Thursday, June 24, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lovely lengthy account of "Restoring Justice"

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

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

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

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

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

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

Wednesday, June 23, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Tuesday, June 22, 2021

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

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

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

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

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

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

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

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

Monday, June 21, 2021

"Truth, Lies and The Paradox of Plea Bargaining"

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, June 20, 2021

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, June 18, 2021

"Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony"

The title of this post is the title of this new essay authored by Lucian Dervan now available via SSRN Here is its abstract:

Plea bargaining is an institution that has come to dominate the American criminal justice system.  While little psychological research was done in the decades following the 1970 Supreme Court decision that approved the practice of plea bargaining, many advances have been made in this field in the last decade.  We now know, for example, that a significant number of defendants will falsely plead guilty in return for the benefits of a bargain.  Further, we know that the presence of counsel can actually increase, not decrease, the prevalence of false pleas of guilty.  We also know that pretrial detention can drastically increase the rate of false pleas of guilty by the innocent.  Finally, we know that defendants will not only falsely plead guilty, but that they will also falsely testify against a co-defendant in return for the benefits of the deal.  This piece examines each of these findings and considers what this research means for the future of bargained justice. 

June 18, 2021 in Data on sentencing, Procedure and Proof at Sentencing | Permalink | Comments (0)

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

IA3T7J6NQRFSHDKM6SW26QQ5JAIt has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Aventti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 18, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (6)

Thursday, June 17, 2021

Local report on federal compassionate release in Rhode Island raises questions about US Sentencing Commission data

A helpful reader made sure I saw this new reporting about federal compassionate release practices from a local source in the Ocean State under the headline "Federal inmates seeking early release in RI approved 40% of the time in 2020."  Here are excerpts (with a little emphasis added):

More than one of every three federal inmates sentenced in Rhode Island who sought compassionate release last year was let go early from prison, according to data from the U.S. District Court in Rhode Island.

A new report from the U.S. Sentencing Commission found Rhode Island federal judges were second only to jurists in Oregon for districts granting compassionate release requests during 2020.  While data directly from federal court in Providence shows the Sentencing Commission undercounted denials during that time period, U.S. District Judge William Smith said he wasn’t surprised to learn Rhode Island was more likely than other districts to grant early release.  “I think we’ve been really, really aggressive and careful about compassionate release petitions that have come before us,” Smith said. “We’ve paid a lot of attention to them and I am really proud of the way we’ve handled them.”

A Target 12 review of data provided by the federal court found 78 inmates who were sentenced in Rhode Island requested an early release in 2020.  Of those requests, 45 were denied, 30 were granted, and three were withdrawn.

Smith said weighing whether they should grant an early release is a balancing test between the risk to an inmate, and a risk to the community.  “There were various points in the pandemic when some federal prisons were literally on fire with the virus,” Smith said.

He added that the judges were keenly aware that a denial of an early release could be tantamount to a death sentence at the height of the pandemic. “There were times when you would go to bed at night hoping you wouldn’t wake up in the morning to find someone you had under consideration for compassionate release was now on a ventilator in a hospital,” he said. “That was going on all across the country.”

Despite those concerns, the answer was still “no” more often than “yes.” “If [an inmate] is in for a very long period of time for a crime of violence – let’s say – that is much more difficult and probably don’t grant that one,” Smith said.

That was the case with inmates Gregory Floyd and Harry Burdick, who were convicted in the horrific June 2000 execution-style slaying of Jason Burgeson and Amy Scute at a golf course in Johnston. The couple was carjacked after leaving a club in Providence before being gunned down. Both Floyd and Burdick had their compassionate release requests denied.

A Target 12 review of the cases that were granted an early release found none of the inmates were serving time for crimes of violence.  The vast majority of the convictions – 19 of 30 – were primarily drugs cases, five were financial crime convictions, two were firearm possession cases, and one each of art theft, escape from prison, bank robbery, and a conviction of “transportation with intent to prostitute.”...

Thousands of inmates across the country [filed CR motions] as COVID-19 was ripping through congregate care facilities, including prisons. According to the U.S. Federal Bureau of Prisons, more than 44,000 inmates contracted the virus and 238 of them died. Four BOP staff members also succumbed to the disease. “I am really proud to say as far as I know, not a single inmate from Rhode Island died of coronavirus in prison,” Smith said, adding just one inmate who was released committed a violation that sent them back to prison.

With the pandemic seemingly receding, 2021 has been a different story. Of the 23 inmates who have asked for compassionate release since January, just one has been granted. “The medical issues are not as chronic, not as severe, the prisons are in a much better shape in terms of controlling the virus,” Smith said. “Then the third piece is the vaccination rate has been rising.”...

But for those who refused to get the vaccine, especially out of personal preference, Smith said that wouldn’t likely help any of their future arguments for compassionate release on the basis of being at heightened risk of contracting the virus. “I think it is on them,” he said.

I lamented last week in this post that the US Sentencing Commission's data run on CR motions in 2020 provided no information about the persons in prison or the crimes that were resulting in grants and denials of sentence reductions.  It is thus quite valuable to see this local report detail that nearly two-thirds of persons getting sentence reductions were in drug cases and apparently none involved crime of violence.  It will be interesting to see if this pattern holds true if and when we get more details from more districts.

But while pleased for this additional data from Rhode Island, I am troubled to see that the US Sentencing Commission may be (drastically?) under-reporting denials of relief.  I do not want to assume anything hinky is going on, because there may be valid data collection question and challenges here explaining the discrepancy between the USSC data report and the data reported by the local news source.  For example, if a defendant is initially denied a motion for a sentence reduction, perhaps on procedural grounds, and then a month later prevails on such a motion, is this is coded as just one grant or is it one denial and one grant?

For all sort of reasons, I think it will prove very important to try to be very careful assembling accurate data here on all sorts of sentence reduction particulars.  The US Sentencing Commission, if and when it ever has Commissioners, will at some point need to modify various policy statements about these matters, and good data will be critical for the USSC and others advising the USSC to do their work in sound ways.

A few of many prior related posts:

June 17, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 16, 2021

"The False Hope of the Progressive-Prosecutor Movement"

The title of this post is the title of this recent notable Atlantic piece by Darcy Covert that is summarized via its subheadline: "Well-intentioned reformers can’t fix the criminal legal system. They have to start relinquishing power."  I recommend the piece in full, and here are some excerpts (links from the original):

[P]rogressive prosecutors’ approach won’t bring about meaningful change.  The progressive-prosecutor movement acknowledges (as research has shown) that prosecutors’ “breathtaking” power is a major source of America’s criminal-justice problems.  It asks its adherents to use that power for good, and trusts them to do so. But true reform won’t come from using that power for good; instead, prosecutors will need to have less of it in the first place.  It is unrealistic to expect that even reform-minded prosecutors (or anyone, for that matter) can and will dispense justice when they have virtually boundless power and almost unlimited discretion to use it against criminal defendants.  To transform the criminal legal system, prosecutors must stop resisting — and indeed start supporting — efforts by courts and legislatures to reduce their power....

Declining to prosecute minor offenses won’t end mass incarceration, when most individuals in prison are there for violent crimes.  Diversion programs, which offer treatment only to those willing to comply with onerous supervision requirements and face jail time if they slip up, won’t keep large portions of people affected by mental illness, addiction, and poverty out of the criminal legal system.  Studies show that — because of their position in this adversarial system — prosecutors are often unable to evaluate cases with the neutrality needed to systematically identify the innocent and decide how much punishment is necessary for the guilty.  Nor will gathering and publishing data address the disproportionate representation of people of color in the criminal legal system, because transparency is not a cure for the disparities that data show.

Here is a better prescription: If you are a prosecutor committed to transforming the criminal legal system, support the reallocation of power away from your office — by your office, and by the legislature and courts.

Expand the consideration of who should not face criminal punishment beyond those who commit only very low-level offenses.  For example, recognize that even more serious crime is driven by people’s circumstances, including mental illness and trauma, and support treatment rather than jail time for those cases.

Advocate for the reallocation of funds from your office’s budget to social services that keep people out of the criminal legal system entirely, and to the indigent defense system that advocates on behalf of those who are prosecuted.  A first step would be to push for budget increases for the public defenders who represent more than 80 percent of those charged with crimes in criminal courts.  They labor under crushing caseloads that often prevent them from being able to ensure that their clients are not wrongfully convicted or punished overly severely.

Lobby for more external limits on prosecutorial power, such as the elimination of mandatory minimum sentences and other laws that enable coercive plea bargaining.  Advocate for stronger equal-protection rights for defendants of color, including for state courts to recognize greater protections against racist jury selection and pretextual traffic stops, in which police use a minor traffic violation as a pretext to stop and search someone.

June 16, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 15, 2021

National Registry of Exonerations reports on "25,000 Years Lost to Wrongful Convictions"

I saw this notable new report from the folks at the National Registry of Exonerations titled "25,000 Years Lost to Wrongful Convictions."  here is part of the start of the report:

In 2018, the National Registry of Exonerations reported a grim milestone: Exonerated defendants had collectively served 20,000 years in prison for crimes they did not commit. Just three years later, in June 2021, we reached another: Time lost to false convictions exceeded 25,000 years.  The total now stands at 25,004 years, on average more than 8 years and 11 months in prison for each of the 2,795 exonerees in the Registry.  Innocent Black defendants served a majority of that time — a total of 14,525 years lost to unjust imprisonment.

The National Registry of Exonerations reports every known exoneration in the United States since 1989, a total of 2,795 as of June 1, 2021.  Dozens of defendants exonerated since our 2018 report served more than 25 years in prison for crimes they did not commit....  Not all of the exonerees who served many years for crimes they did not commit were convicted of violent crimes like murder or rape. Lawrence Martin spent nearly 19 years in California prisons for possession of a knife with a locking blade....

It is hard to fathom spending decades in prison, knowing all the while that you are innocent.  But even those who served relatively short sentences suffered tremendously.  People often refer to the time we have spent in 2020 and 2021 under COVID-19 restrictions as a “lost year.”  We’ve missed the ability to travel freely, socialize with friends, and see loved ones. For people wrongfully incarcerated, every year is a lost year.  To exonerees who served sentences of a year or two for crimes they did not commit, it must have felt like an eternity.  For those who served decades, the suffering is incomprehensible.

Unfortunately, the 2,795 exonerations we know about only begin to tell the story of wrongful convictions and the toll they take.  Many exonerations remain unknown to us, though we keep looking. The vast majority of false convictions go uncorrected and therefore are never counted.  Our calculation also does not include time lost to the thousands of people cleared in large-scale group exonerations, which arise when groups of defendants are cleared upon the discovery of a common pattern of systemic misconduct by a government official in the investigation and prosecution of their cases.  Finally, our calculations include only time spent in prison after the wrongful conviction and consequently do not capture the significant time lost in custody awaiting trial.  Put simply, while 25,000 years is a staggering number, it is a significant undercount of the true losses these falsely convicted men and women suffered.

June 15, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Justice Department files SCOTUS brief seeking to restore death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

As repoted in this Hill piece, the "Biden administration on Monday urged the Supreme Court to reinstate the death penalty against the Boston Marathon bomber in an apparent break with the president's stated opposition to capital punishment."  Here are the details (with a link to the filing):

In a 48-page brief, the Department of Justice (DOJ) asked the justices to reverse a Boston-based federal appeals court that vacated the death sentence for Dzhokhar Tsarnaev, the lone surviving perpetrator of the 2013 attack.

“The jury carefully considered each of respondent’s crimes and determined that capital punishment was warranted for the horrors that he personally inflicted — setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others to a lifetime of unimaginable suffering,” the DOJ’s brief reads.

Tsarnaev and his since-deceased brother, Tamerlan Tsarnaev, killed three people and injured 260 others in the 2013 bombing attack near the finish line of the annual event in downtown Boston....

The U.S. Court of Appeals for the 1st Circuit last year vacated Tsarnaev’s death sentence. The court ruled that the trial court had failed to adequately gauge potential jury bias and the extent to which Tsarnaev may have been influenced by his brother.

Former President Trump in October appealed that decision to the Supreme Court. The justices agreed in March to take up the dispute and are expected to hear arguments in the case next term.  The case was seen as an early challenge for Biden, the first U.S. president to publicly oppose the death penalty, and his administration’s response had been highly anticipated.

During the 2020 presidential campaign, Biden called for an end to capital punishmentBut on Monday, the DOJ made clear that Biden would maintain his predecessor’s support for reinstating capital punishment against Tsarnaev. “The court of appeals improperly vacated the capital sentences recommended by the jury in one of the most important terrorism prosecutions in our Nation’s history,” the DOJ’s brief reads. “This Court should reverse the decision below and put this case back on track toward a just conclusion.”

The White House and DOJ did not immediately respond when asked by The Hill if Biden had changed his stance on the death penalty.

Tsarnaev, 27, will serve out multiple life sentences in federal prison if his death sentence is not reinstated.  

A few prior recent related posts:

June 15, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum

As reported in this Politico piece, headlined "Virginia couple pleads guilty in Capitol riot," the first set of pleas for low-level participating in the January 6 riots were entered in federal court yesterday.  Here are the details:

A Virginia couple on Monday became the third and fourth defendants to plead guilty in the sprawling investigation stemming from the Capitol riot in January.  However, Jessica and Joshua Bustle of Bristow, Va., became the first to plead guilty in federal court who faced only misdemeanor charges as a result of their actions at the Capitol as lawmakers were attempting to certify President Joe Biden’s electoral college victory.

Under a deal with prosecutors, the Bustles each pleaded guilty to one of the four misdemeanor charges they faced: parading, demonstrating or picketing in a Capitol building. They could get up to six months in jail and a fine of up to $5,000, but will be spared the potential of back-to-back sentences on multiple counts.

The arrangement could serve as a template for hundreds of other misdemeanor-only cases filed related to the Jan. 6 events.  Defense attorneys say it also suggests that prosecutors will not readily agree to more lenient resolutions in Capitol riot cases, such as deferring the case and dismissing it following a period of good behavior.

“There’s no guarantee what the sentence will be in this case,” Judge Thomas Hogan told the Bustles during the afternoon hearing, conducted by videoconference. “I can give a sentence that’s legal up to the maximum in the statute: six months.”

According to a complaint filed by an FBI agent in March, Jessica Bustle posted on her Facebook page on Jan. 6: “Pence is a traitor. We stormed the capital.  An unarmed peaceful woman down the hall from us was shot in the neck by cops.  It’s insane here….Pray for America!!!!”  In another post, Jessica Bustle — who said she’s opposed to taking the coronavirus vaccine — indicated she and her husband were attending a “health freedom” rally separate from then-President Donald Trump’s rally. They later decided to check out what was happening at the Capitol, she wrote.  “My husband and I just WALKED right in with tons of other people.” Bustle also wrote: “We need a Revolution.”...

The Bustles have also agreed to pay $500 apiece in restitution, Hogan said.  Both the Bustles' attorneys and a prosecutor said they were prepared to proceed with sentencing Monday, but the judge declined, saying he would set a sentencing date in 4 to 6 weeks.  “I’m not prepared to do sentencing today. I think we have to look at the case a little bit,” said Hogan, an appointee of former President Ronald Reagan. The judge said he wanted to ensure “consistency and comparability” of sentences among the Capitol riot defendants, none of whom have been sentenced thus far.

Many Capitol riot defendants face the four typical misdemeanor charges the Bustles faced plus a felony charge of obstruction of an official proceeding.  The latter charge carries a potential 20-year prison term. It is not clear how prosecutors have distinguished between nonviolent defendants who face only the misdemeanors and those who had the felony charge added on.

The first guilty pleas in the Capitol riot came in April from Jon Schaffer, a heavy-metal guitarist and self-described lifetime member of the Oath Keepers. He admitted to two felonies: obstruction and entering a Secret Service-restricted area while carrying a dangerous weapon.  Schaffer agreed to cooperate in the government’s ongoing conspiracy case against fellow Oath Keepers.  A total of 16 people are now charged in that case.

The second guilty plea was from a Florida man who went onto the Senate floor during the Jan. 6 unrest, Paul Hodgkins.  At a hearing earlier this month, he pleaded guilty to a felony obstruction charge.  Prosecutors agreed to drop the misdemeanor charges against him, but there was no cooperation element to the deal.  He is tentatively set for sentencing on July 19.

This Reuters piece about these latest pleas details a bit more some of the sentencing specifics around the two earlier pleas:

The first guilty plea came in April, when a founding member of the right-wing Oath Keepers, Jon Schaffer, pleaded guilty to two felony charges of obstructing the certification of the 2020 election and breaching a restricted building. Prosecutors are recommending a sentence of between 3-1/2 and 4-1/2 years of prison time for Schaffer, but his sentence will ultimately be decided by a District of Columbia judge.

A Florida man on June 2 became the second person to plead guilty to storming the Capitol. Paul Allard Hodgkins pleaded guilty to one felony count of obstructing an official proceeding. A judge said federal sentencing guidelines call for Hodgkins to receive sentence in the range of 15 to 21 months.

Prior related posts:

June 15, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, June 14, 2021

More good coverage of the not-so-good (but still not-so-bad) realities of federal compassionate release realities

As noted here, last Thursday the US Sentencing Commission released some fascinating (and bare bones) data on compassionate release motions in 2020 in this short data report.  In this post, I flagged coverage by the Marshall Project lamenting that the Bureau of Prisons approved so very few compassionate release applications.  I have since seen three more press piece noting ugly stories in the data:

I am quite pleased to see a a series of articles based on the new USSC data that rightly assail the BOP for being so adverse to supporting sentence reduction 3582(c)(1)(a) motions and that highlights broad variations in how compassionate release is functioning in different federal judicial districts.  But, those persistent problems notwithstanding, I hope nobody loses sight of what the FIRST STEP Act accomplished by allowing federal courts to directly reduce sentences without awaiting a motion by the BOP.  As of this writing, BOP reports on this data page that nearly 3500 federal defendants have now received "Compassionate Releases / Reduction in Sentences" since the FIRST STEP Act became law. (For point of reference, that is more than the total number of prisoners in New Hampshire and Vermont combined.)  

I am eager for more details from the US Sentencing Commission about who is and is not receiving sentence reductions because there are surely some uneven (and likely ugly) patterns to be found in all the data.  But the one pattern that is clear and should be appreciated is that judges are regularly using their new powers to reduce sentences that are excessive.  As I suggested in this recent post, new legal rulings and all sorts of other developments can and should continue to provide sound reasons for federal judges to keep reconsidering extreme past federal sentences.  I hope they continue to do so, and I hope we do not lose sight of a beautiful compassionate release forest even when we notice a some ugly trees.

A few of many prior related posts:

June 14, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS rules defendants must show plain error (and likely won't) when pressing Rehaif claims on appeal in felon-in-possession cases

The Supreme Court is busy clearing the criminal cases off its docket as the Term winds to a close; today first opinion is unanimously ruling in Greer v. US, No. 19–8709 (S. Ct. June 14, 2021) (available here), holding that "in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon."  Here is a bit more explanatory context from Justice Kavanaugh's opinion for the Court:

Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison.  See 18 U.S.C. §§922(g), 924(a)(2).  In Rehaif v. United States, 588 U.S. ___ (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense.  In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.  See id., at ___ (slip op., at 11)....

In the two cases before us, all agree that Rehaif errors occurred during both defendants’ district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test.  We address the third prong: whether the Rehaif errors affected the defendants’ “substantial rights.”  Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Dominguez Benitez, 542 U.S., at 83.  And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty.

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon.  The reason is simple: If a person is a felon, he ordinarily knows he is a felon.  “Felony status is simply not the kind of thing that one forgets.”  963 F. 3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).  That simple truth is not lost upon juries.  Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.  A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.  In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different.

Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms.  See Fed. Rule App. Proc. 10(e).  Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing.  But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error.

Justice Sotomayor authors the only separate opinion which largely concurs with the majority though calls for one of the cases to be sent back to the lower court.  She also explains that she wants to "highlight two limits on today’s decision":

First, the Court’s analysis in Greer’s case does not extend to the distinct context of harmless-error review, which applies when defendants contemporaneously object at trial. Second, the knowledge-of-status element is an element just like any other.  The Government must prove it beyond a reasonable doubt, and defendants seeking relief based on Rehaif errors bear only the usual burden on plain-error review. 

June 14, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, June 13, 2021

Borden claims and the potential for 3582(c)(1)(a) motions to enable retroactivity

I asked a few days ago, in the wake of the Supreme Court's ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA predicates, "How many federal prisoners might now be serving illegal sentences after Borden?".   After a little reflection and added research, I have come to suspect that maybe only a few hundred federal prisoners are now serving ACCA sentences based on a problematic reckless predicate, though surely a larger number may seek relief in federal courts.  So, after flagging the issue of how many federal prisoners might now be serving illegal sentences after Borden, in this post I want to discuss a bit  how current federal prisoners serving ACCA sentences might seek relief.

Notably, some of this ground has been plowed in the wake of the Supreme Court's 2015 ruling in Johnson finding ACCA's residual clause unconstitutionally vague.  An intricate federal habeas jurisprudence has followed as ACCA prisoners looked to bring their Johnson claims into federal court through 2255 and 2241 motions. See generally Prof Leah Litman's writings here and here and here and here and here.

Justice Kavanaugh is clearly concerned about another round of this litigation the aftermath of Borden, as the last footnote in his dissent frets about "the collateral review petitions that will likely inundate courts in the circuits that [had held] ACCA covers reckless offenses."  In that footnote, Justice Kavanaugh seems eager to note that prisoners may not get relief based on Borden because "many petitions may fall outside §2255’s 1-year statute of limitations."  But Justice Kavanaugh perhaps does not realize that, thanks to the FIRST STEP Act, prisoners with viable Borden claims could now bring 3582(c)(1)(a) motions for sentence reductions based on "extraordinary and compelling" circumstances.

Prof Litman had so much to write about after Johnson because the procedural rules and jurisprudence surrounding 2255 and 2241 motions are extraordinarily intricate and often limiting.  And those procedural rules needed to be sorted through for ACCA-sentenced folks making Johnson claims because there was no other means to directly pursue resentencing in court.  But, thank to the provision of the FIRST STEP Act allowing federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons, prisoners now have another distinct means to seek relief through a 3582(c)(1)(a) motion for a sentence reduction.

Critically, because 3582(c)(1)(a) motions have only a minor "exhaustion" procedural requirement, prisoners bringing such motions will have an easier time to getting to court to have their claim considered on the substantive merits.  But the substantive merits of a 3582(c)(1)(a) motion will be different than if a Borden claim is pursued via 2255 and 2241 motions.  A judge will have to find that "extraordinary and compelling reasons warrant" a sentence reduction and then consider 3553(a) factors.  Because those with winning Borden claims have been sentenced to an illegal five years or more, I would think they certainly present an "extraordinary and compelling reasons" for a sentence reduction.  How much the sentence should be reduced should be ten determined by consideration of the 3553(a) factors.

In other words, the FIRST STEP Act's procedural change to so-called "compassionate release" motions via 3582(c)(1)(a) now allows for rulings like Borden to be more efficiently given retroactive effect in federal courts.  Yet another lovely reasons to celebrate that Act. 

Prior related posts:

June 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Unanimous South Carolina Supreme Court decides sex offender registry is "unconstitutional absent any opportunity for judicial review to assess the risk of re-offending"

Last week, the South Carolina Supreme Court issued an interesting opinion about the state's sex offender registry in Powell v. Keel, No. 28033 (S.C. June 9, 2021) (available here), which concludes this way:

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.

June 13, 2021 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, June 12, 2021

"Progressive Algorithms"

The title of this post is the title of this notable new paper authored by Itay Ravid and Amit Haim available via SSRN.  Here is its abstract:

Our criminal justice system is broken.  Problems of mass incarceration, racial disparities, and susceptibility to error are prevalent in all phases of the criminal process.  Recently, two dominant trends that aspire to tackle these fundamental problems have emerged in the criminal justice system: progressive prosecution — often defined as elected reform-minded prosecutors that advance systemic change in criminal justice — and algorithmic decision-making — characterized by the adoption of statistical modeling and computational methodology to predict outcomes in criminal contexts.

While there are growing bodies of literature on each of these two trends, thus far they have not been discussed in tandem.  This Article argues that scholarship on criminal justice reform must consider both developments and strive to reconcile them.  We argue that while both trends promise to address similar key flaws in the criminal justice system, they send diametrically opposed messages with respect to the role of humans in advancing criminal justice reform.  Progressive prosecution posits that humans are the solution, while algorithmic tools suggest humans are the problem.  This clash reflects both normative frictions and deep differences in the modus operandi of each of these paradigms.  Such tensions are not only theoretical but have immediate practical implications such that each approach tends to inhibit the advantages of the other with respect to bettering the criminal justice system.

We argue against disjointly embedding progressive agendas and algorithmic tools in criminal justice systems.  Instead, we offer a decision-making model which prioritizes principles of accountability, transparency, and democratization without neglecting the benefits of computational methods and technology.  Overall, this article offers a framework to start thinking through the inherent frictions between progressive prosecution and algorithmic decision-making and the potential ways to overcome them.  More broadly, the Article contributes to the discussions about the role of humans in advancing legal reforms in an era of pervading technology.

June 12, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Senate Judiciary Committee advances three criminal justice and sentencing reform bills

I noted in this post last month that the US Senate Judiciary Committee had  plans to take three criminal justice bill: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act.  This Law360 piece from a few weeks ago reported that, "on a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021."  And the other bill moved forward this past week, as reported in this press release from Senator Grassley:

[T]he Senate Judiciary Committee voted to advance two bipartisan criminal justice reform bills authored by U.S. Senate Majority Whip Dick Durbin (D-Ill.), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee — the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021. These bills will build on the landmark First Step Act and continue Congress’s bipartisan efforts to make our criminal justice system fairer....

The bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021 would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.  The legislation was passed out of Committee by a bipartisan vote of 16-6.  More information on the Prohibiting Punishment of Acquitted Conduct Act of 2021 can be found here.
 
The bipartisan, bicameral First Step Implementation Act would advance the goals of the landmark First Step Act (FSA), by, among other provisions, making eligible for retroactive review some of the FSA’s sentencing reforms. The FSA — authored by Durbin and Grassley and signed into law in 2018 — is bipartisan criminal justice reform legislation designed to make our justice system fairer and our communities safer by reforming sentencing laws and providing opportunities for those who are incarcerated to prepare to reenter society successfully.  The First Step Implementation Act was passed out of Committee by a bipartisan vote of 13-9.  More information on how the First Step Implementation Act of 2021 would further the goals of the FSA can be found here.

I have little sense of whether or when these bills might move through Congress and get to the desk of the President, but I am hope that congressional leadership sees that these bill are worth prioritizing because they have more bipartisan support that almost any other proposals these days.

Some prior related posts:

June 12, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 11, 2021

Another dive into the ugly BOP realities of federal compassionate release during the pandemic

The Marshall Project has this new piece on federal compassionate release with a full title that captures its essential themes: "31,000 Prisoners Sought Compassionate Release During COVID-19. The Bureau of Prisons Approved 36.  As the pandemic worsened inside federal prisons, officials granted fewer releases." Here are excerpts (with links from the original):

Tens of thousands of federal prisoners applied for compassionate release after the virus began sweeping through lockups. But new Bureau of Prisons data shows officials approved fewer of those applications during the pandemic than they did the year before.  While the BOP director greenlit 55 such requests in 2019, a new director who took over in early 2020 approved only 36 requests in the 13 months since the pandemic took hold in March 2020.  The downturn in approvals came even as the number of people seeking compassionate release skyrocketed from 1,735 in 2019 to nearly 31,000 after the virus hit, according to the new figures.

Because the numbers were compiled for members of Congress, BOP spokesman Scott Taylor said the agency would not answer any questions about the data, “out of respect and deference” to lawmakers.  But Shon Hopwood, a Georgetown law professor, called the bureau’s decrease in compassionate releases during the pandemic “mind-boggling.”...

Federal judges have stepped in to release thousands of people in the face of BOP inaction. And the bureau continues to face intense scrutiny and several lawsuits over its handling of COVID-19.  Since the first reported case last spring, more than 49,000 federal prisoners have fallen ill and 256 have died, according to corrections data tracked by The Marshall Project.  Thirty-five of those who died were waiting for a decision on their release requests....

People in federal prisons seeking release during the pandemic have two main ways to get out early.  One is home confinement, which allows low-risk prisoners to finish their sentences at home or in a halfway house.  They’re still considered in custody, and the decision to let them out is entirely up to the Bureau of Prisons.  As COVID shutdowns began last March, Congress expanded the eligibility criteria and then-Attorney General Bill Barr ordered prison officials to let more people go.  Since then, more than 23,700 people have been sent to home confinement — though several thousand of them may have to return to prison once the pandemic ends.

The other way to get out early is through compassionate release.  If a warden endorses a prisoner’s request, the case goes to BOP’s central office, which usually rejects it.  But if a warden denies a request or 30 days pass with no response, then the incarcerated person can ask a judge to reduce the sentence to time served.  The new data showed 3,221 people have been let out on compassionate release since the start of the pandemic — but 99% of those releases were granted by judges over the bureau’s objections.

Last fall, The Marshall Project published data showing that the Bureau of Prisons rejected or ignored more than 98% of compassionate release requests during the first three months of the pandemic.  Citing that reporting, federal lawmakers in December wrote to the agency to demand more data on both compassionate release and home confinement.

The updated figures outlined in the agency’s response to Congress in April showed that BOP wardens actually endorsed slightly fewer compassionate release requests as the pandemic progressed.  In the first three months, wardens approved 1.4% of release applications.  The central office rejected most of those, with Director Michael Carvajal ultimately approving just 0.1%.  By the end of April — more than a year into the pandemic, and after more than 200 prisoner deaths — wardens had approved 1.2% of applications, and Carvajal again accepted just 0.1%.

By comparison, federal judges approved 21% of compassionate release requests they considered in 2020, according to a recent report from the U.S. Sentencing Commission....

For the most part, the bureau has offered little insight into its reasons for denying compassionate release. According to the information BOP sent to Congress, wardens denied nearly 23,000 requests because the person “does not meet criteria.”  Roughly 3,200 people were denied because their cases were “not extraordinary and compelling,” while a little over 1,200 were rejected for not providing enough information or documentation.  Four people met the criteria but were denied due to “correctional concerns,” the agency said.

Of the 374 prisoners that wardens recommended for compassionate release during the pandemic, the agency’s central office rejected or did not respond to just over 90%, apparently without making any note as to why.  “The BOP does not track the specific reasons for approval or denial of a compassionate release request at the Central Office level, as there can be several reasons for a particular decision,” wrote General Counsel Ken Hyle.  Some of those reasons, he added, could be opposition from federal prosecutors, a lack of release plan or fear that letting someone out would “minimize the severity of the inmate’s offense.”

A few of many prior related posts:

June 11, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Split Indiana Supreme Court finally rules that forfeiture of Tyson Timbs' Land Rover driven to small drug deal was constitutionally excessive

Well over two years ago, as blogged here, the Supreme Court ruled unanimously in Timbs v. Indiana, 139 S. Ct. 682 (2019), that the that Excessive Fines Clause of Eighth Amendment applies to the states and then said little else about how that limit on punishment was to be applied. Upon remand, as blogged here, the Indiana Supreme Court some months later issued a lengthy opinion explaining its approach to the Clause while remanding case to the state trial court to apply this approach. And yesterday, the case returned to the Indiana Supreme Court as Indiana v. Timbs, No. 20S-MI-289 (Ind. June 10, 2021) (available here), and resulted in a split opinion in favor of Tyson Timbs. Here is how the majority opinion starts:

We chronicle and confront, for the third time, the State’s quest to forfeit Tyson Timbs’s now-famous white Land Rover.  And, again, the same overarching question looms: would the forfeiture be constitutional?

Reminiscent of Captain Ahab’s chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again.  During the voyage, several points have come to light. First, the vehicle’s forfeiture, due to its punitive nature, is subject to the Eighth Amendment’s protection against excessive fines.  Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs’s vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense.

But, until now, the proportionality inquiry remained unresolved — that is, was the harshness of the Land Rover’s forfeiture grossly disproportionate to the gravity of Timbs’s dealing crime and his culpability for the vehicle’s misuse?  The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019).  Today, we reject the State’s request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover’s forfeiture unconstitutional.

Justice Slaughter concurs in the judgment with lengthy separate opinion that includes a notable baseball analogy while fretting that the "law we interpret for the public we serve demands more than our subjective 'totality' test can sustain."  And Justice Massa dissents with separate opinion that starts this way:

The Court offers a compelling case for letting the beleaguered Tyson Timbs keep his Land Rover after all these years.  And the opinion, much to its credit, goes the extra mile in its concluding paragraphs to note and predict that Timbs will be the rare heroin dealer able to show gross disproportionality when his car is forfeited.  Still, I respectfully dissent.

The forfeiture here was indeed harsh, perhaps even mildly disproportionate, given all the facts in mitigation.  But I part ways with the Court’s holding that it was grossly so.  Such a conclusion can only be sustained by finding the severity of the underlying felony to be “minimal,” as the Court holds today. I am skeptical that dealing in heroin can ever be a crime of minimal severity.  No narcotic has left a larger scar on our state and region in recent years, whether overly prescribed or purchased illicitly on the street.

June 11, 2021 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, June 10, 2021

How many federal prisoners might now be serving illegal sentences after Borden?

I will be blogging in a future post about just how current federal prisoners serving Armed Career Criminal Act sentences might seek relief from now-illegal long sentences based on the Supreme Court's important ruling in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), limiting applicable ACCA precedents.  (Spoiler: they should not forget "compassionate release" as a means of seeking relief.)  But my inquiry for this post is the preliminary question in the title of this post: can we figure out how many federal prisoners might now be serving illegal sentences after Borden because they were sentenced on the basis of a reckless predicate ACCA offense?

Figuring out a precise answer to this question is very intricate, though it is aided greatly by this recent US Sentencing Commission report detailing in Figure 1 how many ACCA sentences have been handed down over the last decade.  Based on that data and with a bit of extrapolation, I think it possible that there could be as many as 10,000 persons (though likely somewhat fewer) in federal prison now serving ACCA sentences.  [UPDATE with better numbers: an astute commentor notes that the USSC report actually has a Figure 7 reporting that a "total of 3,572 offenders in
Federal Bureau of Prisons (BOP) custody as of June 27, 2020 were sentenced pursuant to the ACCA."  A year later, I would guess that number is about the same.] However, I suspect the vast majority of those prisoners would not have clear or even viable Borden claims.  In fact, I would be tempted to guest that less than 1 out of every 10 ACCA prisoners has a strong Borden-based claim for undoing his sentence. 

But I am truly making a wild guess here, and I am eager to hear from folks in the field about whether they agree that only hundred of sentences may be potentially disrupted by Borden or if in fact it could end up being thousands.  Whatever the exact number, as I will explain in a future post, every ACCA defendant with a viable Borden claim should be thankful for the FIRST STEP Act making "compassionate release" motions available o bring directly to court.  But more on that will come in a future post.

June 10, 2021 in Data on sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Some early coverage of big new SCOTUS ruling limiting ACCA in Borden

A busy day on other matters means I have only had a chance to skim Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here), the big win for the defendant today in an ruling limiting the reach of the Armed Career Criminal Act.  I hope in the coming days to have a lot to say about Borden ruling itself and its possible aftermath, but for now I can and will round up some early press and blog coverage:

From Bloomberg Law, "Divided High Court Sides With Defense on Repeat-Offender Law"

From Crime & Consequences, "Fractured Supreme Court Cripples Armed Career Criminal Act"

From The Hill, "Gorsuch, Thomas join liberal justices in siding with criminal defendant"

From Law & Crime, "Kagan Goes After Kavanaugh for Lengthy Footnote: There’s Nothing ‘Unfair’ About This Outcome"

From the New York Times, "Supreme Court Limits Sweep of Law on Mandatory Minimum Sentences"

From SCOTUSblog, "Court limits definition of 'violent felony' in federal gun-possession penalty"

From The Volokh Conspiracy, "Justice Thomas Takes One For The Team in Borden v. U.S."

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

US Sentencing Commission releases fascinating (and bare bones) "Compassionate Release Data Report"

I just received an email from the US Sentencing Commission with an alert about new data reports from the USSC.  Any new data from the USSC gets me excited, and I got even more jazzed upon seeing the heading "Compassionate Release Data" followed by this text in the email:

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions. This report provides an analysis of those compassionate release motions decided through December 31, 2020 for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 27, 2021.

Data Overview

Through December 31, 2020, the Commission received the following information from the courts:

  • 2,549 offenders were granted compassionate release. This represents 21% of compassionate release motions.
  • 9,589 offenders were denied compassionate release. This represents 79% of compassionate release motions.
  • 96% of granted motions were made by the defendant.

Somewhat disappointingly, the full report linked here provides precious little additional data beyond circuit and district breakdowns of these motions and their dispositions. I would be especially interested in seeing a lot more offender demographic information (e.g., race, gender, age of movant) and sentence modification information (e.g., primary sentenced offense and amount of sentence reduction).  But I am excited to learn that the USSC data staff is keeping track of these matters and seemingly planning to regularly report of what it is tracking.   

June 10, 2021 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

In 5-4 decision, SCOTUS limits reach of ACCA mandatory minimum "violent felony" predicates by holding a "reckless offense cannot so qualify"

The last big SCOTUS sentencing ruling of this Term that I have been eagerly awaiting was (yet another) one concerning application of the Armed Career Criminal Act.  Today the wait was over, as this morning the Court handed down it opinion in Borden v. US, No. 19–5410 (S. Ct. June 10, 2021) (available here).  And it is a big win for the defendant with Justice Kagan authoring the key opinion for four Justices (with Justices Breyer, Sotomayor and Gorsuch joining), which starts this way:

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a “violent felony.”  The question here is whether a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness — a less culpable mental state than purpose or knowledge.  We hold that a reckless offense cannot so qualify.

Justice Thomas writes a concurring opinion that starts this way:

This case forces us to choose between aggravating a past error and committing a new one. I must choose the former.  Although I am “reluctant to magnify the burdens that our [erroneous] jurisprudence imposes,” Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring), I conclude that the particular provision at issue here does not encompass petitioner’s conviction for reckless aggravated assault, even though the consequences of today’s judgment are at odds with the larger statutory scheme.  The need to make this choice is yet another consequence of the Court’s vagueness doctrine cases like Johnson v. United States, 576 U.S. 591 (2015).

Justice Kavanaugh writes a lengthy dissenting opinion (which is longer than the other two opinions combined) which concludes its opening discussion this way:

In my view, the Court’s decision disregards bedrock principles and longstanding terminology of criminal law, misconstrues ACCA’s text, and waves away the Court’s own recent precedent. The Court’s decision overrides Congress’s judgment about the danger posed by recidivist violent felons who unlawfully possess firearms and threaten further violence. I respectfully dissent.

There is a lot here to take in, but I hope to figure all this out before too long. The key takeaway is that, thank to Justices Gorsuch and Thomas, Borden is the slimmest of victories for the defendant here and likely the start of yet another chapter of uncertainty about what comes next in ACCA jurisprudence.

June 10, 2021 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Functional life sentence finally becomes actual life (with eligibility for parole) sentence for person serving longest on death row

Because I love sports statistics and trivia (especially baseball, of course), I cannot avoid being intrigued by records and data even in the much-less-fun world of sentencing.  Consequently, this AP story caught my eye this morning under the headline, "Longest serving death row inmate in US resentenced to life."  Unsurprisingly, the story behind the statistic is fascinating: 

The longest serving death row inmate in the U.S. was resentenced to life in prison on Wednesday after prosecutors in Texas concluded the 71-year-old man is ineligible for execution and incompetent for retrial due to his long history of mental illness.

Raymond Riles has spent more than 45 years on death row for fatally shooting John Thomas Henry in 1974 at a Houston car lot following a disagreement over a vehicle. He is the country's longest serving death row prisoner, according to the Death Penalty Information Center.

Riles was resentenced after the Texas Court of Criminal Appeals ruled in April that his “death sentence can no longer stand” because jurors did not properly consider his history of mental illness. Riles attended his resentencing by Zoom from the Polunsky Unit in Livingston, which houses the state’s death row inmates.  He said very little during the court hearing....

In a statement, Harris County District Attorney Kim Ogg said Riles is incompetent and “therefore can’t be executed.” “We will never forget John Henry, who was murdered so many years ago by Riles, and we believe justice would best be served by Riles spending the remainder of his life in custody of the Texas Department of Criminal Justice,” Ogg said.

During his time on death row, Riles has been treated with heavy antipsychotic medications but was never deemed mentally competent to be executed, according to prosecutors and his attorneys.  He had been scheduled for execution in 1986 but got a stay due to competency issues.  While Riles spent more than 45 years on death row in Texas, prisoners in the U.S. typically spend more than a decade awaiting execution, according to the Death Penalty Information Center.

[District Judge Ana] Martinez was not able to resentence Riles to life in prison without parole because it was not an option under state law at the time of his conviction. Riles’ new sentence means he is immediately eligible for parole.  The Texas Board of Pardons and Paroles will automatically conduct a parole review in his case, [Riles’ attorney Jim] Marcus said.

The district attorney’s office as well as Henry’s family have indicated they will fight any efforts to have Riles released on parole. “Mr. Riles is in very poor health but, if the Board of Pardons and Paroles sees fit to grant parole, he has family with the capacity to care for him,” Marcus said.

A co-defendant in the case, Herbert Washington, was also sentenced to death, but his sentence was overturned, and he later pleaded guilty to two related charges. He was paroled in 1983.

When Riles was tried, state law did not expect jurors to consider mitigating evidence such as mental illness when deciding whether to choose the death sentence. The U.S. Supreme Court ruled in 1989 that Texas jury instructions were unconstitutional because they didn’t allow appropriate consideration of intellectual disability, mental illness or other issues as mitigating evidence in the punishment phase of a capital murder trial.

But Riles’ case remained in limbo because lower courts failed to enforce the Supreme Court’s decision until at least 2007, according to his attorneys. That then gave Riles a realistic chance to prevail on this legal issue, but it wasn’t until recently that he had contact with attorneys who were willing to assist him, his lawyers said.

While prosecutors argued at Riles’ trial that he was not mentally ill, several psychiatrists and psychologists testified for the defense that he was psychotic and suffered from schizophrenia. Riles’ brother testified that his “mind is not normal like other people. He is not thinking like other people.”

While the Supreme Court has prohibited the death penalty for individuals who are intellectually disabled, it has not barred such punishment for those with serious mental illness, according to the Death Penalty Information Center. In 2019, the Texas Legislature considered a bill that would have prohibited the death penalty for someone with severe mental illness. The legislation did not pass.

June 10, 2021 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 09, 2021

"Acquitted. Then Sentenced."

The title of this post is the terrifically economical title of this new commentary authored by Shana O’Toole is the founder and president of the Due Process Institute.  As regular readers surely realize, the commentary focuses on a remarkable sentencing reality that has long troubled me and it discusses the possibility that a legislative fix may be in the works.  Here are excerpts from a piece I recommend (including a footnote that I consider especially important):

Imagine being accused of robbery and murder, but ultimately being found not guilty by a jury of your peers.  Now imagine that just two years later, you are indicted again for a wholly unrelated and less serious criminal offense. You voluntarily plead guilty, expecting to receive a fair sentence. The prosecutors, the probation office, and your defense lawyer all agree that current law sets an appropriate prison sentence ranging between 2.5 years to 3.5 years.

Your case is then assigned to the same judge who presided over your first case.  She sentences you to eight years in prison — more than double the highest end of the range that anyone else involved in the criminal legal system would have told you to expect.  And when she does so, she explains that when she went back over her old notes from your first trial, she determined there is a 51% chance that you should have been found guilty of those crimes, so she’s ignoring the jury’s earlier verdicts and now basing your sentence for this crime on those past unproven crimes.

If you think this describes what happens in a bad movie or under some authoritarian regime, you're wrong.  This describes a real case, and the practice is known as acquitted conduct sentencing.

Earlier this year, a bipartisan group of senators introduced legislation that will provide much-needed reform.  Tomorrow, this bill, the Prohibiting Punishment of Acquitted Conduct Act, will face its first major hurdle: a Senate Judiciary Committee markup.

The bill is a first step to addressing the many injustices caused by acquitted conduct sentencing.  It will prohibit federal judges from increasing a person’s prison sentence for one offense on the basis of another offense for which a jury had found the person not guilty.

Perhaps the most apparent problem with acquitted conduct sentencing is that it erodes our system’s presumption of innocence and the fundamental principles of fairness and justice.  Many lawyers and activists argue that it undermines the Sixth Amendment right to a jury trial — a pillar of the American criminal legal system, which requires that juries, not judges, determine the facts essential to a prison sentence.

Yet acquitted conduct sentencing remains permissible in every federal court and a majority of state courts. While the actual number of impacted persons has yet to be quantified,[FN1] based on the number of federal appeals we know that the practice is widespread.  At my organization, the Due Process Institute, our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them.

[FN1] It is almost impossible to say how many people have been directly impacted by the practice since no entity in our federal legal system currently tracks that data. No judge in any of our 94 distinct federal judicial districts is required to document when he or she relies on acquitted conduct in their sentencing decision. And there is often inadequate documentation of acquitted conduct sentencing placed on the public trial record....

Some members of the Supreme Court have raised concerns.... The view that acquitted conduct sentencing is unconstitutional has also won support from lower court judges across the political spectrum.  But the majority of the Supreme Court appears to remain unconvinced.

Without Supreme Court action, we must look to Congress for a remedy.  Thankfully, the legislative fix for this problem is relatively easy. Congress need only amend the law to explicitly exempt the use of acquitted conduct as a basis for increasing a person’s sentence.  The congressional history of 18 U.S. Code § 3661 — the part of the law dealing with the use of information for sentencing — indicates that the law was enacted to provide broad discretion to federal judges when considering information during sentencing.  But it does not appear that the statute was explicitly enacted to permit the specific practice of acquitted conduct sentencing.

The political case for abolishing the use of acquitted conduct at sentencing should appeal to sensibilities on both sides of the political aisle.  That’s why the Senate bill and a similar one in the House of Representatives have each received support from Democrats and Republicans.  In an era in which such bipartisan agreement is increasingly rare, this is an opportunity for Congress to pass meaningful legislation that will make our justice system more fair and effective.

It’s time to put an end to acquitted conduct sentencing, and the Senate’s legislation is a good start.  Tomorrow, the Judiciary Committee should vote to move this legislation forward unamended and allow it to come to the Senate floor for a vote.

June 9, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

GOP Gov and former DEA chief calls for Congress to "finally and fully end the disparity between crack and cocaine offenses"

In this new Fox News commentary, Arkansas Gov Asa Hutchinson makes a notable pitch for the EQUAL Act (discussed here).  The piece is headlined "It's time to fix an old wrong and end the disparity between crack and cocaine offenses," and I recommend it in full.  Here are excerpts:

In America, the principles of fairness and equal treatment are fundamental to the rule of law.  When we fall short of these principles, we lose confidence in our justice system and weaken the foundation of our country.  Since 1986, there has been a substantial difference in prison sentences for crack and powdered cocaine offenses, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but has also been the source of unequal punishment for basically identical crimes....

During my time in Congress in the 1990s, and as the head of the Drug Enforcement Administration (DEA) from 2001-2003, I saw first-hand the impact of this disparity, and found it was failing on three fronts.  First, it rarely led to the prosecution of major drug traffickers and sellers.  Instead, it led to increased prosecutions of small-time dealers and peripheral supporters, almost all of whom were replaced immediately.

Second, it became clear that the disparity was built on a misunderstanding of crack cocaine’s chemical properties and effects of the body.  Crack and powdered cocaine were chemically the same, and the violence that was linked to crack cocaine was not related to the properties of the drug.  Instead, it was the general product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold.

Third, it undermined community confidence in the fairness of the criminal justice system. I talked with drug task force officers and front-line agents at the DEA who said this sense of injustice had a real impact in the fight against illegal drugs; it made it more difficult for agents to build trust and work with informants in the areas most impacted by the crack epidemic.  The disparity in sentencing led to more harm than help in our federal anti-crime efforts.

The bipartisan Fair Sentencing Act, sponsored by Sens. Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., dramatically reduced the disparity, from 100:1 to 18:1.  In 2018, the First Step Act, signed into law by President Donald Trump, made that reduced disparity retroactive.

Those were important steps, but the new sentencing laws continue to cause disproportionate harm and decreased trust in communities of color.  For example, in 2019, Black people accounted for 81% of all federal crack cocaine convictions. Those convictions led to prison terms 18 times longer than they would have been for equivalent amounts of chemically identical powdered cocaine.

It is time for Congress to finish what it started, and finally and fully end the disparity between crack and cocaine offenses.  The bipartisan Equal Act would bring federal sentencing law in line with most states that have eliminated, reduced or never instituted, these unjust disparities. That includes my home state of Arkansas, where possession of crack and powdered cocaine are treated the same under state law....

The strength of our justice system is totally dependent on the perception of fairness and the concept that punishments should fit the crimes.  The clear and pernicious injustice of crack and powdered cocaine sentencing disparities harms our communities, limits law enforcement in their fight against illegal drugs, and weakens the foundation of our entire system of justice.

Congress has the opportunity to fully and finally eliminate this injustice by passing the Equal Act.  To get it done, lawmakers of all different backgrounds will need to put partisanship aside and work in the best interests of the American people.  I can’t think of a worthier cause than preserving our founding principle — that all Americans are treated equally under the law.

I am fully supportive of efforts to equalize federal crack and powder sentencing rules which are now based largely around the quantity of drugs involved in the offense.  But, for truly effective reform, I believe we need to not only move entirely away from any quantity-based approaches to drug offense sentencing, but also start moving away from punitive criminal justice responses to drug activities.

A few prior related posts:

June 9, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, June 08, 2021

"Exploring Alternative Approaches to Hate Crimes"

The title of this post is the title of this notable new lengthy report published today by the Brennan Center for Justice at NYU Law and Stanford Law School.  I received an email about the publication, which provided this overview:

Exploring Alternative Approaches to Hate Crimes” [is] a comprehensive report that assesses critiques of hate crime laws from communities of color and other targeted communities, and evaluates potential alternative approaches to respond to hate crimes more effectively.  The report addresses the harm hate crimes inflict and the limitations in keeping track of such crimes.  It finds that the current approach to hate crimes relies on increased law enforcement and imprisonment and that alternative responses centered on restorative justice and social services “may offer a way to identify and mend the unique individual and community harms caused by hate crimes, while demanding meaningful accountability for those who cause harm.”

“Our current hate crimes laws aim to recognize the profound harm to victims and their communities from crimes motivated by bias, but, as our report finds, they fall short in many ways,” said Stanford Law professor Shirin Sinnar, who along with Brennan Center Fellow Michael German, guided the policy practicum, Assessing Alternative Approaches to Hate Crimes, that compiled the report.  “Our goal with this report was to evaluate the traditional hate crime legal model, which focuses on increasing imprisonment for crimes with a proven bias motive, and explore the different approaches that local communities are now trying to counteract the injuries hate crimes inflict.”

“Hate crimes clearly remain a serious problem affecting uncounted individuals and communities across the U.S., and the law enforcement-centric approach we've employed over the last several decades has not provided satisfactory outcomes, or properly accounted for the harms,” said German.

New York City, Oakland, Calif., and other communities across the country have been trying some of the alternatives covered in Exploring Alternative Approaches to Hate Crimes. The report calls for greater investments in such programs to allow communities to experiment with methodologies that might more effectively mitigate the harms from hate crimes.

The report, put together by Stanford Law School students enrolled in the policy practicum, drew on findings from a March 2020 convening at Stanford Law School of experts in the fields of criminal law, civil rights, community advocacy and restorative justice. It also includes research from law, criminology, and other fields.  For the report, the Stanford Law School policy lab defined a “hate crime” as a criminal offense motivated by hostility against certain actual or perceived characteristics of a victim’s identity, including race or ethnicity, religion, gender, national origin, and sexual orientation, among others.

Most states and the federal government have enacted laws that create “stand-alone” offenses or impose sentence enhancements for crimes with a bias motive.  But in recent years, some community groups and racial justice advocates have questioned whether this approach relies too heavily on carceral solutions, especially through sentence enhancements, and whether current solutions sufficiently respond to the unique individual and community harms of hate crimes....

The report assessed restorative justice programs for hate crimes and social services programs for individuals and communities that are increasingly piloted across the country, both as substitutes for, or to exist alongside, the traditional legal approach.  The report found that, while challenging questions remain as to program design, restorative justice programs may offer a promising alternative to the traditional law enforcement approach to hate crimes.  It notes that “these programs should be subjected to rigorous study, to ensure they are implemented with the necessary attention to the constitutional rights of accused parties and the safety and well-being of impacted individuals and communities.

The report also found that support for social services and grant programs can be established, retooled, and better staffed and funded to ensure that individuals and communities affected by hate crimes receive adequate, culturally competent resources.  “Our work details alternative approaches that impacted communities are beginning to explore, which are designed to repair more directly the harms bias-motivated crimes inflict,” said German.  “We hope this report becomes a resource for communities looking for more effective methods of responding to hate crimes."

June 8, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Saturday, June 05, 2021

Might the California Supreme Court find a procedural flaw in the state's many death sentences?

The question in the title of this post is prompted by the notable oral argument that took place last week in the California Supreme Court.  This Los Angeles Times piece, headlined "California’s top court weighs overturning hundreds of death penalty sentences," provides this account and context. Here are excerpts:

For decades, California’s highest court has left it up to individual jurors to decide whether certain circumstances increase the severity of a crime and thereby warrant the death penalty in murder cases that qualify for the ultimate punishment.  On Wednesday, the state Supreme Court heard arguments on a change to that long-standing practice, which could potentially overturn hundreds of death penalty sentences in California.

At issue is how juries review “aggravating” factors — such as whether a crime was gang-related or involved multiple victims. Defense lawyers in the case argued that to ensure equal application of the death penalty, state law and the state Constitution require juries to be unanimous in their reasoning on each factor.

That the court is even considering new requirements is unusual.  It has refused to impose them in the past and has even summarily dismissed the kind of arguments presented Wednesday.  But the court’s composition has changed over the years.  Last June, the court issued a brief order asking for written arguments on the jury issue in what was otherwise a routine death penalty case.  That raised hopes among some that the court might be ready to wield an ax to capital punishment in California, a state that has produced the nation’s largest death row but hardly any executions.

Wednesday’s hearing probably tempered those hopes.  During a 90-minute hearing, only three justices — the more liberal members of the seven-judge court — spoke.  Though the silence of the majority can be interpreted in different ways, the hearing did not clearly signal that monumental changes were afoot.

The June order asked litigants to submit written arguments on this issue: Must a jury decide beyond a reasonable doubt that a defendant should get the death penalty or life without parole, and must that jury also be unanimous in deciding the reasons for a capital verdict?  If the court agreed, a ruling would probably throw out hundreds, if not all, previous death sentences in California.

The court’s sudden interest in the issue alarmed death penalty supporters.  They considered the questions long answered. Kent Scheidegger, a lawyer for a prominent pro-death penalty group, said he was both “surprised” and “very disturbed,” even with the changed composition of the court....

Justice Goodwin Liu, a Brown appointee, spoke the most during the hearing. He repeatedly pressed defense lawyers to cite precedent for their positions.  “I think there’s a lot of appeal to your argument from a fairness perspective,” Liu told a defense lawyer.  Liu’s “difficulty,” he said, was in finding cases that supported the argument legally. Is it possible, he asked, “that this issue has simply been missed this entire time? For 150 years, we have missed this issue?”...

Scheidegger said even that partial victory for the defense would have a “cataclysmic” impact on the death penalty and potentially overturn scores of sentences.  Such decisions in California are usually applied retroactively.  But Scheidegger said he felt “cautiously optimistic” after the hearing.  Liu, he said, did not seem “to be buying” the defendant’s main arguments.

UC Berkeley law professor Elisabeth A. Semel, who co-wrote Newsom’s written argument, declined to predict how the court would vote. “Justices Liu, Cuellar, and Groban had some tough questions” for the deputy attorney general defending the death penalty, she said.  “I do not believe she answered to their satisfaction.”

California has more than 700 inmates on death row, but legal challenges have stymied executions.  Only 13 inmates have been executed since 1992, and Newsom imposed a moratorium on executions during his term in office.

June 5, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases"

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

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors.  This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence.  This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday?  Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions.  This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.

This Note proceeds in three parts. Part I sets the stage for studying the Supreme Court’s juvenile sentencing jurisprudence. It takes a step back in order to orient the landmark trilogy of cases — Roper, Graham, and Miller — within the broader legal framework of criminal and juvenile justice. It is broken into three subcategories.  Subpart (A) briefly explains the principal justifications for punishing criminality.  After better understanding why we punish altogether, Subpart (B) analyzes why juveniles should be punished differently from adults.  This is explored very briefly from a historical, political, and legal perspective.  Subpart (C) explains in what circumstances juveniles in the justice system are treated like adults and why, again from a historical, political, and legal perspective.  Part II examines how the Supreme Court limited in some measure the punishments that can be meted out to juveniles, even if being sentenced within the adult criminal justice system.  Roper, Graham, and Miller are explored in detail, as well as some of the preceding cases that paved the road to these landmark rulings, and some subsequent cases.  Part III analyzes how judges should implement the guidance given by the Supreme Court in these cases.  The analysis will trace Josue Portillo’s case but its implications apply across the field of juvenile justice.

June 5, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, June 03, 2021

Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a)

As blogged here last month, in US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), a split Sixth Circuit panel held that "in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied."  This seemed consistent with the Sixth Circuit's prior holding in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here),  that district courts have full discretion [currently] to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion."  It was also consistent with rulings from other circuits like US v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020) and US v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021).  

But today a distinct split Sixth Circuit panel in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here),  states that "non-retroactive changes in the law [can] not serve as the
'extraordinary and compelling reasons' required for a sentence reduction."  Here is a passage from the majority opinion in Jarvis:

The text of these sentencing statutes does not permit us to treat the First Step Act’s non-retroactive amendments, whether by themselves or together with other factors, as “extraordinary and compelling” explanations for a sentencing reduction.  See Tomes, 990 F.3d at 505.  But for those defendants who can show some other “extraordinary and compelling” reason for a sentencing reduction (and we have plenty of deferential decisions on this score), they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.

Judge Clay authors a lengthy dissent in Jarvis that starts this way:

In passing the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(a) to allow federal district courts to grant compassionate release under appropriate circumstances to those incarcerated in federal prison, even in instances where the Bureau of Prisons opts not to do so.  In accordance with this understanding of the amendment, we have found that district courts are not required to consider the policy statement in U.S.S.G. § 1B1.13 in determining what constitutes an extraordinary and compelling reason for release, thereby permitting district courts discretion in determining whether an individual defendant has demonstrated an extraordinary and compelling reason for release.  See United States v. Jones, 980 F.3d 1098, 1110–11 (6th Cir. 2020).  In line with that precedent, in United States v. Owens, 996 F.3d 755, 760 (6th Cir. 2021), we determined that a district court can consider a nonretroactive First Step Act amendment that creates a sentencing disparity in combination with other factors as the basis for an extraordinary and compelling reason for compassionate release.  The majority today ignores this binding precedent from our circuit and erroneously concludes that our previous decision in United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021), requires that we affirm the district court’s denial of compassionate release in this case.

But in fact, Tomes’ conclusion that a non-retroactive sentence amendment cannot support a motion for compassionate release amounts to dicta that we are not bound to follow. Additionally, as Owens made clear, Tomes did not foreclose the conclusion that a sentencing disparity from a non-retroactive statutory change along with other grounds for release can serve as extraordinary and compelling reasons.  See Owens, 996 F.3d at 763.  By ignoring Owens, the majority contravenes the purpose of compassionate release to grant release, based on the consideration of the defendant’s unique circumstances, to individual defendants in extraordinary situations not covered by another statute.

Apart from concerns about how it approaches circuit jurisprudence, I find the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.

Notably, in its instructions to the US Sentencing Commission, Congress did provide expressly in statutory text that there was to be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.

Congress continuing approval of advisory guidelines after Booker, along with its pro-judicial-discretion reforms in the Fair Sentencing Act and the FIRST STEP Act, all suggest that our nation's legislature is now quite comfortable and confident granting federal district judges broad authority to consider how best to achieve sound, individualized sentencing justice in a careful case-by-case manner.  But, this Jarvis ruling reveals that some circuit judges seem to still be eager to concoct categorical limits on judicial sentencing discretion even though they do not appear expressly in the text. 

June 3, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

In 6-3 opinion for (police officer) defendant, SCOTUS limits reach of federal Computer Fraud and Abuse Act

The Supreme Court issued one opinion this morning, and it is an interesting criminal law decision with an interesting divide of Justices limiting the reach of a notable federal criminal statute.  The majority opinion in Van Buren v. US, No. 19–783 (S. Ct. June 3, 2021) (available here), is authored by Justice Barrett and it starts and ends this way:  

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer database in exchange for money.  Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes.  We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

He did not.  This provision covers those who obtain information from particular areas in the computer — such as files, folders, or databases — to which their computer access does not extend.  It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them....

In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer —  such as files, folders, or databases — that are off limits to him.  The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could.  Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.  We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion.

Justice Thomas authored a dissent joined by the Chief Justice and Justice Alito. It starts this way:

Both the common law and statutory law have long punished those who exceed the scope of consent when using property that belongs to others.  A valet, for example, may take possession of a person’s car to park it, but he cannot take it for a joyride.  The Computer Fraud and Abuse Act extends that principle to computers and information.  The Act prohibits exceeding the scope of consent when using a computer that belongs to another person.  Specifically, it punishes anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains” information from that computer. 18 U.S.C. §1030(a)(2).

As a police officer, Nathan Van Buren had permission to retrieve license-plate information from a government database, but only for law enforcement purposes.  Van Buren disregarded this limitation when, in exchange for several thousand dollars, he used the database in an attempt to unmask a potential undercover officer.

The question here is straightforward: Would an ordinary reader of the English language understand Van Buren to have “exceed[ed] authorized access” to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes.  The necessary precondition that permitted him to obtain that data was absent.

The Court does not dispute that the phrase “exceeds authorized access” readily encompasses Van Buren’s conduct. It notes, instead, that the statute includes a definition for that phrase and that “we must follow that definition, even if it varies from a term’s ordinary meaning.”  Tanzin v. Tanvir, 592 U.S. ___, ___ (2020) (slip op., at 3) (internal quotation marks omitted). The problem for the majority view, however, is that the text, ordinary principles of property law, and statutory history establish that the definitional provision is quite consistent with the term it defines.

I am pretty sure that this is the first (non-unanimous) opinion in which all the Trump-appointed Justices joined with all the Justices appointed by Democratic presidents, and I am very sure that I am hopeful that this will not be the only case in which these Justices combine to limit the application of questionable criminal laws and doctrines. Interesting times.

UPDATE:  I see Kent Scheidegger at Crime & Consequences has this age-related take on the alliances of the Justices in this Van Buren:

For those who like to categorize Justices and tally statistics, it may (or may not) be noteworthy that the six Justices appointed by Republican Presidents split by age, with the three younger ones supporting the narrower interpretation of this criminal law. There is perhaps a more libertarian streak in the more junior Justices and more wariness of overcriminalization.

June 3, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, June 02, 2021

In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison

As detailed in this CBS News piece, the parties in the case of Minnesota v. Chauvin are making very different sentencing requests:

Derek Chauvin asked a judge to sentence him to a term of probation or a shorter prison term than suggested by Minnesota guidelines in a sentencing memorandum filed Wednesday.  The memo cites Chauvin's lack of previous criminal history, his previous work as a police officer and the risk he could be victimized in prison as factors the judge should consider as he weighs a sentence.

But in another memorandum filed Wednesday, prosecutors asked for a sentence of 30 years for the convicted former Minneapolis officer, a term they said would "properly account for the profound impact of [Chauvin's] conduct on the victim, the victim's family, and the community."...

Last month, Judge Peter Cahill found "aggravating factors" exist that allow for him to sentence Chauvin to a term longer than the suggested 15 years. Cahill agreed with prosecutors that four such factors exist: that Chauvin committed a crime in front of a child, that Chauvin acted with particular cruelty, that he acted as part of a group, and that he abused his position of trust and authority as a police officer.  Cahill found that Chauvin acted with particular cruelty because he killed Floyd slowly despite Floyd's pleas that he couldn't breathe.  Floyd was "begging for his life and obviously terrified by the knowledge that he was likely to die" but Chauvin "objectively remained indifferent to Floyd's pleas," Cahill wrote.

Wednesday, prosecutors said the aggravating factors support their recommendation of double the 15-year upper end of the sentencing range, or 30 years.  Chauvin, they said, "brutally murdered Mr. Floyd, abusing the authority conferred by his badge."  "His actions traumatized Mr. Floyd's family, the bystanders who watched Mr. Floyd die, and the community. And his conduct shocked the Nation's conscience," the prosecution's memo read. "No sentence can undo the damage [Chauvin's] actions have inflicted.  But the sentence the Court imposes must hold [Chauvin] fully accountable for his reprehensible conduct."

But in the defense memo, Chauvin's attorney Eric Nelson asked Cahill to discount his finding that aggravating factors apply, and rule instead that mitigating factors allow either for a term of probation or a shorter sentence than guidelines suggest.  Nelson asked the judge to "look beyond" his findings to Chauvin's "background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system."

Nelson said that Chauvin has been "painted as a dangerous man," but argued that "behind the politics, Mr. Chauvin is still a human being."  He cited Chauvin's 19-year history with the Minneapolis police department, several on-the-job commendations and the support of his family and friends.  "In spite of his mistakes, Mr. Chauvin has demonstrated that he has a capacity for good and that he has the discipline to consistently work toward worthwhile goals," the memo reads.

The defense memo says Chauvin, 44, has been diagnosed with heart damage and that he may be likely to die at a younger age like other ex-law enforcement officers.  It also says Chauvin may be more likely to be victimized in prison because he was convicted as a police officer, pointing to the fact that he is being segregated from the general prison population before his sentencing over safety concerns.  It also says Chauvin has no previous criminal convictions and complied with pre-trial release conditions and court procedures. "Throughout these proceedings, and in the face of unparalleled public scorn and scrutiny, Mr. Chauvin has been very respectful to the judicial process, the Court, and the State," the memo said.

These new sentencing filings are available at these links:

Prior related posts:

June 2, 2021 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

June 2, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Tuesday, June 01, 2021

"Victims’ Rights in the Diversion Landscape"

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

In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect.  I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion.  Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes.  Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.

June 1, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Friday, May 28, 2021

High-profile reminder that parole is rarely a given, especially for a prisoner claiming innocence

Though decided earlier this month, a high-profile denial of parole is garnering headlines this week.  This USA Today story, headlined "Bill Cosby denied parole after he refuses sex offender treatment program," provides these details:

Bill Cosby will not be released from prison anytime soon.  The 83-year-old actor, who is currently serving three to 10 years in Pennsylvania state prison after being convicted of sexual assault in 2018, has been denied parole nearly three years into his sentence.

The Pennsylvania State Parole Board declined Cosby's parole request on May 11 partly over his need to participate in "a treatment program for sex offenders and violence prevention," and "failure to develop a parole release plan," according to a state board action letter provided to USA TODAY.  The board also cited a "negative recommendation" from the Department of Corrections.

Cosby's representative, Andrew Wyatt, told USA TODAY Thursday that the decision "is not a surprise" to the disgraced TV star because the board explicitly stated he would be denied parole "if he did not participate in SVP (Sexually Violent Predator) courses."  But Wyatt said Cosby, who has maintained his innocence, has no plans to attend the therapy programs. "The Cosby Show" star has previously said he expects to serve his full 10-year sentence and vowed to show no remorse for crimes he said he didn't commit.

"Mr. Cosby has vehemently proclaimed his innocence and continues to deny all allegations made against him, as being false, without the sheer evidence of any proof," Wyatt said in a statement to USA TODAY on Thursday.  "Mr. Cosby continues to remain hopeful that the Pennsylvania State Supreme Court will issue an opinion to vacate his conviction or warrant him a new trial."

Cosby was the first celebrity to go on trial in the #MeToo era and was convicted of drugging and raping Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia in 2004.  Cosby appealed his conviction, citing multiple alleged "errors" by the trial judge in his case, but the state appeals court upheld his verdict in December 2019.  The Pennsylvania Supreme Court accepted Cosby's appeal in June 2020, thus raising the possibility it might be overturned in the future....

He's currently serving out his sentence at State Correctional Institution at Phoenix, a state prison in Skippack Township, Pennsylvania.  He will be eligible for parole in September after serving the three-year minimum of his sentence.  To be considered for parole, the Pennsylvania State Parole Board said Cosby not only needs to complete a treatment program, but he must maintain a "clear conduct record."

May 28, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Most of California DAs file court action challenging new rules expanding good behavior credits to state prisoners

As reported in this recent AP piece, "three-quarters of California’s district attorneys sued the state Wednesday in an attempt to block emergency rules that expand good conduct credits and could eventually bring earlier releases for tens of thousands of inmates."  Here is more about the suit:

The lawsuit objects on procedural grounds, arguing that Corrections Secretary Kathleen Allison used the emergency declaration to bypass the usual regulatory and public comment process.  The rules affecting 76,000 inmates, most serving time for violent offenses, took effect May 1, although it will be months or years until inmates accumulate enough credits to significantly shorten their sentences.

Forty-four of the state’s 58 district attorneys brought the lawsuit, which says the only stated emergency was the corrections department’s desire to follow the “direction outlined in the Governor’s Budget Summary” nearly a year earlier.  Notably absent were district attorneys in Los Angeles and San Francisco who have backed criminal sentencing changes.

The lawsuit asks a Sacramento County Superior Court judge to throw out the regulations and bar the department from granting any of the good conduct credits until it goes through the regular process.  “There is no actual emergency, and they cannot meet those emergency requirements,” the lawsuit contends.  “Nowhere in the supporting documents is there an explanation of how last year’s budget has become an operational need for the adoption of the regulations on an emergency basis.”

The department said it acted under the authority given it by voters when they passed Proposition 57 in 2016, allowing earlier parole for most inmates.  It “filed regulations to promote changes in good behavior credits, and followed all policies and procedures by the Office of Administrative Law,” the department said in a statement promising to “continue to work with our partners to promote rehabilitation and accountability in a manner consistent with public safety.”

The emergency rules boost good behavior credits for a projected 63,000 inmates convicted of violent crimes, allowing them to prospectively serve two-thirds of their sentences rather than the previous 80%.  Another 10,000 prisoners convicted of a second serious but nonviolent offense and nearly 2,900 nonviolent third strikers would be eligible for release after serving half their sentences, down from two-thirds.  Inmate firefighters and minimum-security inmates in work camps, regardless of the severity of their crimes, are eligible under the new rules for a month of earlier release for every month they spend in the camp.

A press release about the suit from the Sacramento County District Attorney's Office is available here, and the actual filing is available here.

A few recent related posts:

May 28, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 27, 2021

"What's the right age for juvenile criminals to be considered adults? Advocates and some states push it past 20."

The title of this post is the headline of this notable recent lengthy Des Moines Register piece. Here are excerpts:

Four years ago, juvenile justice advocates celebrated a huge win: North Carolina ended its status as the last state in the nation that automatically considered anyone 16 years old or older an adult in the criminal justice system.  When North Carolina raised the age to 18, the change was more than a dozen years in the making.  Now, advocates are setting their sights — and their desired age limit — higher.

And they're winning.  Vermont, Massachusetts, Connecticut and Illinois raised or are looking to increase the age of juvenile jurisdiction through age 20 or created separate courts or parole allowances for those ages 18 to 25.  Similar bills have moved or are being considered in California, Colorado, Washington, D.C., and Florida.  Backed by evidence of racial disparities, court cases and research showing a person’s brain isn’t fully developed until at least 25, states see kids as kids and emerging adults as not fully developed and still prone to immature behavior.

“We've really seen a reversal of the trend in the ’90s, which was to treat more children as adults — sort of the ‘adult crime and adult time’ mindset,” said Karen Lindell, senior attorney with the Juvenile Law Center.  Studies showed minors sentenced in the adult system not only committed more crimes upon release than peers in the juvenile system but also engaged in more serious crimes, Lindell said.

U.S. Supreme Court rulings struck down the death penalty for juveniles and ended mandatory life without parole in all but homicide cases — then for all crimes.  Faced with the research and those rulings, state officials started looking at trends showing juvenile crime rates were plummeting.  In 2019 — the latest year data is available — minors accounted for the fewest arrests in nearly 40 years, roughly 700,000, according to the U.S. Department of Justice.  The biggest drops in juvenile crime were over the past 10 years — a 58% drop overall and a 40% falloff in violent crime.  By comparison, the department said violent crime among adults was down 7%.

Forty-seven states automatically charge those under 18 as juveniles for all but the most serious offenses, such as murder or sexual assault.  Michigan and Missouri joined the list over the past year.  Michigan is working on the Holmes Youthful Trainee Act, which would give people ages 17 to 23 the chance to wipe even felonies from their records.  "No state should want to be the last jurisdiction to automatically prosecute and sentence youth under 18 as adults," said Lael Chester, director of the Emerging Adult Justice Project at Columbia University’s Justice Lab.

Officials in the remaining three states — Georgia, Wisconsin and Texas — have considered bumping the cutoff age to 18.  All three states set the age at 17.  It's not just the ceiling for juvenile jurisdiction being raised: The floor is being lifted as more states increase the age at which minors can first enter the juvenile system. Massachusetts set the floor at age 12. Illinois lifted it to 14.

As on most state-level changes, states look to their peers for guidance, said Anne Teigen, the program director for juvenile justice at the National Conference of State Legislatures.  Other state lawmakers are looking at Vermont.  That state set the age of juvenile jurisdiction through age 18 last year, and that limit will increase to 19 in July 2022 and 20 in 2024.  Vermont started moving in the direction of raising the age in 2016, when then-Gov. Peter Shumlin, a Democrat, signed a law enabling anyone 21 or younger charged with a nonviolent crime to be eligible for juvenile offender status....

Recently, Illinois lawmakers have debated a bill that would raise the age for juvenile consideration to those under 21 and separately, a measure to reintroduce parole to the state  — something that was ended in 1978.  Illinois, like other states, says adulthood begins at 21 for alcohol and tobacco use, so the same age should be applied to criminal behavior, said state Sen. Laura Fine, a Democrat.  "Their brains are not fully developed," Fine said. "And if you put yourself in their position, think of what you did when you were 18. A lot of people were lucky because they did stupid things, and they didn't get caught."

Many law enforcement organizations oppose the move, and the bill, which won early support, stalled as lawmakers worked on other major criminal justice changes, such as getting rid of cash bail.  "We think that what people do when they're 20 or 21 is quite a bit different from what people do when they're 13 and 14.  And the kinds of opportunities that we give to 13- and 14-year-olds seem rather appropriate most of the time," said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, which opposes the measure....

If the Illinois bill becomes law, Columbia University's Chester said, it could swing other states in that direction.  “Illinois would be the second state to move in that direction, but it would be a big deal," Chester said. "As momentous as Vermont is, it's a very small state.  And I think the bigger states, having Illinois with a very large population — the big city of Chicago — that is more influential on the national stage.”

May 27, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, May 26, 2021

"Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration"

The title of this post is the title of this new paper authored by Michael Conklin now availabe via SSRN.  Here is its abstract:

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism.  States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs.  The need for such common-sense reform is timely.  COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes.  This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience.  This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience.  It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities.  These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

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

Sunday, May 23, 2021

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

6a00d83451574769e20224df387165200bIn this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

May 23, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Spotlighting how "death in prison" LWOP cases still get so much less attention than capital punishment

Way back in 2008, I lamented in an article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," that all the "Supreme Court attention and constitutional scrutiny given to capital cases necessarily means less attention and constitutional scrutiny given to non-capital cases."  Though that article was particularly focused on SCOTUS dockets, regular readers know I have long fretted about the tendency of so many media, lawyers, advocates and legal decision-makers to give so much time and energy to very rare capital cases when there are so many other cases with so many other ugly sentencing realities that could benefit from more attention.

Over the last decade, mass incarceration and a range of other sentencing and punishment realities have thankfully garnered considerably more attention in so many quarters.  But I think there are still problematic imbalances in coverage and commentary and concern: for example, South Carolina's decision to bring back firing squads even though the state has not had an execution in a decade got lots of attention, while a Mississippi court's decision to uphold an LWOP sentence for marijuana possession has gotten far less attention.

Against this backdrop, I was pleased to see this new lengthy article in The Marshall Project under the headline "Life Without Parole Is Replacing the Death Penalty — But the Legal Defense System Hasn’t Kept Up."  I recommend this piece in full, and here are excerpts:

Life-without-parole sentences are steadily replacing the death penalty across the United States.  Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms. 

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead.  Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers.  In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up.  Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center.  In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found.  Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska.  In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.  Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.  “The sentencing stakes are so high and often irreversible.”  People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said....

Though thousands are serving life without parole for violent crimes such as homicide, courts in almost a dozen states have given hundreds of people that penalty for drug crimes.  Prosecutors have found that jurors are less squeamish about locking people up for the rest of their lives than about executing them. And life-without-parole trials cost thousands of dollars less than death penalty cases. They are shorter, involve fewer lawyers, allow limited appeals and often end in plea deals before trial....

“Prosecutors have gone wild with life-without-parole sentences -- but in particular counties and for particular marginalized people,” said Brandon Garrett, a Duke University law professor who wrote a book on the decline of capital punishment.  His study of North Carolina found that more than 60% of the prison population serving life without parole was Black.  Only 30% was White....

In 2003, the American Bar Association updated its guidelines for what lawyers should do for clients who face death sentences. Among other things, the guidelines say these lawyers should have extensive criminal trial experience and knowledge of death penalty case law and should hire investigators and mental health experts.  Some state legislatures and courts have adopted these standards, including Texas. But experts say enforcement is a problem.  And in almost every state, the standards don’t apply to life-without-parole cases. 

May 23, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, May 22, 2021

Noticing a lack of pleas, so far, in Capitol riot prosecutions

I keep saying that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  This recent Reuters piece, headlined "Few plea bargains in U.S. Capitol riot cases as prosecutors stand firm," provides another interest update on these cases:

Nearly four months after the U.S. Capitol attack, just one of more than 440 people charged has pleaded guilty, a sign of tough conditions set by prosecutors for plea deals and resistance by defense lawyers to their demands.  This reflects the high stakes of cases stemming from the worst violence at the Capitol in modern history, which left five people dead.

U.S. officials have suggested in court hearings that defendants might be interested in pleading guilty, a move that typically can result in a shorter sentence.  Prosecutors routinely seek to resolve cases through plea bargains.  But legal experts said it is relatively early in this process for either prosecutors or defense lawyers to be reaching quick deals.

Lawyers for more than a dozen defendants said plea talks so far have foundered because prosecutors demanded their clients turn over social media data, cell phones and other evidence, while also pushing for prison sentences they would not accept.  Without plea deals, hundreds of separate trials will move forward, a time-consuming process now extended by a case backlog resulting from the COVID-19 pandemic.

Moreover, without evidence provided under plea bargains, federal prosecutors may have a harder time building cases against leaders of the violence on more serious charges such as conspiracy or violation of laws intended to fight organized crime....

The charges have ranged widely, from disorderly conduct to assaulting officers and conspiracy. Key conspiracy cases have largely focused on leaders of the right-wing Oath Keepers and Proud Boys groups. They face charges of obstruction of an official proceeding, destruction of government property and occupying a restricted building.

Some defendants facing lesser charges have been surprised by prosecutors' demands. Defense lawyers have complained that their insistence on obtaining cell phones and other physical and digital evidence is excessive. That data could be used to build cases against planners of the violence.

Attorney Steven Metcalf said he rejected a plea deal that would have sent his client Richard Barnett to prison for several years. The man from Gravette, Arkansas was seen in a widely circulated photograph sitting at a desk with his feet up in House of Representatives Speaker Nancy Pelosi's office. "We might consider something more reasonable," Metcalfe said....

Former federal prosecutor Laurie Levenson, a law professor at Loyola Law School in Los Angeles, said that by taking a tough stand in plea-bargain negotiations, prosecutors are "sending a message" about how seriously they take the riot cases. "It is still relatively early in the process," Levenson said. "Prosecutors don't want to ... set the standards too low. There's not a lot incentive for prosecutors to give a sweetheart deal."

Prosecutors are also likely focused on amassing as much evidence as they can, she said, hence the requests for defendants to surrender phones and other data. The one person who has pleaded guilty so far, Oath Keepers founding member Jon Schaffer, agreed to turn over "any and all evidence" of crimes that he was aware of and to fully cooperate with prosecutors, according to his plea deal filed in federal court.

The lawyer for Jacob Chansley, the man nicknamed the "QAnon Shaman" who was photographed wearing a horned headdress inside the Capitol, said the prosecutors he has talked to appear to have less leeway to negotiate deals without consulting Washington than he normally encounters in federal cases. "We have been working as collaboratively as we can with the government," said Albert Watkins, a St. Louis lawyer who represents Chansley and three other Jan. 6 defendants....

At a court hearing this month, prosecutors indicated that senior officials had approved possible plea deal offers for four defendants charged with attacking police in a Capitol tunnel with firecrackers and chemicals. But lawyers for some of them said no offers have materialized....

Plea discussions appear to be advanced in the case of at least one other accused rioter, court records showed. Douglas Jensen of Des Moines, Iowa, faces charges including violent entry of the Capitol and disrupting government business. Court records showed that a conference in early May was postponed until June while the parties decide if they want to proceed with a plea. Jensen’s lawyer declined to comment.

I am quite confident that many of these cases will be resolved via pleas and that there will not be "hundreds of separate trials" moving forward.  Indeed, because prosecutors are still building more cases and likely still figuring out relative culpability, it is not all that surprising that they are aggressively seeking cooperation and information in the plea negotiation process before agreeing to reduced sentences.  Also, as Prof Levenson rightly highlights, federal prosecutors are likely disinclined to have early pleas involve less serious charges with what may be perceived as light sentencing outcomes, both because of the optics of any deal perceived to be "sweetheart" and because early plea deals often set benchmarks for later plea negotiations and sentencings.  In other words, these case still reflect classic federal prosecutorial dynamics, even if plea deals are being struck a little more slowly.

Prior related posts:

May 22, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, May 21, 2021

"Population-Based Sentencing"

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

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses.  How have courts responded to this trend?  Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques.  First, the courts have expanded individual procedural rights into sentencing where they once did not apply.  Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants.  These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract.  While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration.  However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward.

May 21, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Notable data on BOP resistance to compassionate release requests from federal prisoners

As regular readers likely surmise, I have been quite pleased that federal courts have seized their new authority under the FIRST STEP Act to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  This BOP "First Step Act" page reports that there have been a total of 3,414 "Compassionate Releases / Reduction in Sentences" approved by courts since passage of the FIRST STEP Act, but the BOP has not reported on how many of such motions have been support by the BOP.  But this week, a letter from the BOP to members of Congress (which was apparently written in mid April and can be downloaded below) provides more details on how many compassionate release requests have been made and how few have been endorsed by the BOP.

Specifically, the letter to members of Congress authored by Ken Hyle, BOP's General Counsel, reports that since March 1, 2020, a little over 30,000 compassionate release requests were made by federal prisoners,  Of that number, only 374 of these requests were recommended for approval by prison wardens and then only 36 were approved by the BOP's Director.  In other works, during global pandemic, only about 1 out of 83 requests for compassionate release got approved by a federal warden, and then less than one out of every 10 requests approved by a warden was approved by the BOP Director.

Thankfully, federal judges had a much more fulsome view of compassionate release during a pandemics.  Specifically, given that around 3250 motions for compassionate release were granted by judges during the pandemic, it seems that for every compassionate release motion found satisfactory by the BOP Director, there were an additional 90 motions that federal judges concluded were satisfactory to  justify a sentence reduction under the provisions of 18 U.S.C. § 3582(c)(1)(A).

Download Response from BOP re. compassionate release during COVID 4.16.21

May 21, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 19, 2021

Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills

I was pleased to see today this press release from Americans for Prosperity noting that the US Senate Judiciary Committee has a meeting scheduled on Thursday which includes plans "to mark up three key bills: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act."  Here is how the press release describes these bills:

I have blogged about all these bills in these prior posts:

Senators Durbin and Grassley introduce new "First Step Implementation Act"

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act" 

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

It is exciting to all three of these bill poised to move forward in the legislation process.  None alone would be a massive reform, but all together would be a significant advance in federal criminal justice reform.

May 19, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Tuesday, May 18, 2021

Idaho delays scheduled execution for terminally ill condemned man to allow for commutation hearing

As reported in this new AP piece, a "scheduled June execution for an Idaho man who is dying of terminal cancer has been canceled so the state’s Commission of Pardons and Parole can consider whether to commute his sentence."  Here are a few details:

Gerald Ross Pizzuto Jr. was scheduled to die by lethal injection on June 2 in connection with the 1985 murders of two people at a remote Idaho County cabin.  On Tuesday, the Idaho Commission of Pardons and Parole granted Pizzuto’s request for a commutation hearing, and attorneys for the state and Pizzuto agreed that the execution should be stayed until the hearing is concluded.  The hearing will be held in November, the commission said....

Pizzuto, 65, has terminal bladder cancer, diabetes and heart disease and is confined to a wheelchair.  He’s been on hospice care since 2019, when doctors said he likely wouldn’t survive for another year....

Court records show Pizzuto’s life was marred by violence from childhood.  Family members offered gruesome testimony that Pizzuto was repeatedly tortured, raped and severely beaten by his stepfather and sometimes by his stepfather’s friends, and he sustained multiple brain injuries.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money.  He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Pizzuto is one of eight people on Idaho’s death row.  Idaho has executed three people since capital punishment was resumed nationwide in 1976.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhodes was executed in 2011 and Richard Albert Leavitt was executed in 2012.

May 18, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)