Tuesday, July 09, 2019

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

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

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

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

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

And here is a concluding substantive paragraph from the dissent:

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

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

Monday, July 08, 2019

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

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

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

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

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

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

Prior related posts:

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

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

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

Some news and notes surrounding latest indictment of Jeffrey Epstein

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

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

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

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

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

Is Mass-Incarceration Inevitable? by Andrew Leipold

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

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

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

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

Friday, July 05, 2019

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

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

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

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

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

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

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

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

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

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

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

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

A few prior recent related posts:

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

Wednesday, July 03, 2019

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

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

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

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

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

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

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

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

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

Tuesday, July 02, 2019

"The Founders' Forfeiture"

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

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

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

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

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

Monday, July 01, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 28, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Thursday, June 27, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Wednesday, June 26, 2019

"The Future of Presidential Clemency Decisionmaking"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And here is how Justice Alito's dissent starts:

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

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

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

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

Tuesday, June 25, 2019

District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, ever since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions.  Though to date it seems this imprisonment-reduction authority granted by 3582(c)(1)(A) has been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation, I posted here yesterday a recent example of a judge finding other reasons sufficient to reduce a sentence and making clear that the new FIRST STEP Act allows a judge broad authority to "determine whether any extraordinary and compelling reasons" justified a reduction in a prison term.  United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019).

Interestingly, around the time I was blogging about the Cantu ruling, another US District Court judge was issuing another important § 3582(c)(1)(A) ruling in United States v. Cantu-Rivera, Cr. No. H-89-204 (SD Tex. June 24, 2019) (available for download below).  This one, penned by Judge Sim Lake, is the first cases I have seen in which a defendant serving an LWOP sentence has had his sentence reduced to time served (30 years!) via a motion under § 3582(c)(1)(A).  This new Cantu-Rivera ruling, which runs only six pages and merits a full read, includes these notable passages:

Mr. Cantu-Rivera meets the age-related definition of extraordinary and compelling circumstances in U.S.S.G.§ lBl.13, comment. (n.l(B)).  He is 69 years old, he is experiencing serious deterioration in physical health because of the aging process (arthritic conditions in multiple joints, cataracts, diabetes, prostrate conditions), and he has served 30 years in prison....

The Court also recognizes the extraordinary degree of rehabilitation Mr. Cantu-Rivera has accomplished during the 30 years he has been incarcerated.  That rehabilitation includes extensive educational achievements, including Mr. Cantu-Rivera's completion of over 4,000 hours of teaching while in federal prison to complete a Teaching Aide apprenticeship with the Department of Labor.  The extraordinary degree of rehabilitation is also evident in Mr. Cantu-Rivera's service as a teaching assistant in several prison facilities for high-school equivalency and English-as-a­ Second-Language programs and his service in the BOP's suicide watch program, helping to care for inmates placed in solitary confinement due to suicide attempts.  Finally, the Court recognizes as a factor in this combination the fundamental change to sentencing policy carried out in the First Step Act's elimination of life imprisonment as a mandatory sentence solely by reason of a defendant's prior convictions.  § 401(a)(2)(A)(ii), 132 Stat. at 5220 (codified at 21 U.S.C. § 841(b)(1)(A)).  The combination of all of these factors establishes the extraordinary and compelling reasons justifying the reduction in sentence in this case.

Download Cantu-Rivera Opinion

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

June 25, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"The Opposite of Punishment: Imagining a Path to Public Redemption"

The title of this post is the title of this new short paper authored by Paul Robinson and Muhammad Sarahne. Here is its abstract:

The criminal justice system traditionally performs its public functions — condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms — through the use of negative examples: convicting and punishing violators.  One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness.  An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.

This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

June 25, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, June 24, 2019

New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 18 U.S.C. § 3582(c)(1)(A)

As regular readers know, even since the passage of the FIRST STEP Act, I have been talking up 18 U.S.C. § 3582(c)(1)(A) as a critical and valuable new mechanism to reduce problematic prison sentences in any and every case in which the defendant presents "extraordinary and compelling reasons" for the reductions. To date, it seemed that the imprisonment reduction authority granted by 3582(c)(1)(A) had been used almost only for so-called compassionate release situations in which a prisoner was extremely ill or had an extreme family situation.

But now, thanks to this posting by Shon Hopwood, I see that District Court Judge Marina Garcia Marmolejo resentenced Conrado Cantu under this provision via a thorough and thoughtful order explaining why, in the wake of the FIRST STEP Act, "when a defendant brings a motion for a sentence reduction under the amended provision, the Court can determine whether any extraordinary and compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant granting relief." United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019) (reprinted opinion available for download below).

As Shon explains in this post, this Cantu case may be the first in which a federal judge has "held that nothing in the statutory text of § 3582(c), nor the Sentencing Guidelines, precludes a judge from making its own determination of what are 'extraordinary and compelling' circumstances warranting a reduction of sentence."  Shon and I think this is exactly the right reading of 18 U.S.C. § 3582(c)(1)(A) after the changes made by the FIRST STEP Act.  Before FIRST STEP, the Bureau of Prisons was the gatekeeper for what motions should be brought for a reduction of imprisonment based on "extraordinary and compelling reasons."  Congress was clearly discontent with how that was going (and for good reason), and so now judges are to decide without a gatekeeper when  a term of imprisonment should be reduced based on "extraordinary and compelling reasons."

In light of all the big federal criminal justice rulings on behalf of criminal defendants in the last few days (especially Rehaif and Davis), I am wondering and hoping litigants and judges might now start to see the value of using 18 U.S.C. § 3582(c)(1)(A) to operationalize some new precedents rather than rely only or even primarily on 2255 motions.  There are a number of problematic procedural issues that can arise when a prisoner tries to get a favorable SCOTUS ruling applied retroactively through a 2255 motion.  But if the prisoner can show that a new SCOTUS ruling is part of what provides "extraordinary and compelling reasons" for a prison reduction (and such a reduction is in keeping with the traditional 3553(a) factors), perhaps motions via 3582(c)(1)(A) will go down easier than 2255 motions.

Download United States v Cantu

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

June 24, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Gundy, Rehaif and Davis, oh my: object lessons in results-oriented jurisprudence

Wo-maab21165With apologies to Dorothy and with uncertainty about just which Justices should be cast as the Tin Man, Scarecrow and Cowardly Lion, the title of this post is meant in part to reflect how I am feeling overwhelmed trying to process the results and votes in three big federal criminal justice cases over the last three workdays, namely Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here; discussed here), Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here; discussed here), and US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here; discussed here). 

Beyond being overwhelmed by 150+ pages of dense SCOTUS text, I am also struck by my sense that so many of the Justices in these cases have had their opinions shaped by the likely or feared results of a ruling one way or another.  To this end, this passage from the majority opinion penned by Justice Gorsuch today in Davis caught my eye:

In the end, the dissent is forced to argue that holding §924(c)(3)(B) unconstitutional would invite “bad” social policy consequences.  Post, at 34.  In fact, the dissent’s legal analysis only comes sandwiched between a lengthy paean to laws that impose severe punishments for gun crimes and a rogue’s gallery of offenses that may now be punished somewhat less severely.  See post, at 1–2, 30–34.  The dissent acknowledges that “the consequences cannot change our understanding of the law.”  Post, at 34.  But what’s the point of all this talk of “bad” consequences if not to suggest that judges should be tempted into reading the law to satisfy their policy goals?

I am not inclined to use this post to rail against results-oriented jurisprudence, in part because I think all jurisprudence is results-oriented in one sense or another.  But with Gundy, Rehaif and Davis all so new and raw, and with surely lots of fall-out and follow-up to flow from these decisions, I could not resist a post spotlighting a little (Emerald City) legal realism.  And with Haymond still in the works, perhaps even the Sixth Amendment Wizard will be revealed before too long.

P.S.:  If anyone is eager to cast certain Justices as the Tin Man, Scarecrow and Cowardly Lion (or the Wicked Witch or Glinda or the Wizard or Auntie Em or even Toto), feel free to have at it in the comments.

UPDATE: Here are links to the SCOTUSblog analyses of these opinions:

On Gundy by Mila Sohoni, "Court refuses to resurrect nondelegation doctrine"

On Rehaif by Evan Lee, "Felons-in-possession must know they are felons"

On Davis by Leah Litman, "Vagueness doctrine as a shield for criminal defendants"

June 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS, ruling 5-4, finds part of 924(c) unconstitutionally vague in Davis

This morning the Supreme Court in US v. Davis, No. 18-431 (S. Ct. June 24, 2019) (available here), has issues another huge ruling finding an important federal criminal statute unconstitutionally vague. The majority opinion in Davis is authored by Justice Gorsuch and starts this way:

In our constitutional order, a vague law is no law at all.  Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them.  Vague laws transgress both of those constitutional requirements.  They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.  When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U. S. C. §924(c).  That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes?  The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” § 924(c)(3)(B).  Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague.  So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history.  Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Justice Kavanaugh authors a very lengthy dissent for himself and three other Justices that starts this way:

Crime and firearms form a dangerous mix. From the 1960s through the 1980s, violent gun crime was rampant in America.  The wave of violence destroyed lives and devastated communities, particularly in America’s cities.  Between 1963 and 1968, annual murders with firearms rose by a staggering 87 percent, and annual aggravated assaults with firearms increased by more than 230 percent.

Faced with an onslaught of violent gun crime and its debilitating effects, the American people demanded action. In 1968, Congress passed and President Lyndon Johnson signed the Gun Control Act.  That law made it a separate federal crime to use or carry a firearm during a federal felony. Despite that and other efforts, violent crime with firearms continued at extraordinarily dangerous levels.  In 1984 and again in 1986, in legislation signed by President Reagan, Congress reenacted that provision of the 1968 Act, with amendments.  The law now prohibits, among other things, using or carrying a firearm during and in relation to a federal “crime of violence.” 18 U. S. C. §924(c)(1)(A).  The law mandates substantial prison time for violators.

Over the last 33 years, tens of thousands of §924(c) cases have been prosecuted in the federal courts. Meanwhile, violent crime with firearms has decreased significantly.  Over the last 25 years, the annual rate of murders with firearms has dropped by about 50 percent, and the annual rate of nonfatal violent crimes (robberies, aggravated assaults, and sex crimes) with firearms has decreased by about 75 percent.  Violent crime in general (committed with or without a firearm) has also declined. During that same time period, both the annual rate of overall violent crime and the annual rate of murders have dropped by almost 50 percent.  Although the level of violent crime in America is still very high, especially in certain cities, Americans under the age of 40 probably cannot fully appreciate how much safer most American cities and towns are now than they were in the 1960s, 1970s, and 1980s.  Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem.  The Court’s decision today will make it harder to prosecute violent gun crimes in the future.  The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders.  They are not drug offenders.  They are offenders who committed violent crimes with firearms, often brutally violent crimes.

June 24, 2019 in Gun policy and sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Supreme Court grants cert on AEPDA rules limiting habeas petitions

The Supreme Court this morning via this order list granted cert on a number of cases, one of which, Banister v. Davis, 18-6943, concerns federal habeas procedures.  Here is how the grant appears on the order list:

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).

June 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, June 22, 2019

"Judges should be able to take a 'second look' at prison sentencing"

The title of this post is the title of this recent USA Today op-ed authored by Kevin Sharp and Kevin Ring. Based on the title alone, regular readers should know I am keen on the ideas in this piece, and here are excerpts:

It’s time we took bold steps that would give most prisoners an incentive to work hard to change their lives and successfully reintegrate into society, making us all safer when they do. It’s time for Congress and state legislatures to adopt broad “second look” sentencing laws.

We have both worked with people who have taken extraordinary steps to rehabilitate themselves in prison. One of us is a former federal judge who resigned, in large part, because he could no longer stand to impose the excessive and unjust prison terms Congress mandates in so many cases. The other is a former prisoner and the leader of a national organization that works with thousands of families directly impacted by harsh federal and state sentencing laws.

We know that implementing second-look laws, which would allow judges to review every offender’s sentence after a certain period — say 10 or 15 years — could reform our criminal justice system in a way that would recognize the capacity for rehabilitation, ensure public safety and reduce excessive sentences.

Second-look laws would give any individual hoping for a second chance more than enough time to show that he or she has earned it. Knowing that an opportunity for resentencing exists would very likely improve morale and behavior inside prisons, benefiting prisoners and corrections officers alike.

There is nothing more frightening than living in an environment where there is no hope. Moreover, there is ample evidence to suggest that lengthier sentences do not make us safer, yet our country continues to impose some of the harshest prison terms in the Western world....

Although presidents and many governors have the authority to shorten excessive sentences and reward extraordinary rehabilitation, they rarely use it. Over the past 40 years, executives have been loath to take any risks with their political futures. We need to move beyond short-term fear and follow what we know to be true about human nature and people’s capacity to change. Enacting second-look laws would allow us to reduce the unnecessary harm we are causing to some of our fellow citizens and improve public safety for all of us.

Under second-look laws, public safety would be preserved by ensuring that prosecutors, probation officers and pretrial services, along with prison officials, are involved in any resentencing in order to make the court aware of a given individual’s rehabilitation, or lack thereof. It’s more likely that adopting second-look laws would make our communities safer and decrease the strain on our prison system by preventing us from wasting our limited anti-crime resources warehousing people who pose little or no safety risk.

If we want to safely reduce our nation’s prison population, we need to stop throwing people away and start recognizing the human capacity for rehabilitation and redemption. We need to commit to second chances, and we can start by promising to give everyone a second look.

A few of many, many prior related posts and related writings:

June 22, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, June 21, 2019

SCOTUS finds mens rea of "knowing" distributes in gun statute in Rehaif

The Supreme Court ruled for a federal criminal defendant today in classic criminal law mens rea case in Rehaif v. US, No. 17-9560 (S. Ct. June 21, 2019) (available here). Justice Breyer authored the opinion for the Court, which starts this way:

A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid.  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.”  Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?  We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status.  To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

Justice Alito penned a lengthy dissent, which was joined by Justice Thomas and starts this way:

The Court casually overturns the long-established interpretation of an important criminal statute, 18 U. S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question.  That interpretation has been used in thousands of cases for more than 30 years.  According to the majority, every one of those cases was flawed. So today’s decision is no minor matter.  And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law.  It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens.

Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions.  Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts.  A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review.

June 21, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS finds Batson violation based on "extraordinary facts" in Flowers

The Supreme Court ruled for a criminal defendant today in a Batson challenge in Mississippi v. Flowers, No. 17-9572 (S. Ct. June 21, 2019) (available here). As with all criminal cases, I find the line up of the Justices notable:

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined as to Parts I, II, and III.

Here is part of the start of the lengthy opening of the opinion of the Court:

In Batson v. Kentucky, 476 U.S. 79 (1986), this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.

In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.

In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to “numerous instances of prosecutorial misconduct.”  Flowers v. State, 773 So. 2d 309, 327 (2000)....

In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors.  On appeal, Flowers argued that the State again violated Batson in exercising peremptory strikes against black prospective jurors. In a divided 5-to-4 decision, the Mississippi Supreme Court affirmed the conviction.  We granted certiorari on the Batson question and now reverse....

Four critical facts, taken together, require reversal....

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U.S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground.  We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. 

June 21, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Thursday, June 20, 2019

SCOTUS plurality says SORNA delegation of statute's reach to Attorney General "easily passes constitutional muster"

The Supreme Court this morning finally released its opinion in Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here). Justice Kagan authored the lead opinion (joined by Justices Breyer, Ginsburg and Sotomayor), which starts this way:

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. §20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not.  Under §20913(d), the Attorney General must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment.  That delegation easily passes constitutional muster.

Here is the full text of Justice Alito's concurrence, which served to provide the key fifth vote for the outcome:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.  But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

Justice Gorsuch's opinion, joined by the Chief Justice and Justice Thomas, starts this way:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design.  It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.  Yes, those affected are some of the least popular among us.  But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

Today, a plurality of an eight-member Court endorses this extraconstitutional arrangement but resolves nothing.  Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General.  But JUSTICE ALITO supplies the fifth vote for today’s judgment and he does not join either the plurality’s constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full Court, to revisit these matters.  Respectfully, I would not wait.

The time it took for Gundy to be resolved and this outcome suggests that the delay of Justice Kavanaugh's confirmation turned out to be a big deal in this one case.

June 20, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, June 19, 2019

New Compassionate Release Clearinghouse to match lawyers with prisoners seeking release after FIRST STEP Act

This new press release, titled "FAMM, Washington Lawyers’ Committee, NACDL Launch Compassionate Release Clearinghouse," reports on an exciting new resource for helping to better implement a part of the FIRST STEP Act. Here are the details:

Thousands of sick, dying, and elderly federal prisoners who are eligible for early release will now have access to free legal representation in court through the newly established Compassionate Release Clearinghouse. The clearinghouse, a collaborative pro bono effort between FAMM, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL), is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.

“People who can barely make it out of their beds in the morning should not have to go into court alone against the largest law firm in the nation,” said Kevin Ring, president of FAMM. “Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses. It’s gratifying to know we will be able to help people in a tangible and meaningful way.”

The Compassionate Release Clearinghouse recruits, trains, and provides resources to participating lawyers. The Clearinghouse’s design and implementation is being assisted by the Washington, D.C., law firm of Zuckerman Spaeder LLP through its partner Steve Salky.

“Sick and dying prisoners for years were unjustly denied release on compassionate release grounds by the Bureau of Prisons,” said Jonathan Smith, Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Now, prisoners will be assisted by dedicated and high-quality lawyers in seeking relief from the courts, evening the playing field, and allowing many of these prisoners to return home.”

The effort was made possible by the passage of the First Step Act, which addresses a well-documented, three-decades-long issue in which sick, elderly, and dying prisoners have been routinely denied early release by the Bureau of Prisons (BOP). Until December 2018, there was no mechanism to challenge or appeal those decisions. Now, prisoners are allowed to appeal directly to a sentencing judge if their petitions are denied or unanswered.

Since the passage of the First Step Act, prisoners have been filing motions for release, and some have been challenged by federal prosecutors. The Compassionate Release Clearinghouse will make sure those prisoners have an attorney to fight for them in court.

“NACDL is proud to participate in this critically important effort,” said NACDL Executive Director Norman L. Reimer. “To make the promise of the First Step Act a reality for qualified sick, elderly, and dying prisoners, the nation’s criminal defense bar is committed to recruiting pro bono attorneys to be champions for those in need. Additionally, NACDL’s First Step Implementation Task Force will aggregate resources to support attorneys who undertake this important work.”

The Clearinghouse started matching attorneys with prisoners in need in February, and has matched more than 70 cases with pro bono attorneys. The Clearinghouse is actively recruiting additional attorneys and law firms to join in the effort.

As regular readers may recall (and as I have stressed in a number of prior posts), because  18 U.S.C. § 3582(c)(1)(A), the provision of federal law often known as "compassionate release," allows a court to reduce a prison sentence based on any and all "extraordinary and compelling reasons," it should not only be the "sick, dying, and elderly federal prisoners" who are potentially eligible for early release.  But, as this press release highlights, because there is already a history of extreme resistance toward releasing even the most deserving under this provision, it is heartening to see these groups work to make sure prisoners can get needed legal help to benefit from the reforms Congress is surely eager to see given full effect.

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

June 19, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets"

The title of this post is the title of this notable new dynamic online report from the Council of State Governments Justice Center. Everyone should check out the link to the report to see the dynamic features built therein, and here is some of the text from the report (with all caps from the original):

Probation and parole are designed to lower prison populations and help people succeed in the community. New data show they are having the opposite effect. Until now, national data regarding the impact of probation violations on prison populations have been unavailable, resulting in a lopsided focus on parole. The Council of State Governments (CSG) Justice Center recently engaged corrections and community supervision leaders in 50 states to develop the first complete picture of how probation and parole violations make up states’ prison populations. The analysis revealed a startling reality.

45% OF STATE PRISON ADMISSIONS nationwide are due to violations of probation or parole for new offenses or technical violations.

Technical violations, such as missing appointments with supervision officers or failing drug tests, account for nearly 1/4 OF ALL STATE PRISON ADMISSIONS.

On any given day, 280,000 PEOPLE in prison — nearly 1 IN 4 — are incarcerated as a result of a supervision violation, costing states more than $9.3 BILLION ANNUALLY.

Technical supervision violations account for $2.8 BILLION of this total amount, and new offense supervision violations make up $6.5 BILLION. These figures do not account for the substantial local costs of keeping people in jail for supervision violations.

IN 13 STATES, MORE THAN 1 IN 3 PEOPLE in prison on any given day are there for a supervision violation.

IN 20 STATES, MORE THAN HALF OF PRISON ADMISSIONS are due to supervision violations.

Variation in these proportions across states is shaped by the overall size of each state’s supervision population, how violations are sanctioned, whether those sanctions are the result of incarceration paid for by the state or county, and how well state policy and funding enable probation and parole agencies to employ evidence-based practices to improve success on supervision.

June 19, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

"Testing Periods and Outcome Determination in Criminal Cases"

The title of this post is the title of this important new article authored by Fiona Doherty and now available via SSRN. Here is its abstract:

This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining.  Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison.  Juries play no role in the system, and due process requirements diverge sharply from traditional norms.

The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication.  The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test.  The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason.  The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.” 

June 19, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, June 17, 2019

Via lengthy opinions, SCOTUS preserves "dual sovereignty" doctrine in Gamble

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding "dual sovereignty" doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court's majority opinion, authored by Justice Alito, gets started:

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so "to address the proper role of the doctrine of stare decisis." Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch's dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.

June 17, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Another notable new GVR by SCOTUS "to consider the First Step Act of 2018" over DOJ opposition

In this post two weeks ago, I flagged the interesting Supreme Court decision in Wheeler v. US to grant, vacate and remand the case to allow courts below "to consider the First Step Act of 2018."  In that case, petitioner asserted that a provision of the FIRST STEP Act changed the applicable mandatory minimum while his case was on appeal.  The Government responded that the FIRST STEP Act was not applicable once a case was on appeal, but SCOTUS decided to send the case back to the Third Circuit to consider the issue.

Now a second case, Richardson v. US, No. 18-7036, has received similar treatment via this new SCOTUS order list. In Richardson, the defendant received an extremely long sentence has on stacked 924(c) gun counts, and following the passage of the FIRST STEP Act, Richardson filed this supplemental brief asserting he is now "entitled to be resentenced under the recently passed First Step Act of 2018."  Once again, the Justice Department asserted in this response that "the First Step Act is unambiguously inapplicable here" and so provides "no sound basis" for a grant, vacate and remand. 

In the end, it seems SCOTUS thought there was a sound basis for a GVR in this case, because that is just what the Court did in order to enable the Sixth Circuit have the first crack at what I call a "pipeline" issue about the applicability of the FIRST STEP Act to cases in the pipeline when the Act was passed.

June 17, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 16, 2019

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

June 16, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

"Science and Ethics of Algorithms in the Courtroom"

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

This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom.  Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions.  This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’s current approach to punishment and rehabilitation.

By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime. Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society.

Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs.  This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms.  This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom.  The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves.

June 16, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (0)

Saturday, June 15, 2019

"Criminal Clear Statement Rules"

The title of this post is the title of this notable new paper authored by Carissa Byrne Hessick and Joseph Edward Kennedy available via SSRN. Here is its abstract:

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive.  Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws.  The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face.  But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes.

The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers.  Legislatures can overcome those values, but only if they do so affirmatively and unambiguously.  Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values.  Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. 

The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner.  In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules.  One rule would create a default presumption of a knowing mental state requirement for material elements.  The other would impose a substantial harm requirement.  Both would markedly improve the state of modern criminal law.

June 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Two different stories undermining prosecutors' claims that "we do not make the laws, we just enforce them"

Criminal justice reformers have come to give so much attention to the role of prosecutors because of the wide-spread realization of the profound power of prosecutors to shape the nature and application of modern criminal justice systems.  In this context, some prosecutors are eager to claim that they ought not be the focus of so attention (and criticism) because they are just tasked with enforcing the law and not making it.  Usefully, Josie Duffy Rice last year in in this commentary at The Appeal, headlined "Prosecutors Aren’t Just Enforcing The Law  — They’re Making It," did a terrific job highlighting numerous examples of how "DA associations are using [their] power to defeat a wide range of bipartisan reform efforts."  Similarly, others have spotlighted how, in this words of this piece, "Prosecutors Are Banding Together to Prevent Criminal-Justice Reform." 

Two recent stories about prosecutors, one state and one federal, have me thinking about these issues today.  The state one comes from Oregon and provides another example of prosecutors trying to shape the applicable criminal law.  It is reported in this new local article fully headlined: "District Attorneys Quietly Passed the Hat to Overturn New Oregon Laws Reducing Jail Time; Emails newly obtained by WW illustrate a deep divide in the state, between the people who make the laws and the people who enforce them."

The federal story is not about prosecutors seeking to make the law, but rather about their disinclination to enforce the law against persons from their ranks.  This Hill commentary, headlined "Feds gone wild: DOJ's stunning inability to prosecute its own bad actors," explains the ugliness here:

One was caught red-handed engaged in nepotism.  Another, a lawyer no less, admitted to shoplifting at a Marine barracks store.  A third leaked sealed court information to the news media. And a fourth engaged in fraud by turning a government garage into a personal repair shop.

Four cases, all solved in the past month, with suspects who cost taxpayers hundreds of thousands of dollars and significant breaches of public trust.

But these weren’t your everyday perps.  All were U.S. Department of Justice (DOJ) employees who are supposed to catch other criminals while working for the FBI, the Drug Enforcement Administration (DEA) and U.S. attorneys’ offices. Instead, they broke the law or violated the rules.  And all managed to escape prosecution, despite their proven transgressions.

Recent Justice Department disciplinary files tell an undeniable story. Under the leadership of Inspector General (IG) Michael Horowitz, DOJ’s internal watchdog is doing an outstanding job of policing bad conduct inside America’s premier law enforcement agency.

And DOJ is doing a poor job of punishing its own.  In cases closed in the past month, more than a half-dozen FBI, DEA, U.S. attorney and U.S. marshal officials were allowed to retire, do volunteer work, or keep their jobs as they escaped criminal charges that everyday Americans probably would not.

So, these stories reveal what insiders have long known: prosecutors do help make and shape our criminal laws, and they sometimes do not enforce them.

June 15, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Tuesday, June 11, 2019

"Bail and Mass Incarceration"

The title of this post is the title of this paper recently posted to SSRN and authored by Samuel Wiseman.  Here is its abstract:

It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study.  It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive.  But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored.  Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost.  And, as shown by recent empirical work, the bail system, which results in high pretrial detention rates for indigent defendants, plays a significant role in incentivizing quick pleas, and leads to more convictions and longer sentences.

Releasing more defendants pretrial would generate more pretrial motions, lengthier plea negotiations, and more trials, and would thus raise the cost — in the form of prosecutors, public defenders, and judges — of convictions and imprisonment.  In other words, if we release significantly more defendants pretrial, we will have to either spend more on criminal justice or convict fewer people and punish them less severely.  In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining high incarceration rates.  Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism — politically weak low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain release and the increased access to more robust process that it affords.  If politically better-represented wealthy and middle-class defendants were detained, and thus subjected to at least some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform.

This Article explores the role of bail in mass incarceration, concluding that opponents of mass incarceration should pay increased attention to the pretrial process as a locus of reform.  Relatedly, it analyzes the likely impact of the bail–plea bargain link on future bail reform — which, of course, serves important interests beyond reducing the prison population, such as fairness and the avoidance of wrongful convictions.

June 11, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, June 10, 2019

Supreme Court unanimously affirms ACCA sentence based on prior burglary conviction in Quarles

The Supreme Court this morning somewhat clarified the operation of its convoluted Armed Career Criminal Act jurisprudence through a unanimous opinion in Quarles v. US, No. 17-778 (S. Ct. June 10, 2019) (available here).  Here is how Justice Kavanaugh's opinion for the court get started:

Section 924(e) of Title 18, also known as the Armed Career Criminal Act, mandates a minimum 15-year prison sentence for a felon who unlawfully possesses a firearm and has three prior convictions for a “serious drug offense” or “violent felony.”  Section 924(e) defines “violent felony” to include “burglary.” Under this Court’s 1990 decision in Taylor v. United States, 495 U. S. 575, the generic statutory term “burglary” means “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599 (emphasis added).

The exceedingly narrow question in this case concerns remaining-in burglary.  The question is whether remaining in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  For purposes of §924(e), we conclude that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.  We affirm the judgment of the U. S. Court of Appeals for the Sixth Circuit.

The most interesting aspect of Quarles may be the short concurrence by Justice Thomas, which makes these points:

This case demonstrates the absurdity of applying the categorical approach to the enumerated-offenses clause. The categorical approach relies on a comparison of the crime of conviction and a judicially created ideal of burglary. But this ideal is starkly different from the reality of petitioner’s actual crime: Petitioner attempted to climb through an apartment window to attack his ex-girlfriend.

More importantly, there are strong reasons to suspect that the categorical approach described in Taylor v. United States, 495 U. S. 575 (1990), is not compelled by ACCA’s text but was rather a misguided attempt to avoid Sixth Amendment problems. See Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 21–23).  Under our precedent, any state burglary statute with a broader definition than the one adopted in Taylor is categorically excluded simply because other conduct might be swept in at the margins. It is far from obvious that this is the best reading of the statute. A jury could readily determine whether a particular conviction satisfied the federal definition of burglary or instead fell outside that definition. See Ovalles v. United States, 905 F. 3d 1231, 1258–1260 (CA11 2018) (W. Pryor, J., concurring). Moreover, allowing a jury to do so would end the unconstitutional judicial factfinding that occurs when applying the categorical approach. See, e.g., Dimaya, supra, at ___–___ (opinion of THOMAS, J.) (slip op., at 22– 23); Mathis v. United States, 579 U. S. ___, ___ (2016) (THOMAS, J., concurring) (slip op., at 2); Descamps v. United States, 570 U. S. 254, 280 (2013)...

Of course, addressing this issue would not help petitioner: He has not preserved a Sixth Amendment challenge. Moreover, any reasonable jury reviewing the record here would have concluded that petitioner was convicted of burglary, so any error was harmless.

Because the categorical approach employed today is difficult to apply and can yield dramatically different sentences depending on where a burglary occurred, the Court should consider whether its approach is actually required in the first place for ACCA’s enumerated-offenses clause.  With these observations, I join the opinion of the Court.

June 10, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

SCOTUS grants cert in new capital case from Arizona concerning death sentence review procedures

The Supreme Court's new order list this morning includes new cert grants in five cases, one of which will interest sentencing fans.  Specifically, McKinney v. Arizona, No. 18-1109, involves questions of how a death sentence is to be reviewed.  SCOTUSblog coverage of the case has all the cert stage briefs linked (including a number of amici briefs), and here is the Questions Presented from the cert petition:

1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

And here is how Arizona's brief in opposition describes the issues in the case:

1. Whether the Arizona Supreme Court erred in concluding that, because Petitioner’s convictions and sentences on two counts of first-degree murder became final several years before this Court decided Ring v. Arizona, 536 U.S. 584 (2002), that Ring did not apply to Petitioner.

2. Whether the Arizona Supreme Court erred in conducting an independent review of Petitioner’s death sentences.

Any Supreme Court decision about how Ring claims are to be sorted through on appeal should impact not only death sentence in Arizona, but also in Florida and perhaps a few other states. So McKinney could end up a pretty big deal.

June 10, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, June 09, 2019

"The Orwell Court: How the Supreme Court Recast History and Minimized the Role of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States"

The title of this post is the title of this article recently posted to SSRN and authored by Brandon Beck. Here is its abstract:

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States, struck a portion of the Armed Career Criminal Act as void for vagueness.  Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions.  Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to be and the mechanisms through which the Supreme Court has subsequently weakened Johnson’s effect.  It will describe two specific mechanisms: (1) the Supreme Court’s recasting of the history of federal sentencing in an attempt to contextualize the holding of Booker v. United States as a return to the bygone days of indeterminate sentencing; and (2) the Supreme Court’s evolving view of the role of the United States Sentencing Guidelines (Guidelines) in the federal criminal system that minimizes the Guidelines’ actual influence over a district court’s sentencing decisions.  It will then explain why these mechanisms — one that exerts control over the past and one that exerts control over the present — are both unfounded.  Finally, this Article will suggest ways in which those involved in federal criminal law — the United States Sentencing Commission (Sentencing Commission), Congress, the courts, and the criminal bar — can address the problems that the Court’s recent decisions have caused in our criminal justice system.

June 9, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Thursday, June 06, 2019

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, June 05, 2019

Spotlighting the "modern-day gulags" that hold sex offenders indefinitely in "civil commitment"

A helpful reader made sure I did not miss this new extended Washington Spectator piece headlined "Modern-Day Gulags In the Golden State."  I recommend the full piece, which gets started this way:  

Back in 1997, the Supreme Court ruled that the practice known as civil commitment was legal.  This meant that 20 states — which had passed laws permitting the ongoing incarceration of sex offenders — could continue to keep the men confined even after they completed their prison terms.  (See “Sex Crimes and Criminal Justice,” from the May 2018 issue of The Washington Spectator, available here.)

All it took (and still takes) is for two psychologists to claim the men might commit a new crime and a judge to say their cases can move forward.  They are then labeled sexually violent predators (SVPs) and reincarcerated in prisonlike facilities until new trials are held — supposedly to determine if they will be civilly committed or released.  The result? Some men have been waiting for their day in court for 15 to 20 years. In the meantime, many have died.

No matter that the men already served their prison time.  Or that psychologists, psychiatrists and lawyers I interviewed insist that very few should be confined — that instead, the vast majority, many of whom are elderly or ill, should be let out.

Eric Janus, former president and dean of Mitchell Hamline Law School in St. Paul, Minn., says that continuing to incarcerate the men to comfort fearful constituents doesn’t make the public safer.  The bottom line?  “I’ve never seen numbers that show there are fewer sex offenses or re-offenses in the 20 states that have the SVP laws than in the other 30 states that don’t,” Janus says.

Then why are roughly 2,500 men still stashed away across the country?  Locking up sex offenders is always good politics, but it is also extraordinarily profitable.  And since California has the biggest budget and locks up the biggest number — three times the next three states’ combined — the Golden State offers the biggest boondoggle to explore.

To document a system awash in double-talk and dollars, I interviewed 45 lawyers, psychologists, psychiatric technicians, rehabilitation therapists, nurses, journalists, prison reform advocates and civilly committed men over eight months. Nearly all feared retaliation and asked not to be named.

As the first paragraph above indicates, this is the second piece in a series, and folks should be sure to also check out this first piece "Sex Crimes and Criminal Justice."

June 5, 2019 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Tuesday, June 04, 2019

Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction

4-5.cover-sourceI am extraordinarily excited to be able to report the exciting news that the latest extraordinary issue of the Federal Sentencing Reporter is now fully available on-line at this link.  The cover page from the Issue, which lists the 16(!) original pieces on various aspects of "The Trial Penalty," can be accessed here.

This issue of FSR emerges from the publication of a great report last year by the National Association of Criminal Defense Lawyers (NACDL) titled "The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It" (blogged here).  Folks at FSR contacted the folks at NACDL to explore the idea of developing a set of new commentaries using "The Trial Penalty" report as a springboard.

Wonderfully, Norman Reimer, executive director of NACDL, working with his colleague Martín Sabelli, NACDL's second vice president, worked tirelessly to solicit an outstanding array of original articles for this issue.  They were so productive, the project became a special FSR double issue so that a lengthy reprint of the "The Trial Penalty" report could appear together with all the terrific solicited commentaries addressing the importance of criminal trials and their disappearance from historical, practical, empirical, and international perspectives.

As the title of this post hints, I think this new FSR double issue merits a series of posts to highlight all of its terrific contents.  So here I will start by recommending the issue's terrific introduction authored by Norman Reimer and Martín Sabelli, which is fully titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  Here is its opening paragraphs:

Every day, in virtually every criminal court throughout the nation, people plead guilty solely as a consequence of a prosecutor’s threat that they will receive an exponentially greater post-trial sentence compared to the pre-trial offer.  The process is simple and the logic inexorable: the prosecutor conveys a settlement offer to the defense attorney–very often at the outset of the case before the defense has investigated or received discovery–threatening a post-trial sentence much greater than the pre-trial offer.  The defense attorney–often before having had an opportunity to establish a relationship with the client–conveys that offer to her client who must choose between the opportunity and right to defend and the risk of adding years to the sentence if not decades after trial.  That differential is known as the trial penalty, and this scene unfolds routinely in courtrooms across the country as if the Framers had intended this legalized coercion to be the fulcrum of the criminal justice system.

The Framers did not so intend. The Framers, surprisingly for a modern reader, considered jury trials to be every bit as important as the right to cast votes for our representatives. In fact, John Adams declared that ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’  President Adams’ colorful language reflects the strength of his view — a view shared by his contemporaries and the Framers — that the right to trial by jury protects the liberties of all individuals, not just the accused.  The Framers imagined a process in which the accused, assisted by counsel, evaluated the charges, received the evidence, and elected to exercise or not exercise the right to compel the government to prove guilt beyond a reasonable doubt.

June 4, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Monday, June 03, 2019

Intriguing SCOTUS decision to GVR Fourth Amendment case "to consider the First Step Act of 2018" over DOJ opposition

A number of helpful folks made sure I did not miss the fact that the Supreme Court's order list today started with this disposition of Wheeler v. US:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018).

Interestingly, the original cert petition in Wheeler concerned a Fourth Amendment issue (discussed here at Bloomberg Law).  But, following the passage of the FIRST STEP Act, Wheeler's counsel filed this supplemental brief on the FIRST STEP Act issue.  That supplemental brief states that after the original petition was filed, "new legislation was enacted under which Mr. Wheeler could not be subject to the 20-year sentence imposed.  Mr. Wheeler files this Supplemental Brief to explain the impact of the new legislation on his sentence and to request relief from his unlawful sentence as an alternative remedy."

Here is part of the feds response to the supplemental brief which comes at the tail of of its cert opposition brief:

The First Step Act amended 21 U.S.C. 841(b)(1)(A) to reduce the statutory minimum sentence for certain drug offenses by recidivists from 20 years to 15 years.  See First Step Act § 401(a)(2).  But in Section 401(c), titled “Applicability to Pending Cases,” Congress provided that “the amendments made by th[at] section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.”  § 401(c) (emphasis added).  Here, petitioner’s sentence was imposed in 2016, long before the First Step Act was enacted, and petitioner has been serving that sentence since that time....  The First Step Act is thus inapplicable to petitioner.

Petitioner’s contention (Supp. Pet. 4) that the First Step Act applies to all criminal cases pending on “direct appellate review” is incompatible with the language of the statute. Congress instructed that the relevant provisions of the First Step Act apply only to pending cases where “a sentence * * * has not been imposed.”  First Step Act § 401(c).

In this post back in December 2018, I highlighted some of the "pipeline" ambiguity concerning which on-going cases could or should get the benefit of the the new FIRST STEP Act provisions. Though one might read the GVR by SCOTUS here as an indication that the Court thinks all pending cases should benefit from the new legislation, it might be more accurate to say that the Justices want the Third Circuit to sort this matter out in the first instance.

June 3, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Splitting 5-4 in a distinctive way, SCOTUS rules against defendant seeking to avoid tolling of supervised-release term

The Supreme Court handed down four opinions this morning, but only one came in a criminal case and the opinion was not in one of the cases that so many criminal justice court-watchers are eagerly waiting for (like Gundy or Gamble or Haymond).  But the ruling this morning in Mont v. US , No. 17-8995 (S. Ct. June 3, 2019) (available here), on a technical issue of when federal supervised release terms run, should capture the attention of SCOTUS watchers because of the distinctive (and I think unprecedented) line-up of the votes in this 5-4 split opinion: 

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

The ruling of the Court begins and ends this way:

This case requires the Court to decide whether a convicted criminal’s period of supervised release is tolled — in effect, paused — during his pretrial detention for a new criminal offense. Specifically, the question is whether that pretrial detention qualifies as “imprison[ment] in connection with a conviction for a Federal, State, or local crime.” 18 U. S. C. §3624(e). Given the text and statutory context of §3624(e),we conclude that if the court’s later imposed sentence credits the period of pretrial detention as time served for the new offense, then the pretrial detention also tolls the supervised-release period.....

In light of the statutory text and context of §3624(e), pretrial detention qualifies as “imprison[ment] in connection with a conviction” if a later imposed sentence credits that detention as time served for the new offense.  Such pretrial detention tolls the supervised-release period, even though the District Court may need to make the tolling determination after the conviction.  Accordingly, we affirm the judgment of the Sixth Circuit.

The dissent begins this way:

A term of supervised release is tolled when an offender “is imprisoned in connection with a conviction.” 18 U. S. C. §3624(e).  The question before the Court is whether pretrial detention later credited as time served for a new offense has this tolling effect.  The Court concludes that it does, but it reaches that result by adopting a backwardlooking approach at odds with the statute’s language and by reading the terms “imprisoned” and “in connection with” in unnatural isolation.  Because I cannot agree that a person “is imprisoned in connection with a conviction” before any conviction has occurred, I respectfully dissent.

Though I will need to read the opinion closely to see whether there are some possible broader implications of this ruling, but this case shows yet again that Justice Gorsuch is much more inclined to vote in favor of criminal defendants (in non-capital cases) than other GOP appointees. And here we have Justice Ginsburg proving to be the swing voter delivering a loss to a criminal defendant.

June 3, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Fourteen+ years after inventing reasonableness review in Booker, SCOTUS finally grants cert to address how it works procedurally

The Supreme Court's new order list this morning includes an exciting blast (from the past?) for federal sentencing fans in the form of a cert grant in Holguin-Hernandez v. US, No. 18-7739. The petition for certiorari in this case sets forth this simple question presented: "Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence."   

Notably, the government has this slightly different accounting of what's at issue in this case in its cert opposition brief: "Whether the court of appeals correctly reviewed for plain error petitioner’s claim that the district court imposed a substantively unreasonable term of imprisonment for petitioner’s violation of the terms of his supervised release, when petitioner failed to object in the district court to that term of imprisonment."  (The two-page Fifth Circuit panel ruling in this case is here; SCOTUSblog has the briefing and other documents in this case at this link.)

There is a circuit split on this issue of just how reasonableness review is to operate procedurally, but that split has been pretty well established and entrenched for the better part of a decade.  I suspect that the recent new arrivals to the Supreme Court, particularly Justice Kavanaugh but maybe also Justice Gorsuch, may explain why this long-ignored issue has now gotten taken up by the Justices.

Sadly, it seems the cert grant in this case concerns only a procedural issues surrounding the standards of review rather than the substantive particulars of how circuit courts should judge the reasonableness of a sentence.  But, given that it has been nearly a decade since SCOTUS has said anything significant about reasonableness review (I think of the 2011 Pepper case as the last big ruling in this space), even this Holguin-Hernandez glass of reasonableness water looks like an oasis in the desert of post-Booker SCOTUS jurisprudence.

June 3, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 31, 2019

"Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law"

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

Data-driven decision-making regimes, often branded as “artificial intelligence,” are rapidly proliferating across the US criminal justice system as a means of predicting and managing the risk of crime and addressing accusations of discriminatory practices.  These data regimes have come under increased scrutiny, as critics point out the myriad ways that they can reproduce or even amplify pre-existing biases in the criminal justice system.  This essay examines contemporary debates regarding the use of “artificial intelligence” as a vehicle for criminal justice reform, by closely examining two general approaches to, what has been widely branded as, “algorithmic fairness” in criminal law: 1) the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions and 2) the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency and validity in these systems.

The essay argues that attempts to render AI-branded tools more accurate by addressing narrow notions of “bias,” miss the deeper methodological and epistemological issues regarding the fairness of these tools.  The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices.  The article concludes by calling for an abolitionist understanding of the role and function of the carceral state, in order to fundamentally reformulate the questions we ask, the way we characterize existing data, and how we identify and fill gaps in existing data regimes of the carceral state.

May 31, 2019 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Thursday, May 30, 2019

Alabama completes execution of Christopher Price seven weeks after delay based on dispute over execution methods

As reported in this prior post, Alabama was planning to execute Christopher Price seven weeks ago as punishment for his 1991 killing of a minister.  But the execution was called off that day because his death warrant expired before the Supreme Court vacated a lower court stay.  Tonight, as reported in this AP article, the execution was completed.  Here are the basics:

A man convicted of using a sword and knife to kill a country preacher during a 1991 robbery was put to death by lethal injection in Alabama on Thursday, weeks after he was initially scheduled to die. Christopher Lee Price, 46, became the second inmate put to death in Alabama in two weeks. The execution was carried out at Holman prison and he was pronounced dead at 7:31 p.m.

Price, who was nearly put to death in April before an execution warrant expired, sought a stay from the U.S. Supreme Court based on a challenge to the state's method of using three drugs during lethal injections. The nation's high court, by a 5-4 vote, refused to halt the execution Thursday night. The conservative majority did not give a reason for denying the stay.

Price had asked to instead die by nitrogen hypoxia, an execution method Alabama has legally authorized but not developed. His lawyers argued the method, which kills by depleting the body of oxygen, would be less painful than lethal injection.

Price sued the state over Alabama's current practices, and the inmate's attorneys contend the state is rushing to execute him two weeks before the trial date.... In a dissent Thursday, Justice Stephen Breyer wrote that the court should have delayed the execution until the trial could take place.

Justice Breyer's dissent from the denial of an execution stay, which was joined in full by Justice Ginsburg and in part by Justices Sotomayor and Kagan, is available at this link.

May 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Sharkfests and Databases: Crowdsourcing Plea Bargains"

The title of this post is the title of this interesting new paper now available on SSRN authored by Kay Levine, Ronald Wright, Nancy King and Marc Miller. Here is its abstract:

The stock image of a plea negotiation in a criminal case depicts two lawyers in frayed business suits, meeting one-on-one in a dim corner of a courtroom lobby.  The defendant is somewhere nearby, ready to receive information about the prosecutor’s offer and to discuss counteroffers with his attorney and perhaps with his family.  The victim or arresting officer may be available by phone, although neither has the power to veto a deal the prosecutor otherwise thinks is reasonable.  In this depiction of plea bargaining, the defense attorney and the defendant form one unit, allied against another unit — comprised of the prosecutor, victim, and police officer — while remaining independent of other defense units in terms of information, interests, and goals.  Each defendant’s case requires and receives individualized attention, and each case is bargained on its own terms.

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations.  In particular, we examine the effects of crowdsourcing tactics in the negotiation setting.  Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes?  The individual attorneys who negotiate guilty pleas could likewise benefit from access to data beyond their individual caseloads.  Crowdsourced plea-bargaining data can help attorneys to connect the dots between cases and escape the illusion that they negotiate alone.

May 30, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, May 29, 2019

"Representative Defendants"

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

Everyone except the defendant in a criminal proceeding somehow represents "the people."  Prosecutors, judges, and juries are all considered public agents.  Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins.  This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today.  The Constitution tasks criminal defendants with significant public responsibility.  They frequently represent the interests of third parties who have no direct stake in defendants' criminal cases.  Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public's benefit.

Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants' role in the legal system.  But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court.  Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate.

May 29, 2019 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Oklahoma makes retroactive its 2016 defelonization reform initiative

Still more proof that deep red states can be deeply committed to deep criminal justice reforms comes in this local article from Oklahoma headlined "Governor signs legislation to make State Question 780 retroactive." Here are the encouraging particulars:

Gov. Kevin Stitt on Tuesday signed into law a criminal justice reform measure that will make State Question 780 retroactive.  Voters passed the state question in 2016 to reclassify some drug possession and property crimes as misdemeanors instead of felonies.

The retroactivity legislation, which takes effect Nov. 1, establishes an expedited commutation process for people who are serving felony prison sentences for offenses that are now misdemeanors. It also provides a simplified path to expungement for people with old drug possession and low-level property convictions.

Lawmakers estimated that 500 to 800 people could be released on simple possession charges and up to 60,000 people could have their records expunged under the bill.

The legislation will allow families to be reunited and will contribute to workforce development, said Kris Steele, executive director of Oklahomans for Criminal Justice Reform, a nonpartisan coalition that pushed for the retroactivity measure and other legislative reforms.  "Tens of thousands of Oklahomans will be eligible to apply to have their felony taken off their record, which will open up new and hopefully more fruitful employment opportunities for them," Steele said....

"Making the reforms in State Question 780 retroactive not only upholds the will of the people, the voters of our state, but it also opens up a lot of opportunities for individuals who have that scarlet letter hanging around their neck to have that removed and it affords those individuals the opportunity to move forward in life in a very healthy and positive way," he said.

The law directs the Oklahoma Pardon and Parole board to establish an accelerated, single-stage commutation docket for applicants currently serving time who have been convicted of a crime that has been reclassified from a felony to a misdemeanor.  Typically, applicants seeking commutation must pass through a two-stage review process with the Pardon and Parole Board in order to receive a favorable recommendation to the governor, who has final say about whether to grant a commutation.

May 29, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)