Friday, September 18, 2020

"In the Shadows: A Review of the Research on Plea Bargaining"

The title of this post is the title of this great new document from the Vera Institute of Justice.  Here is part of the report's introduction:

In whatever form it takes, plea bargaining remains a low-visibility, off-the-record, and informal process that usually occurs in conference rooms and courtroom hallways — or through private telephone calls or e-mails — far away from the prying eyes and ears of open court.  Bargains are usually struck with no witnesses present and made without investigation, testimony, impartial fact-finding, or adherence to the required burden of proof.  Moreover, little to no documentation exists of the bargaining process that takes place between initial charge and a person’s formal admission of guilt in open court, and final plea deals that close out cases are themselves rarely written down or otherwise recorded.  As such, plea deals, and the process that produces them, are largely unreviewable and subject to little public scrutiny.  Thus, despite the high frequency with which plea deals are used, most people — aside from the usual courtroom actors — understand neither the mechanics of plea bargaining nor the reasons so many people decide to plead guilty.

Plea bargaining has, however, become the central focus of a growing, but still small, body of empirical research.  In recent years, mounting concerns about plea bargaining’s role in encouraging the widespread forfeiture of constitutionally guaranteed trial rights and associated procedural protections — and its critical role in fueling mass incarceration — has stimulated further urgency in understanding how the process works.  Indeed, an array of questions regarding its fairness have emerged.  Over the last few decades, prosecutorial leverage in plea negotiations has increased exponentially as changes in substantive law have bolstered criminal penalties and given prosecutors a wider range of choices to use when filing charges (such as mandatory penalties, sentencing enhancements, and more serious yet duplicative crimes already well covered by existing law).  But increased exposure to harsher penalties has not been matched with increased procedural protections for defendants.  Prosecutors’ wide powers in plea bargaining still go largely unchecked, and there are no meaningful oversight mechanisms or procedural safeguards to protect against unfair or coercive practices, raising fears about arbitrariness and inequality.  Given this lack of regulation, concern has also grown over the extent to which innocent people are regularly being induced to plead guilty, as well as plea bargaining’s role in perpetuating racial and ethnic disparities in criminal case outcomes — for example, plea bargaining practices that send more Black people to prison or jail than similarly situated white people.

Plea bargaining’s full impact on the legal system and justice-involved people remains unknown, but empirical research on this little understood yet immensely influential practice has begun to emerge.  In order to provide an accessible summary of existing research to policymakers and the public, the Vera Institute of Justice (Vera) examined a body of empirical studies that has developed around plea bargaining. Although this review is not exhaustive, it provides a picture not only of the current state of scholarship on plea bargaining, but also of the gaps in knowledge that must be filled.

September 18, 2020 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

At re-re-re-sentencing, Amy Locane gets eight years in New Jersey state prison for drunk driving vehicular manslaughter

Because it is such an interesting case (and perhaps because I watched Melrose Place way back when), I have blogged repeatedly about the sentencings saga of Amy Locane after her conviction in a tragic and deadly drunk driving case.  Today, Locane was sentenced for the fourth time in this matter, and this Fox News piece provides the details:

Amy Locane has been resentenced to eight years in state prison for a fatal 2010 drunk driving crash that occurred in New Jersey. The former “Melrose Place” actress, 48, has already served a prison sentence but a judge agreed with prosecutors Thursday that her initial sentence was too lenient.

State Superior Court Judge Angela Borkowski said Locane still refuses to fully acknowledge her culpability in the crash that killed 60-year-old Helene Seeman and severely injured Seeman's husband.  State law requires her to serve more than six years before being eligible for parole.  Locane apologized to the Seeman family in a brief statement.  She was placed in handcuffs and taken into custody by court deputies after the proceeding in state court in Somerville.

It was a startling development in a case that has bounced around the New Jersey court system for nearly a decade and has now featured four sentencings in front of three judges, plus numerous appeals.

Locane — who acted in 13 episodes of the popular 1990s Fox series and has also appeared in several movies — was convicted on several counts including vehicular manslaughter, and faced a sentencing range of five to 10 years on the most serious count. The state initially sought a seven-year sentence, but a trial judge sentenced her to three years in 2013.  An appeals court ruled he misapplied the law, but at a resentencing, the same judge declined to give her additional time.

Last year, a different judge sentenced her to five years, but an appeals court ruled he didn't follow guidelines it had set and ordered yet another sentencing.  Locane's attorney, James Wronko, had argued unsuccessfully that sentencing her again would violate double jeopardy protections since she had already completed her initial sentence and parole term.

According to witnesses, Locane had consumed several drinks before she headed home on the night of the accident and slammed into the Seemans' car as it turned into their driveway in Montgomery Township, near Princeton.  The actress contended a third motorist, whose car Locane had bumped into at a traffic light minutes earlier, distracted her by honking at and chasing her.  Locane wasn't indicted for drunken driving, but a state expert testified her blood alcohol level was likely about three times the legal limit and that she was driving roughly 53 mph (85 kmh) in a 35-mph (56-kmh) zone at the time of the crash.

Fred Seeman, who nearly died from his injuries suffered in the crash, attended Thursday's proceeding and said Locane's shifting of blame "shows contempt for this court and the jury that rendered the verdict.”  The judge took a similar view, and said Locane's past alcohol abuse makes her a risk for reoffending.

“You made a conscious decision to drink that day and continued to drink, recognizing at the onset that you needed a ride but didn’t obtain one," Borkowski said.  "If you hadn’t gotten behind the wheel of your vehicle on this night, the incident never would have happened.” Wronko called the sentence “outrageous.  She has always taken full responsibility," and criticized the judge for not taking into account Locane's current sobriety and her work counseling others against alcohol abuse.

Locane has 45 days to appeal her sentence. Wronko said he is waiting to see if the state Supreme Court decides to hear his appeal on the double jeopardy question.

Prior related posts:

September 17, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, September 16, 2020

Can a modest federal bail reform bill with bipartisan sponsorship become law in these crazy times?

I do not blog much about bail reforms issues, though these topics were quite "hot" even before the pandemic and these issues seem even more pressing now.  And given notable research documenting a link between federal pretrial release and sentencing outcomes, I am particular interested in the new bill filed earlier this month as discussed in this press release:

U.S. Senators Dick Durbin (D-IL), Mike Lee (R-UT), and Chris Coons (D-DE), members of the Senate Judiciary Committee, today introduced the bipartisan Smarter Pretrial Detention for Drug Charges Act of 2020, a targeted bill that would eliminate the blanket presumption of pretrial detention for most federal drug charges.  Pretrial detention rates in the federal system are at record high levels and on an upward trend across all demographic groups.  This legislation would permit federal courts to make individualized determinations regarding whether pretrial detention is appropriate for each defendant charged with a nonviolent drug offense.  Any defendant found to be a flight risk or a threat to public safety would be detained.

This supportive one-pager from the Due Process Institute provides a great account of this bill and its wisdom.  Here is an excerpt:

When a person is arrested and accused of a crime, a judge must determine whether he or she will be released with certain conditions pending resolution of their case or be detained until their conviction or acquittal occurs.  In federal court, the judge’s decision whether to release or detain someone pretrial is governed by 18 U.S.C. § 3142, which sets forth several factors for the judge to take into consideration.  The main directive of the statute is that judges should release persons accused of unproven crimes who are not flight risks and who do not “pose a danger to any other person or the community.”  The federal bail statute also, however, includes a small list of offenses for which a legal presumption in favor of incarceration is imposed based solely on the criminal charge instead of any specific assessment of the accused.  While many of the offenses included in this presumptive list might make sense given the gravity of the accusation, the list also unfortunately includes many nonviolent federal drug offenses.

Persons accused of drug offenses represent over 42% of those charged with non-immigration federal crimes.  Statistics show that for them — the second largest group of people in the federal system — it is difficult to overcome this presumption.  In fact, recent federal data show that more than 60% of those charged with drug offenses will be incarcerated before trial.  In addition, data show that pretrial detention puts these defendants at a greater sentencing disadvantage if convicted versus those who are granted pretrial release.  There is also persuasive evidence that the statutory presumption has failed to correctly identify which defendants actually even present a risk.  Unfortunately, the racial disparities we see throughout the criminal system also appear in pretrial release rates in drug cases.  Moreover, some of the most vulnerable people in our society are those currently locked inside jails amid the COVID-19 pandemic — people who have not been found “guilty” of anything and are merely incarcerated while they defend or resolve their charges.  And this pro-carceral presumption is extremely costly.

The Smarter Pretrial Detention for Drug Charges Act presents a simple, effective solution supported by leaders and organizations from both sides of the aisle.  It would merely remove the presumption of pretrial incarceration that currently applies to those charged with nonviolent drug offenses.  The passage of this bill will not mean that all, or even most, accused federal drug offenders will be released before trial.  It would, however, simply permit a federal judge to make a more individualized determination of whether to detain someone based on the same factors they use to evaluate practically everyone else.  Anyone deemed a flight risk or a danger to public safety will still be detained.  Anyone released can still be subject to multiple conditions and community supervision by pretrial services.

September 16, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (2)

Sunday, September 13, 2020

"Revisiting Hate Crimes Enhancements in the Shadow of Mass Incarceration"

The title of this post is the title of this new paper authored by Shirin Sinnar and Beth A. Colgan.  Here is its abstract:

Although civil rights advocates have largely supported hate crimes laws over the last four decades, growing concern over mass incarceration is now leading some to question the focus on enhancing prison sentences.  This Essay explores two alternatives to the traditional sentence enhancement model that might retain the expressive message of hate crimes laws — to convey society’s particular condemnation of crimes of bias — while relying less heavily on police and prisons: the reformation of victim compensation programs to help victims and targeted communities and the application of restorative justice processes to hate crimes.  Each of these alternatives presents complications, but both offer sufficient potential to justify further exploration.

September 13, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, September 11, 2020

"Have Problem Solving Courts Changed the Practice of Law?"

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

Drug courts started thirty years ago in the United States.  The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach.  Has this happened?  Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law?  Have these courts actually been a “monumental change?”  The simple answer is no.  These courts have changed how some defendants are treated some of the time.  But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small.  And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration.  Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts.  This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works.  Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.

September 11, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, September 09, 2020

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

September 9, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, September 03, 2020

"Judicial Disparity, Deviation, and Departures from Sentencing Guidelines: The Case of Hong Kong"

The title of this post is the title of this notable new article appearing in the latest issue of the Journal of Empirical Legal Studies authored by Kevin Kwok-yin Cheng, Sayaka Ri, and Natasha Pushkarna.  Here is its abstract:

Analyzing sentencing disparity calls for more calibrated measures to capture the nuances of judicial discretion within jurisdictions that adopt strict sentencing guidelines.  This article uses an unconventional outcome variable, percent deviation, to investigate guideline digressions in a nested, multilevel model.  Percent deviation is calculated based on the difference between the guidelines’ “arithmetic starting point” and the actual starting point that a judge adopts.  Two equations were used to measure percent deviation from the arithmetic starting point before and after adjustment for guilty plea sentence reductions.

Extracting data on drug trafficking cases from an open‐source database from the Hong Kong Judiciary (n = 356), we illustrate how percent deviation can be employed as a measure of inter‐judge disparity using hierarchical linear models (HLMs).  Our findings suggest that approximately 8 to 10 percent of the deviation in sentence length can be attributed to judges’ differential sentencing behaviors.  The deviation is affected by case characteristics as well as judicial characteristics.  Due to the wide guideline ranges, departures from said guidelines’ ranges are not common.  This indicates that the guideline ranges mask the deviation and inter‐judge disparity that exist and recur.

September 3, 2020 in Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act

Regular readers are surely familiar with the big deal I have long made about the statutory changes to the so-called compassionate release provisions in federal law via the FIRST STEP Act.  In posts here and here way back in February 2019, I was talking up these changes as the "sleeper provisions" in the Act because it now let persons in prisons move directly in court for a sentence reduction.  By May 2019, I was wondering aloud here about whether anyone was collecting and analyzing sentence reduction orders under § 3582(c)(1) since passage of the FIRST STEP Act.  From the get-go, I have tried to flag notable rulings granting sentence reductions under 3582(c)(1) since the passage of the Act, but the coronavirus pandemic created so much jurisprudence in this space that I was ultimately only able to do lengthy postings like this one of grants on Westlaw.

Against this backdrop, I was so very pleased to see that the US Sentencing Commission's big new report on "The First Step Act of 2018: One Year of Implementation" (discussed here, available here) includes a final section discussing "Compassionate Release" (at pp. 46-49).  Somewhat disappointingly, this section is quite brief and the data provided is not especially rich or detailed.  But some data is better than nothing and certainly worth reviewing:

During Year One, 145 motions seeking compassionate release were granted, a five-fold increase from fiscal year 2018 (n=24)... [and] of those motions granted during Year One, 96 (67.1%) were filed by the offender and 47 (32.9%) were filed by the BOP.... 

Offenders who benefited from compassionate release in Year One received larger reductions and served more time when compared to those granted release in fiscal year 2018. The average length of the reduction in sentence was 68 months in fiscal year 2018; sentences were reduced, on average, by 84 months in Year One.  The average months of time served at the time of release also increased, from 70 months to 108 months.  The average age at the time of release increased by ten years, from 51 years old at the time of release to 61 years old....

In Year One, most (81.4%) compassionate release grants were also based on medical reasons.  Of the 145 compassionate release motions granted, 118 were based on the medical condition of the defendant, 15 were based on age, two were based on family circumstances, and 15 were based on other extraordinary and compelling reasons.  Of the 118 granted for medical reasons, 75 were based on terminal illness, 31 based on a condition or impairment that substantially diminishes the ability of the defendant to provide self-care within the correctional facility environment, and in 12 the type of medical reason was not further specified.

An additional appendix (Appendix 4 on p. 71) provides a break-down of the guidelines under which these persons receiving sentence reductions were initially sentenced.  These data look somewhat comparable to the general federal prison population, as about half of the recipients were sentenced under the drug guideline.  But it seems white-collar guidelines and the robbery guideline may be somewhat over-represented, though that may reflect that these offenders are more likely to be older and/or subject to more extreme sentencing terms for various reasons.  Other than knowing that a lot more sentence reduction motions were granted in the first year after the FIRST STEP Act and that most were for medical reasons, these "raw" data do not tell us that much more about this interesting little part of the sentencing world.  (Notably, the USSC does not report at all, and may not be collecting, data on how many sentence reduction motions have been brought to, and have been denied by, district courts.  Grants only tells us only so much, though even grant data could and should be subject to some more detail analysis to help Congress and other assess whether this mechanism was working as intended in 2019.)

Critically, as the USSC report makes clear, its data here are from just the first full calendar year the First Step Act was in effect (“First Step Year One”) running from December 21, 2018 through December 20, 2019.  In other words, this report concerns entirely pre-COVID data, and that is HUGELY important because there has been, roughly speaking, about a nearly 20-fold(!) increase in sentence reductions grants over the last six months of our COVID era.  Specifically, the BOP is now reported at this FSA page that there have been "1,498 Approved" total post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  Doing the math, this seems to mean that while there were 145 motions granted in First Step Year One, there have been 1,353 more motions granted since that time (nearly all of which, I think, have been over the last six months).  Framed another way, we can say that, on average, in the year after passage of the FIRST STEP Act, roughly a dozen sentence reductions motions were granted each month, and now in the COVID-era, more than 220 are being granted each month!  

I sincerely hope the USSC is planning to do a more detailed and informative accounting of its First Step Year One data, as I think a lot could and should be learned from how judges responded to these motions before COVID.  But I am now even more interested to see data from the COVID era, as the number of cases (and probably the number of reasons for grants) has increased so dramatically.  At the same time, the relative rarity of these sentence reductions should not be forgotten.  With a federal prison population of around 175,000 through 2019, the USSC data show that less than 0.1% of all federal prisoners benefited from a sentence reduction that year.  With all new COVID grants, we still have well under 1% of the federal prison population receiving so-called compassionate release.  That still does not seem anywhere close to a lot or enough compassion to me.

September 3, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, September 02, 2020

FAMM announces notable new campaign focused on a "Second Chances Agenda"

Long-time readers are surely aware that I have long advocated for, and written a lot about, revisiting problematic sentences and expanding the means and manner of doing so.  (I have written numerous articles related to this topic, some of which I have linked below.)  Consequently, I was very pleased to see this press release from FAMM discussing its new campaign:

FAMM announces a new “Second Chances Agenda“ campaign aimed at urging state and federal policymakers to increase their use of compassionate release and clemency, and to encourage the introduction of more second look legislation.

“One of the things we’ve learned during the COVID-19 pandemic is that every state knows to impose lengthy mandatory sentences, but very few have ways to revisit those sentences when the person or circumstances have changed,” said FAMM President Kevin Ring. “There are people languishing in prison who do not need to be there – and we are no safer for it.

“There are also people who have made remarkable changes in their lives since entering prison, and should be considered for a second chance. If people have served a significant sentence, and they have succeeded in rehabilitating themselves, we should give them an opportunity to go home.”

FAMM’s Second Chances Agenda campaign calls for the following:

  1. Pass “second look” laws. FAMM is urging the creation of laws in every state that direct courts to reconsider a person’s sentence after 10 or 15 years to determine whether a shorter sentence is appropriate. Learn more about second look laws.
  2. Expand compassionate releases. Sometimes referred to as medical or geriatric parole or release, compassionate release programs at the state level are failing to allow early release for elderly and sick people who pose no risk to public safety. Learn more about how these systems work around the country and how FAMM is working to improve them.
  3. Expand clemency. The president and most governors have the authority to shorten excessive prison terms but often fail to use their clemency power to its fullest extent. FAMM is committed to working with governors and the White House to expand the use of executive clemency and to identify people who deserve a second chance.

FAMM also supports other reforms that prosecutors and lawmakers could use to provide second chances.

  • Eliminate extreme mandatory sentences and make the reforms retroactive – When lawmakers pass smart reforms, they rarely apply them retroactively, leaving people to serve unjust sentences that are no longer in the law.
  • Parole reform – Some states have parole, but rules and red tape make it too difficult for people to get it.
  • Sentence integrity units – Prosecutors can promote second chances by reviewing sentences periodically to see if they are appropriate.

FAMM has also launched similar campaigns in ArizonaFlorida and Pennsylvania today.

As even newer readers should also realize, perhaps from this initial posting or this more recent one, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center have been working together on a writing competition for law students and recent graduates to propose a "second-look statute" for Ohio (which is discussed more fully on this DEPC webpage).

Here are just a few of my writing on these kinds of topics (which I might now call my own "Second Chances Agenda"):

September 2, 2020 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Notable exploration of criminal justice structures for "emerging adults"

This morning I received an email altering me to a big new report on an interesting modern topic that is focused on a population and a region especially near to me heart.  Here is the text of the email, which provides a link to the nearly 100-page report and a useful overview of its coverage:

Today, Juvenile Law Center released “Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region,” a report on criminal justice reforms for young people between the ages of 18 and 24.  The report, funded by a grant from the Joyce Foundation, cites new research which shows that these “emerging adults” share many of the same characteristics as teens in the juvenile justice system, yet they are treated very differently.  Emerging adults also represent a disproportionate share of the justice-involved population, accounting for a third of all criminal arrests nationwide.  They also experience the worst racial disparities in incarceration and arrest rates of any age group.

“Racism permeates our criminal justice system at every stage and available data suggests racial and ethnic disparities are worst for those in the emerging adult population,” said Katrina L. Goodjoint, Staff Attorney at Juvenile Law Center and co-author of the report. “In Illinois, 9.4 Black emerging adults are arrested per every white emerging adult. Eliminating mass incarceration and reducing racial disparities necessarily require reforming the justice system’s punitive treatment of emerging adults.”

Juvenile Law Center’s report highlights the need for a new, developmentally appropriate approach to criminal justice involvement for this population.  The report includes research showing that many areas of the law — from new federal tobacco regulations to extended access to health insurance under the Affordable Care Act — already recognize and make accommodations for the developmental characteristics of emerging adulthood.  Justice systems around the country have also begun to do the same.  The report describes some of the new initiatives targeted at this population, including:

  • raising the age of juvenile court jurisdiction
  • youthful offender statutes
  • diversion programs, young adult courts, and other specialized criminal justice programs for emerging adults
  • modifications to mandatory sentences and other harsh penalties
  • expungement of records
  • expanded access to supports and services outside the criminal justice system.

“People do not magically transform from children to adults on their 18th birthdays,” said Karen U. Lindell, Senior Attorney at Juvenile Law Center and one of the report’s authors. “Other areas of the law have long recognized that fact — limiting young adults’ abilities to engage in risky activities, like drinking or purchasing firearms, and offering them additional support, like greater health insurance coverage and special education services.  Yet the criminal justice system is just beginning to acknowledge the distinctive needs and characteristics of emerging adults.”

The report released today focuses on the laws and policies affecting emerging adults in six Great Lakes region states: Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. For each of these states, the report provides a comprehensive overview of the current legal landscape for emerging adults, including available data on justice-involved emerging adults, relevant criminal and juvenile justice statutes, existing criminal justice programs, and other systems serving emerging adults in the state.  By providing an in-depth analysis of the current legal landscape, this report lays the foundation for meaningful criminal justice reform for emerging adults — both in the Great Lakes region and throughout the country.

September 2, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, August 28, 2020

"Trump’s failed promise of criminal justice reform gives Biden an opening"

The title of this post is the headline of this new Washington Post commentary authored by Mark Osler.  Here is an excerpt:

As a lifelong Democrat, I found myself in a very unexpected place on Sept. 5, 2018: sitting next to Jared Kushner in the Roosevelt Room of the White House. Ivanka Trump was at the other end of the table, and Kim Kardashian West sat across from me. This was not my normal crowd.
Kushner had called the meeting to discuss reform of the broken federal clemency system, which allows the president to shorten a sentence or mitigate a conviction. New York University professor Rachel Barkow and I had been asked to explain what was wrong and how to fix it.  It’s a short, sad story: The system for evaluating clemency petitions is mired in the bureaucracy and internal conflicts of the Justice Department. As a result, the mercy intended by the Constitution has been in short supply for three decades.
Barkow and I opened the meeting by laying out the problems and offering a solution: the creation of an independent board to evaluate clemency petitions and make recommendations to the president. There was a quick consensus around the table that change was needed. I felt hopeful, largely because we seemed to have Kushner on our side. He was engaged and motivated; the experience of having a parent incarcerated had given him insight into the broader problems we described. Furthermore, the usual institutional opponent to criminal justice reform in any administration — the Justice Department — was out of the way due to the president’s ongoing dispute with then-Attorney General Jeff Sessions....

The Trump administration never did reform the clemency process.  Instead of issuing an executive order to create a formal, bipartisan board, Trump chose to assemble a small team of insiders to funnel cases to him.  The primary recipients of his pardon power have been his personal friends and some right-wing celebrities.  Today more than 13,000 federal clemency petitions sit awaiting action — and Trump pays so little attention to them that he hasn’t even bothered to deny any cases in more than two years.

The First Step Act was not followed by a second or third step, and reform’s fate was sealed when Barr became attorney general. Unlike Sessions, Barr won Trump’s trust, and with that came the return of the Justice Department’s veto power over policy issues. Barr and Trump march to the same “law and order” rhythm — a path inconsistent with any real progressive changes. Of course, Trump has continued to take credit as a criminal justice reformer, long after he stopped reforming anything and headed off in the opposite direction.

Democratic nominee Joe Biden has a political opening here, if he chooses to use it. Back in the 1980s and ’90s he, too, thumped the table for law and order; but he can legitimately claim to have changed his mind and moved away from the dark shadow of senseless retribution and over-incarceration.

More importantly, Biden has a humanity about him that Trump cannot conjure, and that is a plus when the discussion comes to human frailty and punishment in the shadow of George Floyd’s death. Unlike Trump, Biden has the ability to credibly admit his mistakes, commit to implementing specific reforms, and then make those changes once in office. Such honesty, humility and resolve would be a welcome change from the slow, sad slide we have seen since that hopeful day in the Roosevelt Room.

August 28, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 26, 2020

"Reflections on the Warren Court's Criminal Justice Legacy, Fifty Years Later: What the Wings of a Butterfly and a Yiddish Proverb Teach Me"

The title of this post is the title of this new paper authored by my colleague Joshua Dressler which is available via SSRN.  Here is its abstract:

I reflect on the criminal justice legacy of the Warren Court, which ended approximately a half-century ago. I ask: How much of the law and values that Earl Warren and his colleagues transmitted to us remain a part of our constitutional fabric today?  Put more bluntly, was the Warren Court successful or a failure in meeting its criminal justice goals?

As I see it, the goal of Earl Warren and his most progressive colleagues during his 15+ years on the high court was to reshape the criminal justice system by placing restrictions on those with the greatest power, primarily the police and prosecutors, and by providing greater rights to the rest of us (particularly the most vulnerable amongst us) when we are confronted by the awesome power of government in our homes, streets, police stations, and courts.

If those were, indeed, the amorphously described criminal justice goals of the Warren Court, and if we are evaluating it by looking at where we are today in regard to those goals, I am forced to conclude that the Warren Court was to a significant extent a failure.  And yet, as the title of this article hopefully suggests, there may be another way to look at the Warren Court’s efforts.  Indeed, I will ultimately conclude that, at least for civil libertarians, we owe a debt to Earl Warren and his Court.

August 26, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, August 24, 2020

Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

As partially covered here and here, there was considerable media attention as well as considerable last-minute litigation as the US Justice Department moved forward with plans for, and ultimately completed, three federal executions in a single week in July.  Now another federal capital week looms, as federal officials are scheduled to execute by lethal injection Lezmond Mitchell on Wednesday, August 26 and Keith Dwayne Nelson on Friday, August 28 (and the feds have yet another double-death week planned for September with William LeCroy scheduled for execution on September 22 and Christopher Vialva scheduled for execution on September 24).  But, as the title of this post suggests, I sense this second round of federal executions is getting a lot less attention than even the usual state execution typically does.

Notably, Lezmond Mitchell has some pending claims before the Supreme Court (SCOTUSblog coverage here), and the fact that he is the only Native American on federal death row has generated some media coverage as highlighted by these stories:

But even with these pieces and some additional critical commentary, it still seems like the planned federal execution of Lezmond Mitchell is getting less attention than I might have expected.  Even more remarkable, I cannot seem to find a single detailed press piece written recently about Keith Dwayne Nelson and his pending federal execution.  I surmise that Nelson does not have any legal appeals pending, but that fact alone would be remarkable (and press-worthy) if anyone were closely paying attention.

It is not hard to understand why these matters are not getting much attention.  An enduring pandemic, an election season, back-to-school challenges, wildfires and hurricanes, protests and so much else all make for much better "copy" for the media.  Moreover, as suggested in this post, there may be less legal drama around these cases after SCOTUS made clear last month that it would be eager to lift lower court stays to enable executions to move forward on the schedule set by Attorney General Barr.  Still, I had to remark on how remarkable it seems to me that this week's executions now seem so likely to go forward with relatively so little attention.

A few of many recent prior related posts:

UPDATE: I failed to see this Friday afternoon press report on noting that Nelson's lawyers have joined in filings about the federal government's executions methods, which is headlined "Lawyers: Autopsy suggests inmate suffered during execution." Here are the basics:

An inmate suffered “extreme pain" as he received a dose of pentobarbital during just the second federal execution following a 17-year lag, according to court filings by lawyers representing one of the inmates scheduled to be executed next.  The claim Wesley Purkey may have felt a sensation akin to drowning while immobilized but conscious is disputed by Department of Justice attorneys. They insist the first three lethal injections since 2003 were carried out without a hitch last month at the federal prison in Terre Haute, Indiana.

This month's filings were part of motions to halt the execution of Keith Nelson, convicted in the 1999 rape and strangulation of 10-year-old Pamela Butler. Prosecutors said he pulled her into his truck as she skated on rollerblades back to her Kansas home after buying herself cookies.  Nelson’s execution is set for Aug. 28.  The execution of Lezmond Mitchell, the only Native American on federal death row, is scheduled for Aug. 26. His lawyers have made similar arguments.

August 24, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, August 22, 2020

"Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform"

The title of this post is the title of this new National Review commentary authored by Isaac Schorr.  Here are excerpts:

Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken.  Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner.  On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough.  It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.

Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture.  The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity.  Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.

Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins.  The federal government takes in net revenues exceeding $1 billion annually from asset forfeiture, and states share in the cash cow through “equitable sharing.”  This practice, which sounds innocent enough, provides local authorities with perverse incentives.  Per the Institute for Justice, equitable sharing allows law enforcement to “bypass state laws that limit civil forfeiture.  By collaborating with a federal agency, they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.”  What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?

The problems with civil-asset forfeiture are many; the FAIR Act addresses nearly all of them.  It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level.  It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence.  It would guarantee property owners the right to legal representation.  Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims.  The act’s changes to the reporting structure are also important.  The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively.  The FAIR Act would mandate such a breakdown....

The FAIR Act has been endorsed by the Heritage Foundation and American Civil Liberties Union and is cosponsored by legislators as liberal as 2016 Bernie Sanders backer Tulsi Gabbard and as conservative as Freedom Caucus member Paul Gosar.  A functioning Congress acting in the best interest of the American people would take notice of this broad consensus and act swiftly to pass this piece of commonsense legislation.

August 22, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, August 21, 2020

Justice or injustice?: Golden State Killer gets LWOP for at least 13 murders and dozens of rapes after deal to avoid death penalty

As reported in this NBC News piece, a "former police officer known as the Golden State Killer for his crime spree across California in the 1970s and '80s was sentenced Friday to consecutive life sentences without the possibility of parole."  Here is more about the crimes and punishment:

Joseph DeAngelo, 74, who had eluded authorities for decades, pleaded guilty in June to 13 counts of first-degree murder and 13 rape-related charges in a deal that spared him the death penalty.  He also publicly admitted to dozens more sexual assaults for which the statute of limitations had expired. Sacramento County Superior Court Judge Michael Bowman said Friday in a rare sentencing statement that DeAngelo would "meet his death confined behind the walls of state penitentiary."

"The court is not saying DeAngelo does not deserve to have the death penalty imposed," Bowman said, but given the age of the defendant and victims, a life sentence made more sense. Bowman said he hopes "survivors will find some resolution" after DeAngelo is permanently placed behind bars.

DeAngelo on Friday made a short statement in court addressing victims and their families. "I’ve listened to all your statements. Each one of them. And I’m truly sorry to everyone I’ve hurt. Thank you your honor," he said.

Prosecutors said DeAngelo admitted to harming 87 victims in 53 separate crimes spanning 11 California counties. As part of the plea agreement, he was required to register as a sex offender and pay restitution to the victims or their families, as well as any fees or fines. Assistant Chief Deputy District Attorney Thien Ho has said the scope of DeAngelo's crime spree is "simply staggering, encompassing 13 known murders and almost 50 rapes between 1975 and 1986."

DeAngelo's crime spree started while he was working as a police officer in Exeter, a northern California community in the San Joaquin Valley near the foothills of the Sierra Nevada. Over the years, his crimes morphed from stalking properties to serial rape and murder. DeAngelo went on to marry and raise his own family, escaping investigators' efforts to find him for decades, before he was arrested in Sacramento County in 2018. It is believed to be the first high-profile case to have been cracked with genetic genealogy. Authorities said they used "discarded DNA" to confirm that DeAngelo was the man generations of authorities and citizen sleuths had searched for....

Some of DeAngelo's victims are in their 80s and 90s. Some are dead. But those who were willing and able spent the week addressing DeAngelo in court in anticipation of his sentencing. Phyllis Henneman said she was 22 years old and "young and carefree" when her life changed forever in June 1976. She was home alone with her sister while their dad was out of town when DeAngelo attacked.

"Joseph DeAngelo, henceforth called 'the devil incarnate,' broke into my home, blindfolded me, tied me up, threatened my life with a knife and raped me," she said, describing DeAngelo's modus operandi, which also included tying up partners and spending hours in homes, leaving his victims wondering what terror would come next. "Life as I knew it irrevocably changed that day," she said in the statement read by her sister, Karen Veilleux. But DeAngelo's arrest and upcoming sentencing meant "his victims and their families are now free."

A recent HBO documentary, "I'll Be Gone in the Dark," detailed the gruesome attacks and the desperate effort to find the killer, even as the years wore on. The documentary is based on crime writer Michelle McNamara's book of the same name, in which she recounted her own obsessive effort to uncover the identity of the Golden State Killer and conviction that genetic genealogy would help her do it. McNamara, the wife of comedian Patton Oswalt, died in 2016, two years before DeAngelo's arrest. Bowman on Friday thanked McNamara by name, along with law enforcement, other citizen detectives and DeAngelo's victims for their "dogged persistence" in their quest to bring him to justice.

August 21, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

"Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System"

The title of this post is the title of this timely new paper now on SSRN authored by Matt Bender. Here is its abstract:

A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others.  They cannot be incompatible.  Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights.

This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings?  Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights.  The prevailing belief that criminal defendants should reject virtual trials is questioned.  Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic.  Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored.

Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed.  Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed.  Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes.  Instead of disrupting the courtroom — whether a hearing is virtual or traditional — convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys.

These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system.  Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.

August 21, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

Thursday, August 20, 2020

Amazing resources and insights from the Collateral Consequences Resource Center

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific series of posts drawn from a forthcoming report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Here are posts from this series:

In addition, the CCRC's website also has recently published these commentary posts on cutting edge topics:

August 20, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Wednesday, August 19, 2020

"The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence"

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

Despite evidence that America's low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant's criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability.  As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence.  This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production.  Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences.  Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings.

August 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Tuesday, August 18, 2020

"Policing Procedural Error in the Lower Criminal Courts"

The title of this post is the title of this notable new article available via SSRN authored by Justin Murray. Here is its abstract:

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts.  Yet reviewing courts are not performing either of these functions very well.  No single factor can fully explain why this is the case, for there is plenty of blame to go around.  But the harmless error rule is a major culprit. 

The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the outcome below.  This limitation impedes effective oversight of the lower courts in two significant ways.  First, it enables trial judges, prosecutors, and other relevant entities (such as a district attorney’s office, to name one example) to persistently evade accountability for procedural errors, diminishing their incentives to comply with legal norms.  And second, it provides reviewing courts with a handy tool to avoid resolving legal claims on their merits.  Instead of holding that an error did or did not occur, thereby helping trial judges, prosecutors, and others learn what the law requires going forward, reviewing courts can — and often do — affirm on factbound harmless error grounds without ever adjudicating the legality of the challenged conduct.

These failings call for a major shift in how courts review procedural error.  I propose that, in addition to examining whether an error affected the outcome, as current law directs, a reviewing court should also consider whether (1) reversal would substantially help to prevent future errors, (2) the error caused substantial harm to a legally protected interest unrelated to the outcome, and (3) the benefits of reversal, as tabulated in the previous steps, outweigh its costs.  After making the case for this framework and discussing how to operationalize each of its components, I then explore, a bit more tentatively, whether the same set of ideas could help stimulate much-needed rethinking of other controversial rules that further obstruct the policing of procedural error in the lower criminal courts.

August 18, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 17, 2020

Can and should judges demand prosecutors provide written explanations for dismissals and plea deals?

The question in this post and broader concerns about judicial review of prosecutorial discretion seems to be arising more and more in a variety of contexts. The election of many so-called progressive prosecutors seems in particular to be lead some not-so-progressive judges to be more eager to review and regulate prosecutorial action, and this AP article notes how this debate might come before the Virginia Supreme Court:

A northern Virginia prosecutor who says her county’s judges are infringing on her discretion to dismiss charges and enter plea bargains is asking the state Supreme Court to intervene on her behalf.  Arlington County Commonwealth’s Attorney Parisa Dehghani-Tafti filed a petition [available here] Friday asking the court for a relief from a policy imposed by the county’s four Circuit Court judges.

In March, two months after Dehghani-Tafti took office, the judges required prosecutors to file a written brief explaining themselves any time they decide to drop charges or enter a plea bargain. Dehghani-Tafti was one among a cadre of prosecutors in northern Virginia and across the nation to win office on a reform agenda, promising not to prosecute lower-level drug offenses.

She said that the order is not only time-consuming, but potentially damaging in cases where the reasons for dropping a case should remain private, like protecting a broader investigation or in cases of domestic violence where a victim declines to cooperate. “It is not wise for us to be putting in all those details, and the court should know that,” she said....

The issue is playing out nationally in different ways.  In Maryland, Republican Gov. Larry Hogan has crossed swords with Baltimore prosecutor Marilyn Mosby after Hogan tried to divert more resources to the state attorney general’s office to prosecute cases in the city. And in Missouri, the legislature is considering a bill filed during an ongoing special session sought by the state’s Republican governor that would give the state’s attorney general overlapping jurisdiction to prosecute cases amid complaints that St. Louis Circuit Attorney Kimberly M. Gardner is too lenient in bringing charges.

Both Mosby and Gardner are among 60 current and former prosecutors who have signed on to a friend-of-the-court brief supporting Dehghani-Tafti’s petition in Virginia.  Miriam Krinsky, executive director of Fair and Just Prosecution, the organization that submitted the friend-of-the-court brief [available here], said that while judges have their own discretion to question on a case-by-case basis a prosecutor’s motion to dismiss a particular case, she said that issuing a blanket policy requiring written justification for every decision is excessive.

“In the ’80s and ’90s prosecutors used their discretion to ramp up mass incarceration, and judges never second-guessed or interfered with that,” she said. “Now we have this sweeping order in all cases in Arlington County where an elected commonwealth’s attorney is wanting to do exactly what voters elected her to do.” In Arlington, Dehghani-Tafti said that in previous years, 75 percent of dismissed cases were handled on oral motions only, often taking only a minute or two.

She acknowledged that prosecutorial discretion cuts both ways, saying a rural prosecutor in a jurisdiction that has declared itself a Second Amendment sanctuary also enjoys the discretion to decline prosecution on firearms charges.  She said, though, that her efforts to pass on low-level drug cases are distinguishable on policy grounds, because she is moving in the same direction as the legislature, and that her approach to drug prosecutions is evidence-based. 

Because I have long been troubled that prosecutorial actions and discretion operates mostly in the dark without being subject to any clear legal standards or transparency or review, I generally like the notion of forcing prosecutors to explain and justify their actions and subjecting these actions to some form of judicial review.  But especially given our society's core commitment to freedoms and limited government, I strongly believe any obligation of explanation should apply primarily when prosecutors are seeking to use coercive government powers to deny freedoms, not when they are seeking to forgo the use of government powers and will enhance freedoms.

August 17, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, August 16, 2020

Unsurprisingly, victims of Boston Marathon bomber differ on seeking a new death sentence for Dzhokhar Tsarnaev after reversal on appeal

Later this month, I will have the pleased of starting a new semester teaching my sentencing law and policy class.  I often ask my students about on-going real cases, and this year I will press student to consider whether they would want the US Attorney for Massachusetts to pursue capital resentencing in the Boston Marathon bombing case, United States v. Tsarnaev, following the First Circuit’s recent death sentence reversal. Helpfully, the Boston Globe has these two new pieces focused on this topic:

Here are excerpts from the first piece linked above:

The overturning of Tsarnaev’s death sentence has sent tremors of anxiety across the community of survivors and relatives of those killed in the attack, many of whom are still recovering from their physical and emotional wounds.... In a statement, Andrew Lelling, US attorney for Massachusetts, promised to consider the views of survivors and victims’ families before deciding whether to seek a new trial....

“Let him serve his life in prison, and let us live our lives in peace,” said Lynn Julian Crisci, who suffered a brain injury, hearing loss, and neurological disorders as a result of the first bomb. Crisci, 43, used to support the death penalty, until having to live through what feels like an endless appeals process.  Now she hopes prosecutors will not seek another penalty trial....

Of 18 victims who responded to the Globe about what prosecutors should do, a majority said they would prefer to avoid another trial and to let Tsarnaev spend the rest of his days at the US Penitentiary Administrative Maximum Facility in Colorado, the nation’s highest-security prison.

“I would prefer to let it go and let him rot in jail,” said Beth Bourgault, 65, who lives in Lynn. Bourgault and her husband were standing a few feet from Krystle Campbell when the first of two bombs exploded on Boylston Street.  Shrapnel severed muscles and nerves in one of her legs. She also suffered a ruptured eardrum.  Her husband, Michael, suffered burns and ear injuries as well.  She was troubled when Tsarnaev was originally sentenced to death and hopes prosecutors do not pursue a second trial.  “My feeling is he was hoping for death and that he got what he wanted,” she said. “I’d prefer he spend his days thinking about what he did.”

Other victims, though, were enraged by the court’s ruling and were willing to endure another trial to see Tsarnaev sentenced to death.  “If they don’t go through with the death penalty in this case, what kind of precedent is there?  What’s the point of the death penalty?” said Liz Norden, whose two adult sons lost their right legs in the bombing.  “This is personal to me.” Norden, 57, who lives in Melrose, vowed to attend a new trial.  “I want to see it through the end,” she said. “I want justice.”...

On Thursday, the US attorney’s office in Massachusetts, which prosecuted Tsarnaev in 2015, held a conference call with victims to discuss the appeals court decision and how they wished to proceed.  Discerning a consensus might be difficult.

Helen Zhao, who lost her niece Lingzi Lu, a 23-year-old Boston University graduate student from China, to the second bomb, supports the death penalty for Tsarnaev.  “He has harmed a lot of people and changed a lot of people’s lives,” she said.  “He’s a terrorist.” Lu’s parents, who live in China, were “shocked” and “speechless” by the ruling, she said.  “They were disappointed in the American legal system,” said Zhao, 49, who lives in Rhode Island.

Marc Fucarile, who lost his right leg in the bombing, worried that a life sentence could mean that Tsarnaev might one day be able to regain his freedom.  “As long as he’s breathing, that’s a possibility,” he said.  “They’re giving [Tsarnaev] a victory.” Fucarile, 41, who lives in Reading, testified during the penalty phase at Tsarnaev’s trial and said he would attend a new trial.  “I want to see it happen,” he said.

But Jenny Chung Greenfield, who was hit by shrapnel in her chest from one of the bombs, prefers that prosecutors put an end to what could be decades worth of appeals, keeping Tsarnaev’s name in the public eye.  She didn’t attend the first trial and doubts she’d go to a new one.  “I just think about what does closure mean, and closure is such a personal thing to people, and the way that folks find closure is different,” said Chung Greenfield, 42, who lives in Cambridge.

August 16, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, August 13, 2020

"Making Sense of Risk"

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

Although actuarial risk prediction tools are widely used in the American criminal justice system, the lawyers, judges, and correctional workers who consult these products in making decisions often misunderstand fundamental aspects of how they work and what information they provide.  This article suggests that the best way to ensure risk assessment tools are being used in ways that are just and equitable is to ensure that those who use them better understand three key aspects of what information they do — and do not — reveal.  Doing so requires clarifying what risk is being predicted, explaining what risk levels signify, and enumerating how risk-related information is and is not relevant to specific criminal justice decisions.

August 13, 2020 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Tuesday, August 11, 2020

"Prosecutors' Vital Role in Reforming Criminal Justice"

The title of this post is the headline of this recent Governing commentary authored by Lucy Lang.  Here are excerpts:

The nation's criminal-justice system is at a pivotal moment. With rising public revulsion at the brutality inflicted on Black Americans by law enforcement, racial-justice groups have brought conversations around racial disparities and the justice system into the mainstream.

Prosecutors have played a historic role in exacerbating these racial disparities, and they have an equally vital role to play in the systemic reforms that are needed to turn an unfair system around.  To ensure that reforms are set up to succeed, it is incumbent on modern prosecutors to collect as much relevant data as they can and analyze it to measure disparities and evaluate policies that seek to create a more-just system.  To that end, prosecutors will benefit from a careful review of a recently published report from the Council on Criminal Justice (CCJ) in seeking to divert more cases successfully out of the system.

Promisingly, this national study of data from 2000 to 2016 reveals a significant reduction in racial disparities across most facets of the criminal-justice system.  The numbers show that during that period crime declined and, consistent with public demand, so did arrests.  In addition to shrinking the system's impact overall, the CCJ report reflects that front-end policies designed to reduce arrests and divert cases from criminal prosecution early in the process also reduced differences in treatment across race.

Seeking to further these front-end decreases, a new set of materials from the Institute for Innovation in Prosecution and Criminal Law Practitioner about prosecutor-led diversion details data-collection processes in different district attorneys' offices and how data can inform diversion programs for low-level crimes....

A vital area for data analysis related to the potential for diversion programs for violent crime is the role that a charged person's criminal history should play in indictment, sentencing and release decisions.  A person who has prior convictions often faces ever-increasing penalties for new crimes, subject to the exercise of prosecutorial discretion.  A first-time arrest for a felony may result, for example, in the offer of a pre-indictment misdemeanor plea by the prosecutor, while a second or third felony arrest is more likely to result in an indictment.  At the pleading stage, someone with no prior convictions facing a felony indictment is more likely to avoid incarceration compared to a person with prior convictions.

This undermines the notion that once someone has done his or her time, they have repaid whatever debt to society the crime purportedly incurred.  Given the uneven application of the system across demographic categories, such practices may contribute to racially disparate sentence recommendations from prosecutors as well as disparate denials of release by parole boards.

Criminal-justice reformers face some hard questions. Chief among these are how to appropriately respond to crimes of violence and whether racial disparities might be reduced by removing the criminal history of a person charged with a crime as a substantial factor during sentencing. It is incumbent upon prosecutors to look carefully at their data and consider diversion options at each stage of their decision-making.

August 11, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Sunday, August 09, 2020

"Supervised Release Is Not Parole"

The title of this post is the title of this notable new paper authored by Jacob Schuman just posted to SSRN. Here is its abstract:

The United States has the largest prison population in the developed world.  Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community — probation, parole, and supervised release.  At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release.  Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.  But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.

The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process.  Closer inspection, however, reveals three significant differences between parole and supervised release.  First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive.  Finally, parole was run by an agency, while supervised release is controlled by courts.  Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole.  In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.

August 9, 2020 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Saturday, August 08, 2020

"Beyond Unreasonable"

The title of this post is the title of this notable new paper authored by John Inazu and now posted to SSRN. Here is its abstract:

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude “beyond a reasonable doubt;” claims of self-defense succeed or fail on reasonableness determinations.  But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear.  Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale — we might say they are beyond unreasonable.  Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same.  These distinctions raise vexing questions: what is it that makes us feel differently about these activities?  Mere unfamiliarity?  Moral condemnation?  Relative utility?  Or something else altogether?  Moreover, who exactly is the “we” forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable — the reasonableness lines.  Part I examines the general characteristics of these lines.  Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports.  The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

August 8, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, August 06, 2020

"Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia"

The title of this post is the title of this notable new article now on SSRN authored by Michael L. Perlin, Talia Roitberg Harmon and Sarah Wetzel.  Here is its abstract:

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty.  Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.

Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.”  Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled.  In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny?  Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled).  In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled.  In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases.

Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success.  On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.

Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points.  Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings.  We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question.  We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

August 6, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 05, 2020

By 5–4 vote, Supreme Court stays Orange County jail to implement certain COVID safety measures

This evening the Supreme Court, voting 5-4 along the "usual" lines, issued a stay to block an order requiring a local jail in California to implement certain safety measures to provide greater COVID protection to inmates.  The majority's order is just a paragraph and includes no reasoning, but Justice Sotomayor's eight-page dissent has a lot to say.  Here is how it starts and ends:

Today, this Court steps in to stay a preliminary injunction requiring Sheriff Don Barnes and Orange County (collectively, the Orange County Jail, or Jail) to implement certain safety measures to protect their inmates during the unprecedented COVID–19 pandemic.  The injunction’s requirements are not remarkable.  In fact, the Jail initially claimed that it had already implemented each and every one of them.  Yet, apparently disregarding the District Court’s detailed factual findings, its application of established law, and the fact that the Court of Appeals for the Ninth Circuit has twice denied a stay pending its review of the District Court’s order, this Court again intervenes to grant a stay before the Circuit below has heard and decided the case on the merits....  The Jail’s application does not warrant such extraordinary intervention.  Indeed, this Court stays the District Court’s preliminary injunction even though the Jail recently reported 15 new cases of COVID– 19 in a single week (even with the injunction in place), even though the Jail misrepresented under oath to the District Court the measures it was taking to combat the virus’ spread, and even though the Jail’s central rationale for a stay (that the injunction goes beyond federal guidelines) ignores the lower courts’ conclusion that the Jail’s measures fell “well short” of the Centers for Disease Control and Prevention (CDC) Guidelines...

At the time of the injunction, there were nearly 3,000 inmates still in the Jail’s care, 488 of whom were medically vulnerable to COVID–19.  “[H]aving stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials” must “‘take reasonable measures to guarantee the[ir] safety.’”  Farmer, 511 U.S., at 832–833; see also Valentine v. Collier, 590 U.S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.) (slip op., at 6–7) (“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm”).  The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.  Yet this Court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.  I respectfully dissent.

August 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 04, 2020

Noting some of McGirt's early and uncertain echoes

Just under a month ago, the Supreme Court, via a 5-4 vote, decided in McGirt v. Oklahoma, No. 18–9526 (S. Ct. July 9, 2020) (available here), that a huge part of the state of Oklahoma "remains an Indian reservation for purposes of federal criminal law."  The start of Chief Justice Roberts' dissent expressed concern about the potential fall-out from this ruling, and a number of recent press pieces are starting to address this story in detail.  Here is a recent round-up:

From the ABA Journal, "After SCOTUS tribal decision, inmates file appeals, prosecutors hand off cases"

From the Marshall Project, "Half of Oklahoma Is Now Indian Territory.  What Does That Mean for Criminal Justice There? Tribal courts and federal prosecutors face a flood of new cases after the Supreme Court ruling."

From the McAlester News-Capital, "Batton: 'More questions than answers' after McGirt ruling"

From the New York Times, "A Historic Supreme Court Ruling Upends Courts in Oklahoma. Local prosecutors are referring criminal cases to the federal and tribal courts, which are now flooded with new cases."

From the Tulsa World, "McGirt ruling 'not a get out of prison free card,' Oklahoma AG says in request for court's guidance"

August 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 03, 2020

"Is Death Different to Federal Judges?"

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

Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals.  However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. 

This Note addresses that gap in the literature.  The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review.  In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants.  It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants.  After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding.  It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

August 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Study details how Georgia execution rate is "substantially greater" for those convicted of killing white victims than for those convicted of killing black victims

This New York Times article, headlined "A Vast Racial Gap in Death Penalty Cases, New Study Finds," highlights new research on the intersection of race and the death penalty.  Here are excerpts from the press piece with a few of the original links to the original research:

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found.  Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims.

There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus.

But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution....

The McCleskey decision considered a study conducted by David C. Baldus, a law professor who died in 2011.  It looked at death sentences rather than executions, and it made two basic points.  The first was that the race of the defendant does not predict the likelihood of a death sentence.  The second was that the race of the victim does.  Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found.

The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

Though some have argued that Professor Baldus did not consider every possible variable, few question his bottom-line conclusion, and other studies have confirmed it. In 1990, the General Accounting Office, now called the Government Accountability Office, reviewed 28 studies and determined that 23 of them found that the race of the victim influenced “the likelihood of being charged with capital murder or receiving a death sentence.” “This finding was remarkably consistent across data sets, states, data collection methods and analytic techniques,” the report said. A 2014 update came to a similar conclusion.

One factor Professor Baldus could not analyze, given the decades that often pass between sentencings and executions, was whether the race of the victim correlated to the likelihood of the defendant being put to death. The new study, the product of exhaustive research, supplied the missing information. It found that 22 of the 972 defendants convicted of killing a white victim were executed, as compared with two of the 1,503 defendants convicted of killing a Black victim.

The new study also confirmed just how rare executions are. Of the 127 men sentenced to death in the Baldus study, 95 left death row thanks to judicial action or executive clemency; five died of natural causes; one was executed in another state; one escaped (and was soon beaten to death in a bar fight); and one remains on death row.

A more general and less granular 2017 study compared two sets of nationwide data: homicides from 1975 to 2005 and executions from 1976 to 2015. Its conclusions were similarly striking. About half of the victims were white, that study found, but three-quarters of defendants put to death had killed a white person. About 46 percent of the victims were Black, but only 15 percent of defendants who were executed had killed a Black person.

Eric M. Freedman, a law professor at Hofstra, said courts and lawmakers had failed to confront the question of racial bias in the administration of capital punishment. “The continuing adherence of the Supreme Court to McCleskey is a continuing statement that Black lives do not matter,” he said. “The continuing failure of Congress and the state legislatures to remedy the situation is a continuing admission that the states are unable to run racially unbiased death penalty systems.”

I always find in-depth exploration of the Baldus study and McClesky so interesting and important, in part because David Baldus discovered that even in Georgia in the 1970s, it appears that the race of the defendant had relatively little or no impact on who was ultimately sentenced to death.  That strikes me as itself a remarkable and encouraging finding, even though he reached the corresponding and discouraging finding that the race of the victim did have a huge impact on who was ultimately sentenced to death.  But, as Prof Randall Kennedy astutely explored in this terrific article published right after the McClesky decision, one logical response to these kinds of race-of-the-victim disparity studies is to call for far more executions of persons who kill black victims to signal in this context that black lives matter as much as white ones.

According to my quick searching using the DPIC database, it appears that only 3 of 25 persons executed in the United States in 2018 had black victims, whereas in 2019 there were 6 of 22 persons executed in the US who had black victims.  Should we be "celebrating" that black lives mattered more than twice as much in the operation of the US machinery of death in 2019 than in 2018?  Circa 2020 when the feds are now poised to be the most active of executioners, should we all be urging Attorney General Barr, as he continues adding names to the list of condemned to now be marched into the federal death chamber, to be working harder to pick from federal death row those killers with black victims?

My point here is just to recall in this context Prof Kennedy's important insight that the most ready response to these kinds of race-of-the-victim disparities may be to encourage more (capital) punishment, especially if we end up talking about these disparities in terms of certain victims not getting equal justice.   I would also add that I wish there was a lot more of this kind of race-of-the-victim sentencing disparity conducted concerning non-capital crimes.  I suspect and fear that there may be even more pernicious individual and community harms resulting from persistently unequal sentencing for those who commit sexual or property offenses with black victims.  

August 3, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Saturday, August 01, 2020

Noticing problems with crack sentence reduction retroactivity, especially when certain judges are discretionarily disinclined

The New York Times has this effective new article highlighting the ugly underbelly of the FRIST STEP Act's efforts to make sure the Fair Sentencing Act's reduction of crack sentences was fully retroactive.  The headline and subheadline of the piece serves as a summary: "Law to Reduce Crack Cocaine Sentences Leaves Some Imprisoned: Critics say the First Step Act is being applied too arbitrarily by judges who are taking a hard line when it comes to revisiting nonviolent drug sentences."  Here are excerpts from a piece worth reading in full:

By and large, the First Step Act has met its goal of reducing federal sentences for nonviolent drug offenders, addressing a longstanding disparity in which crack cocaine convictions in particular led to far harsher penalties than other drug offenses and disproportionately increased imprisonment of Black men.

Thousands of inmates across the country, predominantly people of color, have been released or resentenced under a provision of the new law that allowed changes to the sentencing provisions to be applied retroactively.  As of January, 2,387 inmates had their sentences reduced under the provision that allows some crack cocaine offenders to be resentenced, out of 2,660 that the United States Sentencing Commission estimated in May 2018 were eligible.

But the law gives judges discretion in reducing sentences, leaving some inmates like Mr. Maxwell without much recourse when their applications are rejected. In those cases, activists and defense lawyers worry that the First Step Act gives too much authority to judges to determine who does and does not deserve early release.  “It’s like the luck of the draw,” said Sarah Ryan, a professor at Wesleyan University who has analyzed hundreds of First Step Act resentencing cases.  “You’ve got people sitting in prison during a pandemic, and it’s not supposed to come down to who your judge is.  It’s supposed to come down to the law.”

The simple enactment of the bill was no guarantee for inmates.  This provision of the bill did not mandate that the judges must resentence eligible offenders; Congress specified that “nothing in this section shall be construed to require a court to reduce any sentence.”...

The section of the act that governs resentencing for crack cocaine convictions is just four sentences long.  It made retroactive the 2010 Fair Sentencing Act, which reduced sentencing disparities between crack and powder cocaine.  Courts have been relatively slow to determine some of the ambiguities of the act, including whether to consider behavior behind bars or other concurrent charges as factors in the decision.

Many public defenders — who handle most of these applications — in the toughest districts declined to speak on the record for fear of upsetting the judges who oversee their cases. Parks Small, a federal public defender in Columbia, S.C., said an imperfect First Step Act was still better than nothing, calling the bill a “godsend” for many inmates.  He added that judges varied as to the importance they placed on the original offense or the inmate’s behavior behind bars.  “You give it to different judges, they’re going to come up with different opinions,” Mr. Small said.  “It’s frustrating.”

August 1, 2020 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, July 31, 2020

First Circuit panel reverses death sentence of Boston Marathon bomber Dzhokhar Tsarnaev

Roughly five years after a jury handed down a death sentence to the Boston Marathon bomber Dzhokhar Tsarnaev back in May 2015, today a First Circuit panel reversed the sentence while affirming his convictions.  This local NPR piece provides the basics and some context:

A federal appeals court has overturned the death sentence of admitted Boston Marathon bomber Dzhokhar Tsarnaev, saying the trial judge didn't do enough to ensure an unbiased jury.

The First Circuit Court of Appeals Friday ordered a new penalty phase of the trial, where a new set of jurors would decide whether to sentence Tsarnaev to life or death.  "A core promise of our criminal-justice system is that even the very worst among us deserves to be fairly tried and lawfully punished," Judge O. Rogeriee Thompson wrote in her 182-page opinion.

The federal appeals court said that Judge George O'Toole didn't do enough to make sure jurors were not tainted by pretrial publicity.... "But as to 9 of the 12 seated jurors, the judge fell short on this front," Thompson wrote. "The judge qualified jurors who had already formed an opinion that Dzhokhar was guilty — and he did so in large part because they answered 'yes' to the question whether they could decide this high-profile case based on the evidence."

But by not having the jurors identify exactly what they already knew about the case, the judge couldn’t determine whether they were actually fit to serve. The First Circuit Court of appeals issued its decision Friday, after hearing arguments in the case in December 2019.

Tsarnaev and his older brother Tamerlan killed three and injured more than 260 people near the finish line of the marathon in 2013, then murdered a police officer several days later. Tamerlan was killed during the manhunt for the brothers. In 2015, a jury convicted Dzhokhar Tsarnaev of all 30 counts against him, and then handed down six death sentences.

Liz Norden, whose two sons J.P. and Paul each lost their right leg in the bombing, supported the death penalty for Tsarnaev. In an interview with WBUR Friday, she said the appeals court decision made her “sick to her stomach.” She said she’s sad at the prospect of a new penalty phase of the trial, but having sat through the first trial, is willing to do it again....

Bombing survivor Michelle L’Heureux said she was "sad and frustrated" by the decision. "We had closure. And now that’s gone," she said. "This is going to take a toll on so many of the survivors and the families of those who never made it home. I, fortunately, through my own recovery, have gained strength and have found ways to cope with the trauma of what I and so many suffered on that fateful day in April 2013. This is a step back for many. And that is a disgrace."

The family of Martin Richard, the youngest victim of the bombing at 8 years old, declined to comment. But they pointed to a letter they wrote in 2015, just after Tsarnaev was convicted but before he was sentenced. "To end the anguish, drop the death penalty," they wrote.

Instead of another sentencing phase, prosecutors and defense attorneys could agree to life in prison for Tsarnaev, avoiding another high-profile, weeks-long session in front of a new jury. Tsarnaev's attorneys admitted his guilt at the start of the trial in 2015, and sought a plea deal before going to trial....

Among the factors at play in what happens next is a new U.S. Attorney, Andrew Lelling, who replaced Carmen Ortiz, the U.S. Attorney who oversaw the Tsarnaev trial. Lelling on Friday said his office was reviewing the decision. Tsarnaev's federal public defenders said in a statement they were grateful for the court's straightforward and fair decision....

Tsarnaev is now 27 and remains at the federal supermax prison in Florence, Colorado. Thompson noted twice in her decision that the court's ruling does not mean Tsarnaev will ever be released from prison. "Make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution," she wrote. With another trial, however, he will be back in a Massachusetts courtroom.

The full opinion in this case is available at this link, and I welcome help from readers to identify the good, the bad and the ugly of this notable and very lengthy ruling.  I am especially interested in speculation about whether the feds will seek review with the full First Circuit or SCOTUS.  If they do, it could be years before we even know if there will be a need for a retrial.

July 31, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, July 28, 2020

US Sentencing Commission publishes "Federal Probation and Supervised Release Violations"

Cover_violations-report-2020The US Sentencing Commission today released this lengthy notable new report titled simply "Federal Probation and Supervised Release Violations." This USSC webpage provides a summary and a extended account of "key findings":

Summary

Federal Probation and Supervised Release Violations presents data on approximately 108,000 violation hearings that occurred between 2013 and 2017.  The report examines the prevalence, types, and locations of federal supervision violations as well as the characteristics of more than 82,000 violators. The report also compares supervision violators to the population of federal offenders originally sentenced to probation or a sentence including a term of supervised release during the same time period. (Published July 28, 2020)

Key Findings
  • Nationally, the number of individuals under supervision was relatively stable during the study period, ranging from 130,224 to 136,156 during the five years. Half of the individuals under supervision, however, were concentrated in only 21 of the 94 federal judicial districts.
  • Nationally, the rate of violation hearings for individuals on supervision also was relatively stable, ranging from 16.2 to 18.4 percent during the five years, with an overall rate of 16.9 percent.  The prevalence of supervision violations, however, varied considerably among the federal judicial districts.
    • Violations accounted for more than one-third of individuals on supervision in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%).  In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).
  • Supervision violators tended to have committed more serious original offenses than federal offenders whose original sentence was probation or included a term of supervised release during the same time period.
    • For example, the rates of supervision violators originally sentenced for violent and firearms offenses (7.9% and 20.4%, respectively) were approximately twice as high compared to offenders originally sentenced during the study period (3.7% and 12.8%, respectively), a finding which is consistent with prior Commission recidivism research.
  • Drug offenses were the most common primary offense type for both supervision violators and federal offenders whose original sentence was probation or included a term of supervised release during the same time period.  There were, however, notable variations by drug type.
    • For example, crack cocaine offenders accounted for only 9.9 percent of drug offenders whose original sentence was probation or included a term of supervised release, but they accounted for almost one-third (32.1%) of supervision violators, a greater proportion than any other drug type.  The disproportional representation of crack cocaine offenders among supervision violators is consistent with prior Commission recidivism research.  On the other hand, drug offenders who received the safety valve at their original sentencing were underrepresented among supervision violators (19.1% compared to 30.7%), a finding that also is consistent with prior Commission recidivism research.
  • Supervision violators tended to have more serious criminal histories than federal offenders whose original sentence was probation or included a term of supervised release.
    • Approximately one-quarter (24.6%) of offenders with supervision violations were in the lowest Criminal History Category (CHC I) at the time of their original sentencing compared to almost half (44.9%) of offenders whose original sentence was probation or included a term of supervised release during the study period. On the other end of the spectrum, 18.3 percent of offenders with supervision violations were in the highest Criminal History Category (CHC VI) at the time of their original sentencing compared to 9.9 percent of offenders whose original sentence was probation or included a term of supervised release during the study period. This pattern is consistent with prior Commission recidivism research.
  • The majority of supervision violations were based on the commission of an offense punishable by a term of one year or less or a violation of another condition of supervision not constituting a federal, state or local offense (Grade C Violation).
    • More than half (54.9%) of violations were Grade C (the least serious classification), nearly one-third (31.5%) were Grade B, and 13.6 percent were Grade A (the most serious classification).
  • Offenders who were originally sentenced for more serious offenses tended to commit more serious supervision violations.
    • For example, over four-fifths of the Grade A violations were committed by offenders originally sentenced for drug offenses (52.0%), firearms offenses (24.5%), or violent offenses (6.3%).
  • Offenders who violated their conditions of supervision typically did so within the first two years.
    • On average, 22 months elapsed from the time supervision commenced to the commission of the supervision violation, but the elapsed time was notably longer for Grade A violations (the most serious) at 33 months.
  • The majority of supervision violators were sentenced in accordance with the Chapter Seven Revocation Table.
    • More than half (59.8%) were within the applicable range, just over one-quarter (29.1%) were below the range, and 11.1 percent were above the range. Courts tended to impose sentences within the applicable guideline range less often for more serious supervision violations. For example, for Grade A violations (the most serious classification), 39.4 percent were sentenced within the applicable range, and 54.2 percent were sentenced below the range. In contrast, for Grade C violations (the least serious classification), 63.6 percent were sentenced within the range, and 22.1 percent were sentenced below the range.

July 28, 2020 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (6)

At resentencing, Senator Rand Paul's attacker gets additional 13 months (eight to be served in federal prison, six in home confinement)

This local article, headline "KY man who tackled U.S. Sen. Rand Paul sentenced to another 13 months confinement," provides some details from a high-profile resentencing that took place yesterday and included a number of interesting elements:

The neighbor who lost his temper and attacked Republican U.S. Sen. Rand Paul in 2017, breaking six of his ribs, has been sentenced to an additional 13 months confinement.  A federal judge initially sentenced Rene Boucher to 30 days in jail for the November 2017 attack, along with 100 hours of community service and a $10,000 fine.

During a video hearing Monday, U.S. District Judge Matthew F. Leitman handed down the new sentence against Boucher — eight months in prison and six months on home confinement.  However, Leitman gave Boucher credit for the 30 days he already served, so he will have seven more months behind bars.

Prosecutors had appealed the initial sentence for Boucher, arguing it was unreasonably light, and won the right to try to get a longer sentence.  That led to Monday’s hearing.  The new sentence for Boucher still wasn’t as long as the government wanted.  Assistant U.S. Attorney Brad Shepard objected to the sentence, which could lead to yet another appeal by the government for stiffer sentence for Boucher.

The attack made national news because of Paul’s position, but prosecutors have acknowledged it had nothing to do with politics.  Rather, Boucher, who lived next door to Paul in a gated community in Bowling Green, attacked Paul because he got angry over Paul stacking limbs and other yard waste near their shared property line, according to the court record....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.  Under advisory guidelines, Boucher faced a potential sentence of 21 to 27 months. Federal judges can impost sentences below those guidelines.

In handing down a lower sentence, U.S. District Judge Marianne O. Battani cited Boucher’s military service, his involvement in his church and her belief that the attack was out of character for Boucher.  However, the U.S. 6th Circuit Court of Appeals ruled that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

Shepard renewed a call for a 21-month sentence for Boucher because of the severity of Paul’s injuries.  The punishment also should to be tough enough deter similar attacks, Shepard said.  “The court I think needs to send the message . . . that we cannot continue as a society to resort to violence,” Shepard said.

Paul and his wife, Kelly, submitted written statements about the attack the first time Boucher was sentenced, but spoke in person during the video hearing Monday.  Paul said he’d never had cross words with Boucher and so had no idea he was unhappy before Boucher blindsided him.  Paul described the intense pain and his struggles to breathe after the attack, as well as the history of physical problems since, including bouts with pneumonia, night sweats and fever; coughing up blood; surgery to remove part of his scarred lung; and still more surgery to drain infected fluid.  Paul said his lung capacity will likely be reduced the rest of his life, and he has chronic pain.  “I don’t know what a night without pain is like, or a day without pain,” Paul said....

Boucher’s attorney, Matthew J. Baker, said Boucher is “profoundly sorry” for the attack, but argued against any additional time for Boucher, a physician.  Baker said Boucher’s initial sentence was appropriate, and that he had faced additional punishment by way of a judgment of more than $600,000 in a state civil lawsuit Paul filed against him over the attack.  That judgment included $375,000 in punitive damages, which by definition are to punish a defendant....

Lietman said it was heartbreaking to hear Paul and his wife describe the fallout from the attack. But the judge said he was choosing a sentence below the guideline range for several reasons, including Boucher’s long record of work with his church, his eight years as a U.S. Army doctor, the fact that the attack was out of character, and the damage to his reputation from the crime.  Leitman said $375,000 punitive damage award in state court also figured into his decision. “That’s a lot of punishment,” he said.

Leitman did not set a date for Boucher to begin the sentence.

I would be surprised if the feds go through with another appeal, and I would be even more surprised if they would prevail on a second appeal.  The Sixth Circuit panel opinion reversing the initial 30-day sentence made much of the original "dramatic downward variance" from a guideline minimum of 21 months, and Judge Lietman seems to have addressed some of the panel's chief concerns when imposing a longer sentence closer to the bottom of the advisory range.  And Judge Lietman's reliance on the civil punishment from the sizable punitive damage award would seem to be a distinctive additional factor supporting the reasonableness of a sentence below the guideline range.

Prior related posts:

July 28, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, July 27, 2020

Deputy AG defends federal executions that "operated entirely within the law"

Deputy Attorney General Jeffrey Rosen took to the pages of the New York Times to publish this piece defending the Justice Department's successful effort to move forward with three federal executions earlier this month.  Here are excerpts:

The death penalty is a difficult issue for many Americans on moral, religious and policy grounds.  But as a legal issue, it is straightforward.  The United States Constitution expressly contemplates “capital” crimes, and Congress has authorized the death penalty for serious federal offenses since President George Washington signed the Crimes Act of 1790.  The American people have repeatedly ratified that decision, including through the Federal Death Penalty Act of 1994 signed by President Bill Clinton, the federal execution of Timothy McVeigh under President George W. Bush and the decision by President Barack Obama’s Justice Department to seek the death penalty against the Boston Marathon bomber and Dylann Roof.

The recent executions reflect that consensus, as the Justice Department has an obligation to implement the law.  The decision to seek the death penalty against Mr. Lee was made by Attorney General Janet Reno (who said she personally opposed the death penalty but was bound by the law) and reaffirmed by then-Deputy Attorney General Eric Holder.  Mr. Purkey was prosecuted during the George W. Bush administration, and his conviction and sentence were vigorously defended throughout the Obama administration. The former judge who imposed the death sentence on Mr. Honken, Mark Bennett, said that while he generally opposed the death penalty, he would not lose any sleep over Mr. Honken’s execution.

In a New York Times op-ed published on July 17, two of Mr. Lee’s lawyers criticized the execution of their client, which they contend was carried out in a “shameful rush.”  That objection overlooks that Mr. Lee was sentenced more than 20 years ago, and his appeals and other permissible challenges failed, up to and including the day of his execution.  Mr. Lee’s lawyers seem to endorse a system of endless delays that prevent a death sentence from ever becoming real.  But his execution date was announced almost a year ago, and was initially set for last December. It was delayed when his lawyers obtained six more months of review by unsuccessfully challenging the procedures used to carry out his lethal injection....

[I]f the United States is going to allow capital punishment, a white-supremacist triple murderer would seem the textbook example of a justified case.  And if death sentences are going to be imposed, they cannot just be hypothetical; they eventually have to be carried out, or the punishment will lose its deterrent and retributive effects.

Rather than forthrightly opposing the death penalty and attempting to change the law through democratic means, however, Mr. Lee’s lawyers and others have chosen the legal and public-relations equivalent of guerrilla war.  They sought to obstruct by any means the administration of sentences that Congress permitted, juries supported and the Supreme Court approved.  And when those tactics failed, they accused the Justice Department of “a grave threat to the rule of law,” even though it operated entirely within the law enacted by Congress and approved by the Supreme Court.  The American people can decide for themselves which aspects of that process should be considered “shameful.”

A few of many recent prior related posts:

July 27, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, July 25, 2020

Is consideration of gender a must or a no-no in risk assessment tools?

The question in the title of this post is prompted by this latest new article in the on-going terrific Law.com/Legaltech News series unpacking modern risk assessment tools.  The headline and full subheadline of the piece reveals why it prompts this question: "Constitutional Brawl Looms Over How Risk Assessment Tools Account for Gender: Researchers say that scoring men and women differently is essential to account for risk assessment tools’ inherent gender bias.  But it’s an open question whether these adjustments are violating state or constitutional law."  I recommend the piece in full, and here are excerpts:

While there’s been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women’s Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees’ risk in a women’s prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections....

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. “What we know is when you look at gender, almost always—and in fact I don’t know of an exception—the average rearrest rate [for women] is always much lower than men.”  Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are....

There’s an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. “Basically the Supreme Court of the U.S. has pursued what’s called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions,” says Christopher Slobogin, professor of law at the Vanderbilt University Law School.  He adds, “It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups.”

However, in Slobogin’s own opinion, he does not think the “Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women.” He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that “use of gender as a risk factor plainly violates the Constitution.” 

July 25, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, July 24, 2020

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, July 22, 2020

You be the federal judge: what sentence for Senator Rand Paul's attacker at resentencing after 30 days deemed unreasonable?

Regular readers know that, more than 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, circuit courts still almost never find a sentence to be "substantively unreasonable" upon a defendant's appeal claiming the sentence was too high.  But last year, a Sixth Circuit panel decided, upon an appeal by the government, that a high-profile sentence was "substantively unreasonable" as too low.  The ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), concerned the sentencing resulting from Senator Rand Paul's neighbor attacking him while he was was mowing his lawn in 2017.  Now, as this local article highlights, it is time for resentencing after the Sixth Circuit vacated Boucher’s sentence as substantively unreasonable:

Federal prosecutors have renewed a push for a 21-month sentence for the man who tackled and injured U.S. Sen. Rand Paul in November 2017.

Rene Boucher deserves to spend more time behind bars because of the serious injuries Paul sustained, including six broken ribs that left him in intense pain and led to bouts of pneumonia and damage that ultimately required removing part of Paul’s lung, Assistant U.S. Attorney Bradley P. Shepard said in a memorandum filed Monday.

Shepard also argued that the initial 30-day sentence against Boucher wasn’t enough to deter other potential assaults on members of Congress.  “‘Aggressive’ rhetoric directed at our elected leaders is at a dangerously high level,” Shepard wrote.  “Although this case is lacking in evidence of political motivation, it is still important, in this climate, to send a message to society as a whole that assaults and violence perpetrated against members of Congress will not be tolerated.”

Boucher’s attorney, however, has argued it would be unjust to send him back to prison after he’s already completed his initial sentence, and moved to dismiss the case.

U.S. District Judge Matthew F. Leitman scheduled a sentencing hearing for Boucher on July 27.  Lietman, a judge in Michigan, is sitting as a special judge in Boucher’s case.

Paul, a doctor elected to the Senate in 2010, and Boucher, also a physician, lived next door to each other in a gated community in Bowling Green.  In the summer of 2017, Boucher trimmed five maple trees that were on Paul’s property, but had limbs sticking over the property line onto Boucher’s side, according to a motion from Boucher’s attorney, Matthew J. Baker. In response, Paul piled up a large stack of limbs and brush near the property line in Boucher’s view, Baker said....

[On] Nov. 3, 2017, Boucher saw Paul mowing his yard. Paul blew leaves into Boucher’s lawn and then got off the mower, picked up some limbs and turned toward the place where Boucher had burned the debris the day before, Baker said. Boucher lost his temper, ran 60 yards and tackled Paul from behind....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.

Paul, a Republican, suggested in a letter to the court that there was a political motive behind the attack, saying that Boucher’s anger toward him “comingles with his hatred of my political policies.”  However, Boucher has said the attack was driven solely by his anger over the yard waste, and prosecutors have acknowledged there was no evidence of a political motivation.

Under advisory guidelines, Boucher faced a potential sentence from 21 to 27 months, though judges can impose sentences outside those guidelines.  U.S. District Judge Marianne O. Battani sentenced Boucher to 30 days in prison, a $10,000 fine and 100 hours of community service, noting Boucher’s military service, career as a doctor and his involvement in his church.

Prosecutors appealed the sentence, arguing it was unreasonably short.  The U.S. 6th Circuit Court of Appeals ordered a new sentencing hearing for Boucher, ruling last September that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

In arguing for more time for Boucher, Shepard cited cases in which two people received as much jail time as he did only for throwing eggs at a member of Congress, and others in which people who attacked federal employees received much longer sentences.  The prosecutor also said that had Boucher’s case been handled in a Kentucky court, Paul’s injuries could have meant a charge of second-degree assault, punishable by five to 10 years in prison.

Baker, however, argued that Boucher’s initial sentence was legitimate and that putting him back in prison would amount to punishing him twice for the same crime....  Baker said it appears that the government is getting a do-over on Boucher’s sentencing because the victim is a U.S. senator.

Shepard, however, said it is not unusual for people to be re-sentenced after completing a sentence.  What Boucher wants, the prosecutor said, “is for those who have received exceptionally low sentences to get further special treatment in the form of a bar to resentencing.”

There are so many interesting elements to this resentencing, including the fact that there is a distinct new "outside judge" in charge of this resentencing.  I am inclined to predict Boucher will get a sentence somewhere between the 30 days originally imposed and the 21 months requested by the feds.  But I am eager to hear what readers think the new sentence should be. 

Prior related posts:

July 22, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5)

Tuesday, July 21, 2020

"Open Risk Assessment"

The title of this post is the title of this recent paper authored by Brandon Garrett and Megan Stevenson. Here is its abstract:

As criminal justice actors increasingly seek to rely on more evidence-informed practices, including risk assessment instruments, they often lack adequate information about the evidence that informed the development of the practice or the tool.  Open science practices, including making scientific research and data accessible and public, have not typically been followed in the development of tools designed for law enforcement, judges, probation, and others.  This is in contrast to other government agencies, which often open their processes to public notice and comment.

Lack of transparency has become pressing in the area of risk assessment, as entire judicial systems have adopted some type of risk assessment scheme.  While the types of information used in a risk tool may be made public, often the underlying methods, validation data, and studies are not.  Nor are the assumptions behind how a level of risk gets categorized as “high” or “low.”  We discuss why those concerns are relevant and important to the new risk assessment tool now being used in federal prisons, as part of the First Step Act.  We conclude that a number of key assumptions and policy choices made in the design of that tool are not verifiable or are inadequately supported, including the choice of risk thresholds and the validation data itself.  Unfortunately, as a result, the federal risk assessment effort has not been the hoped-for model for open risk assessment.

July 21, 2020 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

How many federal death row prisoners does Attorney General William Barr want to see executed in 2020?

The question in the title of this post has been in my head in the wake of last week's three federal executions and the clear signal sent by five members of the Supreme Court that they will not allow lower courts to get in the way of the Attorney General's execution plans.  As highlighted in posts last week here and here, the Supreme Court by 5-4 votes vacated a series of lower court stays and injunctions to enable the Justice Department to complete the scheduled executions of Daniel Lewis Lee and Wesley Ira Purkey.  By the end of the week, the pro-execution momentum was so strong that the third person executed, Dustin Lee Honken, apparently did not even pursue any final legal claims up to the Supreme Court.

Recall that it was only a month ago that AG Barr ordered the scheduling of these execution dates for last week (as well as one more set for August 28 for Keith Dwayne Nelson).  This reality suggests to me that AG Barr could, at just about any time for just about any reason, order the scheduling of one or many executions and have them carried our within a month's time.  There are 59 condemned persons on federal death row (full list here via DPIC), and I suspect at least a couple dozen of these death row defendants have exhausted the standard appellate and post-conviction remedies so that no legal impediments would currently prevent their executions.  Consequently, it would seem their fates now lie squarely and only in the hands of AG Barr and will turn on how he now decides to exercise his discretion in the setting of execution dates.

In DOJ statements concerning the setting of executions dates (here and here), AG Barr has repeatedly stated that "we owe it to the victims and their families to carry forward the sentence imposed by our justice system."  If AG Barr really believes this, will he be actively trying to set more execution dates (perhaps many more) in the weeks and months ahead?  Notably, former Vice President Joe Biden is campaigning for Prez on a promise to "Eliminate the death penalty": "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example."  If AG Barr really believes that justice calls for executing those now currently on federal death row, should he be seeking to complete as many executions as possible in 2020 just in case a new administration might not want to carry out these sentences in 2021? 

Recent prior related posts:

July 21, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Sunday, July 19, 2020

"American Roulette: The Social Logic of Death Penalty Sentencing Trials"

9780520344396The title of this post is the title of this recently published book authored by Sarah Beth Kaufman which now seem especially timely in light of the federal government's return to operating its machinery of death.  Here is the book description on the website of the publisher, University of California Press:

As the death penalty clings to life in many states and dies off in others, this first-of-its-kind ethnography takes readers inside capital trials across the United States.  Sarah Beth Kaufman draws on years of ethnographic and documentary research, including hundreds of hours of courtroom observation in seven states, interviews with participants, and analyses of newspaper coverage to reveal how the American justice system decides who deserves the most extreme punishment.  The “super due process” accorded capital sentencing by the United States Supreme Court is the system’s best attempt at individuated sentencing.  Resources not seen in most other parts of the criminal justice system, such as jurors and psychological experts, are required in capital trials, yet even these cannot create the conditions of morality or justice.  Kaufman demonstrates that capital trials ultimately depend on performance and politics, resulting in the enactment of deep biases and utter capriciousness.  American Roulette contends that the liberal, democratic ideals of criminal punishment cannot be enacted in the current criminal justice system, even under the most controlled circumstances.

The 15-page introduction to the text is available here, and here is an excerpt:

It would be sensible to assume that those who face capital punishment have committed the most atrocious murders and that their executions might serve as the strongest deterrent to others.  But these are not the criteria that determine who is “death-worthy” in the United States; ... Zacarias Moussaoui, who conspired to plan the 9/11 attacks, and Gary Ridgway, who was convicted of killing forty-nine women, for example, were both sentenced to life imprisonment.  Corinio Pruitt and Corey Wimbley each committed single robbery-murders and were sentenced to death by execution.  In the twenty-first century United States, between 14,000 and 17,000 homicides are committed each year, yet fewer than a hundred result in a sentence of death.  Those so chosen, according to prosecutors, judges, and legislators, are meant to be the “worst of the worst.”  During the past two decades, death sentencing has steadily decreased from its peak of 315 cases in 1996 to fewer than 50 in 2018....  This is a meaningful trend, but the capital punishment system continues to provide fodder for politicians touting “tough on crime” positions, feeding the myth that the capital punishment system identifies and punishes those most evil in American society.  Whether for or against the death penalty, few people are satisfied with the current system....

I came to think of the trials I witnessed as games of Russian roulette, unnecessary sport where someone would inevitably die, and that I had no power to stop.  Criminal defendants arrive at capital trials through a series of structuring logics ordained by racial classification and state power.  In part I, I take readers through the first major structuring logic: the construction of capital homicide.  From a vast backdrop of millions of human deaths a year, courts, legislatures, police forces, and prosecutors define some deaths as homicide — the result of malicious human intent — before settling on those worthy of being considered capital.  What I refer to as the “narrowing structure” of the capital punishment field is not unproblematic.  The cultural and legal norms that determine who eventually is tried by a capital jury follow confusing and often contradictory logics....  Importantly, the stages of capital narrowing are unknown to most of the parties involved.  Though I worked in capital sentencing for years, I had little idea about the mechanisms determining who was tried capitally.  Capital jurors, I will argue, are likewise and necessarily uninformed.  When they agree to participate in the capital sentencing process, they are assured that they are the last in a series of people who systematically ensure that those tried for capital murder are the worst society has to offer.

July 19, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, July 18, 2020

Washington and Lee Journal of Civil Rights and Social Justice explores federal sentencing realities and reform

The introductory essay I saw on SSRN (and blogged about here) altered me to the fact that the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice has a full set of terrific-looking articles about the modern federal sentencing system.  Here are the titles and links:

Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit by Nora V. Demleitner

Federal Sentencing: A Judge’s Personal Sentencing Journey Told Through the Voices of Offenders He Sentenced by Mark W. Bennett

Sentencing Disparities and the Dangerous Perpetuation of Racial Bias by Jelani Jefferson Exum

Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers by Mae C. Quinn and Grace R. McLaughlin

Technology’s Influence on Federal Sentencing: Past, Present, and Future by Matthew G. Rowland

Crime and Punishment: Considering Prison Disciplinary Sanctions as Grounds for Departure Under the U.S. Sentencing Guidelines
by Madison Peace

July 18, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (2)

Friday, July 17, 2020

"A Vision for the Modern Prosecutor"

The title of this post is the title of this intriguing new five-page document produced by the Executive Session of the Institute for Innovation in Prosecution at John Jay College. Here is the piece's introduction and some key elements:

In the wake of unprecedented and overdue attention on the criminal legal system and its role in our Nation’s legacy of racial injustice, as elected prosecutors and members of the Institute for Innovation in Prosecution’s Executive Session on the Role of the Prosecutor, we believe that it is possible to describe and call for an emerging vision for the role of a modern prosecutor.  In doing so, we find it necessary to contrast this vision with a description of the traditional ways that prosecutors have carried out their responsibilities.  In this paper we describe this contrast between traditional practice and a vision of the future by comparing their conceptions of justice, modes of operation, culture, accountability, and metrics. In making these contrasts, we celebrate the power and potential of the current wave of prosecutorial reform that we are witnessing around the country. We have high hopes that this movement will support the broader re-examination of our society’s response to crime and aspiration for justice.

Conceptions of Justice

Traditionally: Prosecutors have defined their role principally as part of a larger criminal justice system that operates with a primary focus on case processing....

We believe the future of prosecution requires that: Prosecutors explicitly set aside this notion of the criminal justice system as a case processing apparatus.... 

 

Modes of Operation

Traditionally: Prosecutors have been largely reactive....

We believe the future of prosecution requires that: Prosecutors no longer regard themselves as recipients of other actors’ cases or as limited by existing system options with respect to dispositions of those cases....

 

Culture

Traditionally: Prosecutors have been acculturated to consider themselves to be the “us,” and the “good guys,” in an “us vs. them” and “good vs. bad” world....

We believe the future of prosecution requires that: Prosecutors recognize the complexity of the people with whom they engage and of the matters to which they attend....

 

Accountability and Metrics

Traditionally: Prosecutors have relied on internal, narrow, and often ill-defined standards for judging their performance....

We believe the future of prosecution requires that: Prosecutors develop broad, explicit and transparent standards and expectations for their actions and outcomes....

Prosecutors must make violence and violence prevention a top priority.

July 17, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, July 16, 2020

Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection

As reported here earlier this week, the federal government completed the execution of Daniel Lewis Lee, which had been scheduled for Monday, around 8am on Tuesday morning after a divided  Supreme Court around 2am vacated lower court ruling that were blocking the execution.  It was déjà vu all over again today:  sometime not long after 2am this morning, the US Supreme Court issued this order vacating the injunction, with four Justices in dissent and Justices Breyer and Sotomayor writing up the basis for their disagreement.  This new AP article reports on the execution and some of the legal wrangling that preceded it:

The United States on Thursday carried out its second federal execution this week, killing by lethal injection a Kansas man whose lawyers contended he had dementia and was unfit to be executed.

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey was convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio....

As the lethal chemical was injected, Purkey took several deep breaths and blinked repeatedly, laying his head back down on the gurney. His time of death was 8:19 a.m. EDT. His spiritual adviser was in the room, wearing a face mask and a surgical mask and appeared to be praying, his gloved hands held together at the palms.

The Supreme Court cleared the way for the execution to take place just hours before, ruling in a 5-4 decision. The four liberal justices dissented, like they did for the first case earlier this week. Justice Sonia Sotomayor wrote that “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

It was the federal government’s second execution after a 17-year hiatus. Another man, Daniel Lewis Lee, was put to death Tuesday after his eleventh hour legal bids failed. Both executions were delayed into the day after they were scheduled as legal wrangling continued late into the night and into the next morning....

Purkey’s lawyers had argued his condition had deteriorated so severely that he didn’t understand why he was being executed. They said he was repeatedly sexually assaulted as a child and had been diagnosed with schizophrenia, bipolar disorder and other mental health conditions....

The Supreme Court also lifted a hold placed on other executions set for Friday and next month. Dustin Honken, a drug kingpin from Iowa convicted of killing five people in a scheme to silence former dealers, was scheduled for execution Friday.

We may see this pattern play out one more time this week, as I suspect that Honken still has some legal claims to press to try to block his execution tomorrow and that the Supreme Court will eventually turn away those claims so that his execution goes forward. DPIC has this webpage trying to track all the legal developments in all these cases, though it looks like they all are going to end the same way.

Some prior recent related posts:

UPDATE: Over at SCOTUSblog here, Amy Howe has an extended post with more details on the litigation and rulings leading up to Purkey's execution this morning under the headline "Justices allow second federal execution to proceed (updated)."

July 16, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, July 15, 2020

"Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit"

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

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment.  Sentencing has long been unfair to minority defendants, African Americans in particular, though the guidelines have in part mitigated racial disparities.  Still the injustices perpetuated through federal sentencing have reinforced larger racial biases and contributed to ongoing racial stereotyping.

Empirical research and today’s technology can help both decrease race-based differentials and bring about shorter and more rehabilitation-focused sentencing, as long as we have the will to follow their lead.  Ultimately, we need to bring compassion, mercy, and Menschlichkeit to sentencing. Criminal defendants are not the “other” but “of us.”  Those values need to be part of our legal experience and of legal education lest law become merely an exercise in logic or ideology.

July 15, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

DC District Judge blocks today's scheduled federal execution based on Ford claim of incompetency

As detailed in this new AP piece, this morning a DC District Judge "halted the execution of a man said to be suffering from dementia, who had been set to die by lethal injection in the federal government’s second execution after a 17-year hiatus." Here is more:

Wesley Ira Purkey, convicted of a gruesome 1998 kidnapping and killing, was scheduled for execution Wednesday at the U.S. Penitentiary in Terre Haute, Indiana, where Daniel Lewis Lee was put to death Tuesday after his eleventh-hour legal bids failed.

U.S. District Judge Tanya Chutkan in Washington, D.C., imposed two injunctions on Wednesday prohibiting the federal Bureau of Prisons from moving forward with Purkey’s execution. The Justice Department immediately appealed in both cases. A separate temporary stay was already in place from the 7th U.S. Circuit Court of Appeals.

The early morning legal wrangling suggests a volley of litigation will continue in the hours ahead of Purkey’s scheduled execution, similar to what happened when the government executed Lee, following a ruling from the Supreme Court. Lee, convicted of killing an Arkansas family in a 1990s plot to build a whites-only nation, was the first of four condemned men scheduled to die in July and August despite the coronavirus pandemic raging inside and outside prisons.

Purkey, 68, of Lansing, Kansas, would be the second, but his lawyers were still expected to press for a ruling from the Supreme Court on his competency. “This competency issue is a very strong issue on paper,” said Robert Dunham, executive director of the Death Penalty Information Center. “The Supreme Court has halted executions on this issue in the past. At a minimum, the question of whether Purkey dies is going to go down to the last minute.”

Chutkan didn’t rule on whether Purkey is competent but said the court needs to evaluate the claim. She said that while the government may disagree with Purkey’s lawyers about his competency, there’s no question he’d suffer “irreparable harm” if he’s put to death before his claims can be evaluated.

Lee’s execution went forward a day late. It was scheduled for Monday afternoon, but the Supreme Court only gave the green light in a narrow 5-4 ruling early Tuesday.

The issue of Purkey’s mental health arose in the runup to his 2003 trial and when, after the verdict, jurors had to decide whether he should be put to death in the killing of 16-year-old Jennifer Long in Kansas City, Missouri. Prosecutors said he raped and stabbed her, dismembered her with a chainsaw, burned her and dumped her ashes 200 miles (320 kilometers) away in a septic pond in Kansas. Purkey was separately convicted and sentenced to life in the beating death of 80-year-old Mary Ruth Bales, of Kansas City, Kansas.

But the legal questions of whether he was mentally fit to stand trial or to be sentenced to die are different from the question of whether he’s mentally fit enough now to be put to death. Purkey’s lawyers argue he clearly isn’t, saying in recent filings he suffers from advancing Alzheimer’s disease. “He has long accepted responsibility for the crime that put him on death row,” one of this lawyers, Rebecca Woodman, said. “But as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him.”

Purkey believes his planned execution is part of a conspiracy involving his attorneys, Woodman said. In other filings, they describe delusions that people were spraying poison into his room and that drug dealers implanted a device in his chest meant to kill him.

While various legal issues in Purkey’s case have been hashed, rehashed and settled by courts over nearly two decades, the issue of mental fitness for execution can only be addressed once a date is set, according to Dunham, who teaches law school courses on capital punishment. A date was set only last year. “Competency is something that is always in flux,” so judges can only assess it in the weeks or days before a firm execution date, he said.

In a landmark 1986 decision, the Supreme Court ruled the Constitution prohibits executing someone who lacks a reasonable understanding of why he’s being executed. It involved the case of Alvin Ford, who was convicted of murder but whose mental health deteriorated behind bars to the point, according to his lawyer, he believed he was pope.

Purkey’s mental issues go beyond Alzheimer’s, his lawyers have said. They say he was subject to sexual and mental abuse as a child and, at 14, was diagnosed with schizophrenia, bipolar disorder, major depression and psychosis. Last week, three mental health organizations urged U.S. Attorney William Barr to stop Purkey’s execution and commute his sentence to life in prison without possibility of parole. The National Alliance on Mental Illness, Mental Health America and the Treatment Advocacy Center said executing mentally ailing people like Purkey “constitutes cruel and unusual punishment and does not comport with ‘evolving standards of decency.’”

The mother of the slain teenager, Glenda Lamont, told the Kansas City Star last year she planned to attend Purkey’s execution. “I don’t want to say that I’m happy,” Lamont said. “At the same time, he is a crazy mad man that doesn’t deserve, in my opinion, to be breathing anymore.”

US District Judge Chutkan’s 14-page ruling granting a preliminary injunction to  halt the execution can be accessed here.  I was able to accurately guess at this time two days ago that Judge Chutkan's order blocking Daniel Lewis Lee's execution would get vacated on appeal.  But the nature of Purkey's claim make (as well as other litigation he has afoot) leads me to think it somewhat more likely that Purkey's scheduled execution will not go forward today.  But as I said before and will surely say again, one really never knows just what will happen when it comes to last-minute capital litigation.

July 15, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 14, 2020

"The United States of Risk Assessment: The Machines Influencing Criminal Justice Decisions"

The title of this post is the title of this very useful Law.com/Legaltech News article and related research project by Rhys Dipshan, Victoria Hudgins and Frank Ready. The subtitle of the piece provides an overview: "In every state, assessment tools help courts decide certain cases or correctional officers determine the supervision and programming an offender receives. But the tools each state uses varies widely, and how they're put into practice varies even more."  This companion piece, titled "The Most Widely Used Risk Assessment Tool in Each U.S State," provides this introduction:

There are dozens of risk assessment tools in use in local criminal justice systems around the country.  Not all have a far reaching impact, such as those specialized to a specific risk like domestic violence or those assessing risk for a certain demographic like juvenile offenders.  Tools that have the broadest impact and deployment, however, are ones that look at recidivism pretrial risk in adult populations.

Below, we highlight these specific tools in use in each state, and the criminal justice decisions point they influence.  These findings are part of a broader research project examining how jurisdictions implement risk assessment tools, and how they determine they accurately work and are implemented as intended.  The project also dives into how risk assessment tools generate their scores and the debate around whether these instrument exacerbate or mitigate bias in criminal justice decision making.

July 14, 2020 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (2)

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

July 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, July 12, 2020

Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13

As reported in this USA Today piece, a Seventh Circuit panel this evening "ruled that the first federal execution in 17 years should go forward Monday, despite concerns raised by the victims' family members that the resurgent coronavirus risked the health of those who planned to witness Daniel Lewis Lee's death by lethal injection."  Here is more:

The court found that the family's argument "lacks any arguable legal basis and is therefore frivolous."

U.S. District Judge Jane Magnus-Stinson on Friday sided with family members who asserted that the pandemic posed an unreasonable health risk to them as witnesses to execution in Terre Haute, Indiana. “The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety," the attorney for the family said Sunday.

The family had planned to attend Lee's execution, even though they are opposed to Lee's death sentence for the murders of William Mueller, his wife, Nancy, and her daughter, 8-year-old Sarah Powell. Earlene Branch Peterson, 81, the young victim's grandmother, and other family members have argued that Lee's co-defendant was the unquestioned ringleader in the 1996 robbery-murder yet was sentenced to life in prison.

The Arkansas judge who presided at trial and the lead prosecutor in the case also have expressed their opposition to Lee's death sentence.

"Because the government has scheduled the execution in the midst of a raging pandemic, these (family members) would have to put their lives at risk to travel cross-country at this time," the family's attorney said. "They will now appeal the Seventh Circuit Court of Appeals’ decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible.”

The full panel opinion in Peterson v. Barr, No. 20-2252 (7th Cir. July 12, 2020) (available here), runs ten pages and is unanimous.  When I saw that a stay had been entered late Friday by the district court, I was a bit surprised that it focused on the Federal Death Penalty Act and that no mention was made of the federal Crime Victims' Rights Act. The Seventh Circuit panel was plainly unimpressed with arguments based on the FDPA, and now it might be too late for any arguments based in the CVRA. 

I believe various other claims by defendant Lee have been rejected by lower courts, and I am sure they are all going to get to SCOTUS is short order.  But I will be surprised if a majority of the Justices are going to disrupts the feds execution plans.

Prior recent related post:

July 12, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)