Monday, December 05, 2022

"The Constitutional Limits of Criminal Supervision"

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

Nearly four million people are under criminal supervision in the United States.  Most are on probation or parole.  They can be sent to prison if a judge concludes that they violated the terms of their supervision.  When that happens, there is no right to a jury trial.  The violation only needs to be proven to a judge by a preponderance of the evidence.  This creates a constitutional puzzle.  In several important cases, the Supreme Court has recognized that the Sixth Amendment right to trial by jury is not limited to the formal elements of criminal statutes.  It applies in any situation where proving a fact to a court triggers additional punishment.  So then why is criminal supervision constitutionally permitted, when it involves judges sending people to prison based on facts not proven to a jury?  Under current doctrine, the answer is surprisingly unclear.  The Court’s 2019 decision in United States v. Haymond raised this issue directly, but failed to provide an answer.

This Article proposes a new solution to this constitutional puzzle: the conditional sentencing theory.  This theory explains how criminal supervision can be made compatible with the Sixth Amendment.  It holds that a criminal sentence can include provisions that change the defendant’s custody status if certain conditions are satisfied.  Such a sentence contains an amount of custody time, an amount of supervision time, an amount of suspended custody time for supervision violations, and a list of acts that trigger violations.  Under this theory, a judge sentencing a person for a supervision violation is not imposing a new punishment.  They are instead implementing the terms of the original sentence, switching someone from supervision to custody based on triggering rules announced at the initial sentencing hearing.

The conditional sentencing theory places two important constitutional limits on criminal supervision, which are not currently recognized.  First, a judge cannot retroactively change a supervision sentence by lengthening it, adding more conditions, or adding more prison time.  Second, a sentence for a supervision violation cannot exceed the statutory maximum for the underlying crime.  Numerous state and federal supervision laws transgress these limitations.  Many state probation laws, for example, let judges extend probation or change its terms at a violation hearing.  In some states, like Wisconsin and Pennsylvania, this process can repeat indefinitely.  The same is true in the federal system of supervised release.  That system lets judges extend supervision unlimited times, keeping supervisees trapped in an endless cycle of new punishments — a life sentence on an installment plan.  The Article closes by arguing more broadly that judges should direct greater constitutional scrutiny at institutions, like criminal supervision, that make incarceration more efficient by circumventing defendants’ rights.

December 5, 2022 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Sunday, December 04, 2022

"A Fiduciary Theory of Progressive Prosecution"

The title of this post is the title of this new article authored by Rebecca Roiphe and Bruce Green. Here is its abstract:

Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions.  They tend to bind their discretion by announcing categorical policies rather than making fact-based decisions case by case.  This article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own subordinate prosecutors.  Drawing on fiduciary theory, it explains this reaction as a response to progressive prosecutors’ abdication of their fiduciary role.  As a public fiduciary, prosecutors are entrusted with protecting the public’s abstract interest in justice, and an integral part of this role is exercising discretion in individual cases based on a broad array of relevant considerations.  This ad hoc discretionary decision-making process assures the public that prosecutors are drawing on their expertise to pursue justice in a basic sense rather than coopting the process for the benefit of some subset of the public.  We conclude by suggesting ways in which progressive prosecutors can pursue their conception of justice while still adhering to the fiduciary role.

December 4, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, December 01, 2022

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

December 1, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, November 28, 2022

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

November 28, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Buffalo mass shooter pleads guilty to first-degree murder charges in state court

As this AP article details, the "white gunman who massacred 10 Black shoppers and workers at a Buffalo supermarket pleaded guilty Monday to murder and hate-motivated terrorism charges, guaranteeing that he will spend the rest of his life in prison." Here is more:

Payton Gendron, 19, entered the plea Monday in a courthouse roughly two miles from the grocery store where he used a semiautomatic rifle and body armor to carry out a racist assault he hoped would help preserve white power in the U.S.

He pleaded guilty to all the charges in the grand jury indictment, including murder, murder as a hate crime and hate-motivated domestic terrorism, which carries an automatic sentence of life without parole. Gendron also pleaded guilty to wounding three people who survived the May attack.

Gendron, who was handcuffed and wore an orange jumpsuit, showed little emotion through the 45-minute proceeding, just occasionally licking and clenching his lips. He answered “yes” and “guilty” as the judge referred to each victim by name and asked whether he killed each victim because of their race.

Immediate relatives of the victims were joined by Buffalo Mayor Byron Brown and the police commissioner in the gallery. Many of the relatives appeared to be crying, dabbing their eyes and sniffling. The judge urged calm as the proceedings began. “I understand this is a momentous and tremendously emotional event,” Judge Susan Eagan said.

“Swift justice,” is how Erie County District Attorney John Flynn described the result, noting that it’s the first time anyone in the state of New York has been convicted of the hate-motivated terrorism charge....

Every victim was targeted because of their race, Flynn said, noting that Gendron spared and even apologized to a white person during the attack. He modified a rifle into an illegal assault weapon so that he could kill as many African Americans, in as short a period of time, as he could, Flynn said.

“This critical step represents a condemnation of the racist ideology that fueled his horrific actions on May 14,” said Gendron’s lawyer, Brian Parker. “It is our hope that a final resolution of the state charges will help in some small way to keep the focus on the needs of the victims and the community.”...

Gendron previously pleaded not guilty to separate federal hate crime charges that could result in a death sentence if he is convicted. The U.S. Justice Department has not said whether it will seek capital punishment.

November 28, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Sunday, November 27, 2022

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

November 27, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, November 19, 2022

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

November 19, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 18, 2022

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

November 18, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (5)

Tuesday, November 15, 2022

Local prosecutor seeking LWOP sentence for Michigan school shooter Ethan Crumbley

As reported in this local article, "Oakland County prosecutors plan to seek a life sentence without the chance of parole for the teenage boy who killed four classmates and injured a teacher and six other students at Oxford High School last year."  Here is more:

Ethan Crumbley, 16, pleaded guilty Oct. 24 to terrorism causing death, four counts of first-degree murder, seven counts of attempted murder and 12 counts of felony firearm. Crumbley killed Oxford students Madisyn Baldwin, Tate Myre, Hana St. Juliana and Justin Shilling.

The Oakland County Prosecutor's Office filed a motion Monday notifying the court that it planned to seek a life without parole sentence. "As we previously stated, there have been no plea bargains, no charge reductions, and no sentence agreements," David Williams, Oakland County's chief assistant prosecutor, said Tuesday in a statement. "The shooter has been offered and promised nothing. The motion filed yesterday is a formal declaration of our intent to seek the maximum possible sentence in this case."

Paulette Michel Loftin, Crumbley’s lawyer, said in October before Crumbley entered his plea that he was remorseful and wanted to accept accountability and do the right thing. Pleading guilty was his idea, she said. Crumbley was 15 years old at the time of the shooting on Nov. 30, 2021....

A first-degree murder conviction usually comes with an automatic life without parole sentence, but teenagers are entitled to a hearing where their attorneys can argue for a lighter sentence and present mitigating testimony and evidence about their client's life.  Prosecutors can also put on a case for why their requested sentence is warranted. This hearing is held because of a 2012 U.S. Supreme Court ruling that found mandatory life sentences without parole for juveniles are unconstitutional. The sentencing process is scheduled to start in February.

Oakland County Prosecutor Karen McDonald has said that "every person who was in Oxford High School that day will have a chance, if they want to, to speak in their own words about how this has affected them."

Ethan's parents, James and Jennifer Crumbley, are charged with four counts each of involuntary manslaughter. Prosecutors accused them of "gross negligence" leading up to the murders. They face up to 15 years in prison.

As detialed in this post, just a few months ago the Michigan Supreme Court issued a series of rulings addressing, and generally restricting, when and how juveniles convicted of homicide can receive sentences of life with or without parole.  I would expect that a mass shooting at a school would still be a prime case for a discretionary LWOP sentencing, but Crumbley’s relatively young age and his apparent remorsefulness could open up the possibility of a lesser sentence.

Prior related post:

November 15, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (13)

Friday, November 11, 2022

Another important look at the role of prosecutors in second-look sentencing

Many years ago, I had the honor of giving a keynote speech at a conference focused on the work of prosecutors where I suggested they should be much more involved in reviewing past sentences.  That speech, whi got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010), came to mind as I read this new Marshall Project piece headlined "Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do."  I recommend the lengthy and effective piece in full, and here is a brief excerpt:

Louisiana is one of five states that has recently passed prosecutor-initiated resentencing laws, along with California, Washington, Illinois and Oregon.  Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — considered similar bills this year, though none were brought to a vote.

Many incarcerated people view these laws as a way to get fresh eyes on their cases.  Advocates for criminal justice reform say the laws are needed to help reduce mass incarceration.

But their reach so far has been concentrated in the offices of a few district attorneys, mainly in urban areas, according to a review by The Marshall Project.  One reason is the high cost of reviewing old cases, prosecutors say. There are also moral and political issues.  Some prosecutors are philosophically opposed to the notion of overturning sentences handed down by a judge, and others fear pushback from voters.

Some of many recent prior related posts:

A small sampling of my prior writing on this front:

November 11, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 10, 2022

"Dresser Drawer Pardons: Pardons as Private Acts"

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

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

November 10, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 08, 2022

How many federal LWOP sentences have been reduced via 3582(c)(1)(A) and on what grounds?

The question in the title of this post was prompted by a notable new ruling sent my way, US v. West, No. 06-21185 (E.D. Mich. Nov. 7, 2022), which grants a sentenced reduction motion for a prisoner serving a federal LWOP sentence.  Before discussing that opinion (which can be dowloaded below), I will note that Figure 2 of the USSC's latest Compassionate Release Data Report from September 2022 reports that 27.9% of the over 4000 prisoners who have had their 3582(c)(1)(A) motions granted were serving original sentences of "20 years or more."  In other words, since the First Step Act became law in December 2018, well over 1000 persons serving sentences of 20 or more years have received sentence reductions.  But, to my knowledge, the USSC has not provided further details with any data specifically regarding prisoners serving LWOP securing compassionate release or regarding the reasons judges commonly give when reducing LWOP sentences.

General numbers and broader trends aside, the ruling in West makes for an interesting read because the judge here decides that Apprendi error as well as unwarranted sentencing dispartity provided extraordinary and compelling reasons for a sentence reduction.  Here is how the West opinion gets started:

Roy West is in year 17 of a life without parole sentence.  The indictment and case submitted to the jury should have netted West not more than ten years in prison.

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition of a sentence in violation of the law on West.  Even skilled appellate counsel failed to raise the sentencing error.

West has no way to correct this extraordinary and compelling error — and end his days in prison — but through his now pending motion for sentence reduction (compassionate release).

18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, opens an avenue for this Judge to correct a fundamentally unfair sentence that did not exist before.  Justice and faith in our judicial system demand correction for the benefit of Roy West.

This human error on multiple levels, the resulting sentencing disparity, the absence of any other avenue for relief, and West’s extraordinary rehabilitation constitute extraordinary and compelling reasons for sentence reduction.  The 18 U.S.C. § 3553(a) factors support a sentence reduction as well.

Download West CR opinion

November 8, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 07, 2022

Three notable dissents from denials of cert in criminal case on latest SCOTUS order list

The Supreme Court this morning released this 54-page(!) order list, and nearly 50 pages are comprised of dissents from the denial of cert by a handful of justices in five distinct cases. Here is a (too brief) accounting of the three criminal cases in this number:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

November 7, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, November 02, 2022

After victims's statements, Parkland shooter formally sentenced to life without parole

As detailed in this NBC News piece, headlined "Parkland school shooter sentenced to life in prison without parole after emotional victims’ statements," a high-profile sentencing was completed today in Florida. Here are some details:

Following dramatic statements from victims and victims' families, a Florida judge formally sentenced Parkland school shooter Nikolas Cruz to life in prison without parole Wednesday for the 2018 campus massacre that killed 14 students and three staff members.

Circuit Judge Elizabeth Scherer followed the jury’s recommendation to spare the 24-year-old the death penalty, instead sentencing him to a lifetime behind bars. Last month, in a 9-3 vote, a jury leaned toward sending Cruz to death row, but Florida law dictates that anything less than a unanimous vote automatically shifts the sentence to life without parole.

Prosecutors had sought the death penalty, while the defense had asked for life in prison. The jury’s decision on Oct. 13 shook family members of victims who were visibly distraught by the verdict....

Ilan Alhadeff, father of Alyssa Alhadeff, 14, who was killed in the shooting, said Wednesday during his victim impact statement, Cruz’s inevitable life sentence brings him little satisfaction. He deserved death, Alhadeff said.

“Let me show how angry and frustrated I am with the judicial system. After 4 ½ grueling years, a failed judicial system did not hand down a death sentence to the murderer of my daughter and 16 others,” he said. “Do I see this as accountability? Absolutely not. Do we now have closure? Let me be clear, absolutely not. What I see is that the system values this animal’s life over the 17 now dead. Worse, we sent a message to the next killer out there that the death penalty would not be applied to mass killing. This is wrong and needs to be fixed immediately.”

Sam Fuentes was shot in the leg and struck in the face with shrapnel during the massacre. She said Wednesday in court she watched Cruz kill two of her friends. “You shot me in the leg. If you looked me in the face, like I’m looking at you right now, you would see the scars on it from the hot shrapnel that was lodged into it. Do you remember after you sprayed my classroom with bullets, standing in the door, peering in to see the work you’ve done? Do you remember my little battered, bloody face looking back at you? I could have sworn we locked eyes,” she said....

Cruz wore a mask for the first part of the hearing, until Jennifer Guttenberg, the mother of victim Jaime Guttenberg, admonished the shooter during her victim impact statement. “You shouldn’t be sitting there with a mask on your face. It’s disrespectful to be hiding your expressions under your mask when we as the families are sitting here talking to you,” she told him.

Linda Beigel Schulman, mother of Scott Beigel, who taught geography at the school and coached cross country, said her son saved students' lives before the gunman took his. Beigel Schulman said Wednesday that Cruz has "prison justice" ahead of him. "You will spend the rest of your miserable life having to look over your shoulder worried about every single minute of your day, of your life, and scared out of your mind, fearful for someone to take you out."

On Tuesday, other survivors of the shooting and victims’ loved ones had the chance to deliver impact statements before the sentence was formally announced. Stacey Lippel, a teacher at Parkland who was shot and survived, told Cruz: “You don’t know me but you tried to kill me.” “I will have a scar on my arm and the memory of you pointing your gun at me ingrained in my brain forever,” she said before the court, looking Cruz in the eyes.

Some prior related posts:

November 2, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond"

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

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury.  Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important.  Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms.  But scholars have yet to confront the effect of the Court’s Apprendi rulings on the regulation of conditional release in the states.  This Article takes on that project.

The Article makes three contributions.  First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release.  State courts continue to divide on these questions.

Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court’s only effort to consider Apprendi in the revocation context — United States v. Haymond.  The Article defends two due process analyses, derived from past precedent and Justice Breyer’s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer’s analysis.  This Article gives his controlling concurrence the attention it deserves.  Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi’s rules to conditional release and the limitless use of revocation to punish new criminal conduct.

Third, the Article applies these  analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases.

November 2, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, November 01, 2022

Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen

This new CNN article, headlined "Federal judge blasts the Supreme Court for its Second Amendment opinion," alerted me to a notable new opinion emerging from new challenges to federal felon in possession laws in the wake of the Supreme Court's new Second Amendment standards set forth in Bruen.  Here are the basics from the press piece:

A federal judge based in Mississippi has released a scorching order expressing frustration with the Supreme Court’s Second Amendment opinion issued last summer and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

The opinion in New York State Rifle & Pistol Association v. Bruen changed the framework judges must use to review gun regulations. Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Judge Carlton Reeves — who is considering a case concerning a federal statute prohibiting felons from possessing firearms — said he is not sure how to proceed.  “This court is not a trained historian,” Reeves wrote in an order released last week.  “The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued. “And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.  The Bruen decision, he said, requires him to “play historian in the name of constitutional adjudication.”

Reeves, who sits on the United States District Court for the Southern District of Mississippi, ordered the parties, including the Justice Department, to brief him on whether he should appoint a historian within 30 days.  “Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter,” he said.

The challenger to the felon possession law, Jesse Bullock, says the regulation cannot withstand the Supreme Court’s latest decision interpreting the Second Amendment. “Founding era legislatures did not strip felons of the right to bear arms simply because of their status as felons,” Bullock argued.  

The full six-page order in US v. Bullock is available at this link. Here are a few passages:

Bruen instructs courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).  

But historical consensus on this issue is elusive.  As the Seventh Circuit put it, “scholars continue to debate the evidence of historical precedent for prohibiting criminals from carrying arms.”  United States v. Yancey, 621 F.3d 681, 684 (7th Cir. 2010) (collecting authorities); see also United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (Sykes, J., dissenting) (“scholars disagree about the extent to which felons — let alone misdemeanants — were considered excluded from the right to bear arms during the founding era.”)....

This Court is not a trained historian.  The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.  See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”).  And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.  Yet we are now expected to play historian in the name of constitutional adjudication....

Not wanting to itself cherry-pick the history, the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter.  See Fed. R. Evid. 706.  This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.  An expert may help the Court identify and sift through authoritative sources on founding‐era firearms restrictions. 

As many of the readers of this blog surely know, the author of this interesting order is not just a federal district judge, he is also the new Chair of the US Sentencing Commission. Interesting times.

Prior recent related posts:

November 1, 2022 in Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (7)

Monday, October 31, 2022

Previewing SCOTUS argument on federal statutory collateral review mechanisms

Though the Supreme Court's oral argument today in the affirmative action cases is understandably garnering lots of attention, criminal justice fans should not forget that tomorrow brings oral argument in a big interesting federal CJ case with Jones v. HendrixThis SCOTUSblog preview, titled "On the narrow road to challenge a federal conviction, when is a vehicle 'inadequate'?," provides a detailed preview that starts this way:

On Tuesday, the justices will hear argument in Jones v. Hendrix, the latest in a string of cases that raise profound questions about the rights of prisoners who claim to be innocent to challenge their convictions. Last year, the court restricted the ability of state prisoners to develop new evidence to support claims that their attorneys failed to investigate leads that could have shown they were factually innocent.  Jones involves a federal prisoner who is legally innocent — the conduct a jury found he committed isn’t a crime.  But should that fact relieve him from his 27-year prison sentence?  In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple.  Indeed, the case comes before the court as a three-way split: the petitioner, Marcus DeAngelo Jones, challenged his conviction in a federal habeas petition under 28 U.S.C. § 2241, arguing that the “motion to vacate” his conviction provided by 28 U.S.C. § 2255 is inadequate to afford him relief.  The U.S. Court of Appeals for the 8th Circuit ruled he cannot pursue a petition because he already filed a motion under Section 2255, which bars him from filing a successive petition, and he should have raised his claim earlier.  The federal government — which prosecuted Jones — says the 8th Circuit got the reasoning wrong but the outcome right: It urges the Supreme Court to correct the lower court’s error but deny Jones relief. 

And here are a couple of additional previews of Jones, which seems to me to be the most important federal criminal law case of the current SCOTUS Term to date:

From JD Supra, "Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s 'Saving Clause'"

From Law360, "Habeas Case May Open Prison Door For Retroactive Innocents"

October 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 27, 2022

"Courts Without Court"

The title of this post is the title of this new article just published by the Vanderbilt Law Review and authored by Andrew Guthrie Ferguson. Here is its abstract:

What role does the physical courthouse play in the administration of criminal justice?  This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center.  The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges.  This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future.  By studying post-COVID-19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community.

October 27, 2022 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, October 26, 2022

"The Efficiency Mindset and Mass Incarceration"

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

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort.  As such, it makes sense that lawyers and judges see efficiency, especially in the form of plea bargaining, as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system.  But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration.

To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset.  Legal culture change in criminal courts is unlikely to be driven by legislation, court action, or lawyers and judges themselves.  Instead, this Essay suggests other sources of power that may break the efficiency mindset.  By examining these sources of power — both inside and outside of the legal culture — the Essay hopes to offer some ideas for how legal actors might start to, or be forced to, re-envision their role in mass incarceration.

October 26, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 25, 2022

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

October 25, 2022 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 17, 2022

Half dozen GVRs provide only "excitement" for CJ fans in latest SCOTUS order list

Regular readers now know I am making a regular habit (see here) of complaining about the relative lack of interesting criminal matters on the Supreme Court's docket this Term.  That reality leads me to eagerly await each new SCOTUS order list with the hope the Justices will add something spicy for sentencing fans (or really any criminal cases concerning more than just intricate procedural issues).  So, I opened today's SCOTUS order list ... and the title and start of this post surely made it plain that there were not any exciting new criminal justice cert grants or even opinions dissenting about any denials (in fact, there were no cert grants or opinions at all).

That said, I was intrigued to see that the new order list did include six GVRs based on criminal justice rulings last Term.  Specifically, there were five GVRs based n Ruan (basics here) and one based on Concepcion (basics here).  I have not kept a running list of the number of GVRs from these cases or others, but maybe that will be my best bet for SCOTUS excitement these days.

But hope springs eternal in the SCOTUS fall, and the Justices will release another order list in a couple of weeks on October 31.  Perhaps someone can scare up some spirited cert grants for that special day.  And, not to be forgotten, a big case for federal prisoners seeking review of convictions and sentences, Jones v. HendrixNo. 21-857, is be argued on November 1.  (And, as I will discuss in another coming post, in the meantime sentencing fans do have the excitement of the first public US Sentencing Commission hearing in nearly four years on October 28.)

October 17, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, October 12, 2022

Severe federal drug sentence in a sad, high-profile case with so many stories within

I sometimes say to students (and on this blog) that certain cases could alone provide a robust foundation for teaching about so many different aspects of sentencing theory, policy and practice. Upon reading this Washington Post account of the high-profile federal sentencing of Eric Kay for providing the drugs that led to the death of Tyler Skaggs, I am yet again struck by how many notable issues and stories are sometimes tucked within a single sentencing. Here are some of the details:

Eric Kay, the former communications director for the Los Angeles Angels, was sentenced Tuesday to 22 years in prison after being convicted in February of providing the drugs that caused the 2019 death of pitcher Tyler Skaggs.  District Judge Terry Means said he went above the minimum 20 years Kay faced because of remarks he made in prison.   Prosecutors played a tape of a prison phone conversation in which Kay, whose calls were monitored and recorded, said of Skaggs: “I hope people realize what a piece of s--- he is. … Well, he’s dead, so f--- him.”

Means said he had been dreading sentencing Kay, 48, who was convicted of drug distribution resulting in death, because he felt mandatory minimums were “excessive.”  But the judge said the prison conversations showed a “refusal to accept responsibility and even be remorseful for something you caused.”

In his own remarks, Kay apologized for having “spewed vitriol” about Skaggs, prosecutors and the jury, in that and other prison correspondence. “I wanted to blame Tyler for all of this,” Kay said, calling his words “so wrong and foul.”

The emotional sentencing hearing spelled a bleak end to this phase of a legal saga that began when Skaggs, 27, was found dead in a Southlake, Tex., hotel room July 1, 2019, with oxycodone and fentanyl in his system. Kay has indicated he will appeal his conviction.  Kay, like Skaggs, was a user of illicit opioids.  During Kay’s trial in February, witnesses including several Major League Baseball players said he shared black market pain pills with them, though the government has not suggested he did so for profit.

Federal prosecutor Erinn Martin stated that Kay was in Skaggs’s hotel room when he choked on his own vomit — a contention based on key card evidence — and that he didn’t try to save the pitcher because “he freaked out and decided to save himself and his job” or because he was incapacitated himself. Martin said Tuesday that Kay knew the drugs he gave Skaggs were “likely or potentially counterfeit” and could contain fentanyl.

Kay, who did not take the stand in his own defense during the trial, did not directly address the government’s version of events Tuesday but expressed remorse for his actions, blaming his addiction.  “I will spend the rest of my days in repair,” said Kay, who wore an orange jumpsuit and was in arm and leg shackles, during remarks in which he sometimes sobbed.

Skaggs’s family members said Kay was responsible for the pitcher’s death in their own remarks in court Tuesday. “Eric Kay knew that the drugs he was giving to my son and other players [were] laced with fentanyl,” said Skaggs’s mother, Debbie, adding that “a strict sentence … has the power to dissuade people from providing lethal drugs to others.” ...  “I know no matter how much time Eric Kay gets it won’t bring back Tyler,” Skaggs’s father, Darrell, said in a statement read in court by Tyler’s aunt. “But the longer he is incarcerated, the safer everyone is.”

Kay, who was raised upper-middle class in Southern California and educated at Pepperdine University before rising to earn a six-figure salary with the Angels, had no previous criminal record.  But Martin, the prosecutor, said Kay’s prison correspondence was evidence that he hadn’t learned his lesson.  In emails and phone calls, Kay referred to the “trash-ass Skaggs family,” derided the jurors as “rednecks” with missing teeth and referred to a federal prosecutor’s “horrible makeup.” Martin also noted that Kay was allegedly caught with suboxone while in jail. “That kind of person reoffends,” Martin said. “Eric Kay isn’t going to stop.”

Kay’s attorney, Cody Cofer, said his client’s jailhouse remarks reflected the resentment of a man coming to terms with being separated from his family for two decades. “The notion that he is likely to reoffend is just not supported,” Cofer said.

Means said Kay should be incarcerated near his home of California, where he has three sons, the youngest of whom is 12. Kay’s middle child, 20-year-old Carter, said during the sentencing hearing that his father “wouldn’t do something bad willingly” and urged the judge to be lenient. “My little brother needs him most,” Carter Kay said. “I haven’t seen him smile in a while.”...

Since Kay’s trial, one of his attorneys, Reagan Wynn, has been suspended from practicing law after a Texas bar panel found he “failed to explain” to another client the facts of his criminal case. In a May hearing in Kay’s case, his other attorney at the time, Michael Molfetta, appeared to blame Wynn for having left Kay without representation during a meeting with probation officials before his sentencing....

Molfetta also has since left the case. In an interview with The Washington Post, Sandy Kay said her son had received a poor legal defense. “Tyler Skaggs was an adult male who willfully chose to engage in dangerous behavior that ended in his death,” Sandra Kay said. “And to hold someone else accountable for that is a great injustice.”

October 12, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

October 12, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

October 11, 2022 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

October 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 05, 2022

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

October 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

October 5, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"Expanded Criminal Defense Lawyering"

The title of this post is the title of this new article recently posted online and due to be published in the January 2023 issues of the Annual Review of Criminology. The article is authored by Ronald Wright and Jenny Roberts, and here is its abstract:

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work.  Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers.  Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints.  Over the decades, however, theoretical understandings of the defense attorney's work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act.  Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

October 5, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, October 04, 2022

Intriguing report on intriguing "equitable criminal sentencing technology" being formally adopted in Florida county

This local article out of Florida, headlined "Alachua County makes history with approval of equitable criminal sentencing technology," report on an interesting new development with some interesting sentencing technology. Here are the developments:

With the finalization of its budget Tuesday evening, Alachua County made the joint-effort of state attorney Brian Kramer and public defender Stacy Scott a historic reality: Florida’s Eighth Judicial Circuit will become Florida’s first judicial circuit to integrate equitable sentencing software as an official part of its case management system and plea-bargaining process. Roughly 95% of cases are settled in plea negotiations.

“We feel like this is an important step forward in trying to create more parity in our criminal justice system so that there aren’t these disparate sentences that exist today,” Scott said when she and Kramer presented the system to county commissioners Aug. 2.

Known as the Equity in Sentencing Analysis System (ESAS), this fairly new software provides legal practitioners with a searchable database of statewide sentencing data from the Florida Department of Corrections going back to 1998. It enables them to analyze past sentences that people with similar criminal backgrounds have received for similar crimes.

“That dataset is going to provide the lawyer things like the mean, the mode, the median,” Kramer told WUFT. “So that’s giving the lawyer data upon which to say, ‘OK, is this situation that I’m looking at, is it less serious than the average? Is it more serious than the average? And it gives them a starting point from which to develop a sentence that hopefully eliminates some of the inequities in the criminal justice system.”

Scott further reiterated this, adding that the sentencing data would allow for more honesty and consistency in plea negotiations, “instead of the way we’ve always done it, which is just sort of somebody’s gut feeling about what should happen.”

Its initial integration into the current system will cost Alachua County $73,000, followed by an annual subscription cost of roughly $23,000 for each office. But the software’s owner, Al Barlow, said he didn’t create it to make money. An attorney with 37 years of legal experience, Barlow was motivated by unfair sentencing he had encountered first-hand and presented the concept behind the sentencing analysis system to the Senate Judiciary Committee in 2017. He was looking to give the software to the state of Florida if the committee set him up with a programmer, but he didn’t receive the response he had hoped for. “They thought I was an alien. They kind of blew me off,” Barlow said. “I came back to Jacksonville, and I got with this programmer and another guy, and we built the software ourselves.”

And so his company, Technologies for Justice, was born along with his sentencing database. Barlow’s ensuing analysis, powered by this new software, showed him that the sentencing guideline system established by the Criminal Punishment Code in 1998 fails to ensure equitable sentencing across Florida. And he said ESAS could serve as a means to audit it....

Some attorneys, Scott and Kramer included, said ESAS is not the end-all-be-all. To them, it’s one of many factors worth considering when determining fair sentences. Still, Kramer saw something in Barlow’s software that other state attorneys haven’t acted on: the potential to combat intrinsic bias. “Does it eliminate bias? No, not at all, because you can’t eliminate bias,” Kramer said. “But what it would do is give us an unbiased starting point. And then we could work from there to try and make those adjustments upward or downward as appropriate.”

Until now, Florida prosecutors have almost entirely avoided this sentencing analysis system: Barlow said there was one other state attorney’s office that contacted him, piloted ESAS but ultimately never used it. Defense attorneys are generally the ones who use it to reduce sentences, according to a spokesperson for the Eighth Judicial Circuit.

Even among all Florida attorneys, the software isn’t well-known. Only 150 are currently registered to use it, with some others occasionally performing one-time searches, Barlow said. (Note that over 100,000 people are currently registered to practice law in Florida, according to the Florida Bar.) And he estimated two-thirds aren’t even aware of it.

Barlow also said software like ESAS doesn’t seem to exist outside of Florida. He said he receives calls from lawyers in Washington, New York, Seattle and all over the nation who are shocked to hear about such technology. “Florida is on the cusp of doing something very, very special,” Barlow said. “If it works half as good as we know it can, Gainesville will set a precedent for equitable sentences that the whole nation can follow.”

I have never previously heard of Equity in Sentencing Analysis System (ESAS) or Technologies for Justice, no doubt because it seems ESAS is a propriety technology that has not been widely used (or even widely known) in Florida. 

October 4, 2022 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Recapping lots of (little?) new criminal justice reforms in California

Late last week, California Gavin Newsom had a deadline to sign or veto a bunch of criminal justice reform bills.  This AP piece, headlined "Newsom has mixed verdict on California criminal justice laws," reports on some of the bill and choices made by Gov. Newsom:

California Gov. Gavin Newsom delivered a mixed verdict on more than three dozen criminal justice laws before his bill-signing deadline Friday, approving measures to seal criminal records and free dying inmates but denying bids to restrict solitary confinement and boost inmates’ wages.

Starting in July, one new law will give California what proponents call the nation’s most sweeping law to seal criminal records, though it excludes sex offenders. It will seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years, as well as records of arrests that don’t bring convictions, while former prison inmates convicted of serious felonies will be able to ask a judge to seal their records.

Backers estimate that 70 million Americans and 8 million Californians are hindered by old criminal convictions or records. They estimated the law could give more than a million Californians better access to jobs, housing and education. Newsom also approved related measures, one allowing record sealing and expungement even if former offenders still owe restitution and other court debt, and another making it easier to apply for certificates of rehabilitation....

Newsom also relaxed standards to allow more ill and dying inmates to be released from state prisons. The new law will allow inmates to be freed if they are permanently medically incapacitated or have a serious and advanced illness “with an end-of-life trajectory,” the standard used by the federal prison system. “It reduces incarceration costs, but more importantly, ensures there is a more humane and effective relief process for all people in California’s state prisons,” said Claudia Gonzalez of Root & Rebound, one of the reform groups that sought the measure....

He also expanded a 2020 law allowing suspects to allege they were harmed by racial bias in their criminal charges, convictions or sentences. The earlier law was limited to cases after Jan. 1, 2021. But this measure extends the safeguards to prior convictions.

Newsom, a Democrat who says he supports second chances and reducing incarceration, has had a mixed record on criminal justice bills. He has backed many reform efforts but in years past also vetoed other legislation he felt went too far or duplicated existing efforts. This year, he blocked a bill that would have made California the latest state to restrict segregated confinement in prisons and jails, as well as for the first time adding immigration detention facilities....

Newsom also vetoed one bill that would have given the state prison system five years to marginally boost the wages of inmates who usually earn just dollars a day, and a second bill that would have increased the “gate money” inmates are given upon their release from the current $200 to $1,300. The bills had survived even as lawmakers this year rejected a constitutional change that might have required much more compensation for inmate workers.

From another accounting, Daniel Nichanian has this Twitter thread on thread on "13 of the biggest [bills from California] and why they matter." Among the bills highlighted in that thread: "Gavin Newsom SIGNED a bill to make phone calls free from prison" and "Newsom SIGNED a bill that will 'vacate the death sentences of people who have become permanently incompetent'" and "Newsom SIGNED a bill to decriminalize jaywalking in California." 

Though I am inclined to call the record sealing bill "big" because of the number of people and families potentially impacted, the title of this post conveys my general sense that a lot of these reforms are fairly little.  But little does not mean unimportant, and it will be interesting to see if any of these reforms end up having major crime and punishment echoes.

October 4, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 03, 2022

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. HendrixNo. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

October 3, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, September 30, 2022

"The Lost Right to Jury Trial in 'All' Criminal Prosecutions"

The title of this post is the title of this recent article available via SSRN authored by Andrea L. Roth. Here is its abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.”  Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less.  These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse.  This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace.

While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable.  Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions.  Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court.  The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

September 30, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (76)

Thursday, September 29, 2022

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

September 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, September 28, 2022

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

September 28, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 26, 2022

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

September 26, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, September 25, 2022

Rounding up some notable justice coverage and commentary from Law360's Access to Justice

I find a lot of Law360 coverage and commentary to be blogworthy, but I also find a lot of it behind a paywall.  Fortunately, the Law360 folks have the good sense to keep its Access to Justice section open access.  And that section has had a number of recent pieces that ought to be of interest to sentencing fans:

"Access To Justice Cases To Watch This Supreme Court Term"

"Racial Disparities In State Imprisonment Continue To Decline"

"Mich. Ruling Widens Sentencing Protections For Young Adults"

"Algorithms Have Potential To Reduce Sentencing Disparities"

September 25, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, September 23, 2022

Noticing notable aspect of SCOTUS vote on Alabama execution stay

The story of Alabama botched execution last night has many interesting elements, but this new Washington Examiner piece flags one (small) part of the story that ought not be overlooked.  The article, headlined "Barrett sides with liberal justices in opposition to halted Alabama execution," merits a full read for SCOTUS fans.  Here are excerpts:

Supreme Court Justice Amy Coney Barrett sided with the high court's three liberal justices on Thursday in dissenting a decision to allow the execution of an Alabama inmate, but the state called off the execution at the last minute....

In a 5-4 vote prior to the halted procedure, the Supreme Court ruled that the execution of Miller could move forward, lifting a lower court's injunction that had blocked his death by lethal injection. Barrett joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent....

Barrett has sided with the liberal justices in other death penalty cases.

In February 2021, Barrett sided with Sotomayor, Kagan, former Justice Stephen Breyer, and a justice who did not disclose his vote in a "shadow docket" case that blocked the execution of Alabama inmate Willie Smith....

In January 2022, Barrett once again sided with Sotomayor, Kagan, and Breyer in voting to block the execution of Alabama inmate Matthew Reeves, who was convicted of robbing and killing a tow truck driver in 1998.

However, Barrett has not exclusively voted against the death penalty in Supreme Court cases. She went against liberal justices in the March 2022 case that reinstated the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Though it may be pure coincidence, it seems Justice Barrett often has particular concerns with how Alabama is seeking to move forward with executions.  In almost all other capital cases, Justice Barrett seems to be a fairly predictable vote for the state. Indeed, Justice Barrett's first official SCOTUS vote in November 2020, as detailed here, had her joining with her five more conservative colleagues to lift a stay on a federal execution.

A range of distinct and complicated procedural issues attended the stay in this latest Alabama execution effort, and the SCOTUS order lifting the stay only notes the dissent without any explanation for any of the votes.  It will be interesting to see if this case or other capital cases will give us further clues on what issues are driving various votes in these kinds of matters.

September 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

September 23, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 22, 2022

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

September 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, September 19, 2022

Interesting report on the echoes of the Supreme Court's recent Ruan decision

As noted in this post last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law has this great panel discussion scheduled for tomorrow to discuss various aspects of the Supreme Court's work last term in Ruan v. United States.  (Folks can and should register here for this event.)  Coincidently, CBS News has this lengthy new piece discussing the case's impact under the headline "Doctors rush to use Supreme Court ruling to escape opioid charges."  Here are excerpts:

Dr. Nelson Onaro conceded last summer that he'd written illegal prescriptions, although he said he was thinking only of his patients. From a tiny, brick clinic in Oklahoma, he doled out hundreds of opioid pills and dozens of fentanyl patches with no legitimate medical purpose. "Those medications were prescribed to help my patients, from my own point of view," Onaro said in court, as he reluctantly pleaded guilty to six counts of drug dealing. Because he confessed, the doctor was likely to get a reduced sentence of three years or less in prison.

But Onaro changed his mind in July. In the days before his sentencing, he asked a federal judge to throw out his plea deal, sending his case toward a trial. For a chance at exoneration, he'd face four times the charges and the possibility of a harsher sentence.

Why take the risk? A Supreme Court ruling has raised the bar to convict in a case like Onaro's. In a June decision, the court said prosecutors must not only prove a prescription was not medically justified ― possibly because it was too large or dangerous, or simply unnecessary ― but also that the prescriber knew as much. Suddenly, Onaro's state of mind carries more weight in court. Prosecutors have not opposed the doctor withdrawing his plea to most of his charges, conceding in a court filing that he faces "a different legal calculus" after the Supreme Court decision.

The court's unanimous ruling complicates the Department of Justice's ongoing efforts to hold irresponsible prescribers criminally liable for fueling the opioid crisis. Previously, lower courts had not considered a prescriber's intention. Until now, doctors on trial largely could not defend themselves by arguing they were acting in good faith when they wrote bad prescriptions. Now they can, attorneys say, although it is not necessarily a get-out-of-jail-free card. "Essentially, the doctors were handcuffed," said Zach Enlow, Onaro's attorney. "Now they can take off their handcuffs. But it doesn't mean they are going to win the fight."

The Supreme Court's decision in Ruan v. United States, issued June 27, was overshadowed by the nation-shaking controversy ignited three days earlier, when the court erased federal abortion rights. But the lesser-known ruling is now quietly percolating through federal courthouses, where it has emboldened defendants in overprescribing cases and may have a chilling effect on future prosecutions of doctors under the Controlled Substances Act.

In the three months since it was issued, the Ruan decision has been invoked in at least 15 ongoing prosecutions across 10 states, according to a KHN review of federal court records. Doctors cited the decision in post-conviction appeals, motions for acquittals, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, arguing their opinion was now irrelevant. Other defendants have successfully petitioned to delay their cases so the Ruan decision could be folded into their arguments at upcoming trials or sentencing hearings.

David Rivera, a former Obama-era U.S. attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a "great chance" of overturning convictions if they were prohibited from arguing a good faith defense or a jury was instructed to ignore one. Rivera said defendants who ran true pill mills would still be convicted, even if a second trial was ultimately required. But the Supreme Court has extended a "lifeline" to a narrow group of defendants who "dispensed with their heart, not their mind," he said.

"What the Supreme Court is trying to do is divide between a bad doctor and a person who might have a license to practice medicine but is not acting as a doctor at all and is a drug dealer," Rivera said. "A doctor who is acting under a sincerely held belief that he is doing the right thing, even if he may be horrible at his job and should not be trusted with human lives ― that's still not criminal."...

To defense attorneys, the unanimous ruling sent an unambiguous message. "This is a hyperpolarized time in America, and particularly on the court," Enlow said. "And yet this was a 9-0 ruling saying that the mens rea ― or the mental state of the doctor ― it matters."

Some prior related posts:

September 19, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, September 18, 2022

Notable developments as defense rests in capital trial of Parkland school shooter

I have been following the capital sentencing trial of Parkland school shooter Nikolas Cruz somewhat more closely than I follow other capital trials in part because the case involves such competing extremes.  This case is the deadliest U.S. mass shooting to ever reach trial, involves no question about guilt and the 17 victims were mostly students with many as young as 14.  And yet Nikolas Cruz's defense team has presented a considerable mitigation case highlighting his damaged upbringing and considerable mental health issues.

The Cruz defense team rested its case in mitigation last week sooner than had been expected, and that led to a reaction by the presiding trial judge which has now produced a defense motion to remove the judge.   Here are some headlines and ledes from a few stories covering these latest developments:

"Parkland school shooter's defense team demands judge be removed after heated exchange"

The attorneys representing the Parkland school shooter filed a motion Friday asking for the judge overseeing his sentencing trial to be replaced.  The motion comes after the judge and the defense attorneys had an unusually heated exchange on Wednesday, in which the judge accused the attorneys of a lack of professionalism.

The motion alleges that Circuit Judge Elizabeth Scherer's conduct during the Wednesday exchange revealed "long-held" animosity toward the defense counsel that has "infected" the proceedings and will prevent their client from getting a fair trial.

"Parkland defense has convinced some that killer deserves mercy"

The sudden end of the defense case in the Parkland mass shooting trial this week drew criticism of and from the presiding judge, temporarily overshadowing the biggest question at issue — was enough evidence presented to convince a jury to spare the defendant’s life?

It’s impossible to say for sure — juries are notoriously unpredictable.  But at least one expert, and some trial observers, say they would not be surprised if the jury in the Marjory Stoneman Douglas mass shooting case were to show mercy toward confessed gunman Nikolas Cruz.

Some prior related posts:

September 18, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 17, 2022

"The Prison Pleading Trap"

The title of this post is the title of this new paper on SSRN authored by Tiffany Yang.  Here is its abstract:

The prison is an epicenter of dominance — it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls.  But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act to obstruct their pathways to judicial relief.  A centerpiece of this effort is the Act’s exhaustion provision, which mandates proper completion of the prison grievance process before challenging any condition of prison life in federal court.

Prisons design demanding grievance pleading standards to make exhaustion more difficult for the people they confine. When a federal court disagrees with the prison’s interpretation of a pleading rule and permits an incarcerated plaintiff’s claim to move forward, the decision is seen as a victory that safeguards incarcerated people’s right to judicial redress.  It is tempting to perceive the plaintiff’s success as the prison’s defeat.  But when we peer behind the curtain and interrogate what follows, a dangerous manipulation of power emerges.  Prisons have responded to litigation “defeats” by amending their grievance rules to impose a more onerous pleading standard that forecloses the short-lived victory.  What appears at first glance to be a welcome exercise of judicial intervention functionally becomes an invitation — indeed, a blueprint — for the prison to raise its grievance pleading bar and immunize itself from liability.

This reactive process — what I call the “prison pleading trap” — creates an untenable and perilous regime.  And its harms are heightened for people of color, who are disproportionately incarcerated and, while confined, disproportionately subject to prison abuses requiring redress.  This article investigates the trap’s operations and impacts, and upon considering a range of potential solutions, it ends by recognizing the merits of transformative change.  Congress created PLRA exhaustion to reduce the quantity of prison litigation, but this reform addressed a symptom (the volume of litigation) while ignoring the disease (growing prison populations and persisting abuses). Discrete procedural solutions to prison grievance pleading will have meaningful impacts, but they are ultimately incomplete without a concurrent commitment to decarceration.

September 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, September 16, 2022

Federal judge orders Philly prosecutors to send written apologies to victim family members for poor behavior in capital habeas case

This ABA Journal article, headlined "Federal judge orders district attorney to write apology letters to families of murder victims," reports on a notable federal court order from earlier this week. Here are the highlights:

A federal judge has ordered Philadelphia District Attorney Larry Krasner to write apology letters to the families of the victims of a double murder after concluding that supervisors in his office made misleading statements to the court.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania scolded prosecutors for being “vague” and “unclear” about whether they consulted with victims’ families before supporting efforts to overturn the death penalty in the case against Robert Wharton.  In reality, prosecutors communicated with just one person — the family member who survived the attack, Lisa Hart-Newman.  The district attorney’s office had written in a court notice that it decided to concede an ineffective counsel claim following a review by its capital case review committee and “communication with the victims’ family,” wrote Goldberg in a Sept. 12 opinion.

Wharton was convicted for killing Bradley and Ferne Hart in 1984 in retaliation for failure to pay for construction work.  Working with an accomplice, he then shut off the heat to the couple’s home, leaving their 7-month-old daughter, Lisa, “to fend for herself,” according to a 2018 opinion by the 3rd U.S. Circuit Court of Appeals at Philadelphia.  A relative found the baby still alive three days later.

The 3rd Circuit ordered the death penalty review to determine whether Wharton’s trial lawyer was ineffective by failing to present evidence about the defendant’s positive adjustment to prison.  The district attorney’s office agreed that Wharton’s Sixth Amendment rights had been violated and asserted that a full review by the judge was unnecessary, according to Goldberg’s opinion.  But precedent “plainly holds that a jury’s death sentence verdict cannot be undone until all facts are placed on the table so that a fully informed judge, not the district attorney, can make the decision as to whether a decades-old verdict should be set aside,” Goldberg said.

Although the 3rd Circuit required a review of evidence in favor and in opposition to the death penalty, the district attorney’s office failed to advise the court about Wharton’s “violent escape from a city hall courtroom” and subsequent escape conviction, Goldberg said.  That’s “possibly the worst type of prison adjustment,” he observed.

Department supervisors on the capital case review committee said they recommended conceding Wharton’s habeas petition without knowing about the escape attempt. But that admission “was curiously contrary” to an assistant supervisor’s assertion in court that the office was aware of Wharton’s escape conviction, Goldberg said.... Goldberg said the district attorney’s office “continues to misunderstand its role” in collateral review proceedings in death penalty cases.  “If the district attorney’s office files its concession on a misleading presentation of the facts, it attempts to misuse the court’s power,” Goldberg said.

Goldberg directed Krasner to send separate written apologies to Hart-Newman and three family members for representing that the office had communicated with the victims’ family.

The full and interesting 28-page ruling in Wharton v. Vaughn is available at this link.

September 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, September 15, 2022

"Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence"

The title of this post is the title of this recent article authored by Daniel Harawa available via SSRN. Here is its abstract:

The saying goes, when life gives you lemons, make lemonade.  When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana.  On their face, the cases teach that history matters. Government actors who discriminate must be held to account.  Accepted institutional practices can no longer perpetuate racism. And courts must assume an active role in addressing the racism endemic to the criminal legal system.  At least tonally, these cases are a marked shift for the notoriously post-racial Roberts Court

But if you dig a little deeper, it is clear that the cases have severe shortcomings.  The cases reflect that the Court acknowledges only the most egregious examples of racism, and it fails to see the invidious ways race taints the criminal legal system.  The cases also demonstrate the Court’s failure to connect past racial practices with present racial disparities, a failure that in turn paints a false picture of discontinuity of the past from the present.  When viewed critically, these seemingly race-aware cases fall neatly in line with the post-racial critiques of the Roberts Court. From a racial justice perspective, the cases could be viewed as lemons.

Even so, this Article attempts to make lemonade. The Article shifts the narrative about the Court’s criminal jurisprudence by arguing that these recent cases can be helpful tools in the fight for racial justice.  This Article asserts that the cases can be deployed not only to make specific antiracist legal arguments, but also to push for policy changes and to encourage more open discussions about racism in the criminal legal system.  In the end, the Article urges a reclaiming of the case law to help unwind the corrosive relationship between race, crime, and punishment in America.  This intervention is necessary now, for the millions of Black and Brown people shuffled through the system each year. 

September 15, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, September 14, 2022

Ninth Circuit panel holds non-retroactive sentencing changes can be considered in compassionate release motions

Weighing in on an issue that has split circuits, a Ninth Circuit panel today in US v. Chen, No. 20-50333 (9th Cir. Sept. 14, 2022) (available here), held that "a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  The Chen opinion explains how "other circuits are split concerning this issue," but ultimately decides to "join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A)."  Here is a portion of the panel's explanation for its ruling:

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that “[r]ehabilitation . . . alone” is not extraordinary and compelling.... To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98225, 55–56, 121 (1983)....

The Supreme Court’s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.” 142 S. Ct. at 2396.  Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now....

Through § 3582(c)(1)(A) and § 994(t), Congress has demonstrated that it can, and will, directly limit what constitutes extraordinary and compelling reasons.  It is therefore hard to reconcile the argument that we should infer a categorical bar on extraordinary and compelling reasons with Congress’s prior decisions not to create such stark limitations on a district court’s discretion.

September 14, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentences in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

Excitingly, Michael Pepson and Jeremiah Mosteller have this new Bloomberg Law commentary, headlined "US Supreme Court Should Tackle Acquitted Conduct Sentencing," which focuses on the McClinton cert petition and makes this notable assertion: "Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum."  Here is more from the piece that I recommend in full (with links from the original):

This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime.  This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion.

At least three current justices have questioned or called for an end to this unjust practice. And they do not stand alone, as other recent members of the court have also noted this issue demands action, including former justices Antonin ScaliaRuth Bader Ginsburg, and Anthony Kennedy.

There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.

The justices are not alone.  For years, many lower federal court judges have also forcefully argued that acquitted conduct sentencing is unconstitutional.  And a growing number of state courts have also broken ranks with the federal courts, calling this sentencing practice what it is: unconstitutional.

This broad criticism underscores the appalling nature of this practice.  It is not only unjust to defendants but also undermines the legitimacy of our criminal justice system and eviscerates the role of juries as a check on government abuse and overreach.

We both frequently have conversations with friends, advocates, and partners who have no idea this practice occurs.  The response is always shock and confusion about how such a practice can exist in America.  This horrified reaction mirrors our own, which is why we continue to advocate for the end of this practice.

The Supreme Court has a perfect opportunity to reconsider this practice by accepting a case called McClinton v. United States

A few recent of many, many prior related posts:

September 14, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 13, 2022

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

September 13, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)