qualify for a reduced sentence.

Davis, for example, reached a deal in 2009 with U.S. attorneys in western New York to plead guilty to selling 50 grams or more of crack, resulting in his 20-year sentence.  Under First Step guidelines, that carries a minimum sentence of five years, less than half the time he has already served.  But prosecutors say Davis should not get a break, because in his plea deal he admitted to handling between 1.5 kilograms and 4.5 kilograms, which even under current guidelines is too high to qualify for a sentence reduction.

In a statement, the Justice Department said it is trying to ensure that prisoners seeking relief under the First Step Act aren’t treated more leniently than defendants now facing prosecution.  The department said prosecutors now have a greater incentive than previously to bring charges that more closely reflect the total amount of drugs they believe to be involved. “This is a fairness issue,” the department said....

More than 1,100 inmates have been released so far under this [Fair Sentencing Act retroactivity] provision in the new law, according to the Justice Department. (Another 3,100 here are being released under a separate provision that awards time off for good conduct.)

In most of the 1,100 sentence-reduction cases, U.S. prosecutors did not oppose the inmate’s release. But in at least 81 cases, Reuters found, Justice Department lawyers have tried — largely unsuccessfully so far — to keep offenders behind bars. They argue that judges should base their decision on the total amount of drugs that were found to be involved during the investigation, rather than the often smaller or more vague amount laid out in the law they violated years ago.

The difference between the two amounts in these cases is often significant — and, depending on whether a judge agrees with prosecutors’ objections, can mean years of continued incarceration rather than immediate release.

Regional prosecutors’ offices, though they often enjoy great autonomy, have made it clear that they are operating on instructions from Washington. One prosecutor in western Virginia in April objected to nine sentence reductions she had previously not opposed, citing Justice Department guidelines.

The federal government has lost 73 of 81 cases in which the issue has arisen so far, according to the Reuters analysis. Prosecutors have appealed at least three of those decisions and indicated they intend to appeal 12 more. If they succeed, men like Davis would return to prison.

First Step Act advocates say the Justice Department is undercutting the intent of the law. “Many of these people have served in prison for five, 10, 15, 20 years and more. It’s time for them to be able to get on with their lives, and the notion the Department of Justice is just going to keep nagging at them and appealing these cases is not what we ever had in mind,” Democratic Senator Dick Durbin, one of the law’s authors, told Reuters.

July 23, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, July 21, 2019

"The Vanishing of Federal Sentencing Decisions"

The title of this post is the title of this notable recent Forbes commentary authored by Brian Jacobs. I recommend the full piece, and here are excerpts:

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places.  In criminal cases, by contrast, some of the most important decisions that federal district judges make — regarding what sentences to impose — are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look.  This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves.

The scale of this problem is hard to overstate. Federal district judges make an enormous number of sentencing decisions every year. In the 12-month period ending September 30, 2018, the Administrative Office of the U.S. Courts reported that 71,550 (about 90%) of the 79,704 defendants whose cases were disposed of in federal courts entered guilty pleas, and another 1,559 were convicted at trial.  As a result, in just this single one-year period, the United States Sentencing Commission reported that there were close to 70,000 federal criminal cases in which an offender was sentenced....

District court decisions resolving sentencing disputes are typically delivered orally and memorialized only in the transcript of the sentencing proceeding itself, where judges must “state in open court the reasons for [the] imposition of the particular sentence.”  (See 18 U.S.C. § 3553(c).) (Judges also are required to complete the form entitled “Statement of Reasons.”)  Rarely do judges reduce their sentencing decisions to written opinions.  A Westlaw search of opinions published between October 2017 and September 30, 2018 (the U.S. Sentencing Commission’s last fiscal year) referencing 18 U.S.C. § 3553(a) resulted in approximately 600 federal district court opinions and 1,300 appellate decisions.  Thus, an attorney or defendant trying to research a given Guidelines issue, for example — such as the weight that district judges have given to the loss amount in fraud cases under Section 2B1.1 of the Guidelines in the last year — cannot simply run a Westlaw search in a database of district court cases for “2B1.1.”  Such a search would turn up but a small fraction of the relevant material.

Although not memorialized in written opinions, many federal sentencing proceedings are transcribed by a court reporter, and most of those transcripts are ultimately posted to PACER, an electronic service that allows public access to case and docket information for federal court proceedings for a fee.  Users can conduct simple searches on PACER by party name, judge, or keyword, for example.  Thanks to PACER, a well-heeled defendant could, for example, with substantial effort and expense, pull and review all of the sentencings that have taken place before one particular judge, or that have been handled by one particular prosecutor.  Such a search, however, would again merely scratch the surface of potentially relevant decisions (which are accruing at a rate of 70,000 a year), and would be a cumbersome, expensive, and ineffective way to mine sentencing transcripts for persuasive authority on any particular issue.  PACER does not, unfortunately, allow for searches of the text of posted documents, and there is no other way to perform such a search in a comprehensive way.

It thus remains the case today that despite technological advancements, sentencing decisions are not nearly as readily accessible as other sorts of judicial decisions, and this vanishing of federal sentences serves nobody’s interest.  A defendant facing a sentencing in a federal criminal case — one of the most important days of his or her life — is hampered in his or her ability to effectively research the hundreds of thousands of federal sentencings that have taken place in our country in recent years, any one of which might have the sort of persuasive power that could make a difference.  If this defendant had access to a searchable database of transcripts of the 70,000 sentencings that take place each year in federal district courts, perhaps the defendant would be able to find the handful of on-point and persuasive cases to highlight for the sentencing judge.  In addition, perhaps the defendant could identify and highlight trends in sentencings around the country that, in the aggregate, would persuade the sentencing court to exercise its large amount of discretion in a particular way. Because the widespread availability of federal sentencing transcripts would benefit prosecutors, defendants, and judges alike, there is a long-term need for a readily accessible searchable database of transcripts of all federal sentencings, capable of handling complex queries....

[I]t is well past time for a searchable database of federal sentencing transcripts similar to the database of district court opinions available on Westlaw and LexisNexis.  The availability of such transcripts is important to ensure, among other things, that all criminal defendants, regardless of resources, are able to present effective sentencing arguments.

July 21, 2019 in Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2)

Litigation over capital trials during Gov moratorium heads to California Supreme Court

In prior posts linked below, I covered on this blog the decision by California Gov Gavin Newsom to declare a moratorium on executions in his state and the echoes of that decision.  This new Los Angeles Times article reports on the latest echo under the headline "Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them."  Here are excerpts:

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out....

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.... “The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors. “The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said. It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously. “It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal....

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”...

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color. This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.

Prior related posts:

July 21, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, July 20, 2019

"Why the Founders Cherished the Jury"

The title of this post is the title of this essay recently posted to SSRN and authored by Jordan Richardson. Here is its abstract:

The Founders insistence on trial by jury was not just a preference for ritualistic formalities.  It was a prescriptive demand to protect liberty.  It shifted the authority for final decisions from government bureaucrats into the hands of citizens, so that “before an individual can lose her liberty in a criminal case, the people themselves must agree.”  The legislature could propose laws criminalizing behavior, the executive could enforce those laws with appropriate resources, and the judiciary could oversee the process to ensure legality.  But the institution of the jury was the final check to hold all three branches accountable.

July 20, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, July 19, 2019

"The First Step Act of 2018: Risk and Needs Assessment System"

The title of this post is the title of this all-important 102-page document which was required by the FIRST STEP Act and was delivered on time by US Attorney General William Barr.  Here is the document's introduction:

On December 21, 2018, President Donald J. Trump signed the First Step Act of 2018 into law.  Title I of the First Step Act of 2018 (FSA or the Act) is focused on reforms to reduce recidivism among the federal prison population.  Many of Title I’s reforms hinge on the creation of a risk and needs assessment system.

Under the FSA, the Attorney General is charged with developing and releasing a risk and needs assessment system for use in the federal prison system.  With this report, Attorney General William P. Barr releases the First Step Act of 2018 Risk and Needs Assessment System.

This report outlines the work of the Department of Justice to develop and implement the Risk and Needs Assessment System (System).  It also introduces the new System that the Federal Bureau of Prisons will deploy in its facilities.  And the report announces the Department of Justice’s strategic plan to evaluate, validate, and enhance the System over time.

Chapter 1

Chapter 1, Developing the First Step Act of 2018 Risk and Needs Assessment System, details the requirements of the FSA regarding the development of a risk and needs assessment system, including the responsibilities of the Attorney General and the Independent Review Committee.  This chapter also summarizes the Department of Justice’s work to fully implement the Act’s requirements in creating the System.

Chapter 2

In Chapter 2, Characteristics of an Effective Risk and Needs Assessment System, this report identifies those characteristics and principles that are fundamental to developing an effective risk and needs assessment system.  This chapter also describes the valuable data and information that the Department of Justice received from our federal and state partners and experts in the field on developing a strong risk and needs assessment system. These characteristics, principles, and data informed the development of the System.

Chapter 3

Chapter 3, Te First Step Act of 2018 Risk and Needs Assessment System, describes the adopted System in detail, including the new assessment tool that will be deployed in the Federal Bureau of Prisons. This chapter then provides an explanation of the strengths of the tool and enhancements offered by the new System.

Chapter 4

Chapter 4, Implementing the First Step Act of 2018 Risk and Needs Assessment System, presents the Department’s strategic plan to fully and completely implement the System in the field. It also includes an agenda for continued engagement with experts, stakeholders, and the public on the System. Te chapter concludes by describing the significant resources that the Department of Justice is expending and will expend to implement the System.

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Highlights from DOJ press release and fact sheet on FIRST STEP Act implementation

The US Department of Justice today released this press release titled "Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System."  Here are some highlights:

The Department of Justice today announced three major developments related to the implementation of the First Step Act of 2018 (FSA):

  • Over 3,100 federal prison inmates will be released from the Bureau of Prisons’ (BOP) custody as a result of the increase in good conduct time under the Act. In addition, the Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions.
  • The prioritization of $75 million in existing resources to fully fund the FSA implementation from the 2019 budget. The Department will continue its work with Congress to ensure additional funding is appropriated for FY2020 and future years.
  • The publication of the FSA Risk and Needs Assessment System (RNAS) that will help identify all federal prison inmates who may qualify for pre-release custody by participating in authorized recidivism reduction programming and/or productive activities....

Compassionate Release. The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g). Since the Act was signed into law, 51 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement. The FSA authorizes BOP to maximize the use of home confinement for low risk offenders. Currently, there are approximately 2,000 inmates on Home Confinement. The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program. Since enactment of the law, 201 inmates have qualified to be transitioned under the pilot program.

Drug Treatment. The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need. About 16,000 BOP inmates are currently enrolled in drug treatment programs, including the well-regarded Residential Drug Abuse Program (RDAP).....

The Risk and Needs Assessment Tool – PATTERN

The Attorney General’s publication of a risk and needs assessment system was a key requirement of the FSA, signed into law by President Trump on Dec. 21, 2018. The publication of the RNAS report makes the changes in the law to good conduct time effective.

The RNAS is among several robust measures the Department has taken to implement the FSA, which seeks to reduce risk and recidivism among the prison population and assist inmates’ successful reintegration into society.  The new system will be used to assess all federal inmates for risk and identify criminogenic needs that can be addressed by evidence-based programs, such as drug treatment, job training, and education. The system was developed in consultation with the FSA-established Independent Review Committee (IRC), the BOP, the National Institute of Justice (NIJ), the Administrative Office of the U.S. Courts, the National Institute of Corrections, and over two dozen stakeholders groups.

The new tool to be used by the BOP is called the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN). PATTERN is designed to predict the likelihood of general and violent recidivism for all BOP inmates. As required by the FSA, PATTERN contains static risk factors (e.g. age and crime of conviction) as well as dynamic items (i.e. participation or lack of participation in programs like education or drug treatment) that are associated with either an increase or a reduction in risk of recidivism. The PATTERN assessment tool provides predictive models, or scales, developed and validated for males and females separately.

The PATTERN assessment, modeled specifically for the federal prison population, achieves a higher level of predictability and surpasses what is commonly found for risk assessment tools for correctional populations in the U.S.

The RNAS report will be available on the department’s website later today at www.nij.gov.

The RNAS will be subject to a 45-day study period beginning with the publication of the System. Starting Monday, July 22, the public may send comments to FirstStepAct@ojp.usdoj.gov. This study period allows stakeholders to review and analyze the System. After the study period, NIJ will hold a special listening session on the RNAS in early September.

In addition DOJ has released this First Step Act Implementation Fact Sheet, and here is one highlight therefrom:

I. Retroactive Application of Fair Sentencing Act (Crack: Powder)

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 1,691 sentence reductions

July 19, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Thursday, July 18, 2019

"Measuring Algorithmic Fairness"

The title of this post is the title of this new paper now available via SSRN authored by Deborah Hellman.  With all the use of risk assessment tools throughout the criminal justice system, as with the risk-and-needs tool required by the FIRST STEP Act due out very soon, this discussion of "algorithmic fairness" cause my eye. Here is its abstract:

Algorithmic decision making is both increasingly common and increasingly controversial.  Critics worry that algorithmic tools are not transparent, accountable or fair.  Assessing the fairness of these tools has been especially fraught as it requires that we agree about what fairness is and what it entails. Unfortunately, we do not.  The technological literature is now littered with a multitude of measures, each purporting to assess fairness along some dimension.  Two types of measures stand out.  According to one, algorithmic fairness requires that the score an algorithm produces should be equally accurate for members of legally protected groups, blacks and whites for example.  According to the other, algorithmic fairness requires that the algorithm produces the same percentage of false positives or false negatives for each of the groups at issue.  Unfortunately, there is often no way to achieve parity in both these dimensions.  This fact has led to a pressing question.  Which type of measure should we prioritize and why?

This Article makes three contributions to the debate about how best to measure algorithmic fairness: one conceptual, one normative, and one legal.  Equal predictive accuracy ensures that a score means the same thing for each group at issue.  As such, it relates to what one ought to believe about a scored individual.  Because questions of fairness usually relate to action not belief, this measure is ill-suited as a measure of fairness.  This is the Article’s conceptual contribution.  Second, this Article argues that parity in the ratio of false positives to false negatives is a normatively significant measure.  While a lack of parity in this dimension is not constitutive of unfairness, this measure provides important reasons to suspect that unfairness exists.  This is the Article’s normative contribution.  Interestingly, improving the accuracy of algorithms overall will lessen this unfairness. Unfortunately, a common assumption that antidiscrimination law prohibits the use of racial and other protected classifications in all contexts is inhibiting those who design algorithms from making them as fair and accurate as possible. This Article’s third contribution is to show that the law poses less of a barrier than many assume. 

July 18, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Federal judge gives first-person account of FIRST STEP Act's impact through retroactive crack provision

The New York Times has this notable new first-person account of the FIRST STEP Act coming from a judge who was able to reduce a life sentence thanks to the Act's crack retroctivity provisions.  The piece is authored by Robin Rosenberg, and carries the headline "In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free." Here are excerpts:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.”  But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year.  Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

The decision whether to reduce his sentence fell to me when I was randomly assigned his case.  The twist was that I had been Judge Paine’s law clerk in 1989, 10 years before Mr. Potts was sent away.  Now I was a federal judge in the same courthouse where Judge Paine had served and where he had sentenced Mr. Potts two decades before....

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December.  The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases.  The First Step Act also allowed a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life.  The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999.  Before me, he was remorseful, dignified and hopeful.  He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available.  Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety.  As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available....

The true marker of a person’s character is what he does when he thinks no one is watching.  Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing.  But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future isn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center.  I believe Mr. Potts’s story is one of redemption through self-improvement.  His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

July 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, July 17, 2019

Fascinating Fourth Circuit en banc debate over constitutional challenges to Virginia's "habitual drunkard" law

A helpful colleague made sure I saw the Fourth Circuit's split en banc ruling yesterday in Manning v. Caldwell,  No. 17-1320 (4th Cir. July 16, 2019) (available here), concerning a lawsuit challenging a peculiar Virginia law.  This AP article summarizes the ruling and provides helpful context:

A lawsuit challenging an unusual Virginia law that allows police to arrest and jail people designated as “habitual drunkards” was reinstated Tuesday by a deeply divided federal appeals court. The 4th U.S. Circuit Court of Appeals ruled that the challenge to Virginia’s so-called interdiction law can move forward.

The court voted 8-7 to allow the lawsuit to proceed, finding that Virginia’s law is unconstitutionally vague. The ruling from the full court reverses earlier rulings from a judge and a three-judge panel dismissing the lawsuit.

The Legal Aid Justice Center argues that the law targets homeless alcoholics and violates the 8th Amendment prohibition against cruel and unusual punishment. The Virginia attorney general’s office, in defending the law, argues that the state has a legitimate interest in discouraging alcohol and drug abuse.

The law allows prosecutors to ask a civil judge to declare someone a “habitual drunkard.”  Police can then arrest that person for being publicly intoxicated, possessing alcohol or even smelling of alcohol.  Violators face up to a year in jail.

In its written opinion, the court found that the law does not give homeless people who struggle with alcohol fair notice under the law.  “While necessary changes in the law may not alter the choices that they make or enhance the quality of their life, at least the government will not be compounding their problems by subjecting them to incarceration based on the arbitrary enforcement of ambiguous laws or, at best, the targeted criminalization of their illnesses,” Judges Diana Gribbon Motz and Barbara Milano Keenan wrote for the majority.

During arguments before the 4th Circuit in January, an attorney representing people designated as “habitual drunkards” argued that the law criminalizes addiction by targeting people who are compelled to drink because they are alcoholics and are forced to drink in public because they are homeless.  People without the habitual-drunkard designation can also be arrested for public intoxication, but they don’t face any jail time.

In a strongly worded dissenting opinion, Judge J. Harvie Wilkinson III chastised the majority for asking the court to find “that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions.”

“As my colleagues apparently see it, consuming alcohol, even by those with a documented history of alcohol abuse, is just not the sort of conduct that warrants criminal sanctions. Given the comprehensive body of research pointing to the harms of alcohol abuse, I cannot agree,” Wilkinson wrote....

Virginia and Utah are the only two states with interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid center.

The full opinion runs 83 pages, so I will need some time to assess whether it is as consequential a ruling as the dissent seemingly fears. But folks who follow the intersection of criminal justice and public health will surely want to check this one out.

July 17, 2019 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, July 16, 2019

New Pew report spotlights state changes in community supervision and revocations

The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":

Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016.  Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.

People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration.  A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity.  Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy.  JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism.  These state efforts have not been without challenges, and more can be done to improve supervision outcomes.  Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

FAMM releases materials in support of new "Second Look Act" proposed by Senator Cory Booker

As noted in this post, Senator Cory Booker is now promoting a notable new second look provision to be added to federal sentencing laws.  The group FAMM has marked this development with this press release that includes notable new materials helping to make the case for a second look provision in federal law.  Here is part of the press release and its linked materials:

This week Sen. Cory Booker (D-New Jersey) and Rep. Karen Bass (D-Calif.) will be introducing the Matthew Charles and William Underwood Act. The bill would create a second look sentencing provision to allow judges to reduce lengthy sentences if a person has served more than 10 years, has made significant strides toward rehabilitation, and is no longer a risk to public safety.

“We have to stop throwing so many people away. People can change, and our sentencing laws ought to reflect that,” said FAMM President Kevin Ring. “Lengthy prison sentences are not always the right answer, especially when someone has proven their commitment to rehabilitation. Public safety can be improved by taking a second look at those lengthy sentences, reducing them when warranted, and redirecting anti-crime resources where they might actually do some good.”...

The bill is named in honor of Matthew Charles, a FAMM Justice Fellow and the first beneficiary of the First Step Act’s retroactive sentencing reform, and William Underwood, who is currently serving a life without parole sentence for a federal drug conviction....

In support of the new legislation, FAMM is releasing the following:

FAMM has been a longtime supporter of expanding ways to revisit harsh sentences, including executive clemency, compassionate release, and second look. Last month, USA Today published an op-ed co-authored by Ring and former federal judge Kevin Sharp on the need for second look sentencing laws.

July 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

July 16, 2019 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 09, 2019

En banc Ninth Circuit works through Eighth Amendment jurisprudence and juvenile resentencing under federal guidelines

In this post around this time last year, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The original ruling in Briones had a split Ninth Circuit panel affirming the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.   But after granting en banc review, the Ninth Circuit has now vacated the LWOP sentence and remanded for resentencing by a 9-2 vote.  The new majority opinion in Briones, available here, has a lot to say about Eighth Amendment jurisprudence and juvenile sentencing, and here are a few excerpts:

Taken together, Miller, Montgomery, and Pete make clear that a juvenile defendant who is capable of change or rehabilitation is not permanently incorrigible or irreparably corrupt; that a juvenile who is not permanently incorrigible or irreparably corrupt is constitutionally ineligible for an LWOP sentence; and that a juvenile’s conduct after being convicted and incarcerated is a critical component of the resentencing court’s analysis....

We reaffirm that when a substantial delay occurs between a defendant’s initial crime and later sentencing, the defendant’s post-incarceration conduct is especially pertinent to a Miller analysis. See id.; see also Montgomery, 136 S. Ct. at 736 (“The petitioner’s submissions [of his reformation while in prison] are relevant . . . as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation.”).  The key question is whether the defendant is capable of change.  See Pete, 819 F.3d at 1133.  If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option.

The district court’s heavy emphasis on the nature of Briones’s crime, coupled with Briones’s evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.  We do not suggest the district court erred simply by failing to use any specific words, see Montgomery, 136 S. Ct. at 735, but the district court must explain its sentence sufficiently to permit meaningful review.  See Carty, 520 F.3d at 992 (“Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review . . . . What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case . . . .”).  When a district court sentences a juvenile offender in a case in which an LWOP sentence is possible, the record must reflect that the court meaningfully engaged in Miller’s central inquiry.

And here is a concluding substantive paragraph from the dissent:

Thus, despite evidence of Briones’s rehabilitation, youth when the heinous crimes were committed, and youth-related characteristics, the record supports that Briones’s crimes reflect permanent incorrigibility, as opposed to transient immaturity. The district court therefore imposed a permissible sentence.  Notably, the majority does not conclude that a life without parole sentence is impermissible in this case. Instead, although the majority claims otherwise, the majority’s opinion vacates the district court’s sentence because the district court failed to find that Briones was permanently incorrigible. But as discussed above, there is no requirement for the district court to make any specific findings before imposing a life without parole sentence.  In short, the majority, citing Montgomery, states that it “do[es] not suggest the district court erred simply by failing to use any specific words,” Maj. at 19.  But in clear contravention of Montgomery, that is precisely why it has reversed. We remand for the district court to do again what it has already done.

July 9, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 08, 2019

Two new open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post last month, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link

Though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuable, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And this week, these two additional pieces are now accessible to all (with first paragraphs quoted here):

Two empirical facts underlie ongoing policy debates over plea-trial differences in federal punishment: defendants who are convicted at trial receive significantly harsher sentences, and the overwhelming majority of federal defendants forego their constitutional right to jury trial and enter into plea agreements.  A passel of studies finds large plea-trial differences in federal sentencing.  Across jurisdictions, offense types, and time periods, research convincingly demonstrates that defendants convicted at trial receive more severe punishments than similar defendants who plead guilty.  This “trial tax” or “plea discount” is among the most robust findings in the empirical sentencing literature (Johnson 2019).  At the same time, guilty plea rates in both state and federal courts have ballooned.  In federal court, more than 97 percent of convicted defendants plead guilty (Motivans 2019), lending credence to Justice Anthony Kennedy’s observation that “plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system” (Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012)).

Weaponizing Justice: Mandatory Minimums, the Trial Penalty, and the Purposes of Punishment by Mary Price

The trial penalty is one of the most lethal tools in the prosecutor’s kit.  With it, the government coerces defendants to plead guilty and punishes those who don’t. It transforms what should be a defendant’s considered and informed decision about whether to exercise the constitutional right to be judged by a jury of one’s peers in open court into a backroom roll of the dice.  It is the criminal justice equivalent of a shakedown — more extortion than orderly proceeding.

Prior related posts:

UPDATE: The National Association of Criminal Defense Lawyers has this new news release about the FSR issue, which includes these quotes from the Guest Editors who helped make it happen:

The articles included in this special issue underscore one hopeful reality: the breadth of concern with the trial penalty’s central role in perverting the U.S. system of justice reflects unprecedented consensus,” explain Editors Reimer and Sabelli in their “Editors’ Observations” introduction.  “Critics of the decline of the jury trial and the institutional coercion that is the trial penalty in action span the ideological perspective.  This is not the system of justice that the architects of this democracy envisioned, nor is it the system that people deserve, especially as the nation has evolved.  The country may still have a long way to go to purge racism and all forms of irrational disparity from its criminal justice system. But it has come far enough that it is long past time to tolerate a system that extracts years of a person’s freedom as the price to access fundamental rights. NACDL is determined to promote study and seek reform on the federal level and throughout the various states to minimize the tyranny of the trial penalty. This edition of the Federal Sentencing Reporter is an important step in that process.”

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Some news and notes surrounding latest indictment of Jeffrey Epstein

The arrest and now (not-quite-second) federal prosecution of billionaire Jeffrey Epstein is all the buzz in the criminal justice world today, and this New York Post article provides some highlights on the indictment that was unsealed and how federal prosecutors are now approaching this matter:

Convicted pedophile Jeffrey Epstein “sexually exploited and abused” dozens of underage girls as young as 14 at his homes in New York and Florida in the early 2000s, Manhattan federal prosecutors alleged in an indictment unsealed Monday.  The billionaire financier was charged with sex trafficking and a related conspiracy count for allegedly creating “a vast network of underage victims” for him to exploit across multiple states from 2002 to 2005, the Manhattan federal court documents say.

Aided by three unidentified employees Epstein, 66, allegedly paid the girls hundreds of dollars in cash to come to his residences in Manhattan and Palm Beach to give him nude “massages” that would become “increasingly sexual in nature,” prosecutors allege.  “During the encounter, Epstein would escalate the nature and scope of physical contact with his victim to include, among other things, sex acts such as groping and direct and indirect contact with the victim’s genitals,” the indictment alleges....  Epstein “intentionally sought out” girls under 18 — and knew the girls were underage because some told him how old they were, they allege.

“The alleged behavior shocks the conscience and while the charged conduct is from a number of years ago, it is still profoundly important to the alleged victims,” Manhattan US Attorney Geoffrey Berman said at a news conference announcing the charges. “They deserve their day in court and we are proud to be standing up to them by bringing this indictment.”

The indictment shows the feds want to seize Epstein’s lavish townhouse at 9 E. 71st St. — a seven-story, 21,000-square-foot Upper East Side pad that is one of Manhattan’s largest townhouses and was allegedly one of the venues for his sick sexual pyramid scheme. Authorities “seized evidence including nude photographs what appear to be underage girls,” Berman said.

Epstein’s indictment follows a controversial deal he struck in 2008 with prosecutors in Palm Beach, Florida, after cutting a non-prosecution agreement with the Miami US Attorney’s Office, as detailed last year in an expose by the Miami Herald.  Epstein was facing up to life behind bars, but got a sentence of just 13 months.  The Miami US attorney at the time was Alex Acosta, who is now President Trump’s secretary of labor, and the Justice Department launched an investigation of that agreement in February following a request from Sen. Ben Sasse (R-Nebraska).

Berman said Epstein’s non-prosecution agreement “only binds the Southern District of Florida.”

“The Southern District of New York is not bound and is not a signatory,” he said.

Prosecutors will seek to have Epstein held without bail when he appears in court later Monday, Berman said. Berman called Epstein a “significant flight risk” due to his “enormous wealth” and the fact that the charges against him carry a maximum 45 years in prison, which Berman called “basically a life sentence” for someone of Epstein’s age. Berman also noted that Epstein owns two private plans and lives “much of the year abroad.”

Epstein was arrested around 5:30 p.m. on Saturday at Teterboro Airport in New Jersey, where he arrived in a private plane from Paris, officials said.

The full 14-page indictment in this high-profile matter is available at this link.

A few prior related posts:

UPDATE: This new Atlantic article by Ken White, headlined "The Jeffrey Epstein Case Is Like Nothing I’ve Seen Before: Great wealth insulates people from consequences, but not always, absolutely, or forever," is the best read on this case that I have seen of late.

July 8, 2019 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Summer reading (with a Fall cover date) from the American Journal of Criminal Law

Over the holiday week, I noticed that American Criminal Law Review already has published its Fall 2019 issue, and that this issue includes a number of articles that sentencing fans may want to add to their summer reading list: 

The Biased Algorithm: Evidence of Disparate Impact on Hispanics by Melissa Hamilton

Is Mass-Incarceration Inevitable? by Andrew Leipold

Defining the Proper Role of “Offender Characteristics in Sentencing Decisions: A Critical Race Theory Perspective by Lisa Saccomano

Cruel, Unusual, and Unconstitutional: An Originalist Argument for Ending Long-Term Solitary Confinement by Merin Cherian

Pandora’s Algorithmic Black Box: The Challenges of Using Algorithmic Risk Assessment in Sentencing by Leah Wisser

July 8, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, July 05, 2019

Emphasizing why community supervision realities must be focal point for criminal justice reforms

As noted in this post, last month the the Council of State Governments Justice Center produced this dynamic report spotlighting that a large percentage of all state prison admissions "are due to violations of probation or parole for new offenses or technical violations" and that "technical violations, such as missing appointments with supervision officers or failing drug tests, account"for almost a quarter of all state prison admissions.  Fittingly, I have recently seen two commentaries highlighting this CSG report to stress the importance of criminal justice reform efforts giving attention to this piece of the system.  Here are links to these pieces and a snippet therefrom:

From The Hill, "Want to cut the prison population?  Start by tackling probation reform" by Nila Bala:

Sadly, imprisoning technical violators often drives them even deeper into the criminal justice system. With a prison sentence, individuals can lose their jobs, their homes, and their children, which are all of the important social supports they had formed in their community, making them more likely to return to crime.  Imprisoning individuals for technical violations is also costing taxpayers to the tune of $2.8 billion in incarceration costs.

We should save prison beds for those who have committed serious and violent offenses instead of for those who have broken curfew or failed to pay a probation fee. Instead of imprisoning technical violators, we should hold them accountable in the community in ways that do not harm public safety.  By eliminating prison terms for technical violations, or at least by capping the length of their prison stays, states can work to reduce their prison numbers in a significant way.  Along with the reform of supervision conditions, we can work to limit probation to those who really need it and to divert the many lower risk individuals away from the system altogether.

If there is one foundational value that we can adopt in the criminal justice system to change its ethos, it is human dignity. It should not fall by the wayside when people are released from prison.  It is even more important as we welcome individuals back into the social fabric of our communities. The Council of State Governments report guides states in asking how they can limit the supervision to prison pipeline.  With this data, states hold the potential to reform their supervision practices in ways that improve public safety, yield valuable cost savings, and respect the human dignity of all.

From USA Today, "As candidates search for criminal justice talking points, parole and probation reform should top list" by Megan Quattlebaum and Juliene James:

Instead of moving people away from prison, the use of parole and probation is a prime contributor to still stubbornly high incarceration rates. This undermines people’s ability to reintegrate into a free society after conviction.

The nation can and should focus efforts and resources on reducing new criminal behavior. By keeping people out of prison, we can better ensure that they keep their jobs, stay connected to their families and have a fair chance at contributing to society.

The nation's probation and parole disproportionately burdens poor and minority communities. Black Americans account for more than 30% of the people on probation and parole, despite being only 13% of the U.S. population. How can we expect people to live successful lives when they’re under the constant scrutiny of unforgiving criminal justice supervision?

Red and blue states alike have prison systems that are straining under the weight of incarcerating significant numbers of people who have violated their supervision.

State lawmakers need to start looking at their own statistics and asking whether probation and parole are serving their intended goals. What types of new offenses are responsible for supervision revocations? What practices and programs can discourage people under supervision from committing new crimes? What is a better way to handle technical violations?

A few prior recent related posts:

July 5, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, July 03, 2019

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

July 3, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, July 02, 2019

"The Founders' Forfeiture"

The title of this post is the title of this new paper by Kevin Arlyck now available via SSRN that seems like especially good Fourth of July week reading. Here is its abstract:

Civil forfeiture is, in a word, controversial.  Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process.  Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture.  Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections.  Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

As this Article explains, forfeiture’s critics are right, but for the wrong reasons.  Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained.  But not by judges. Instead, concern over forfeiture’s potential to impose massive penalties for minor and technical legal violations spurred Alexander Hamilton and the First Congress to establish executive-branch authority to return seized property to those who plausibly claimed a lack of fraudulent intent.  What is more, Hamilton and subsequent Treasury Secretaries understood themselves to be obligated to exercise that authority to its fullest extent — which they did, remitting forfeitures in over 90% of cases presented to them.   The result was an early forfeiture regime that was expansive in theory, but in practice was constrained by a deep belief in the impropriety of taking property from those who inadvertently broke the law.

Understanding early forfeiture’s true nature has significant implications for current debate about its proper limits.  The existence of meaningful constraints in the Founding era calls into question key historical propositions underlying the Court’s permissive modern jurisprudence, and suggests that history may offer an affirmative basis for identifying greater constitutional protections today.  This is also an opportune moment to reexamine forfeiture’s historical bona fides.  In addition to a growing public outcry over civil forfeiture, there are hints that members of the current Supreme Court may be willing to reconsider its constitutionality.

July 2, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 01, 2019

Two more notable imprisonment reductions using § 3582(c)(1)(A), one for LWOP term and another to remedy BOP's "abysmal health care"

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which a defendant presents "extraordinary and compelling reasons" supporting the reductions.  Earlier this month, I posted here and posted here two notable examples of judges finding notable reasons sufficient to reduce a sentence while making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  US v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (finding extraordinary that government urged release to home confinement); see also US v. Cantu-Rivera, Cr. No. H-89-204, 2019 WL 2578272 (SD Tex. June 24, 2019) (finding FIRST STEP Act amendment of LWOP sentences supported finding of "extraordinary and compelling reasons").

Now I see that just late last week, at least two more district court issues two more important reductions in prison terms based on § 3582(c)(1)(A).  First, in US v. Johns, No. CR 91-392-TUC-CKJ, 2019 WL 2646663 (D. Ariz. June 27, 2019), a judge decided to reduce an LWOP drug conspiracy term because the defendant was 81 years old, now 81 years old, had served almost 23 years of his sentence and is "is rapidly deteriorating due to his age." Though an emphasis on old and and health is not unusual in this setting, I think the reduction of any federal LWOP sentence is noteworthy. 

Second, and even more interesting, US v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505 (M.D.N.C. June 28, 2019).  In Beck, the judge authored a lengthy explanation for her reduction of the sentence to time served, and the start and conclusion provides an overview of the court's thinking:

Angela M. Beck is a federal prisoner serving a sentence for drug and firearms offenses.  She has cancer in her left breast and the Bureau of Prisons has not provided appropriate medical care for her disease, with repeated delays that have prevented her from timely obtaining urgent tests and treatment.  In the meantime, her cancer spread to her lymph nodes and possibly to her right breast.  Ms. Beck has filed a motion under the First Step Act of 2018 seeking immediate compassionate release.  Because Ms. Beck’s invasive cancer and BoP’s history of indifference to her treatment constitute extraordinary and compelling reasons, and because the § 3553(a) factors support a sentence reduction to time served, the motion for compassionate release will be granted....

Ms. Beck committed serious drug and firearms offenses with her husband in 2012 and 2013 that warrant substantial punishment.  She has served over six years of her sentence, nearly two of them with breast cancer treated so untimely as to significantly reduce her chances of survival.  Ms. Beck’s invasive cancer and the abysmal health care BoP has provided qualify as “extraordinary and compelling reasons” warranting a reduction in her sentence to time served.  See 18 U.S.C. 3582(c)(1)(A)(i).  While the old policy statement is not directly applicable to motions filed by defendants, a reduction is consistent with its general guidance and the Sentencing Commission’s intent.  With appropriate supervision, Ms. Beck poses little risk of recidivism or danger to the community.  She has already served an arduous sentence, and the § 3553 factors support a sentence reduction.  As such, Ms. Beck is entitled to compassionate release.

Just a few more remarkable stories made possible by the FIRST STEP Act.  I know many advocates hoped and wanted for the FIRST STEP Act to go a lot further and do a lot more.  But I continue to see a number of provisions of the Act as passed, particularly 18 U.S.C. § 3582(c)(1)(A) and a few other provisions, as have a whole lot of potential to do a whole lot of good if used well.  (Indeed, I am hoping folks hoping to get retroactive relief from recent SCOTUS decisions like Rehaif and Davis and Haymond come to see the power and potential of § 3582(c)(1)(A)(i).

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

July 1, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Beyond the Algorithm Pretrial Reform, Risk Assessment, and Racial Fairness"

The title of this post is the title of this notable new report released by the Center for Court Innovation and authored by by Sarah Picard, Matt Watkins, Michael Rempel and Ashmini Kerodal. Here is its introduction: 

Pretrial detention, often resulting from a defendant’s inability to afford bail, is one of the primary drivers of incarceration nationwide. The Bureau of Justice Statistics estimates that two out of three people in local jails in 2016 were held while awaiting trial, having not yet been convicted of a crime.  Jurisdictions looking to safely reduce their use of bail and pretrial detention have increasingly turned to automated or actuarial risk assessments.  These tools employ a mathematical formula, or algorithm, to estimate the probability of a defendant incurring a new arrest or failing to appear in court.  Typically, in a risk assessment, defendants’ criminal history, criminogenic needs, and/or basic demographic information, such as age and gender, are weighted and combined, generating a score which can be used to group defendants into risk categories ranging from low to high.

With the aid of better information about the defendants who appear before them, judges, in theory, can make more consistent decisions regarding pretrial release and bail.  For example, jurisdictions that use risk assessments may be more likely to consider pretrial release for defendants in lower-risk categories, or pretrial supervision in the community for higher-risk defendants.  In cases where victim or community safety is a concern, risk assessment may provide guidance regarding the need for bail or detention hearings.

The appeal of pretrial risk assessment — especially in large, overburdened court systems — is of a fast and objective evaluation, harnessing the power of data to aid decision-making.  Research suggests that actuarial risk assessments are more accurate than decisions made by criminal justice officials relying on professional judgment alone.  By intervening in a process historically driven by subjective decisionmaking, risk assessments arguably act as a corrective to a system plagued by bias, as witnessed in the racial disparities long seen in incarceration rates across the country.

That said, important objections have been raised that, far from disrupting racial biases in the criminal justice system, risk assessments unintentionally amplify them, only this time under the guise of science.  The debate is still unresolved, but from a justice system practitioner’s perspective — let alone that of a defendant — the stakes are urgent.

What follows are the results of an empirical test of racial bias in risk assessment and, based on an original analysis, a consideration of whether there are policy-level solutions that could conserve the benefits of risk assessment, while also addressing valid concerns over racial fairness.

July 1, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Friday, June 28, 2019

In federal prosecution following state conviction, Charlottesville killer James Fields gets LWOP sentence

As reported in this Reuters piece, headlined "Charlottesville neo-Nazi sentenced to life, judge says 'too great a risk' to release," a very high-profile defendant who has been subject to both state and federal prosecutions for a very high-profile crime, received his federal sentence today.  Here are the details: 

A federal judge imposed a life sentence on the self-described neo-Nazi who killed Heather Heyer by crashing his car into a crowd of counterprotesters in Charlottesville, Virginia, after a white supremacist rally, saying release would be “too great a risk.”

The 22-year-old neo-Nazi, James Fields of Maumee, Ohio, was sentenced to life without the possibility of parole. He had sought a lesser sentence, apologizing after the court viewed video of him plowing his car into a crowd after the Aug. 12, 2017, “Unite the Right” rally, also injuring 19 people.

U.S. District Judge Michael Urbanski, was unmoved by his plea, saying he had had to avert his eyes while the court viewed graphic video of the attack that showed bodies flying into the air as Fields crashed into them. “Just watching them is terrifying,” Urbanski said. “The release of the defendant into a free society is too great a risk.”...

Heyer’s parents described the grief of losing their daughter. “It was an incident I will never fully recover from,” said Heyer’s father, Mark Heyer. Her mother, Susan Bro, described herself as “deeply wounded” and recounted crying uncontrollably at times.

Ahead of Friday’s sentencing hearing, prosecutors noted that Fields had long espoused violent beliefs. Less than a month before the attack he posted an image on Instagram showing a car plowing through a crowd of people captioned: “you have the right to protest but I’m late for work.”

Even after the attack, Fields remained unrepentant, prosecutors said, noting that in a Dec. 7, 2017, phone call from jail with his mother, he blasted Bro for her activism after the attack. “She is a communist. An anti-white liberal,” Fields said, according to court papers filed by prosecutors. He rejected his mother’s plea to consider that the woman had “lost her daughter,” replying, “She’s the enemy.”

Fields pleaded guilty to the federal hate crime charges in March under a deal with prosecutors, who agreed not to seek the death penalty.

He was photographed hours before the attack carrying a shield with the emblem of a far-right hate group. He has identified himself as a neo-Nazi.

Fields’ attorneys suggested he felt intimidated and acted to protect himself. They asked for mercy, citing his relative youth and history of mental health diagnoses.

Intriguingly, this report completely leaves out the fact that James has also been subject to prosecution in Virginia state court, which resulted in a jury conviction and a recommendation of a 419-year plus life sentence.  The details of these proceedings are covered in some prior posts linked below.

Prior related posts:

June 28, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Just how huge is the mess and challenge for lower federal courts after SCOTUS decisions in Davis, Haymond and Rehaif?

I feel like, in order to really understand their import, I will need weeks, maybe months, to reread and reflect on the three decisions that were big wins for federal criminal defendants handed down by SCOTUS in the last week.  But, of course, lower courts do not have an academic's luxury of time to make sense of US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here), US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here; discussed here) and Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here). 

I suspect some lower courts are already starting to get motions from federal prisoners or defendants in pending cases that are based on these rulings.  And the Supreme Court's final order list this morning has a bunch of remands based on these rulings that highlight the coming work for federal Circuit Courts as well.  (For those interested in an accounting, I counted sixth Davis GVRs, one Haymond GVR, and four Rehaif GVRs.)

I will not try in this post to sort out the likely litigation echoes of these cases, but I will try to crowd source opinions as to which of these cases will prove most impactful and consequential.  Of course, impactful and consequential can be defined lots of different ways — e.g., it might be gauged based on the number of disruptions of prior convictions and sentences, emergence of a new jurisprudence, possible legislative responses, total volume of cites and litigation, etc.  Without getting too bogged down in trying to define these terms, I just want to put the question out there for collective engagement among the always informed and thoughtful readers of this blog:

Among the trio of Davis, Haymond and Rehaif, which of these recent rulings by SCOTUS for a federal criminal defendant do you think will prove to be the most impactful and consequential?

June 28, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, June 27, 2019

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

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

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here. 

June 27, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ruling 5-4, SCOTUS upholds constitutionality of blood test of unconscious driver

The Supreme Court handed down its last notable criminal justice ruling of the Term with a decision in favor of police powers in Mitchell v. Wisconsin, No. 18-6210 (S. Ct. June 27, 2019) (available here).  Here is the (no longer all that) surprising cast of voting characters:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and BREYER and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed a dissenting opinion.

Here is how Justice Alito's pularity opinion gets started:

In this case, we return to a topic that we have addressed twice in recent years: the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol. We have previously addressed what officers may do in two broad categories of cases.  First, an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment’s general requirement of a warrant.  Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest.

Today, we consider what police officers may do in a narrow but important category of cases: those in which the driver is unconscious and therefore cannot be given a breath test.  In such cases, we hold, the exigent circumstances rule almost always permits a blood test without a warrant.  When a breath test is impossible, enforcement of the drunk-driving laws depends upon the administration of a blood test.  And when a police officer encounters an unconscious driver, it is very likely that the driver would be taken to an emergency room and that his blood would be drawn for diagnostic purposes even if the police were not seeking BAC information.  In addition, police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities — such as attending to other injured drivers or passengers and preventing further accidents — may be incompatible with the procedures that would be required to obtain a warrant. Thus, when a driver is unconscious, the general rule is that a warrant is not needed.

Here is how Justice Thomas's fifth vote concurring opinion gets started:

Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving — except when they aren’t.  Compare ante, at 13, with ante, at 16. The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it.  “The better (and far simpler) way to resolve” this case is to apply “the per se rule” I proposed in Missouri v. McNeely, 569 U.S. 141 (2013) (dissenting opinion).  Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring in judgment in part and dissenting in part) (slip op., at 3). Under that rule, the natural metabolization of alcohol in the blood stream “‘creates an exigency once police have probable cause to believe the driver is drunk,’” regardless of whether the driver is conscious.  Id., at ___ (slip op., at 4).  Because I am of the view that the Wisconsin Supreme Court should apply that rule on remand, I concur only in the judgment.

Here is how Justice Sotomayor's dissenting opinion gets started:

The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.

And Justice Gorsuch's dissent is just this one paragraph:

We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute. That law says that anyone driving in Wisconsin agrees — by the very act of driving—to testing under certain circumstances.  But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground — citing the exigent circumstances doctrine. While I do not doubt that the Court may affirm for any reason supported by the record, the application of the exigent circumstances doctrine in this area poses complex and difficult questions that neither the parties nor the courts below discussed.  Rather than proceeding solely by self-direction, I would have dismissed this case as improvidently granted and waited for a case presenting the exigent circumstances question.

June 27, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Taking more stock of the many shades of Justice Neil Gorsuch in criminal cases

I-dont-always-vote-in-favor-of-criminal-defendants-but-when-i-do-justice-alito-starts-drinking-dos-eIn this post on Monday, fresh on the heels of noticing Justice Neil Gorsuch's notable votes for the claims of federal criminal defendants in US v. Gundy and Rehaif v. US and Davis v. US, I reviewed Justice Gorsuch's interesting and varied votes and role in big contested criminal cases from the SCOTUS docket this Term.  Of course, Wednesday brought another data point via the Court's ruling in US v. Haymond, a case in which Justice Gorsuch provided a key swing vote in a 5-4 ruling for another federal criminal defendant and wrote a potent plurality opinion extolling the importance of the Sixth Amendment jury trial right (basics here).

But lest one let four notable late-in-the-Term votes unduly shape one's view of Justice Gorsuch's approach in criminal cases, Leah Litman has this new Slate commentary designed to make sure nobody comes to think Justice Gorsuch is always channeling the late Justice William Brennan.  The piece is bluntly headlined "Neil Gorsuch Is No Friend to Criminal Defendants," and everyone interested in this topic should read the whole thing.  Here are excerpts:

Writers like to depict him as a friend to criminal defendants; the tone of several pieces even makes it sounds like he is among the most-criminal-defendant-friendly justices on the modern court.  And some commentators who cannot resist the blazing hot countertakes have even suggested that Gorsuch is better for criminal defendants than a Justice Merrick Garland would have been.

Where to start?  Even just a few cases from the Supreme Court’s current term make it clear that Gorsuch is no friend to criminal defendants.  The fact that he rules against the government in some number of criminal cases, and occasionally departs from his more law-and-order conservative colleagues in doing so, does not change that fact.  At most, Gorsuch is as good for criminal defendants as the least-criminal-defendant-friendly Democratic appointee.  That hardly makes him a hero.  On some cases, Gorsuch has played the villain....

It is true that Gorsuch sometimes departs from his conservative colleagues and rules for criminal defendants.  It is also true that his seemingly libertarian instincts lead him to be more friendly to criminal defendants than Justice Brett Kavanaugh....  But all of these examples hardly establish that Gorsuch is a friend to criminal defendants. The fact that his aggressive approach to constitutional law, which largely frees him from the constraints of stare decisis, occasionally leads him to reshape the law in ways that favor criminal defendants should not obscure the many times that he has reached out to reshape the law in ways that would meaningfully harm them.

Notably, Ramesh Ponnuru already has this partial response to this piece at the National Review under the headline "A Gorsuch Made Mostly of Straw." Here is how it closes:

The attention to Gorsuch’s pro-criminal defendant rulings really could create a misleading impression about his jurisprudence generally and it is worth providing a more complete sense of it.  But I am left thinking that Gorsuch’s defenders have mostly not argued for him as a friend of criminal defendants — nor should they have, since a Supreme Court justice shouldn’t approach the kind of cases that come before him with a bias for or against criminal defendants.

My quick take it that Justice Gorsuch is particularly drawn to arguments from defendants (especially federal defendants) that concern the structural elements of the Constitution and our criminal justice system that protect individual liberty.  At the same time, he seems particularly unmoved by arguments made by state defendants (especially state capital defendants) that concern when he may consider "mere" matters of justice administration that can and should be trusted to the states. In this regard, he seems to approach the criminal docket somewhat akin to the Justice he replaced, Justice Antonin Scalia, and that is enough for me to anoint him the most interesting person on the Court in criminal cases (see silly picture above).

What strikes me as particularly interesting for the Court as a whole with respect to its criminal jurisprudence is the fact that the Chief Justice and Justice Brett Kavanaugh seem to becoming the yang to Justice Gorsuch's yin.  In capital cases, Chief Justice and Justice Kavanaugh seem often at least a bit more inclined to vote in favor of a capital defendant (Madison v. Alabama and Flowers v. Mississippi) come to mind, whereas in some of the structural cases they are disinclined to rule for a federal defendant (as in Davis v. US and US v. Haymond).  Interesting times.

Prior related post:

June 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, June 26, 2019

"The Future of Presidential Clemency Decisionmaking"

The title of this post is the title of this notable and timely new article authored by Paul Larkin and now available via SSRN.  Here is its abstract:

The Framers gave the president the clemency power when the federal government and the nation were in their infancy.  The president has far more demands on his time today than George Washington did in 1789.  The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment.  Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

Some scholars have suggested reinstituting some form of parole.  Yet, I think that we not will see a rebirth of parole any time soon.  The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force.  Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus.  Other scholars urge Congress to adopt a “second-look” resentencing system.  That also is unlikely.  The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias.  Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism.

A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect.  An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief.  That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others.  Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

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

SCOTUS, via splintered 5-4 ruling, decides that supervised release revocation procedures used in Haymond are unconstitutional

Via a divided opinion thanks to the separate vote of Justice Breyer, the Supreme Court this morning ruled in favor of a federal criminal defendant's claim that the procedures used to revoke his federal supervised release term and send him back to prison was unconstitutional in US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here).  Here is the vote/opinion break down in the case:

GORSUCH, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

Here is how Justice Gorsuch's lead plurality opinion starts:

Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.  That promise stands as one of the Constitution’s most vital protections against arbitrary government.  Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.  As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.

Because Justice Breyer's fifth vote is essential to the result here, his short concurring opinion demands quoting at length. So:

I agree with much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole. See post, at 9–10 (opinion of ALITO, J.).  As 18 U.S.C. §3583 makes clear, Congress did not intend the system of supervised release to differ from parole in this respect. And in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context.  See post, at 4–5....

Nevertheless, I agree with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional.  Revocation of supervised release is typically understood as “part of the penalty for the initial offense.”  Johnson v. United States, 529 U. S. 694, 700 (2000).  The consequences that flow from violation of the conditions of supervised release are first and foremost considered sanctions for the defendant’s “breach of trust” — his “failure to follow the court-imposed conditions” that followed his initial conviction — not “for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.”  United States Sentencing Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018); see post, at 12–13.  Consistent with that view, the consequences for violation of conditions of supervised release under §3583(e), which governs most revocations, are limited by the severity of the original crime of conviction, not the conduct that results in revocation.  See §3583(e)(3) (specifying that a defendant may as a consequence of revocation serve no “more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [no] more than 3 years in prison if . . . a class B felony,” and so on).

Section 3583(k) is difficult to reconcile with this understanding of supervised release.  In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.  First, §3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute.  Second, §3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long.  Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “commit[ted] any” listed “criminal offense.”

Taken together, these features of §3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution.  And in an ordinary criminal prosecution, a jury must find facts that trigger a mandatory minimum prison term. Alleyne, 570 U. S., at 103.

Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy.  Because this is the course adopted by the plurality, I concur in the judgment.

And here is how Justice Alito's dissent starts:

I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.  The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.

WOW! I am surprised and disappointed that the Chief Justice and Justices Thomas and Kavanaugh all sign off on Justice Alito's dissent. I thought for sure one or more of them would be inclined to vote with the defendant in this case on at least a narrow ground.  But it seems Justice Gorsuch was so eager to swing for the Fifth and Sixth Amendment fences, he could not get any of these other Justices to stay on his team in this notable case.  I will need a few hours, probably a few days, to figure out just what this means now and for the future of Fifth and Sixth Amendment sentencing jurisprudence.  For now, I will just say WOW again.

UPDATE: I see this new post at Crime & Consequences on this ruling with this adroit title "An Odd 'Supervised Release' Law Bites the Apprendi Dust."

June 26, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)