Saturday, July 31, 2021

Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction

In this post last month, I lamented the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  In that post, I noted that nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  As I see it, the majority in Jarvis was eager to create an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences because, presumably based on its own sense of sound policy, it wanted to cabin the new sentencing discretion created by the FIRST STEP Act. 

Against that backdrop, I was pleased to learn of a new amicus brief filed in support of rehearing en banc in Jarvis that makes a series of forceful arguments that wisely lean heavily on textualism.  The brief is filed on behalf of the American Conservative Union Foundation Nolan Center for Justice and Shon Hopwood, and I recommend the entire filing (which can be downloaded below).  Here are a few excerpts emphasizing the statutory text:

Until and unless the Sentencing Commission promulgates a new policy statement clarifying what factors district courts may consider in deciding motions for compassionate-release sentence reductions, this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of nonretroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)....

The Sentencing Commission is empowered to promulgate a new policy statement that expressly permits district courts to consider nonretroactive sentencing-law reforms, combined with other factors, in determining whether a defendant has presented extraordinary and compelling reasons.  That the Commission presently lacks a quorum is irrelevant to interpretation of the underlying statutes.  Since the Commission can promulgate a policy statement permitting consideration of nonretroactive sentencing reforms, district courts may certainly consider such criteria now in the absence of a new and applicable policy statement.

Download Jarvis Amicus Brief FINAL

July 31, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"The Trump Executions"

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

In the final six months of Donald Trump’s presidency, the federal government executed thirteen people.  For perspective, there were three federal executions in the prior fifty-seven years — and none since 2003.  Among other things, this Article is a historical record of the “Trump Executions,” constructed largely from primary-source material. The Article also offers a framework for organizing the unique legal issues that the Trump Executions presented, and discusses their crucial implications.

I proceed in three parts.  Part I places the Trump Executions in historical context.  For politicians and bureaucrats who embrace the death penalty, the Trump Executions were a once-in-a-generation opportunity.  Part I explains the Bureau of Prisons’ lengthy struggle to identify and implement a lawful execution protocol — which was largely responsible for the growth of federal death row, and the pent-up desire to clear it.  Part I also presents a four-year timeline of the Trump Executions, which grounds the balance of the Article.

Part II organizes, into four useful categories, the legal disputes that were largely unique to the Trump Executions.  These were over: (1) the pentobarbital-only lethal injection sequence, (2) a federal “parity” provision requiring alignment between federal and state death penalty implementation; (3) a statutory savings clause allowing prisoners to bypass otherwise-applicable restrictions on post-conviction relief; and (4) the effects of the COVID-19 pandemic.  (Issues belonging to a residual category receive abbreviated treatment.) Surprisingly, when the litigation was complete, the judiciary had clarified little about federal death penalty law.

Part III considers the implications of the Trump Executions.  The Supreme Court, which undertook unprecedented intervention by way of its “shadow docket,” plainly worked to ensure that the Joe Biden administration had no say in sentence implementation.  The significance of the presidential transition was quite real, as the Trump Executions went forward on the backs of political and bureaucratic outliers that coincide only infrequently.  Ironically, the Trump Executions will most durably affect other institutional practices that depend on emergency adjudication — including pandemic responses, elections, and capital punishment in the states.

July 31, 2021 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, July 29, 2021

"The Informed Jury"

The title of this post is the title of this notable new paper authored by Daniel Epps and William Ortman now available via SSRN.  Here is its abstract:

The right to a criminal jury trial is a constitutional disappointment.  Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process.  The most important thing juries do in criminal cases is authorize state punishment.  But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant.  This principle of jury ignorance is a profound mistake.  It is unmoored from history and the core function of the jury to authorize punishment.  Worse, it exacerbates the criminal legal system’s predilection for excessive severity.

This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction.  Informed juries would change the dynamics of criminal justice for the better.  In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust.  But more importantly, informed juries would provide systemic benefits.  Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity.  In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

July 29, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 28, 2021

Ohio Justice provides insider take on "sentencing by ambush" due to plea bargaining process

This local court press piece, headlined "Justice Admonishes ‘Sentencing by Ambush’," reports on a notable new law review article authored by Ohio Supreme Court Justice Michael Donnelly. Here are excerpts from the press piece (with links from the original):

An Ohio Supreme Court justice is seeking reforms to plea deal processes, which he says are full of unknowns for defendants, who often surrender their constitutional rights.

Justice Michael P. Donnelly lists his concerns and solutions about discrepancies in plea agreements and their outcomes in an article published by the Akron Law Review titled, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform.”

In the piece, Justice Donnelly details observations from his 14 years as a Cuyahoga County Common Pleas judge and how his experiences on the trial court bench, paired with his perspective as a member of the Supreme Court, compelled him to write about the need for systemic change to plea arrangements.

“Would you ever enter into a contract when you had no idea what benefit you would receive… [or] without knowing the terms to which you were obligating yourself?” Justice Donnelly asks in the article. “Regrettably, … criminal defendants do that every single day.”

The article explains the legal course of plea bargaining: a prosecutor and defense attorney settle on a recommended punishment, and a judge ultimately determines the sentence. Justice Donnelly highlights multiple procedural flaws that occur in pursuit of this type of conclusion to a case.  The fundamental issues Justice Donnelly raises are magnified because U.S. Department of Justice researchers estimate 90% to 95% of cases — state and federal — are resolved through plea deals.

He notes that prosecutors can charge multiple and different offenses based on the facts from a single event as a means of leverage against a defendant.  The high court jurist also points out two main inconsistencies in plea proceedings: Not all judges accept settlements between the prosecution and defense, and not all plea negotiations are on the record.

“One of the biggest threats to public confidence in the criminal justice system [stems] from off-the-record sentencing representations, whether from a judge in chambers or a defense attorney’s informed speculation,” Justice Donnelly wrote.  As a means for transparency, the justice recommends that all discussions take place in open court. He believes a documented dialogue would ensure negotiations are fair between the prosecution and defense, which would include stating the rationale for the agreement....

Addressing sentencing issues also is the aim of a larger initiative, led by Chief Justice Maureen O’Connor and Justice Donnelly, to develop a statewide sentencing database.

Both efforts emphasize the need for transparency as a way to provide more uniform and proportional sentences across the state, while limiting implicit bias.  “This reform would provide decision-makers (judges, prosecutors, defense counsel, and legislators) with information that is essential to ensure that better decisions are made regarding the most serious issue of incarcerating individuals,” Justice Donnelly said.

July 28, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, July 27, 2021

Prison Policy Initiative details "Nine ways that states can provide better public defense"

Ginger Jackson-Gleich and Wanda Bertram at Prison Policy Initiative have this new briefing fully titled "Nine ways that states can provide better public defense: We suggest a few questions to ask to assess the strength of your state's public defense system." Here is part of its introduction and conclusion:

One of the many reasons mass incarceration persists is because people too poor to afford their own lawyers are denied meaningful representation in court. This injustice happens because public defense systems — the systems tasked with providing attorneys to those in need — are severely underfunded and overburdened.

While every state and local public defense system is unique, we’ve identified nine urgent and common problems that plague public defense systems nationwide.  Unfortunately, there isn’t enough current data for us to explain how every state stacks up on these issues, but we’ve done the next best thing: We’ve created a list of nine questions you can ask to assess where your state’s public defense system might need help, and we’ve highlighted helpful and detailed resources that can assist reform efforts....

Even an excellent public defense system in every state would not, on its own, end mass incarceration, but ensuring that every person accused of a crime has satisfactory assistance of counsel would certainly help.  As many others have noted before us, the constitution’s promise that every criminal defendant has the right to legal counsel has never been a reality in this country.

Today, at least 4.9 million people are arrested annually, most of them poor, and virtually every public defense system struggles to represent all of the defendants who can’t afford their own lawyer.  Until states remove the many barriers to providing adequate public defense, this country will continue to be one where due process and equal protection are imaginary — a place where people are told to believe in a constitutional right that does not actually exist.

July 27, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk"

The title of this notable new forthcoming book authored by Christopher Slobogin.  It is also the title of this new SSRN posting which provides a preview of the book and an article that sets forth some of its contents. Here is the SSRN posting abstract:

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice.  Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex.

The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them.  The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk.  Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

July 27, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Technocorrections, Who Sentences | Permalink | Comments (0)

Monday, July 26, 2021

"Death Penalty Exceptionalism and Administrative Law"

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

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials — administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection.  What I find is death penalty exceptionalism — the notion that “death is different” so every procedural protection should be provided — turned on its head. 

Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure.  And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent.  The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law.

In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply.  It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.  In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right.  What happens at the intersection of these two great bodies of law is a result not good for either.

July 26, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, July 25, 2021

US Sentencing Commission releases more detailed "Compassionate Release Data Report" for 2020

As detailed in this post, last month the US Sentencing Commission released a short data report titled "Compassionate Release Data." That report provided notable but very basic numbers on the grants and denials of federal compassionate release motions nationwide for calendar year 2020.  The report revealed, as further discussed in this follow-up post, that judges granted a good number of these motions once COVID hit, but that the Bureau of Prisons approved stunningly few compassionate release applications and that there were considerable disparities in grant rates in different judicial districts.

I was quite pleased to see the USSC promulgate any compassionate release data, but I was eager for additional data beyond circuit and district breakdowns of these motions.  In my prior post, I hoped we might at some point see "a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction)."  Excitingly, the USSC has now released this updated expanded data report that provides a lot more details about compassionate release grants for calendar year 2020.

Specifically, this latest report includes data on "Demographic Characteristics Of Offenders Receiving Compassionate Release" and on "Selected Sentencing Factors For Offenders Receiving Compassionate Release" and on "Type Of Crime For Offenders Receiving Compassionate Release" and on "Original Sentence Length For Offenders Receiving Compassionate Release." I am so very pleased to see this additional data, although the extent of sentence reductions is still a data point not covered which seems to me to be important to understand the full compassionate release story (e.g.,ten granted sentence reduction motions that reduce sentences by five months seem quite different than ten granted motions reducing sentences by five years.)   

Upon first glace, it is hard to see if there are any particularly distinctive or disturbing patterns in this enhanced USSC compassionate release data.  Interestingly, looking at the demographics, I noticed that the percentage of black prisoners securing a sentence reduction in 2020 (which was 45.2% according to the USSC data) appears to be greater than the percentage of black prisoners in federal prison (which was 34.9% as of this USSC report with March 2021 data).  Likewise, I was intrigued to see that the percentage of prisoners convicted of drug trafficking securing a sentence reduction in 2020 (which was 53% according to the USSC data) appears to be greater than the percentage of such prisoners in federal prison (which was 43% as of this same USSC report).   

I hope that the US Sentencing Commission not only continues to release more and more granular data about sentencing reduction grants.  I also hope the USSC will (a) track recidivism rates for this population over time, and (b) learn about which guidelines might be seen to produce excessively long sentencing in retrospect as documented through these grants.  The kind of second-look sentencing mechanism now operating the the federal system is not only valuable and important as a means to achieve better justice in individual cases, but also should serve as an important feedback loop providing a kind of on-going audit of the operation of the entire federal sentencing system. 

A few of many prior related posts:

July 25, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Saturday, July 24, 2021

"Talking Back in Court"

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

People charged with crimes often speak directly to the judge presiding over their case.  Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers.  While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court.  In individual cases, talking back could result in fairer outcomes.  On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power.  While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly.  Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice.  The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture.  Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

July 24, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Friday, July 23, 2021

As Eleventh Circuit works though ACCA "occasions different" mess, Judge Newson flags Apprendi "prior conviction" issues

A helpful reader alerted me to an interesting new split Eleventh Circuit panel decision in US v. Dudley, No. 19-10267 (7th Cir. July 22, 2021) (available here), concerning application of the severe mandatory minimum in the federal Armed Career Criminal Act.  As regular readers know, ACCA converts the 10-year maximum prison term for illegal gun possession by a felon into a 15-year mandatory minimum if the defendant has the wrong kind of prior convictions.  The basic issue in Dudley is a topic also to be considered by the Supreme Court this fall in Wooden v. US, namely ACCA's requirement that key prior offenses needed to be "committed on occasions different from one another."  In Wooden, the facts of the prior convictions are not in dispute, and so the Supreme Court will likely just explore the legal meaning of "occasions different from one another."  In Dudley, part of the debate concerns uncertainty about the facts of the prior convictions, and so the Eleventh Circuit panel has to discuss how these facts can be proved.

Working through a variety of complicated ACCA precedents, the majority in Dudley ultimately decides that "the district court did not err in relying on the prosecutor’s factual proffer in Dudley’s plea colloquy to find by a preponderance of the evidence that the three qualifying prior convictions for Alabama assault occurred on three separate, distinct occasions."  For hard-core ACCA fans, the majority's discussion might be interesting.  But hard-core Sixth Amendment fans will especially want to check out Judge Newsom's lengthy partial dissent which flags the significant Apprendi issues raised by prior rulings and this case.  Here is are some passages from the partial dissent to show why the whole opinion is worth checking out:

For starters, why doesn’t judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment?  After all, we’ve described the different-occasions inquiry as a factual one....

Of course, I recognize that we and other circuits have repeatedly rejected constitutional challenges to ACCA’s different-occasions inquiry.  See Maj. Op. 18–19 (collecting cases).  We’ve justified ourselves on the ground that the date of an offense is part of the “factual nature” of the conviction — and thus falls under Almendarez-Torres’s exception to Apprendi....

But that explanation, while plausible at first blush, is tough to square with the Court’s characterization of Almendarez-Torres as a “narrow exception” to Apprendi’s general rule.  See Alleyne, 570 U.S. at 111 n.1.  As interpreted by Apprendi, Almendarez-Torres exempts only “the fact of a prior conviction” from the bar on judicial factfinding.  Apprendi, 530 U.S. at 490 (emphasis added).  After all, Almendarez-Torres itself involved only the bare fact that the defendant had been convicted of a prior aggravated assault.  523 U.S. at 226.   Although I don’t question Almendarez-Torres’s continuing vitality — above my pay grade — it seems that we do more than just faithfully apply that decision when we extend its “narrow exception” for the mere “fact of a prior conviction” to include other related facts, such as the date or time of the underlying offense.  Indeed, if Almendarez-Torres authorizes factfinding about more than just the fact of a prior conviction, what’s the limiting principle?  What differentiates the timing of the offense from the fact that it was “violent” for ACCA’s predicate-felony inquiry?  Both, it seems to me, are equally part (or not part) of the “factual nature” of the prior conviction.

July 23, 2021 in Almendarez-Torres and the prior conviction exception, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

Thursday, July 22, 2021

Seventh Circuit panel states (in dicta?) that vaccine availability "makes it impossible" for COVID risks to create eligibility for compassionate release

The Seventh Circuit yesterday released a short panel opinion affirming the denial of a compassionate release motion in US v. Broadfield, No. 20-2906 (7th Cir. July 21, 2021) (available here) (Hat tip: How Appealing).  The opinion has a number of notable passages that make this ruling a useful read in full for those working in this arena, but the closing paragraph seemed especially worth highlighting here:

Section 3582(c)(1)(A) was enacted and amended before the SARS-CoV-2 pandemic, and it will continue to serve a beneficent function long after the pandemic ends.  But for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order.  A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an “extraordinary and compelling” reason for immediate release.

This final paragraph seems to me to be dicta (though what precedes it might lead some to conclude it is part of the holding).  I suspect the final clause will garner considerable attention no matter how characterized.  Critically, by using the phrase "the vast majority of prisoners," this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an "extraordinary and compelling" reason for compassionate release.  Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.

July 22, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, July 21, 2021

"Prosecutorial Roles in Reducing Racial Disparities in the Justice System"

The title of this post is the title of this interesting new R Street report authored by Nila Bala, Casey Witte and Lars Trautman.  Here is its executive summary:

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system.  In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences.  While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful.  With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities.  This paper examines the sources of racial disparities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities.  These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

July 21, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, July 20, 2021

"Building exits off the highway to mass incarceration: Diversion programs explained"

The title of this post is the title of this great new report authored by Leah Wang and Katie Rose Quandt for the Prison Policy Initiative. I recommend the report in full, and here is how it gets started:

Our nation’s mass incarceration crisis has led to far too many people locked up in jails and prisons.  As public outrage grows regarding the unfairness of the criminal justice system, counties and municipalities are adopting a wide range of programs that divert people out of the system before they can be incarcerated, pitching these as solutions to reduce the number of people in confinement.  But these programs are not all created equal, and the design and implementation of diversion can be wildly different in its impact on justice-involved people.

We envision the criminal justice system as a highway on which people are heading toward the possibility of incarceration; depending on the state or county, this highway may have exit ramps in the form of diversion programs and alternatives to incarceration.  Diversion is a broad term referring to any means of exiting the criminal justice system without a criminal conviction, while an alternative to incarceration can be offered to someone who has been convicted.

The further someone travels down the highway, the more collateral consequences they will experience: a police encounter that may turn dangerous; the trauma of being booked; their mugshot published on the internet; massive amounts of time spent away from work and family for jail time or court appearances; the financial burden of bail and court costs; and a criminal record that generates numerous other challenges like exclusion from the workforce, ineligibility for public benefits, disenfranchisement, and denial of the right to serve on a jury.

The earlier someone can take an exit ramp, the more devastating impacts they can avoid — and the more we can shrink the massive footprint of the criminal justice system.  This report provides a general overview of diversion and alternative-to-incarceration programs, and key differences in how they might alleviate (or complicate) someone’s experience going through the system.

In an ideal world, a community would implement all or almost all of these programs, to help divert people at every stage.  But when resources — financial or political — are limited, it is important that policymakers make choices that will have the largest impact.  While all diversions are better than incarceration, the most powerful are the earliest interventions (which we’re calling “Exit 1”) that prevent encounters with police and the criminal justice system in the first place.

July 20, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, July 19, 2021

"The Evolving Standards, As Applied"

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

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences.  Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility — that the defendant is beyond hope of rehabilitation — as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed.  While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases.  The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases.  Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases.  Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences.  In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases.  Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.  Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

July 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New York Times reporting Biden Justice Department agrees with OLC memo stating prisoners transferred to home confinement must return to prison after pandemic ends

As reported in this new New York Times article, headlined "Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency," it appears that the US Department of Justice is not changing its view of the limits of congressional authority to move people to home confinement under the CARES Act. Here are the details:

The Biden administration legal team has decided that thousands of federal convicts who were released to home confinement to reduce the risk of spreading Covid-19 will be required by law to return to prison a month after the official state of emergency for the pandemic ends, officials said on Monday.

The administration has come under pressure from criminal justice reform activists and some lawmakers to revoke a Trump-era memo by the Justice Department’s Office of Legal Counsel, which said inmates whose sentences lasted beyond the “pandemic emergency period” would have to go back to prison.

But the Biden legal team has concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates, according to officials who spoke on condition of anonymity about sensitive internal deliberations.  Several officials characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.

The official state of emergency is not expected to end this year because of a rise in new infections caused by the coronavirus’s Delta variant. But the determination means that whenever it does end, the department’s hands will be tied.

That leaves two options if those prisoners are not to be sent back into cells: Either Congress could enact a law to expand the Justice Department’s authority to keep them at home beyond the emergency, or President Biden could use his clemency powers to commute their sentences to home confinement.

The Biden team is said to be wary of a blanket, mass commutation, however, both because it would represent an extraordinary intervention in the normal functioning of the judicial system and it could create political risks if any recipient who would otherwise be locked up commits a serious crime.  Another option is case-by-case assessment for commutations, but the volume of work required to individually evaluate so many people is daunting.

When asked for comment, the White House responded with a general statement about the administration’s support for policies that can reduce incarceration. “President Biden is committed to reducing incarceration and helping people to re-enter society,” said Andrew Bates, a White House spokesman. “As he has said, too many Americans are incarcerated, and too many are Black and brown. His administration is focused on reforming our justice system in order to strengthen families, boost our economy and give people a chance at a better future.”...

The disclosure of the Biden legal team’s internal decision came as an ideologically broad range of advocacy groups — nearly two dozen organizations, including the American Civil Liberties Union, Amnesty International, FreedomWorks and the Faith and Freedom Coalition — stepped up pressure on the Biden administration not to recall inmates from home confinement when the emergency ends.

Notably, however, those organizations issued a letter framing their request in terms of Mr. Biden using his clemency powers to resolve the issue. “On the campaign trail and during your presidency, you have spoken about the importance of second chances,” according to the letter. “This is your opportunity to provide second chances to thousands of people who are already safely out of prison, reintegrating back into society, reconnecting with their loved ones, getting jobs and going back to school. We urge you to provide clemency now to people under CARES Act home confinement.”

I do not find this news especially surprising; if there was any considerable legal wiggle room here, I think the Justice Department would have spoken some time ago.  And, as this article highlights, I have sense a number of advocates have been talking up blanket clemency as the most fitting way to resolve this issue.  But I am always eager to highlight the point I made in this recent post, titled "Why aren't there much stronger calls for CONGRESS to fix post-pandemic home confinement problems?," that Congress readily could (and I think should) enact a statute that provides for the home confinement program to be extended beyond the end of the pandemic.

In addition, as I highlighted in this recent post, another option for case-by-case relief is through compassionate release motions.  This is how Gwen Levi got relief, and such motions have the potential to reduce sentences and not just allow these sentences to be served at home.  Of course "the volume of work required" for so many CR motions would be considerable, but the Justice Department could (and I think should) support and even bring sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

Some prior recent related posts:

July 19, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

NIJ releases new publication with "Guidelines for Post-Sentencing Risk Assessment"

Via this webpage, headed "Redesigning Risk and Need Assessment in Corrections," the National Institute of Justice discusses its notable new publication titled "Guidelines for Post-Sentencing Risk Assessment."  Here is how the webpage sets up the full publication:

Over the past several decades, the use of RNA in correctional systems has proliferated. Indeed, the vast majority of local, state, and federal correctional systems in the United States now use some type of RNA. Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the kind of RNA currently used across much of the country has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the full potential of RNA instruments, NIJ recently released Guidelines for Post-Sentencing Risk Assessment.  These guidelines, assembled by a trio of corrections researchers and practitioners, are built around four fundamental principles for the responsible and ethical use of RNAs: fairness, efficiency, effectiveness, and communication.  Each of these principles contributes to an innovative, practical checklist of steps practitioners can use to maximize the reliability and validity of RNA instruments.

Here is part of the executive summary from the full report:

Risk and needs assessment (RNA) tools are used within corrections to prospectively identify those who have a greater risk of offending, violating laws or rules of prison or jail, and/ or violating the conditions of community supervision.  Correctional authorities use RNA instruments to guide a host of decisions that are, to a large extent, intended to enhance public safety and make better use of scarce resources.  Despite the numerous ways in which RNA instruments can improve correctional policy and practice, the style and type of RNA currently used by much of the field has yet to live up to this promise because it is outdated, inefficient, and less effective than it should be.

In an effort to help the corrections field realize the potential that RNA instruments have for improving decision-making and reducing recidivism, we have drawn upon our collective wisdom and experience to identify four principles that are critical to the responsible and ethical use of RNAs.  Within each principle is a set of guidelines that, when applied in practice, would help maximize the reliability and validity of RNA instruments.  Because these guidelines comprise novel, evidence-based practices and procedures, the recommendations we propose in this paper are relatively innovative, at least for the field of corrections.

■ The first principle, fairness, holds that RNA tools should be used to yield more equitable outcomes. When assessments are designed, efforts should be taken to eliminate or minimize potential sources of bias, which will mitigate racial and ethnic disparities. Preprocessing, in-processing, and post-processing adjustments are design strategies that can help minimize bias. Disparities can also be reduced through the way in which practitioners use RNAs, such as delivering more programming resources to those who need it the most (the risk principle). Collectively, this provides correctional agencies with a strategy for achieving better and more equitable outcomes.

■  The second principle, efficiency, indicates that RNA instruments should rely on processes that promote reliability, expand assessment capacity, and do not burden staff resources. The vast majority of RNAs rely on time-consuming, cumbersome processes that mimic paper and pencil instruments; that is, they are forms to be completed and then manually scored by staff. The efficiency of RNA tools can be improved by adopting automated and computer-assisted scoring processes to increase reliability, validity, and assessment capacity. If RNA tools must be scored manually, then inter-rater reliability assessments must be carried out to ensure adequate consistency in scoring among staff.

■  RNA instruments should not only be fair and efficient, but they should also be effective, which is the third key principle. The degree to which RNA instruments are effective depends largely on their predictive validity and how the tool is used within an agency. Machine learning algorithms often help increase predictive accuracy, although developers should test multiple algorithms to determine which one performs the best. RNA tools that are customized to the correctional population on which they are used will deliver better predictive performance.

■  Finally, it is important to focus on the implementation and use of RNAs so that individuals can become increasingly aware of their risk factors. To this end, the fourth key principle is to employ strategies that improve risk communication. Training the correctional staff who will be using the RNA tool is essential for effective communication, particularly in how to explain the needs and translate it into a case plan. A risk communication system, which includes case plan improvement, treatment-matching algorithms, and graduated sanctions and incentives, provides an integrated model for decision-making that helps increase an individual’s awareness of their own circumstances and need for programming.

July 19, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, July 13, 2021

Interesting (but unclear) local report on federal sentencings in NYC impacted by COVID realities

The New York Daily News has this interesting (but less-than-clear) article discussing some federal sentencing issues under the headline "Brutal conditions in NYC jails during COVID pandemic caused federal judges to impose lighter sentences: analysis."  Here are excerpts:

Federal judges handed down dozens of lighter sentences due to brutal conditions in New York City’s federal jails during the coronavirus pandemic, new statistics obtained by the Daily News show.

A Daily News analysis of 43 cases involving people who could not afford their own attorneys shows that judges in Manhattan and Brooklyn federal courts imposed sentences that were on average 58% lower than what federal guidelines recommended.  In nearly all of the cases, judges either cited coronavirus conditions behind bars in their sentences, or attorneys emphasized the conditions in legal briefs.

In one case in July 2020, Judge Paul Engelmayer noted that punishment for Juan Carlos Aracena De Jesus’ illegal reentry into the U.S. after being deported was never supposed to include catching coronavirus. “I am mindful ... that you have served most of your time in prison so far during the worst pandemic in this country during the past 100 years,” Engelmayer said. “I’m mindful that your experience in prison as a result of the pandemic, the preceding lockdown, the ensuing lockdown, and your own illness was frightful. Prison is supposed to be punishment, but it is not supposed to be trauma of that nature or close.” While the sentence guidelines in the case was for 30-37 months, Engelmayer sentenced Aracena to time served.  He had spent six months at the Metropolitan Correctional Center in Manhattan.

Judge Paul Oetken went so far as to come up with a formula for how much credit inmates should receive toward a sentence if they were behind bars during the pandemic. “I do believe that because it’s been harsher than a usual period that it’s more punitive, that it’s essentially the equivalent of either time and a half or two times what would ordinarily be served,” Oetken said on April 2 while sentencing a low-level crack dealer.  The sentence amounted to time served for the dealer, Daniel Gonzalez, who said he has a recurring foot infection due to unsanitary showers at MCC.

In all the cases, COVID was not the sole factor judges used to determine sentences.  Judges also considered an inmate’s health, the nature of the crime and other factors.  For Victor Marmolejo, 47, the risk of deadly consequences from his diabetes resulted in him receiving an 18-month sentence when prosecutors had asked for up to four years....

Lawsuits have alleged that coronavirus ravaged the MCC in Manhattan and the Metropolitan Detention Center in Brooklyn and that staff failed to implement commonsense preventative measures. Inmates, meanwhile, were kept in lockdown and had limited or no access to family and their attorneys.  Judges have become unusually outspoken about problems at the MCC and MDC since the pandemic began....

The head of the Federal Defenders in Brooklyn, Deirdre Von Dornum, said the cases where incarcerated pretrial detainees received shorter-than-guidelines sentences based on medical and jail conditions were “far more” than they usually get.  “COVID-19 did not change the sentencing calculus.  Consistent with governing sentencing law, judges have always taken medical conditions and medical risks into account.  What changed was the breadth and depth of this medical crisis and the clear inability of MDC and MCC to protect those in their custody and care who had pre-existing medical conditions,” Von Dornum said.

I am not at all surprised to hear accounts of federal judges taking COVID-related matter into account at sentencing.  Indeed, the instructions Congress has set forth for sentencing judges in 18 USC § 3553(a) really mandates consideration of factors that COVID realities can impact in various ways.  So, what is most notable and important is not just how, but really how much, judicial sentencing decision-making is being impacted by COVID matters.

Unfortunately, this Daily News report, which the article describes as an "analysis of 43 cases involving people who could not afford their own attorneys" in Manhattan and Brooklyn federal courts, is too opaque to provide a clear picture of COVID-era sentencing realities.  During the COVID era, there have probably more than 1000 cases sentenced in Manhattan and Brooklyn federal courts, so the 43 cases analyzed by the Daily News are likely not truly representative.  Moreover, even before COVID, judges in the Eastern and Southern Districts of New York typically imposed within-guideline sentences in only about 25% of all cases.  So lots of below-guideline sentences for lots of reasons was the norm even before COVID.

That all said, the impact of COVID on sentencing practices presents critical and hard questions that I am pleased to see this local newspaper discuss.  I hope more media, as well as federal agencies and academics and many others, will keep seeking to explore these important issues.

July 13, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, July 12, 2021

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

July 12, 2021 in Blakely Commentary and News, Blakely in Appellate Courts, Blakely in the States, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (1)

Spotlighting prosecutors advocating for and embracing second-look sentencing mechanisms

At a conference a dozen years ago, I spoke about the need for second-look sentencing mechanisms and argued that prosecutors should be much more involved in reviewing past sentences.  That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010). 

I am very pleased that these ideas are finally coming into vogue, as highlighted by this new Law360 piece headlined "New Wave Of Prosecutors Push For Resentencing Laws."   I recommend this piece in full, and here are excerpts:

Washington county prosecutor Dan Satterberg knew when his state passed its three-strikes law in 1993, mandating that repeat offenders of certain crimes be sentenced to life without parole, that those sentences would one day need to be undone....

When Satterberg was elected district attorney of Washington's King County in 2007, he created a team to review cases, identify people who received life sentences under the three-strikes law and try to find a legal avenue for those people to be resentenced....

But Satterberg realized that in order to move more quickly with resentencing in more cases, he needed to have the explicit legal authority to request judges to resentence people.  So Satterberg drafted and lobbied for the passage of S.B. 6164 that gives Washington state prosecutors the power to request resentencing in the interest of justice.  The law was passed last year.

So far, Satterberg has not been able to get anyone resentenced under the new law, because the court asked prosecutors not to file these resentencing petitions in light of the COVID-19 pandemic and limited court operations. Satterberg's office, however, has identified more than 100 cases that could be eligible for resentencing under the law. The office hopes to have its first resentencing under this law in August....  "I think it's consistent with the overall mission of the prosecutor, which is to seek justice," Satterberg said about S.B. 6164. "If there are procedural barriers to seeking justice, then you need to advocate to remove those."

More state and county prosecutors are reaching the same conclusion as Satterberg that they need the power to request resentencing from judges to correct past injustices, end mass incarceration, give people second chances and divert money spent on incarceration to more effective crime prevention methods.

In April, more than 60 current and former prosecutors signed a statement by the nonprofit network Fair and Just Prosecution urging their colleagues to review decadeslong sentences in their jurisdictions and to no longer seek such sentences, except in cases where the convicted individual poses a serious safety risk....

The bill that Satterberg spearheaded was inspired by the first prosecutor-initiated resentencing law passed by California in 2018.  The California law, A.B. 2942, was drafted by Hillary Blout, a former San Francisco prosecutor who worked under Vice President Kamala Harris when she served as the district attorney of San Francisco.

After Blout served as a prosecutor for six years, she founded the nonprofit For the People in 2019 that works with prosecutors to implement resentencing legislation in their states.  Blout said that resentencing laws are important to correct failed policies that sought to achieve public safety by imprisoning people for as long as possible....

Twenty-five states including New York, Virginia and Texas are currently considering resentencing legislation, according to a report released in May by The Sentencing Project, a nonprofit research organization that aims to improve the U.S. criminal justice system and reduce the prison population.  Oregon and Illinois both passed prosecutor-initiated resentencing laws during this legislative session that were signed by their respective state governors in late June.

While these resentencing laws have the power to end harsh sentences and end mass incarceration, some advocates have criticized resentencing laws that only allow prosecutors to request resentencing.  Advocates argue that incarcerated people should also be allowed to petition courts for resentencing in their cases.  Not all prosecutors are prioritizing resentencing even when they have the power to do so, leaving incarcerated people serving overly long sentences, they say.

A few of many prior related posts:

A sampling of my prior writing on this front through the years:

July 12, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 11, 2021

"Innocence in the Shadow of COVID-19: Plea Decision Making During a Pandemic"

The title of this post is the title of this new article by Miko Wilford, David Zimmerman, Shi Yan, and Kelly Sutherland published in the Journal of Experimental Psychology: Applied. Here is its abstract:

Over 95% of criminal convictions in the United States are the result of guilty pleas.  Consequently, it is critical that we ensure the process of pleading guilty is as free of coercion as possible.  Yet, research has indicated that incarcerating defendants to await trial could have an undue influence on their decision to plead guilty.  The current research employed a novel computer simulation to examine the impact of the COVID-19 pandemic on plea decision making among the innocent and the guilty when faced with potential pretrial detention.  While presenting COVID-related information to participants increased both true and false guilty pleas, further analyses indicated that concerns about COVID-19 weighed more heavily on the innocent than the guilty.  These findings illustrate the negative impact a pandemic could have in combination with a system of pleas that often allows prosecutors to provide defendants with just one guaranteed respite from jail — a guilty plea.

July 11, 2021 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Saturday, July 10, 2021

"Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives"

The title of this post is the title of this notable new paper authored by Olwyn Conway now available via SSRN. Here's the abstract:

The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that define the American criminal system.  This insulates the criminal system’s racially disparate outcomes from scrutiny, thereby precluding reform.  Yet prosecutors remain accountable to the electorate. In recent years, activists and community organizers have mobilized communities to support and elect prosecutors who have pledged to address the racial inequities of the criminal system.  After a summer of protests for racial justice and growing acceptance for the demands of the Movement for Black Lives, we find ourselves in a moment that demands and necessitates transformative proposals that call on prosecutors to reject the myth of colorblindness and adopt a race-conscious approach to criminal prosecution.  This creates an opportunity — and need — to generate and articulate specific and innovative frameworks to change the culture of prosecution.

This Article seeks to provide one such framework by examining the ethical duties of American prosecutors in the underexplored area of prosecutorial storytelling.  This Article focuses on trial narratives as a lens through which to view the ethical duties of the prosecutor writ large, arguing that trial narratives that advance or invoke a racialized stereotype or stock story violate the prosecutor’s duty to justice.  A race-neutral or “colorblind” approach to prosecution ignores the ethical violations inherent in racialized prosecutorial storytelling. By contrast, a color-conscious approach offers prosecutors a path to address the systemic racism that pervades every aspect of the American criminal system—including the stories that prosecutors tell.

July 10, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, July 09, 2021

New Urban Instititute report reviews "Implementation of the First Step Act: The Risk and Needs Assessment System"

Julie Samuels and Emily Tiry of the Urban Institute have this notable new 23-page report about one aspect of FIRST STEP Act implementation.  Here is its abstract:

The December 2018 First Step Act sought to address many long-standing problems in the federal prison system.  This brief focuses on implementation of the act’s risk and needs assessment system, intended to incentivize people in federal prison to pursue recidivism reduction programming that can sometimes reduce their time behind bars.  We summarize that system’s key requirements and major takeaways so far; detail the progress and challenges encountered in developing and implementing the risk assessment tool, needs assessment process, and earned time credits; and offer recommendations for improvement including suggestions to expand eligibility for early release or transfer and to consider the equity of the risk assessment tool.  We conclude that the US Department of Justice and the Federal Bureau of Prisons (BOP) could take a more vigorous approach to implement the law and fully realize the potential of the risk and needs assessment system to reduce recidivism and time spent in federal prisons.

Are you listening, DOJ and Congress? We are getting closer to a full three years since the FIRST STEP Act became law, and its implementation remains shaky and lots more could be done to make this first step even more consequential and impactful.

July 9, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, July 08, 2021

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, July 07, 2021

ACLU sues Maricopa County prosecutors over expressly threatening "substantially harsher" plea offers for those who exercise court rights

As detailed in this ACLU press release, "the American Civil Liberties Union and the ACLU of Arizona filed a federal class action lawsuit challenging the Maricopa County Attorney’s Office (MCAO) policy of making plea offers 'substantially harsher' if people assert their rights to a preliminary hearing or a trial." Here is more about this notable lawsuit from the press release:

This "retaliation policy" coerces thousands of guilty pleas per year and violates the Constitution. Moreover, the retaliation policy applies regardless of the facts of any case, or even if the person might be innocent. Prosecutors also refuse to disclose any information beyond police reports — even if they have it — unless people give up their rights. In emails to public defenders, Maricopa County prosecutors openly acknowledge that one purpose of the policy is to avoid the work of reviewing evidence and preparing for trial.

MCAO enforces its retaliatory plea policy in the Early Disposition Courts (EDCs).  These EDCs were initially created to quickly move cases involving minor offenses or drug possession through the system, with the stated goal of helping people in need of drug treatment and other services avoid convictions.  It is during the EDC process that prosecutors threaten people with retaliation for exercising their rights and present people with a devastating choice — either waive your right to a probable cause hearing and accept the first guilty plea, all without access to the evidence against you, or MCAO will make any later plea “substantially harsher.”...

Plaintiffs include a 34-year-old man who felt threatened by MCAO’s retaliation policy and felt he had no choice but to waive his right to a preliminary hearing in order to get more discovery.  Another Plaintiff is a 61-year-old man with a substance use disorder who was charged with selling $20 worth of drugs.  Despite EDC’s stated purpose — to divert drug offenders away from incarceration and toward treatment — MCAO prosecutors are seeking to send him to prison for almost 10 years.  And the offer will get “substantially harsher” if he affirms his rights.  The complaint also details the story of a man who was actually innocent of his charges, but MCAO tried to pressure him into a guilty plea anyway.

This lawsuit, which seeks class certification and injunctive relief, is captioned Luckey v. Adel and the complaint can be found at this link.

July 7, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, July 06, 2021

"The Revelatory Nature of COVID-19 Compassionate Release in an Age of Mass Incarceration, Crime Victim Rights, and Mental Health Reform"

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

The crime victim rights movement and mass incarceration grew side-by-side in the United States, and in many ways they deal with similar questions about the purposes, benefits, and effectiveness of the criminal justice system.  The COVID-19 worldwide pandemic in 2020 tested the value attributed to retribution, rehabilitation, and other criminal justice goals in sentencing and incarceration.  Specifically, the First Step Act of 2018 enhanced discretionary compassionate release from prison due to illness and disability, requiring a post-sentencing balance of interests between perceived risks to the prisoner while in prison and risks to the public if release were granted.  Early COVID-19 compassionate release decisions reveal that courts continue to base early release decisions primarily on an assessment of public safety risk from crime, not community impact, crime victim impact, or even prisoner health.  In so doing, judges and prosecutors usurp and marginalize the role of the community and those most affected by crime.

July 6, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0)

Monday, July 05, 2021

Any hot takes on another lukewarm criminal justice Term from SCOTUS?

Last year as the Supreme Court's October 2019 Term was winding to a close, I pondered in this post whether "others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters."  My main point back in summer 2020 was that, following a steady stream of major SCOTUS rulings for the better part of two decades, since 2015 there has been precious few truly memorable Supreme Court rulings in this arena.

Fast forward a year, a the rest of life still feels a lot more eventful than the Supreme Court's sentencing docket and even its broader criminal justice docket.  There were, arguably, more than the usual number of notable sentencing cases, particularly Jones v. Mississippi (Eighth Amendment juve senencing), Borden v. US (ACCA predicates) and  Terry v. US (crack resentencing after FIRST STEP).  But these cases were either applications of prior precedents and/or resolutions of relatively small statutory issues.  Though consequential for particular classes of defendants and somewhat revealing about the commitments of various Justices, none of these cases breaks significant new jurisprudential ground.  The one SCOTUS case this Term that clearly did break new jurisprudential ground, Edwards v. Vannoy (finding non-retroactive unanimous jury Ramos ruling), did so by formally eliminating a part of Teague retroactivity doctrine that had never actually been applied by SCOTUS in three decades.

That all said, my sentencing focus — and my eagerness for juicy cases to blog about — surely distorts my perspectives on any and every SCOTUS Term.  The Term just concluded did have a number of notable Fourth Amendment and immigration rulings that may be a lot more impactful than I realize.  And with three new younger Justices who will likely play a leading role in all SCOTUS doctrines for perhaps decades to come, every one of their votes and discussions in criminal cases could already be viewed as very important.  (Notably, this SCOTUSblog chart reviews the make-up of the entire SCOTUS OT20 docket; criminal law, immigration law, and search and seizure are among the largest categories in that accounting.)    

With that wind up, I would be eager to hear from readers (or Tweeters) with any hot takes on what still feels to me like another lukewarm criminal justice Term from SCOTUS. 

July 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, July 02, 2021

New Federal Sentencing Reporter issue considers "After Trump: The Future of the President’s Pardon Power"

M_fsr.2021.33.5.coverIt strikes me as a great bit of great timing, as we head into a weekend celebrating our great nation's declaration of independence from a monarchy, that the new issue of the Federal Sentencing Reporter focused on the pardon power in the US Constitution is just now available online.  It is often said that the presidential pardon authority in Article II section 2 of the Constitution is the most "kingly" power given to our chief executive, and former Prez Donald Trump certainly seemed at times to bring a "mad King George" quality to his activities in this arena.  Notably, as explained in the intro to this June 2021 issue of FSR, the editors had some history and some expert help putting together a new issue on this always timely topic:

This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

Here are the great new original articles in this great new FSR issue:

July 2, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

In final order list of of SCOTUS OT20, Justices grant cert on 924(c) matter and spar over summary reversal in capital case

Though we are now two days into July 2021, the US Supreme Court has delivered this morning a last jolt of October 2020 Term action with this lengthy order list that has a little something for all SCOTUS fans.  For starters, there are nine grants of certiorari.  The only criminal law grant is yet another debate over what qualifies as a "crime of violence" under federal statutory law.  This time the issue concerns application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor20-1459, which formally presents this question:

Whether 18 U.S.C. 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a).

In addition, there are lots of GVRs and statements concerning cert dispositions on free speech, religion, takings and qualified immunity issues.  But nearly half of the 54-page order list is consumed with a per curiam summary reversal and dissent in the capital case of Dunn v. Reeves20-1084 (S. Ct.  July 2, 2021).  Here is how the 12-page majority opinion starts (with cites mostly removed):

Willie Johnson towed Matthew Reeves’ broken-down car back to the city after finding Reeves stranded on an Alabama dirt road.  In payment for this act of kindness, Reeves murdered Johnson, stole his money, and mocked his dying spasms.  Years after being convicted of murder and sentenced to death, Reeves sought state postconviction relief, arguing that his trial counsel should have hired an expert to develop sentencing-phase mitigation evidence of intellectual disability.  But despite having the burden to rebut the strong presumption that his attorneys made a legitimate strategic choice, Reeves did not call any of them to testify.

The Alabama Court of Criminal Appeals denied relief, stressing that lack of evidence about counsel’s decisions impeded Reeves’ efforts to prove that they acted unreasonably.  On federal habeas review, the Eleventh Circuit held that this analysis was not only wrong, but indefensible.  In an unpublished, per curiam opinion that drew heavily on a dissent from denial of certiorari, the Eleventh Circuit reinterpreted the Alabama court’s lengthy opinion as imposing a simple per se prohibition on relief in all cases where a prisoner fails to question his counsel.  It was the Eleventh Circuit, however, that went astray in its “readiness to attribute error.” Federal habeas courts must defer to reasonable state-court decisions, 28 U.S.C. §2254(d), and the Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Justice Sotomayor authored a 14-page dissent joined by Justice Kagan. (Justice Breyer also dissented, but without opinion.) Justice Sotomayor dissent ends this way:

Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. See, e.g., United States v. Higgs, 592 U.S. ___ (2021) (emergency vacatur of stay and reversal); Shinn v. Kayer, 592 U.S. ___ (2020) (per curiam) (summary vacatur); Dunn v. Ray, 586 U.S. ___ (2019) (emergency vacatur of stay).  This Court has shown no such interest in cases in which defendants seek relief based on compelling showings that their constitutional rights were violated.  See, e.g., Johnson v. Precythe, 593 U.S. ___ (2021) (denying certiorari); Whatley v. Warden, 593 U.S. ___ (2021) (same); Bernard v. United States, 592 U.S. ___ (2020) (same). In Reeves’ case, this Court stops the lower court from granting Reeves’ petition by adopting an utterly implausible reading of the state court’s decision.  In essence, the Court turns “deference,” ante, at 7, into a rule that federal habeas relief is never available to those facing execution.  I respectfully dissent.

July 2, 2021 in Death Penalty Reforms, Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 01, 2021

Encouraging(?) update on prospects for series of small federal sentencing reform bills

Politico has this new piece on the the prospects for (small) statutory sentencing reforms making their way through Congress soon.  Both the headline and contents of the article are generally encouraging, though one is always wise not to expect much from Congress these days.  The piece, headlined "As police reform talks sputter, bipartisan criminal justice bills advance," should be read in full by federal sentencing fans.  Here are a few highlights:

Democrats don't want to borrow a thing from Donald Trump’s four years in power, with perhaps one exception: bipartisan criminal justice reform.  As police reform talks edge closer to collapse and Democratic priorities from gun control to immigration stall, the Senate is chugging ahead on an overhaul of the U.S. criminal justice system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley....

House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills ... to deal with the mass incarceration epidemic that we have in America and the over-criminalization problem which both Democrats and Republicans recognize as a challenge that must be decisively tackled."

Whether Republicans back criminal justice reform to the extent that they did in 2018 remains to be seen. The First Step Act, which included sentencing as well as prison reform provisions, passed the Senate with 38 GOP votes but only after many conservatives got on board following a personal appeal from Trump.  A potentially stronger deterrent than a Democrat in the White House, for some Republicans weighing this year's bills, is the current increase in violent crime.  "A bigger issue is the big rise in crime in the last year,” Grassley said in an interview. “I think that’s the biggest impediment, not because Trump’s not president.”  Durbin countered that the package he is working on with Grassley, a trio of bills, focuses on non-violent crime....

So far, the Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

But criminal justice reform advocates are pushing for the inclusion of more provisions in a larger package, especially legislation that would eliminate the sentencing disparity between crack and powder cocaine offenses. The Biden administration recently backed the bill, and Durbin's committee held a hearing on it last month that featured GOP Gov. Asa Hutchinson (Ark.), a former Drug Enforcement Administration chief, and Matthew Charles, the first person released from prison after the First Step Act passed in 2018.  The road to closing that crack-cocaine sentencing disparity, a longtime progressive cause, is a hard one....

Advocates are hoping to see further movement before Congress leaves for its scheduled August recess.  However, both Grassley and Durbin suggested that could be a heavy lift, given their limited days left in session and the intense focus on moving through both the bipartisan infrastructure deal and reconciliation.  Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely....

As Congress enters the second half of the year, proponents of criminal justice reform are confident that some type of legislation will get through, given the ideological range of groups pushing for change.  “Each member, both Republican and Democrat, have very much an interest in it based upon inequities that have happened because of past tough on crime legislation,” Grassley said. “But something that really helps is when you have a broad coalition of the most liberal and the most conservative interest groups in the United States working together for it.”

Because there are many moving parts to the legislative proposals in play, and especially because of partisan divisions along with the fraught politics of crime, I fear that there could be many speed bumps on the way to congressional approval of even the small sentencing reform proposals that have so far advanced through the Senate Judiciary Committee.  But if there are enough folks on both side of the political aisle who remain eager to get something done in this space, and especially if the Biden Administration might be prepared to prioritize these issues after infrastructure discussions are resolved, I will be hopeful that we could see one or maybe more federal sentencing reform bills become law in 2021.  But I should close by repeating what I said at the outset, namely that it is always wise not to expect much from Congress these days.

Some of many prior related posts:

July 1, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Latest online issue of NACDL's "The Champion" full of sentencing articles

April_2021I am pleased to see that the April 2021 issue of The Champion, a magazine/journal of the National Association of Criminal Defense Lawyers, is now online.  The cover calls this "The Sentencing Issue," and I have already had a chance to read a couple of the great pieces therein.  Here are some of the major article that can be found in this issue (which the brief descriptions provided on this NACDL page):

"Defense Lawyers Can ‘Rewrite’ the Sentencing Guidelines, One Case at a Time"

How can defense counsel obtain a sentence below the range recommended by the Sentencing Guidelines? The common approaches can be enhanced by two things that defense lawyers seldom use: the U.S. Sentencing Commission’s data on actual sentences and precedents “hidden” from standard legal search engines.

"Formulating and Presenting Effective Sentencing Arguments When Representing Cooperators"

When representing a cooperator, some defense lawyers tend to cede to the government three critical assessments that must be determined: the value of the information the cooperator provides, the cooperator’s relative worth as compared to others similarly situated, and the extent of the departure due under U.S.S.G. § 5K1.1. The authors describe the pitfalls lawyers should avoid when representing cooperators.

"The ‘3 Rs’ of Sentencing Storytelling"

Defense lawyers tell only three types of sentencing stories. These stories involve Revelation, Relativity, and Redemption. Understanding the “3 Rs” of sentencing storytelling will help the defense craft the strongest mitigation arguments and achieve better results for clients.

"The Perils of Parole and ‘Program Speak’: Understanding and Managing Culpability Statements in Post-Conviction Settings"

During parole board hearings, sometimes a client will use language indicating that he deserved a severe sentence for his crime. Clients learn this language while attending prison programs that subtly teach them to say what the parole board wants to hear. The client may use this language (“program speak”) even though he committed no crime. In doing this, however, the client may foreclose any future possibility of clearing his name. How can a defense lawyer mitigate such statements?

"Inside NACDL: NACDL’s Effort to Confront the Trial Penalty Gains Momentum"

NYSACDL Report Confirms Near Extinction of Trials in the Empire State. In March 2021, NACDL and NYSACDL released the trial penalty report. The report defines what practices are encompassed by the trial penalty, identifies the underlying causes, depicts it through profiles of individuals, and proposes concrete reforms to curtail the prevalence of the trial penalty.

July 1, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Hoping grandmothers and others on home confinement get compassionate consideration

In prior posts (some linked below), I have discussed the Office of Legal Counsel memo which interprets federal law to require that certain persons transferred to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  There has been particular advocacy directed toward Prez Biden urging him to use his clemency powers to keep these persons from being returned to federal prison, and I have recently argued Congress could and should address this matter with a statutory fix.  But, critically, judges also might be able to grant relief on a case-by-case basis via sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).

One person at risk of serving many more years in prison after success on home confinement, Gwen Levi, is getting particular attention because she seems like low-risk person who has already been re-incarcerated on the basis of a seemingly minor technical violation.  Here are just some of the stories discussing her plight:  

From The Root, " 76-Year-Old Black Woman Released From Prison Amid Pandemic, Sent Back for Missing Phone Calls While Taking a Class"

extraordinary and compelling reasonsFrom USA Today, "'Scared and confused': Elderly inmate sent home during COVID is back in prison after going to computer class"

From the Washington Post, "A grandmother didn’t answer her phone during a class. She was sent back to prison."

Upon hearing about this story, I expressed on Twitter my hope that Gwen Levi was pursuing a compassionate release motion.  Kevin Ring of FAMM informed me not only that she was, but also that he had submitted a letter in support of her effort to secure a sentence reduction.  Kevin recently sent me a copy of this letter and has allowed me to post it here:

Download ECF 2079 Kevin Ring letter in support of comp. release

Though I do not know all the facts surrounding the crimes and current circumstances of Gwen Levi and the 4000 other persons on home confinement at risk of going back into federal prison, I do know that these situations certainly seem to present "extraordinary and compelling reasons" to consider whether further prison time is needed.  

Some prior recent related posts:

July 1, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 30, 2021

Split Pennsylvania Supreme Court overturns Bill Cosby's convictions based on prior prosecutor's announcement of non-prosecution

In a high-profile setting, a split Pennsylvania Supreme Court has today ruled that it was a violate of due process for prosecutors to engage in what  one Justice describes as a "coercive bait-and-switch" concerning potential prosecution.  Because the defendant at issue is Bill Cosby, there is lots of media coverage of Pennsylvania v. Cosby, No. J-100-2020 (Pa. June 30, 2021) (all opinions available here).  The start of the majority opinion (which runs 79 pages) sets up the issue that is ultimately setting Bill Cosby free:

In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004 at his Cheltenham residence. Along with his top deputy prosecutor and experienced detectives, District Attorney Castor thoroughly investigated Constand’s claim.  In evaluating the likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly.  D.A. Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence.  The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”

Seeking “some measure of justice” for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.  Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions.  During those depositions, Cosby made several incriminating statements.

D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking.  The fruits of Cosby’s reliance upon D.A. Castor’s decision — Cosby’s sworn inculpatory testimony — were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial.  We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth.

A few of many prior related posts:

June 30, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, June 29, 2021

Federal plea deal on civil rights charges reportedly in the works for Derek Chauvin

This new local press piece, headlined "Derek Chauvin Closing In On Federal Plea Deal, Sources Tell WCCO," reports on an unsurprising but still interesting development in the legal sagas around George Floyd's killing.  Here are the details:

Multiple sources tell WCCO that federal prosecutors are in talks with former Minneapolis Police officer Derek Chauvin about a possible plea deal.  They say Chauvin is close to reaching a deal, and that is what he was likely referring to when he made a cryptic comment to the family of George Floyd during his sentencing last week.

“Due to legal matters, I’m not able to give a full formal statement … I give my condolences to the Floyd family, there’s gonna be some other information in the future that will be of interest and I hope these will give you some peace of mind,” Chauvin said prior to his sentencing.

Sources suggest Chauvin was likely referring to a plea deal in the federal case against him.  As part of a possible plea deal Chauvin would have to publicly explain what he did to Floyd and why.  That was, of course, the question that Floyd’s brother poignantly asked of Chauvin at the sentencing....

Sources tell WCCO that, as part of the plea, Chauvin could get a 20- to 25-year sentence, which he would serve at the same time as the state sentence, and that he would serve his time in federal not state prison....

Former Hennepin County Chief Public Mary Moriarity says Chauvin has to be thinking about the swift guilty verdict in the state case, and that may be giving him more incentive to try to negotiate a plea deal.  “That is because, in federal court, there would be a substantial difference between what he would receive if he went to trial and was convicted versus what he would get if he pled guilty, and as they say take responsibility for his actions,” Moriarity said.

It’s important to remember an earlier plea deal involving the feds in late May 2020 collapsed at the 11th hour.  The U.S. Attorney’s Office declined to comment, and WCCO also did not hear back from Ben Crump, the Floyd family attorney, or Eric Nelson, the attorney for Chauvin.

It is, of course, entirely right that Chauvin is far more likely to get a lower sentence (and to be able to cap his sentencing exposure) if he enters into a federal plea deal rather than going to trial on pending federal civil rights charges.  But, unlike in the Minnesota system where there is a strong presumption of release after a defendant serves 2/3 of an imposed prison term, in the federal system the norm is service of at least 85% of imposed prison time.  So if Chauvin's federal deal led to the imposition, say, of "only" a 20-year term, he should still expect to serve a full 17 years, whereas his 22.5-year prison term in the state system could lead to his release in "only" 15 years.

That said, this "release math" is only one part of the equation for Chauvin and his lawyers as they consider a federal plea deal.  I suspect Chauvin, for a variety of reasons, would much rather spend his considerable time in the federal prison system than in state prison.  Also, it is interesting to speculate whether and how a federal plea could impact any appeals Chauvin has planned for his state convictions and sentence.  And, not to be overlooked, there are distinct "second look" or "early release" mechanisms in state and federal systems that could prove significant in the future (which, in turn, makes them relevant now for plea negotiations).

Prior related posts:

June 29, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, June 28, 2021

Lots of criminal justice sound (and fury, signifying nothing?) in latest SCOTUS order list

The Supreme Court is apparently not going to issue the final opinions of the Term today, but it did issue this lengthy order list which has a number of interesting elements for criminal justice fans.

For starters, there is this per curiam summary decision in Lombardo v. St. Louis, with the majority reversing the decision to grant summary judgment on an excessive force claim against St. Louis and police officers who killed a disruptive suspect in a holding cell.  Justice Alito, joined by Justices Thomas and Gorsuch, complains that the majority "unfairly interprets the Court of Appeals’ decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police officers and the city of St. Louis."

Though Lombardo makes precedent, I am even more intrigued by Justice Thomas's decision to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. Here are excerpts:

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020.  Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U.S.C. §924(c)(1)(A).  A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876– 877 (CA10 2017) (permitting such a suit to proceed).

I could go on. Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’”  Raich, 545 U.S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Last but not least, in this nine-page dissent from the denial of cert in Hernandez v. Peery, Justice Sotomayor explains at great length why the Ninth Circuit was wrong to refuse to issue a certificate of appealability in a habeas appeal involving a claimed denial of the Sixth Amendment right to counsel.

June 28, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, June 27, 2021

SCOTUSblog flags three notable new sentencing cert petitions

Last year around this time, I expressed my sense that it has been quite some time since the Supreme Court has taken up a really big and interesting sentencing case.  This post from near the end of last year's SCOTUS Term, titled "Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters?", captured this zeitgeist.  In the year since, we have gotten a few notable sentencing rulings (on juve LWOP in Jones and on ACCA predicates in Borden, but these decisions are more clarifications than game-changers.

I review these broad realities not just because we are approaching the close of another SCOTUS Term, but also because SCOTUSblog has this new post spotlighting three new cert petitions that could each lead to a significant sentencing ruling.  Here some details from a post worth reading in full:

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the use of acquitted conduct in sentencing decisions, when a sentencing court must consider a defendant’s juvenile status as a mitigating factor, and compassionate release under the First Step Act.

According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” While the jury considers whether conduct is proven beyond a reasonable doubt, relevant conduct for sentencing purposes need only be proven to the judge by a preponderance of the evidence and can include acquitted conduct. In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial.  While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions.  Osby asks the justices for their review to decide whether the practice is unconstitutional.

Next, in Sanders v. Radtke the justices are asked to consider the impact of juvenile status on sentencing decisions.  The petitioner, Rico Sanders, was convicted of multiple rape and assault charges at the age of 15 and sentenced to 140 years in prison with the possibility of parole at age 51. Sanders maintains that the Eighth Amendment and prior precedent required the sentencing court to consider his youth as a mitigating factor. He argues that the principle requiring sentencing courts to consider youth as a mitigating factor applies to life sentences with the possibility of parole in the same way it applies to life sentences without any possibility of parole. The petition further alleges that Sanders’ youth was used as an “aggravating factor” by the sentencing court, and he seeks the court’s review to clarify the circumstances under which a defendant’s youth must be considered as a mitigating factor.

Finally, Bryant v. United States presents a question regarding the compassionate-release provision of the federal criminal code, as amended by the First Step Act of 2018....  In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement [by the USSC]. Further, the government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion based on the reasons given by the government, and the U.S. Court of Appeals for the 11th Circuit affirmed.  Bryant argues that the decision created a circuit split, in direct conflict with eight other circuits, over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions.  He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

These three cases will not be fully briefed until later this summer, and so we likely will not know about possible grants until the Fall when SCOTUS returns to action for OT21.  If the Justices were to decide to take up even one of these issues, that would be a big sentencing deal.  I highly doubt the Court will take up all these issues, but I think the circuit split behind Bryant makes it a pretty likely grant and I hope some of the newer Justices might be eager to take up the issue in Osby.  After Jones, I think the Sanders case may be the longest shot (but, given recetn history, perhaps we should just assume the odds are long on all of these).

June 27, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, June 26, 2021

Noting efforts to limit LWOP for young adults older than 18

This recent AP piece, headlined "Cases challenge no-parole terms for young adult killers," reports on various efforts in various jurisdictions to extend limits on LWOP sentences for young persons older than 18.  Here are excerpts:

U.S. Supreme Court rulings and state laws in recent years have limited or banned the use of life sentences without the possibility of parole for people who commit crimes as juveniles because of the potential for change.  Now, research showing that the brain continues to develop after 18 is prompting some states to examine whether to extend such protections to young adults...

Washington state’s high court earlier this year abolished automatic life without parole sentences given to people for murders committed as 18- to 20-year-olds.  Courts in Washington can still sentence young adult offenders to life with no chance at parole, but only after first considering whether their youth justifies a lesser punishment.

A new Washington, D.C., law allows those under the age of 25 at the time of their crime to apply for a new sentence after 15 years, said Josh Rovner, who works on juvenile justice issues for The Sentencing Project.  And bills introduced in Connecticut and Illinois would get rid of life without parole sentences for people who commit crimes as young adults, Rovner said....

Boston’s progressive top prosecutor, Suffolk County District Attorney Rachael Rollins, agrees there needs to be a change — though not as drastic as defense attorneys would like. Even so, Rollins took the unusual step this year of signing a brief in the case against Robinson to push for an end to mandatory life without parole for those who committed killings between 18 and 20.

She argues in court documents that the studies the defense points to are flawed, and that while it is “undisputed” that the brain continues to develop into early adulthood, “there is an absence of direct evidence linking these anatomical changes to specific behaviors.”  Rollins said she will urge the Supreme Judicial Court to follow Washington State and rule that those young adults must get a special sentencing hearing to consider their youth before punishments can be handed down. She said they should be ordered to die in prison in only “extremely egregious” circumstances — if the judge finds them to be “irretrievably depraved.”

June 26, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 25, 2021

"Prosecution in Public, Prosecution in Private"

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

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret.  The allocation of public and private is, at heart, an allocation of power — and the current allocation is a relic.  When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them.  But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges.

This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs under-noticed.  The public/private boundary has served to skew enforcers’ incentives; impoverish insight into enforcement patterns and their causes; weaken traditional channels of accountability (judicial, electoral and internal); and erode public trust.  The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes.  More fundamentally, the Article is a call to center the public/private boundary in accounts of power in the criminal process.

June 25, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 24, 2021

Will Derek Chauvin get more or less than 20 years for killing George Floyd?

The question in the title of this post reflects my view that 20 years seems like a reasonable "over/under" estimate for the sentence to be imposed by Minnesota Judge Peter Cahill on Derek Chauvin for murdering George Floyd.  I set this estimate influenced by some of the analysis and punditry from various sources in these preview pieces:

From the AP, "Derek Chauvin faces sentencing tomorrow in George Floyd’s murder — here’s what you need to know"

From CBS News, "Derek Chauvin will be sentenced Friday for the murder of George Floyd. Here's what to expect."

From NBC News, "Police who kill often receive lenient or no punishments. Derek Chauvin could be the exception."

From USA Today, "Derek Chauvin faces up to 30 years in prison in Friday sentencing for murder of George Floyd"

I believe that the sentencing is scheduled for Friday afternoon.  And I sincerely hope that there is general respect for the sentence imposed, whatever it proves to be.    

Prior related posts:

June 24, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Terrific CCRC review of new RAND report on presidential pardons

In this post last week, I flagged this massive report produced by RAND Corporation titled "Statistical Analysis of Presidential Pardons."  Helpfully, Margaret Love over at the Collateral Consequence Resource Center has completed this terrific overview of the reports, and here are excerpts from her posting:

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”  The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both....

Finally, in what may be the most disturbing finding for the Biden Administration, the RAND report observes that OPA appears to be struggling to manage a growing case backlog despite having had its attorney staff augmented during the Obama years....

Since June 2018, in part because of President Trump’s deliberate neglect of the regular pardon process, the backlog of pending pardon petitions has grown to more than 3,000 cases, some of which have been pending for more than a decade, while the commutation caseload now exceeds 12,000 cases.  The RAND report expresses concern that this overwhelming caseload may increase the time it takes to process a pardon application, which it characterizes as already “long and drawn-out.”  Indeed, it suggests that an intractable backlog could continue to grow given the hundreds of thousands of individuals who are eligible to apply for pardon, particularly if they are “motivated to apply under the belief that a more receptive ear currently resides in the White House.”  The report does not suggest alternative ways of dealing with the caseload, such as shortcutting the investigative process or increasing administrative case closures, as much as conceding that such efficiency measures would have racially skewed results.

June 24, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

First person taken of Ohio death row based on new statute precluding capital punishment for those with "serious mentally illness"

In this post back in January, I reported on the new Ohio statute precluding the death penalty for those with "serious mentally illness."  Today I can report, with the help of this local article, that this law has now moved one person off Ohio's death row: "A Columbus man sentenced to death in 1999 for the murder of his ex-girlfriend and her father has become the first inmate in Ohio removed from death row under a new state law that bans the execution of the seriously mentally ill."  Here are more interesting details:

The death sentence of David L. Braden, 61, was vacated last week by a Franklin County judge, who resentenced him to life without parole.

The county prosecutor's office and the state public defender's office agreed that Braden, at the time of his crime, met the criteria for serious mental illness under the new Ohio law, which went into effect April 12.  Both sides prepared an order that was signed by Common Pleas Judge Colleen O'Donnell.

Ohio was the first state to create such a law, thus Braden is also the first death-row inmate in the nation "to be removed from death row because of a statutory prohibition against executing people with a serious mental illness," said Robert Dunham, executive director of the Death Penalty Information Center.

The Virginia legislature was close to approving a similar law late last year, Dunham said, but instead banned the death penalty in March, becoming the 23rd state to do so.

The Ohio law, House Bill 136, was overwhelmingly approved by the state House in June of last year and by the state Senate in December.  Gov. Mike DeWine signed the measure in January and it became law 90 days later.

The law designates certain mental illnesses, including schizophrenia and bipolar disorder, as qualifying disorders if the condition "significantly impaired the person's capacity to exercise rational judgment in relation to his or her conduct" or "to appreciate the nature, consequences or wrongfulness" of the conduct.  The law applies not only to current and future capital cases, but provides the possibility of postconviction relief for those already on death row who can establish that they qualified as seriously mentally ill at the time of their offense.

While prosecutors have the option to oppose such petitions and request a hearing before a judge, Janet Grubb, Franklin County first assistant prosecuting attorney, said a careful review of information from Braden's appellate attorneys made such a challenge unnecessary.  "We saw enough during the exchange of information to conclude that a reasonable fact-finder in our court would determine that this individual qualified under the statute," said Grubb, who signed the order on behalf of Prosecutor Gary Tyack's office.

Tyack, who was elected in November, had no involvement in the decision, Grubb said.  Because Tyack served on the 10th District Court of Appeals for one of Braden's appeals, he had a conflict of interest that required Grubb to serve as prosecutor on the matter.  "Gary was completely walled off" from discussions about Braden's petition, Grubb said.

Braden was 39 when he was convicted by a Franklin County jury in May 1999 of fatally shooting Denise Roberts, 44, and Ralph "Bud" Heimlich, 83, at the home they shared on Barthel Avenue on the East Side on Aug. 3, 1998.  Testimony established that Braden and Roberts were seen arguing in a parking lot outside her workplace earlier in the day.  A man matching his description was seen fleeing the victims' home after neighbors heard gunshots.

All of Braden's appeals over the years, including one heard by the Ohio Supreme Court, have been rejected, although a case in federal court was still pending. Kathryn Sandford, an assistant state public defender who has handled Braden's appeals since his conviction, said the federal case will be dismissed as a result of the agreed order signed by O'Donnell.

Sandford and Steve Brown, a fellow assistant state public defender, filed the petition outlining Braden's qualifications for the serious-mental-illness designation. They included the findings of a psychologist who determined that Braden suffered from "paranoid schizophrenia with delusions" before committing the murders.

Since the early to mid-1990s, they wrote, a brother and sister-in-law testified that Braden had made statements about being a prophet of God, while friends attested to his paranoia and alarming personality changes. Since the beginning of his incarceration, Braden has been treated with anti-psychotic medication to control his psychotic symptoms, according to his attorneys.

A psychologist testified during the sentencing phase of Braden's trial that he was mentally ill, but the jury recommended a death sentence, which was imposed by then-Common Pleas Judge Michael H. Watson....

As part of the prosecutor's office review of Braden's petition, it was required by a separate state law to contact the family of the victims to inform them of the request, Grubb said. "The survivor we met with understood the position we were in," she said. "I think she reluctantly accepted that this was something that made sense on multiple levels."

June 24, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Lovely lengthy account of "Restoring Justice"

The latest issue of Harvard Magazine has this lengthy feature article on restorative justice titled "Restoring Justice:Exploring an alternative to crime and punishment." The piece is worth making time to read in full, and here are some excerpts:

To date, 45 states have passed laws permitting the use of restorative justice in at least some criminal cases.  Programs typically function in one of three ways: as a form of diversion from the criminal process, allowing offenders — especially young or first-time offenders — to avoid charges and a conviction; as a form of alternative sentencing; or, in more serious cases, as a way to reduce a criminal sentence.  The program [Armand] Coleman and [Emmanual] Williams took part in was a fourth kind: initiated years after their convictions, it did not influence the men’s sentences or release dates, but its deeper purpose was the same — to help participants take responsibility for their wrongdoing and understand themselves better, and, to the extent possible, “make things right,” as Coleman put it....

In recent decades, numerous restorative-justice programs have sprung into existence.  A few operate entirely outside the legal system, without ever involving any authorities; others work with local police departments and district attorneys’ offices. Methodologies vary from place to place, too — making it more difficult to assess the effectiveness of the underlying concept: most analyses have focused on juvenile and first-time offenders.  But recent rigorous, randomized studies find that restorative justice typically does a modestly better job at reducing recidivism than the court system — resulting in anywhere from 7 percent to 45 percent fewer repeat arrests or convictions, depending on the study parameters. One 2015 analysis found that this effect was actually most pronounced for violent offenses and adult offenders.

Crime victims also consistently appear to be more satisfied after a restorative-justice process than after a traditional criminal one — sometimes dramatically so (in a 2017 study of its own work, Impact Justice found that 91 percent of victims said they’d recommend the process to a friend and 88 percent said the repair plan adopted by the group addressed their needs).  Surveys show that while people who have survived a crime want to feel safe, many of them also prefer rehabilitation for the perpetrators, rather than long periods of incarceration.  Researchers find that victims often perceive restorative dialogues to be fairer and more responsive to their needs and wishes.  One 2013 study of face-to-face meetings between victims and offenders found a marked decrease in victims’ post-traumatic stress symptoms and in their desire for revenge.  A multiyear randomized study in Australia found that victims of violent crime who went to court were five times more likely to believe they would be re-victimized by the offender, while those who went through a restorative process felt more secure and achieved a greater sense of closure.

Adriaan Lanni points to such findings in her argument in favor of restorative justice, but says even they fall short of the full picture. For several years, she has volunteered as a case coordinator for a Concord-based program, and has seen firsthand what happens in those conversations.  “I think you lose a lot if you just look at the quantitative analysis, like, ‘Give me the recidivism number,’” she says.  “It’s sort of a magical experience. I was skeptical about restorative justice until I started sitting in circles. But it’s really transformative, in a way that’s hard to measure.”

June 24, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, June 23, 2021

SCOTUS completes OT20 criminal docket with "it depends" Fourth Amendment ruling on misdemeanors and exigent circumstances

Astute law students often learn pretty quickly that "it depends" is often a pretty good answer to hard legal questions.  Consequently, I am not too surprised that the Supreme Court this morning, in deciding the last significant criminal case on its docket this Term, embraced its usual "it depends" approach — more formally a "case-by-case" analysis — to what can constitute exigent circumstances when police pursue a person suspect of a misdemeanor.  The Court's opinion in Lange v. California, No. 20–18 (S. Ct. June 23, 2021) (available here), starts this way:

The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need.  Kentucky v. King, 563 U.S. 452, 460 (2011).  The question presented here is whether the pursuit of a fleeing misdemeanor suspect always — or more legally put, categorically — qualifies as an exigent circumstance.  We hold it does not.  A great many misdemeanor pursuits involve exigencies allowing warrantless entry.  But whether a given one does so turns on the particular facts of the case.

I will leave it to Fourth Amendment experts to parse this opinion, but I thought it notable (and useful to highlight) how the Court's majority opinion by Justice Kagan stresses the wide variety of crimes we label misdemeanors:

Key to resolving [this case] are two facts about misdemeanors: They vary widely, but they may be (in a word) “minor.” Welsh, 466 U.S., at 750.  In California and elsewhere, misdemeanors run the gamut of seriousness.  As the amicus notes, some involve violence.  California, for example, classifies as misdemeanors various forms of assault. See Cal. Penal Code Ann. §241 (West Cum. Supp. 2021); Brief for Amicus Curiae 15a–16a.  And across the country, “many perpetrators of domestic violence are charged with misdemeanors,” despite “the harmfulness of their conduct.” Voisine v. United States, 579 U.S. 686, ___ (2016) (slip op., at 1).  So “a ‘felon’ is” not always “more dangerous than a misdemeanant.” Tennessee v. Garner, 471 U.S. 1, 14 (1985).  But calling an offense a misdemeanor usually limits prison time to one year. See 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §1.8(c) (4th ed. Supp. 2020).  States thus tend to apply that label to less violent and less dangerous crimes.  In California, it is a misdemeanor to litter on a public beach. See Cal. Penal Code Ann. §374.7(a) (2020).  And to “negligently cut” a plant “growing upon public land.” §384a(a)(2), (f ). And to “willfully disturb[] another person by loud and unreasonable noise.” §415(2).  And (last one) to “artificially color[] any live chicks [or] rabbits.” §599(b). In forbidding such conduct, California is no outlier.  Most States count as misdemeanors such offenses as traffic violations, public intoxication, and disorderly conduct.  See, e.g., Tex. Transp. Code Ann. §545.413(a), (d) (West 2011) (driving without a seatbelt); Ill. Comp. Stat., ch. 610, §90/1 (West 2018) (drinking alcohol in a railroad car); Ark. Code Ann. §5–71–207(a)(3), (b) (2016) (using obscene language likely to promote disorder). So the amicus’s (and concurrence’s) rule would cover lawbreakers of every type, including quite a few hard to think alarming.

June 23, 2021 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)

This local article, headlined "Indiana woman to plead guilty in Capitol riot wrote reports on 'Schindler's List,' more," provides the interesting backstory leading up the scheduled sentencing of one person prosecuted for involvement in the Capitol riot on January 6. Here are some details:

A Bloomfield woman will plead guilty this week for her role in the U.S. Capitol riot after appealing to the court that she has learned from her participation from movies and books such as "Schindler's List" and "Just Mercy."  Anna Morgan-Lloyd has agreed to plead guilty to one of her pending federal charges in the Jan. 6 insurrection in exchange for three years probation, $500 in restitution and community service.

The 49-year-old attended what initially began as a rally with her friend Dona Sue Bissey — also federally charged in the riot.  Bissey, whose case is still pending, is scheduled to appear in court July 19.

In a letter to the judge, Morgan-Lloyd apologized for entering the U.S. Capitol and said she feels “ashamed” about how the march that day turned violent.  She attached movie and book reports to her letter, summarizing “Schindler’s List” and “Just Mercy.” Her attorney recommended them, she said, to learn “what life is like for others in our country.”...

Bissey and Morgan-Lloyd referred to Jan. 6 as the “most exciting day” of their lives in Facebook posts, tagging one photo inside the Capitol building.  The FBI arrested the two women in late February, making them among six Hoosiers criminally charged in the aftermath of the insurrection.

Court records show the Acting U.S. Attorney has agreed to the plea, calling Morgan-Lloyd’s participation a serious violation of the law, but noted she did not engage in physical violence or destroy government property.  “To be clear, what the Defendant initially described as “the most exciting day of (her) life” was, in fact, a tragic day for our nation — a day of riotous violence, collective destruction, and criminal conduct by a frenzied and lawless mob,” Acting U.S. Attorney Channing Phillips wrote in court records.

The U.S. listed Morgan-Lloyd’s apparent remorse, no prior criminal history and cooperation with law enforcement after her arrest as some of the reasons for the government’s acceptance of the plea agreement.

This extended HuffPost piece, headlined "A Lawyer For Jan. 6 Defendants Is Giving Her Clients Remedial Lessons In American History," provides additional details on this defendant and the valuable efforts of her defense attorney to turn her prosecution into a "teachable moment."  I recommend this piece in full, and here is an excerpt: 

This week, Morgan-Lloyd will become the first of nearly 500 defendants arrested in connection with the Jan. 6 attack on the U.S. Capitol to face sentencing. She wants a judge to know she’s changed, and her book report-style filings are meant to illustrate that growth. “I’ve lived a sheltered life and truly haven’t experienced life the way many have,” Morgan-Lloyd wrote to the judge. “I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.”

The remedial social studies program that Morgan-Lloyd is following was created by her D.C.-based lawyer, H. Heather Shaner....  Shaner is one of many D.C. lawyers assigned to represent Capitol defendants who can’t afford their own attorneys, as guaranteed by the U.S. Constitution and as laid out in the Criminal Justice Act.

In addition to representing her clients in court, Shaner has seized an opportunity to try and educate them on the history their teachers glossed over.  Shaner regularly sends her clients who are incarcerated pretrial books to read: “They’re a captured audience, and it’s life-changing for a lot of them.”  But she decided to take an even more intensive approach with her Capitol clients, who were part of another ugly, historical event in American history.

“Reading books and then watching these shows is like a revelation,” Shaner told HuffPost. “I think that education is a very powerful tool ... So I gave them book lists and shows that they should watch.” In addition to Morgan-Lloyd, Shaner represents Capitol defendants Annie Howell, Jack Jesse Griffith (aka Juan Bibiano), Israel Tutrow and Landon Kenneth Copeland, a veteran with post-traumatic stress disorder who had a major episode during a virtual hearing in his case and cursed out everyone on the call. (Copeland, who was filmed assaulting officers at the Capitol on Jan. 6 and is facing the most serious accusations of any of Shaner’s Capitol clients, was ordered to undergo a competency evaluation and remains in custody.)

Shaner said her clients had poor educations and knew very little about the country.  Her two female clients took to the task with zeal, Shaner said, and got library cards for the first time in their lives.  “Both my women are like, ‘I never learned this in school. Why don’t I know about this?’” Shaner said.  (A couple of the male clients weren’t quite as eager students, she said. “The men are very much like ‘Oh, I’ll get to it.’”  But she said some of her male clients have been doing some self-education.)

Here are some links to some of the court filings discussed above:

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 22, 2021

"Dead Man Waiting: A brief profile of deaths in Texas prisons among people approved for parole release"

The title of this post is the title of this remarkable new report that provides a critical reminder the "being paroled" is a nuanced (and not-always-life -saving) reality in Texas.  Here is the report's abstract which also discusses its origin and authors:

A troubling number of people in Texas prisons and jails who have been approved for release on parole are dying in custody before they ever step foot outside prison gates, according to a new report from the Lyndon B. Johnson School of Public Affairs at The University of Texas at Austin. In a first-of-its-kind analysis, “Dead Man Waiting,” shows that while deaths among parole-approved people increased during the COVID period, this population was already dying in large numbers from other chronic health issues while awaiting release.  The findings in this report raise serious questions about the state’s parole system and why people who met the Texas Board of Pardons and Parole (BPP)’s stringent approval guidelines could end up dead before their release.  Researchers offer recommendations for safely releasing this population immediately after parole approval. This report was produced as part of the COVID, Corrections, and Oversight Project at the Lyndon B. Johnson School of Public Affairs, with support from Arnold Ventures. The COVID, Corrections, and Oversight Project is led by Michele Deitch, Project Director, and Alycia Welch, Associate Director.

Here are just a few paragraphs from the first part of the short report:

There are more than 10,700 people in Texas prisons who have been approved for release on parole but remain in custody.  This number represents nearly one-tenth of the entire Texas prison population. Despite being approved for parole, some of these people will never walk out the prison gates because they die while waiting for release....

In any given month before COVID, people remained in Texas prisons for an average of 3 to 4 months after their parole approval before they were released.  During the COVID pandemic, the typical delay in release ranged from 5 to 11 months; the overall average was 6 months.

Between March 2020, when TDCJ locked down its facilities due to COVID, and March 2021, at least 42 people who were approved for release on parole died in Texas prisons. These are people who BPP determined are safe enough to be released by a certain date or pending the completion of a required program.  They met some of the nation’s most burdensome standards for parole approval and yet they still died behind bars while awaiting their release.

June 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Monday, June 21, 2021

"Truth, Lies and The Paradox of Plea Bargaining"

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

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system . The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process.  The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining.

Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants.  If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences.  These defendants would lose their ability to avoid the injustices of the system.  And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed.  Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice.  To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform.

Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction.  Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

June 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Lots of GVRs (especially to Fifth Circuit) on latest SCOTUS order list

In this prior post following the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, I asked "How many federal prisoners might now be serving illegal sentences after Borden?".  Though that question may never get a precise answer, today's Supreme Court order list has a bunch of Borden GVRs which showcases which circuits will be most busy with the Borden fallout.

Specifically, by my count, the Borden GVRs come from the Fifth Circuit (16 of them!), the Sixth Circuit (two), the Tenth Circuit (two), and the Eleventh Circuit (one).  There is also a very long list of cert denials in the order list, so I would guess that not everyone pressing an ACCA claim secured a GVR.  (And, of course, there are surely many folks serving Borden-iffy ACCA sentences who did not have pending cert petitions.)

As always, I welcome input on whether any of these GVRs or denials are surprising or noteworthy (or other Borden application news).  

Prior related posts:

June 21, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 20, 2021

Scouting the state judge who will sentence Derek Chauvin for murdering George Floyd

This new NBC News article, headlined "Derek Chauvin sentencing thrusts Minnesota Judge Peter Cahill back into spotlight," provides something of a scouting report on the judge who is scheduled to  sentence Derek Chauvin later this week.  Here are excerpts:

A Minnesota judge who, former colleagues and friends say, has no penchant for publicity will again find himself in the media spotlight this week when he sentences the former Minneapolis police officer convicted of murder in the death of George Floyd.

Judge Peter Cahill, who has served on the bench in Hennepin County for 14 years, could sentence Derek Chauvin to as little as probation, an outcome requested by his attorney, or more than the 30-year punishment favored by prosecutors.

In interviews, people who know Cahill and cases he has overseen say he is likely to land somewhere in the middle.  They said he is a fair judge, though there is no guarantee he will mete out a punishment that will make either side entirely happy.  "He's been both a prosecutor and a defense attorney," said Craig Cascarano, 72, a Minneapolis lawyer in private practice who met Cahill at the Hennepin County Public Defender's Office when Cahill was a law clerk.  "So he understands what it's like to do both jobs. And he tries very hard to do the right thing."...

Cahill will sentence Chauvin on Friday, about two months after he oversaw the trial that ended in his conviction on charges of second- and third-degree murder, as well as second-degree manslaughter.  Cahill has paved the way for Chauvin's punishment to be up to double the 15 years at the top of the range recommended under state guidelines, having ruled in May that there were four aggravating factors in Floyd's death....

From 2008, the year he was elected to the bench, through January, Cahill has sentenced six people convicted of second-degree murder to prison.  They received terms ranging from 12.5 years to 40 years.

In Cahill's most recent case of sentencing on unintentional second-degree murder — the most serious charge on which Chauvin was convicted — he handed down a punishment of 15 years.  In that case, Matthew Witt pleaded guilty in January 2020 to unintentional second-degree murder for beating his mother to death and to first-degree assault for violently attacking his father July 24, 2019, authorities said.  He received an additional seven years for the latter charge.

Prior related posts:

June 20, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)