Thursday, August 18, 2022

California board, after 17 rejections, finally paroles last person convicted in 1976 school bus mass kidnapping

This Los Angeles Times article, headlined "Man behind 1976 kidnapping of 26 Chowchilla children and bus driver is granted parole," reports on a notable parole outcome this week.  Here are just some of the interesting particulars:

A parole board affirmed Tuesday that Frederick Woods, one of three men convicted of kidnapping a school bus full of 26 children and their driver in Chowchilla, Calif., in 1976 in an effort to coerce a $5-million ransom, will be released.

Woods, 70, was first found suitable for parole in a hearing at the California Men’s Colony in San Luis Obispo on March 25, marking the 18th time he appeared in front of the parole board, according to Terry Thornton, a spokesperson for the California Department of Corrections and Rehabilitation. Woods had previously been denied parole 17 times.

Gov. Gavin Newsom referred Woods’ parole grant for review by the board, which occurred Tuesday. Woods’ release date was not disclosed because of safety and security reasons, Thornton said.

Woods, with accomplices Richard and James Schoenfeld, had schemed for more than a year on a kidnap for ransom plan. An appeals court ordered Richard Schoenfeld’s release in 2012; then-Gov. Jerry Brown granted release for James Schoenfeld, Richard’s brother, in 2015.

In July 1976, farmer and bus driver Ed Ray was driving a yellow school bus carrying elementary students from Dairyland Unified when he saw a white van stopped in the road. Ray slowed the bus to see if those in the van needed assistance, and three men armed with guns jumped out, commandeering the bus and driving it into a dry canal bottom, where they had left another van.

Ray and the schoolchildren were loaded into the two vans and driven for 11 hours to a quarry in Livermore, 100 miles from Chowchilla. The kidnappers forced them to climb down a ladder into a moving trailer they buried.

Ray and some of the children started stacking mattresses, ultimately managing to get out of the trailer 16 hours later. Meanwhile, the three kidnappers left and tried to contact the Chowchilla Police Department to make their ransom demand but were unable to get through because the phone lines were busy. They napped and awoke to the news of the escape, and were captured or surrendered within weeks. Ray was hailed as a hero. He died in May 2012 at age 91.

James Schoenfeld told parole officials that he was jealous of his friends who had “his-and-hers Ferraris.” Woods, who was 24 at the time of the crime, said during an earlier parole hearing that he just “got greedy,” saying in 2012 that he didn’t need the money. Woods is the son of Frederick Woods III, who owned the quarry and a 100-acre Portola Valley Estate; the Schoenfelds came from the family of a wealthy Menlo Park podiatrist. “I’ve had empathy for the victims, which I didn’t have then,” Woods said at the March parole hearing. “I’ve had a character change since then.”...

Madera County Dist. Atty. Sally Moreno came out against Woods’ release in a statement after the hearing. “It’s hard to articulate everything I’m feeling — all the suffering that he caused to those children throughout their lives, which will continue unabated; his continuing inability to conform his behavior to the rules demonstrating his own unrepentance and lack of rehabilitation; his obvious lack of understanding of the impact his acts have on others as demonstrated by the totality of his conduct in prison,” she said....

Jennifer Brown Hyde, one of the survivors opposing Woods’ parole and who now lives in Tennessee, was 9 years old during the kidnapping. She said she and her family were “disappointed in the parole board’s decision.”...

The three men were convicted of kidnapping with bodily harm and given life sentences. Newsom’s father, state Judge William Newsom, was on the 1980 appellate panel that reduced their life sentences to give them an opportunity at parole. William Newsom advocated for the kidnappers to be released in 2011, saying no one was seriously injured in the incident. He died in 2018.

Survivor Larry Park, who supported Woods’ release during the March parole hearing, said he believes Woods “served enough time for the crime you committed.” However, Park encouraged Woods to seek help. “I’m concerned about the addiction you may have about money,” Park said.

August 18, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 13, 2022

Notable Oregon Court of Appeals ruling upholds broad clemency grants against legal challenges

Fans of clemency law and history will want to be sure to check out a big recent ruling by the Oregon Court of Appeals in Marteeny v. Brown, 321 Or App 250 (Aug. 10, 2022) (available here). The start of the 40+-page opinion provides an effective overview of its coverage:

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals “vulnerable to the effects of COVID-19,” (2) individuals who had fought “the historic wildfires that ravaged the state around Labor Day 2020,” and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill (SB) 1008 (2019), sec-25 of which was codified as ORS 144.397.  SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive.  The effect of the Governor’s commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators — Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators) — petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS “to honor and follow all procedural and substantive provisions of Oregon law.”  In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below.  But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law.  The arguments and emotions present in this case echo through the centuries.  The power to pardon, sitting within a singular executive — be they monarch, president, or governor — has always been controversial, seemingly at odds with legislative determination and judicial decision-making.  Whenever it has been used, it has lauded by some, and condemned by others.  We are not called here to judge the wisdom of the Governor’s clemency of these 953 individuals; that is a political question.  We are tasked solely with determining her authority to do so under Oregon law.  And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

August 13, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, August 12, 2022

"The Arbery case is heinous, but his killers’ sentences are extreme"

The title of this post is the headline of this notable new Washington Post commentary (which, as of noon Friday already prompted well over 3000 comments). The piece is authored by David Singleton, and I recommend it in full. Here are excerpts:

As a human being, I felt nauseated watching the video of Ahmaud Arbery being shot to death by three White men who had hunted him down as he jogged through a Brunswick, Ga., neighborhood.  As a Black man, I feared that Arbery’s killers would escape justice before an almost all-White jury in a state court.  And as a political progressive committed to dismantling white supremacy, I was relieved when the jury found Arbery’s killers guilty of murder.

Yet the punishments the three men received — in the state case, life in prison for William “Roddie” Bryan, who joined the pursuit of Arbery and recorded the incident with his cellphone, and life in prison without parole for Gregory McMichael and his son Travis, who fired the fatal shots; and just this week in the federal case, two more life sentences plus additional years for the McMichaels and 35 years for Bryan — left me questioning whether such lengthy sentences are what justice requires.  As a former public defender who now works to end mass incarceration and the extreme sentences that contribute to it, I believe the answer is clear: no....

Contrary to what many believe, mass incarceration is not the result of locking lots of people up for low-level, nonviolent crimes.  According to such sentencing experts as Marc Mauer and Ashley Nellis, life and other extreme sentences are the real drivers of the 500 percent increase in the prison population over the past 40 years.  In their book “The Meaning of Life: The Case for Abolishing Life Sentences,” Mauer and Nellis note that one out of seven people in prison in the United States has been sentenced to life.  They say that lengthy sentences make no sense from a public safety perspective, given that most people age out of committing violent crimes by their mid-20s. Additionally, continuing to imprison people long past the time when they can be safely released is expensive, especially when they are elderly.

But the economic costs of mass incarceration are not the only costs.  To paraphrase Bryan Stevenson and Sister Helen Prejean, people should not be defined forever by the worst things they’ve done.  But a life sentence, especially life without parole, does just that.  When we keep people incarcerated who have transformed themselves behind bars, are no longer dangerous, and have the potential to be productive citizens, we all lose....

If we are to end mass incarceration, state and federal authorities must eliminate such draconian punishment and enact laws that allow judges to revisit sentences based on the incarcerated person’s demonstrated rehabilitation and fitness to live in society.  Meanwhile, although I am relieved that Arbery’s murderers are being held accountable, I hope they will someday be released — after they have served an appropriate period of their sentences and demonstrated their fitness to return to society.

Prior related posts:

August 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

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

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

August 10, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 09, 2022

"Is the Principle of Desert Unprincipled in Practice?"

The title of this post is the title of this notable new article authored by Marah Stith McLeod now available via SSRN.  Here is its abstract:

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe).  In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment?  Critics answer no.  They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions.  Laws in America often emphasize desert, they observe, while feeding mass incarceration.

But the principle of desert is not to blame.  A focus on punishing defendants no more than they deserve can constrain punitive impulses, as it has in the context of capital punishment.  The real problem lies with our current procedures for judging desert, which sap its power as a limiting principle.  These procedures allow sentencing authorities to consider desert and utility at the same time, which blurs two incommensurate concerns and prevents either from serving as a meaningful limit.  Furthermore, they often allow judges to define desert without reference to legitimating community norms.

Desert can limit punishment if it is addressed in a more principled way. Sentencing should begin with desert, before any consideration of utility, so that the moral boundaries of punishment are clearly established.  Lay juries, not judges, should assess desert, and should have the power to limit punishment based on it, even below statutory minimums.  If states allowed defendants to waive this jury sentencing procedure, many might do so in exchange for more favorable plea deals.  But the pleading process would become more fair, for prosecutors could no longer threaten statutory penalties no reasonable jury would deem deserved.

August 9, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (2)

Dozens of Oklahoma lawmakers call for new hearing before next month's scheduled execution of Richard Glossip

As reported in this Guardian piece, a "letter signed by 61 Oklahoma lawmakers — most of them pro-death penalty Republicans — has been sent to the state’s attorney general calling for a new hearing in the case of Richard Glossip, a death row inmate scheduled to be executed next month."  Here is more:

Forty-four Republican and 17 Democratic legislators, amounting to more than a third of the state assembly, have written to John O’Connor pleading for the new hearing.  The outpouring of concern is an indication of the intense unease surrounding the Glossip case, and the mounting fear that Oklahoma is preparing to kill an innocent man.

Glossip, 59, is due to be killed on 22 September as part of a sudden speeding up of capital punishment activity in Oklahoma.  He was sentenced to death for the 1997 murder of Barry Van Treese, the owner of a Best Budget motel in Oklahoma City, where Glossip was manager.

Justin Sneed, the motel’s maintenance worker, admitted that he had beaten Van Treese to death with a baseball bat. But Sneed later turned state’s witness on Glossip, accusing the manager of having ordered the murder.  As a result, Sneed, the killer, avoided the death penalty and was given a life sentence.  Glossip was put on death row almost entirely on the basis of Sneed’s testimony against him, with no other forensic or corroborating evidence.

In their letter, the 61 legislators ask the attorney general to call for a hearing to consider new evidence that has been uncovered in the case.  Last year a global law firm, Reed Smith, was asked by state lawmakers to carry out an independent investigation.  Their 343-page report found that the state had intentionally destroyed key evidence before the trial.  The review concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder”.

Glossip’s scheduled execution forms part of an extraordinary glut of death warrants that have been issued by Oklahoma in recent weeks. In July, the state received court permission to go ahead with 25 executions at a rate of almost one a month between now and December 2024....

The first scheduled execution of the 25 is that of James Coddington, 50, on 25 August.  Coddington’s fate is now in the hands of Kevin Stitt, Oklahoma’s Republican governor, after the state’s parole board recommended that he commute the prisoner’s sentence to life without parole.  The clemency petition pointed out that Coddington had been impaired by alcohol and drug abuse starting when he was a baby.  It said he had shown full remorse for having murdered Albert Hale, a friend who had refused to lend him $50 to buy cocaine.

August 9, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Rethinking the Civil-Criminal Distinction"

The title of this post is the title of this book chapter authored by Lauren Sudeall and now available via SSRN. Here is its abstract:

In the legal world, we operate on the premise that our civil and criminal justice systems are distinct.  As a result of this siloed approach, courts, court rules, procedural protections, legal services, and legal communications typically turn or focus exclusively on one side of this divide or the other.  Yet individuals’ lived experiences do not always fall cleanly along those lines — they may experience sanctions differently than the law has categorized them or encounter one situation that gives rise to civil and criminal legal issues.  Today, civil sanctions are increasingly punitive, while fines and incarceration are no longer distinctly criminal consequences.  These realities undermine historical rationales for the civil-criminal divide and make the justifications for that divide increasingly incoherent.

The civil-criminal divide presents more than a conceptual or theoretical problem.  The rigid line between civil and criminal legal issues prevents us from addressing all facets of an individual’s situation in a single court system. Instead, we require that people have multiple interactions with civil and criminal court systems, which can drain both their time and their resources.  It becomes harder for them to address or protect against civil consequences arising from a criminal charge or conviction.  By failing to inform people engaged with one sphere of the system about legal problems in the other sphere, we lose critical opportunities for intervention and education — particularly among populations in need of assistance.  Because people do not silo their problems into criminal and civil categories, they face additional barriers to obtaining assistance: people go to the wrong legal systems and find courts and legal providers who may be ill-equipped to redirect them.  The resulting frustration and the inability to find the help they need may give some people a cramped view of the law’s potential to address their problems.

In this chapter, I explain how the civil-criminal distinction influences our understanding of the legal system and explore the problems it creates for litigants and those assisting them.  In doing so, I employ a broad definition of “evidence-based” reform.  In my view, evidence relevant to criminal justice reform consists not only of quantitative data, such as the likelihood of recidivism and incarceration rates, but also of qualitative and even perceptual data, which shed light on how the system works (or doesn’t) and how and why quantitative data are generated.  In the context of this chapter, I focus specifically on how the civil-criminal distinction fails to align with — and may even exacerbate — the lived experience of many system-impacted individuals, demonstrable primarily through qualitative data.  I encourage readers to question the civil-criminal distinction and to ask: What would happen if we didn’t view the two as distinct?  To what degree are the differences between civil and criminal justice a function of the separation we have chosen to create rather than any inherent distinction? And is the civil-criminal divide born more from a need to organize the courts and service providers than it is to resolve problems most effectively for litigants?  I conclude that a merged vision of civil and criminal justice may better align with the understanding and experiences of system-impacted individuals and may better equip the legal system to respond to their problems.

In this chapter I call on systemic actors and service providers to minimize the different treatment of civil and criminal issues and to collaborate to the greatest extent possible, wherever the civil-criminal distinction creates barriers to justice for individuals or inefficiencies for courts.  Even if doctrinal divisions persist, policy makers can engage in practical applications of this idea, rethinking how to structure the resolution of legal issues, provide legal services, and disseminate legal education to individuals and communities.  

August 9, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Monday, August 08, 2022

"'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage"

The title of this post is the title of this new paper authored by Michael Perlin, Talia Roitberg Harmon and Haleigh Kubiniec now available via SSRN. Here is its abstract:

Some fifteen years ago, in Panetti v. Quarterman, 551 U.S. 930, 956 (2007), the Supreme Court ruled that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”  In a recent paper, two of the authors (MLP & TRH) analyzed the way the Fifth Circuit had construed that case, and concluded that that court “has basically ignored Panetti’s holdings in all its decisions.” See “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. LOUISVILLE L. REV. 557, 578 (2022).  In this article, we expand that inquiry to consider how all federal circuits have interpreted Panetti, and we find that Panetti has never -- with the exception of one case, later vacated -- been a remedy upon which defendants with serious mental illness facing the death penalty could rely.

We analyze all the circuit-level Panetti decisions, and consider the case law through a therapeutic jurisprudence (TJ) filter, concluding that this body of cases violates all TJ precepts, and offer a series of recommendations -- as to issues related to adequacy of counsel, the need for databases of experts competent to testify in such matters, the need for other scholars to study the cases we discuss here, and to seek to breathe new life into arguments made some years ago barring the death penalty in all cases of defendants with serious mental illness -- to, we hope, ameliorate this situation in the future.

August 8, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Sunday, August 07, 2022

Interesting Eight Circuit panel ruling rejecting district judge's refusal to dismiss counts in plea process

Thanks to this round up of circuit rulings, I just saw an interesting little Eight Circuit panel ruling in US v. Bernard, No. 21-3412 (8th Cir. Aug. 2, 2022) (available here).   Here are the essential, though interesting folks should check out the full opinion:

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

August 7, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, August 03, 2022

"Juries, Democracy, and Petty Crime"

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

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy.  The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury.  Despite the textual clarity of the guarantee, the Supreme Court has long recognized a “petty offense” exception to the right to trial by jury.

As systems of mass adjudication and hyper-incarceration have developed over the past several decades, a parallel process of collateral consequences has also arisen and is now well-documented.  Recognizing that a conviction for even a low-level offense can have devastating effects, some courts have begun to narrowly interpret the “petty offense” exception, especially where a conviction could have severe immigration-related consequences.  As a result, some jurisdictions now provide stronger procedural protections for non-citizen defendants than for citizen defendants charged with similar offenses.  Although these courts are certainly correct in characterizing these offenses as “serious” and thereby providing those defendants a right to a jury trial, their reasoning imports a defendant-specific subjectivity that is in tension with prior Supreme Court guidance, and the results pose questions of legitimacy as different defendants are treated differently because of citizenship status.

As advocates push to expand the right to trial by jury, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades.  In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions.  The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants.  Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

August 3, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 02, 2022

Ninth Circuit panel finds no improper enhancement when safety-valve-proffer information is considered with other information in setting below-guideline sentence

Addressing an issue of first impression, a Ninth Circuit panel today issued an interesting opinion addressing the application of a small provision of the FIRST STEP Act in US v. Brown, No. 20-5313 (9th Cir. Aug. 2, 2022) (available here).  Here are excerpts from part of the opinion providing background and the heart of the ruling:

In this case, Appellant Marquis Brown was arrested for smuggling drugs across the border. He pleaded guilty to the charge and faced a statutory ten-year mandatory minimum sentence.  He subsequently took advantage of a safety valve proffer and became safety valve eligible for a sentence below the mandatory minimum sentence. The district court imposed a 78-month sentence. That sentence was below Brown’s guidelines range of 108–135 months, but above the 71 months requested by the government, and the 42 months recommended by his attorney and the Probation Department.

Brown now appeals, arguing that his sentence was procedurally defective because the district court improperly relied on information he disclosed in his safety valve proffer to “enhance” his sentence....

Brown contends that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018.  The First Step Act, which in part amended 18 U.S.C. § 3553(f), proscribes, inter alia, district courts judges from using information “disclosed by a defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” Pub. L. No. 115391, 132 Stat. 5194 (Dec 21, 2018). Despite the district court imposing a sentence that is below his guidelines range, Brown argues that the court ran afoul of this proscription when it relied on information from the safety valve proffer to deny him a further sentence reduction....

We have regularly held that the denial of a sentencing benefit or reduction is not an “increase in punishment.”  See, e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (reviewing whether amendments to a statute violated a constitutional prohibition on when States can increase the punishment for a defendant’s crime).  In Waters, the appellant argued that a statute the district court relied on to deny his request for sentence reduction violated the Ex Post Facto Clause. Id. at 680.  We held that the amendments merely limited the appellant’s ability to reduce his sentence and “[did] not increase the punishment for his crime[.]” Id. at 681....

We hold that the district court did not impose an improper sentence enhancement here.  Brown contends that because the district court used information from the proffer in determining his final sentence, it was an improper enhancement.  It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips.  This is not prohibited.  The district court noted the previous drug smuggling trips, but also mentioned various other aggravating factors, including the nine-year-old being in the car, the amount and type of drug involved, and the impact on the community.  The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance.  The district court imposed a sentence of 78 months — a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range.  This does not constitute an enhancement.

Brown takes issue with the fact that the sentence was not as low as he had requested.  But the failure to reduce a sentence is not an enhancement.  Moreover, we do not take the First Step Act’s proscription as Congress stripping away a district court’s discretion.  All that § 3553(f)(5) prohibits is using information from a safety valve proffer “to enhance the sentence[.]” § 3553(f)(5).  Here, Brown got the benefit of the safety valve reduction, resulting in a sentence below both the mandatory minimum and his guidelines range. This is not an improper “enhancement” of a sentence under § 3553(f)(5).

August 2, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, August 01, 2022

District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

As reported in this Politico article, after an extended sentencing hearing, a "Texas militia member on Monday received the longest sentence to date of any participant in the Jan. 6, 2021, attack on the Capitol: seven-and-a-quarter years in prison."  Here are some of the notable details:

Guy Reffitt, 49, was the first Jan. 6 defendant to go before a jury and was convicted in March on five felony charges, including interfering with police during civil disorder, obstructing the tallying of the electoral votes and threatening his children if they reported him to authorities.

However, U.S. District Court Judge Dabney Friedrich declined the Justice Department’s request to treat Reffitt’s crimes as terrorism, which would have substantially increased the recommended sentence under federal guidelines. 

It was federal prosecutors’ first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism, but the judge concluded it was not appropriate to apply the more severe sentencing guidelines permitted under federal law in terrorism-related cases. Friedrich said applying the sentencing enhancement to Reffitt would create an “unwarranted sentencing disparity” with other cases involving similar threats or conduct related to the Capitol riot.

“There are a lot of cases where defendants possessed weapons or committed very violent assaults,” Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. “The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer.”...

Assistant U.S. Attorney Jeffrey Nestler said Reffitt’s discussions before and after Jan. 6 make clear he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker’s heads bouncing down the Capitol steps. “He was planning to overtake our government. He wasn’t just trying to stop the certification,” Nestler said. “He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself.”

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police. “You’re making recommendations that are way different than you’re making in this case — way different,” said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors. “His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence,” she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded was an important distinction from the other cases to reach sentencing thus far. “Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?” the judge asked.

Another unusual aspect of Reffitt’s case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday’s hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was. “My father’s name was not on all the flags that were there that day that everyone was carrying that day,” Peyton said. “He was not the leader.”

As noted in a prior post, the presentence report had calculated Reffitt's guidelines range to be 108 to 135 months, but Judge Friedrich did not apply all the suggested guideline enhancement and ultimately  sentence him at the bottom of the guideline range calculated by her to be 87 to 108 months.

A few of many prior related posts:

UPDATE: I found notable this Insider article which is headlined "Trump 'deserves life in prison' says daughter of January 6 rioter who was sentenced to 7 years behind bars." Here are excerpts:

The daughter of a man sentenced to 7 years in prison on Monday for taking part in the January 6 insurrection told reporters that the former president, whose supporters stormed the US Capitol, deserves to spend the rest of his life behind bars if her father was going to get his sentence....

After Reffitt was sentenced, his daughters spoke to the media and argued that it was not fair for their father to receive such a long prison term while more powerful people remain free.

"To mark my dad as this horrible person, and then having him prosecuted like this, when somebody is maybe even able to get elected again? Doesn't seem right to me," Sarah Reffitt told reporters.

"Trump deserves life in prison if my father is in prison for this long," Petyon Reffitt added.

August 1, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Sunday, July 31, 2022

"AEDPA Repeal"

The title of this post is the title of this new article authored by Brandon Garrett and Kaitlin Phillips available via SSRN.  Here is its abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus.  Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation.  The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas corpus cases, whether capital or non capital.  Still more perverse, the impact of AEDPA was particularly strong in non capital cases. Since its enactment, AEDPA has been widely criticized by academics, legislators, and judges, for erecting a complex, poorly drafted set of procedural barriers, and for limiting federal review on the merits of most constitutional claims.

This Article examines statutory approaches designed to restore federal habeas corpus.  Any partial or complete repeal of AEDPA raises complex and unexplored issues.  The central challenge is that AEDPA operates alongside decades of Supreme Court created restrictions of federal habeas corpus.  In this Article, we walk through proposals for how AEDPA provisions could be amended, benefits and costs of each change, and how Supreme Court doctrine affects each choice.  AEDPA repeal is not as simple as eliminating the judicially created doctrine of qualified immunity in civil rights litigation.  However, real improvements to federal habeas practice are achievable, and in this Article, we provide a legislative roadmap for habeas reform through AEDPA repeal.

July 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Friday, July 29, 2022

Via multiple rulings, Michigan Supreme Court places new restrictions on when juveniles can receive life sentences

The Michigan Supreme Court yesterday issued five(!) rulings addressing, and generally restricting, whether, when, and how juveniles convicted of homicide can receive sentences of life with or without parole.  Some of the most notable of the rulings are discussed in these press pieces that have headlines providing a basic summary:

"Mich. court bars automatic life sentences for 18-year-olds"

"State Supreme Court rules life with parole for juveniles who commit 2nd-degree murder violates MI Constitution"

"Michigan high court extends juvenile age for first-degree murder sentences; Ruling in Macomb County case also places burden on prosecutors for juvenile life sentences"

Here are links to all of the Michigan Supreme Court rulings, all of which are quite lengthy and divided:

154994, People v Robert Taylor 7/28/2022

162425, People v Montez Stovall 7/28/2022

162086, People v Kemo Parks 7/28/2022

157738 & 158695, People v Demariol Boykin, People v Tyler Tate 7/28/2022

Because Michigan has long had a significant juvenile lifer population, I suspect these rulings can and will lead to a notable number of resentencing in the state.  I would be eager to hear from Michigan experts about just how consequential these rulings might prove to be.

UPDATE:  Ashley Nellis of the Sentencing Project has this new tweet noting part of the likely impact of these state rulings:

Michigan #LWOP ban for 18 yr olds should ease the excessive sentences imposed on ~300 people sentenced for first and second degree murder.

July 29, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, July 28, 2022

"Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion"

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

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that extreme conservative states will seek to criminalize abortion and impose extreme sentences for such crimes, up to and including death.  This Article addresses that reality.  Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics.  After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the most extreme states on both issues, referenced as “Punitive States.”

Then, addressing the post-Dobbs reality that Punitive States could attempt to punish abortion by death, this Article shows that the current capital sentencing framework used across the country is incompatible with abortion offenses.  The aggravating factors and mitigating circumstances, if applied to abortion offenses, would not serve their constitutional purposes.  Therefore, this Article argues, capital sentences imposed under the current framework for abortion offenses would stand in violation of the Sixth and Eighth Amendments to the U.S. Constitution.  Further, this Article argues that attempts to write abortion-specific capital sentencing proceedings would prove to be acts in futility.  Thus, the Article ultimately concludes that death is not a viable punishment for abortion.

July 28, 2022 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (17)

Saturday, July 23, 2022

Notable debate over access to sentencing data as Ohio builds out new sentencing data platform

In a few posts over the last few years (linked below), I have flagged the work of some Ohio jurists and others in the development of a statewide sentencing database.  I have had the honor of playing a small role in this work, and I have found fascinating many of the challenges and debates surrounding efforts to build out the Ohio Sentencing Data Platform.  One big lurking issue all along is now spotlighted by this new local article headlined "Statewide judges’ group wants sentencing data collected under proposed database kept secret."  Here are the excerpts from a lengthy article worth reading in full: 

A group that represents Ohio’s common pleas court judges does not want the public to see data that would be collected under a proposed statewide sentencing database for fears it could be cherry-picked and lead to criticism of the courts.  The head of the Ohio Common Pleas Judges’ Association wrote in a letter to the Ohio Supreme Court’s sentencing commission last month that judges recognize the value in the creation of a database for their own use.

Judges, however, are concerned that attorneys, journalists and other organizations could selectively pull data from the database to use “as a basis to critique imposed sentences and advocate for an overhaul to Ohio’s sentencing statutes.”  “In short, the OCPJA has significant concerns that broad public accessibility to the data would negatively impact the independence of the judiciary and interfere with its discretion in sentencing decisions,” the group’s president, Morrow County Common Pleas Court Robert Hickson, wrote.

The letter urged the seven justices to scrap proposed changes to the rules of superintendence that govern the state’s courts.  That would allow the court to run the project through the sentencing commission and come up with new proposals. In the alternative, state lawmakers should pass legislation mandating the data be exempt from Ohio’s public record laws, the letter said.... Hickson wrote that the letter represents the “unanimous position” of the group’s board.  Cuyahoga County Common Pleas Court Administrative Judge Brendan Sheehan is the group’s first vice president....

Sheehan’s colleague on the bench and predecessor as administrative judge wrote a letter of his own to the Ohio Supreme Court justices in which he said the views of the state judges’ group “cannot be farther from my own.” “In my opinion, the fears and skepticism expressed in the OCPJA letter are unfounded,” Judge John J. Russo wrote.  Russo, who was elected in 2006 and served as administrative judge from 2014 to 2020, told cleveland.com and The Plain Dealer that keeping the data secret and available only to the judges was akin to creating a “secret club” and would only harm the public’s confidence in the justice system more than making it public....

Russo also said that the letter by the judges’ group does not reflect the stance of the majority of the Cuyahoga County Common Pleas Court.  The Ohio Public Defender’s Office, Ohio Bar Association, Black Lives Matter and Common Cause Ohio all urged the commission to make the data available to the public.

The leader of the Ohio Prosecuting Attorney Association expressed a similar concern that the data would not paint a complete picture of all of the factors that go into each sentencing decision, and it would be open to manipulation.  While the group stopped short of calling for the data to remain hidden from the public, it did challenge that the legislature would have to create the commission, rather than the court.

The letters are in response to the Ohio Supreme Court’s sentencing commission’s call for public comment on proposed rule changes that would create a uniform sentencing entry, a lengthy document that judges would fill out after each sentencing hearing that articulates why judges imposed each sentence.  Each county’s common pleas court uses its own system to document the sentences judges there hand down, and they vary widely.  Some courts in small, rural counties still use handwritten sentencing documents, the Supreme Court said in a 2021 article published in the court’s news letter.

The commission would take data from the document and enter it into a database kept by the court that would give those who can access it the ability to see what the average sentence each person convicted of a particular crime received in each county’s common pleas court.  The sentencing commission hopes that creating a central database for the entire state that is populated by a single, uniform document that each judge fills out will make it easier for the Ohio Department of Rehabilitation and Correction.  It would allow the prison system to keep track of the sentences each inmate is serving and prevent trial court judges from committing errors during sentencing that appellate courts would later overturn....

Ohio Supreme Court Justice Michael Donnelly, a former judge in Cuyahoga County who served on the bench alongside Sheehan and Russo, told cleveland.com and The Plain Dealer that the database will help judges make sure they’re doling out similar sentences.  “That’s not just a good idea. That’s what the law mandates now,” Donnelly said. “It’s just that, how do you do that with the lack of information and the lack of data that we have?”

Donnelly also said that the public has a right to know how their courts are operating and that he believes the data should be made public. “We all serve at the pleasure of the public,” Donnelly said of judges in state court. “Everything else about our decisions is reviewable. Why should the most important decision we make as judges, whether to incarcerate someone, be any different than any other decision we make in this system of checks and balances?”

Prior related posts:

 

UPDATE:  Cleveland.com has published this notable new opinion piece authored by Judge Ronald B. Adrine under the headline "Ohio’s Black judges support public release of criminal-sentencing database information." Here are excerpts:

The Ohio Black Judges Association Inc. (OBJA) voices its strong support for the Supreme Court of Ohio’s plan to allow public access to a proposed criminal sentencing database compiled by, among other things, race, as referenced in a recent article which appeared in The Plain Dealer.  Regrettably, our support puts us at odds with the Ohio Common Pleas Judges Association, which opposes public access to the database....

Our members across the state are acutely aware of the fact that the lack of data impedes legitimate inquiry into the degree to which racial justice is, or is not, a reality in Ohio.  At minimum, the existence of an open-access criminal sentencing database will sensitize all judges who make sentencing decisions to the potential for implicit bias, where it exists, and to reassure them of their positive practices, where it does not!

The position taken by the Common Pleas Judges Association calls for worst-case speculation concerning the occasional misuse of the database, while overlooking the overwhelming benefits to be realized in the majority of situations where the database is accessed.  Aggressively promoting viable efforts to increase the public’s confidence in our courts and to seek justice system accountability for all are OBJA’s primary motivators for supporting public access to the database.

We would like to assume that the vast majority of the members of the Ohio Common Pleas Judges Association have nothing to fear from public access to their sentencing practices.  If that assumption is incorrect, then the case for creating and maintaining the database is made even stronger.

There may be legitimate reasons for racial or other disparities that have nothing to do with bias.  If that is the case, having the database will assist in identifying them. By the same token, if the sentencing practices of individual judges suggest the need for practice adjustments, then that fact should be brought to the attention of those judges and the public should be able to monitor their progress in eliminating any explicit or implicit bias uncovered.

July 23, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, July 22, 2022

Should "pardoned conduct" be part of Steve Bannon's sentencing after his convictions for contempt of Congress?

Regular readers know that I have long been troubled by the use of so-called "acquitted conduct" in federal sentencing, but today's news of Steve Bannon's conviction on two federal criminal charges brings an interesting twist on what conduct a federal judge should or should not consider at sentencing.  First, here are the basic's of Bannon's convictions and coming sentencing via NBC News:

A jury on Friday found former Donald Trump adviser Steve Bannon guilty on two counts of contempt of Congress for blowing off the Jan. 6 select committee.

Bannon's sentencing is scheduled for Oct. 21 when he will face a mandatory minimum prison sentence of 30 days and up to one year behind bars. He could also be fined $100 to $100,000. He is expected to appeal....

Judge Carl Nichols repeatedly refused to delay Bannon's trial despite the defense team's contention that publicity from the Jan. 6 committee hearings would affect the jury pool and their contention that Bannon was barred from testifying due to Trump's purported claims of executive privilege.  A jury was seated on Tuesday morning.

Second, here is the full text (with sentencing terms) of the federal statute, 2 USC § 192, which served as the foundation for Bannon's convictions:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

Third, recall that Bannon was indicted by federal prosecutors back in August 2020 on fraud and money laundering charges, but Prez Trump pardoned Bannon on this last day in office before the case had moved significantly forward.  This Washington Post article made note of notable comments by the federal judge who dismissed the charges following the pardon:  

A federal judge on Monday formally dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to President Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.

U.S. District Judge Analisa Torres, citing examples of other cases being dismissed following a presidential reprieve, granted Bannon’s application — saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the Indictment is the proper course.”...

In her decision Tuesday, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one.  She quoted from a New Jersey court that, in 1833, found that “pardon implies guilt.”

“If there be no guilt, there is no ground for forgiveness. … A party is acquitted on the ground of innocence; he is pardoned through favor,” it says, according to Torres’s ruling.

Putting all these pieces together leads me to the question in the title of this post, namely whether folks think it would be proper (perhaps even obligatory) for Judge Carl Nichols to consider and give significant attention to the prior (and now pardoned) allegations of fraud involving Bannon. 

Of course, 18 USC § 3553(a)(1), calls upon a court at sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  The past (alleged and pardoned) fraud conduct certain has part of Bannon's history and characteristics, and a pardon is arguably the antithesis of an exoneration and does not undercut historic jury trial rights like the use of acquitted conduct at sentencing.  Nevertheless, because I think better practice for all purposes is for pardons to be honored and respected through a complete wiping away of all criminal justice sanctions and consequences, I am inclined to want Judge Nichols to not give attention to "pardoned conduct."

July 22, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Sunday, July 17, 2022

What is the price (for victims and taxpayers) of a four-month(!) capital trial for Parkland mass murderer Nikolas Cruz?

The question in the title of this post is my (crass?) reaction to the news that the penalty-only capital trial of Nikolas Cruz is scheduled to formally get started this week.  This AP piece, headlined "Life or death for Parkland shooter?  Trial will take months," provides lots of background.  Here are some excerpts:

Four years, five months and four days after Nikolas Cruz murdered 17 at Parkland’s Marjory Stoneman Douglas High School, his trial for the deadliest U.S. mass shooting to reach a jury begins Monday with opening statements.  Delayed by the COVID-19 pandemic and legal wrangling, the penalty-only trial is expected to last four months with the seven-man, five-woman jury being exposed to horrific evidence throughout.  The jurors will then decide whether Cruz, 23, is sentenced to death or life without the possibility of parole.

“Finally,” said Lori Alhadeff, who wants Cruz executed for murdering her 14-year-old daughter Alyssa. “I hope for swift action to hold him responsible.”  All victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death.

The former Stoneman Douglas student pleaded guilty in October to the Feb. 14, 2018, massacre and is only challenging his sentence. Nine other U.S. gunmen who fatally shot at least 17 people died during or immediately after their attacks by suicide or police gunfire.  Cruz was captured after he fled the school.  The suspect in the 2019 killing of 23 at an El Paso, Texas, Walmart is awaiting trial.

Lead prosecutor Mike Satz will give his side’s presentation.... Craig Trocino, a University of Miami law professor, said Satz will likely emphasize the shooting’s brutality and the story of each victim lost. The prosecution’s theme throughout the trial will be, “If any case deserves a death sentence, this is it,” he said....

Trocino said ... Cruz’s attorneys will likely want to plant the seed in jurors’ minds that he is a young adult with lifelong emotional and psychological problems. The goal would be to temper the jurors’ emotions as the prosecution presents grisly videos and photos of the shootings and their aftermath, the painful testimony of the surviving wounded and tearful statements from victims’ family members....

Satz’s team will be required to prove beyond a reasonable doubt that Cruz committed at least one aggravating circumstance specified under Florida law, but that should not be an issue.  Those include murders that were especially heinous or cruel; committed in a cold, calculated and premeditated manner; or committed during an act that created a great risk of death to many persons. Cruz’s team can raise several mitigating factors that are also in the law.  Before the shooting, Cruz had no criminal history.  The attorneys can argue he was under extreme mental or emotional disturbance, and his capacity to appreciate his conduct’s criminality or conform it to the law was substantially impaired....

For each death sentence, the jury must be unanimous or the sentence for that victim is life.  The jurors are told that to vote for death, the prosecution’s aggravating circumstances for that victim must, in their judgement, “outweigh” the defense’s mitigators.  A juror can also vote for life out of mercy for Cruz.  During jury selection, the panelists said under oath that they are capable of voting for either sentence.

It is possible Cruz could get death for some victims and life for others, particularly since he walked back to some wounded victims and killed them with a second volley. That might swing any hesitant jurors on those counts. “The prosecution only needs for the jury to come back (for death) on one,” Trocino said.

There is always much to say about the unique dynamics of capital trials, but I must flag here the remarkable contrast between capital and non-capital sentencing procedures.  Though guilt is not disputed in any way with respect to Nikolas Cruz's 17 murders, he can receive a death sentence only if all 12 jurors unanimously decide he should be executed for his crimes.  Contrast that jury-centric process to the non-capital case flagged in this recent post involving a federal defendant who was acquitted of a murder by 12 jurors and yet still had a lone judge sentence him based on the judge's view that he did the killing.  Cruz's case is but one of many examples of the very worst of murderers getting the very best legal protections because we require "super due process" for the imposition of the death penalty even when there is no shred of doubt about guilt.

Notably, in this post 3.5 years ago on the one-year anniversary of the Parkland shooting, I expressed my hope that "someone is keeping track of what this prosecution is costing the taxpayers of the state of Florida."   As I sometimes mention in this space, I view the extraordinary expense of many capital cases (with their super due process) to be a notable argument against the death penalty since it rarely seems the penalty's (debatable) benefits measure up to its (considerable) economic costs.  I can only imagine the taxpayer resources involved in a trial for which jury selection took three months and which is already forecast to last nearly the rest of this year.  Parkland victims are sure also to pay an emotional price as they endure an agonizing trial experience sure to be heavily covered by local and national media.

That said, the AP article asserts that all "victim parents and family members who have spoken publicly have said directly or indirectly they want Cruz sentenced to death."  I sincerely hope all these victims get some measure of satisfaction or catharsis from this particular capital trial.  Sadly, it seems awfully unlikely that this trial will lead to, in the words of one victim, "swift action to hold him responsible."  With nearly 5 years needed to even get to a trial verdict, there are surely years (if not decades) of appeals to follow if Cruz is sentenced to death.  

Some prior related posts:

July 17, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Friday, July 15, 2022

New issue brief urges prosecutors to stop pursuing drug-induced homicide charges

The group Fair and Just Prosecution, which brings together and focuses on the work of elected local prosecutors, has this notable new issue brief titled simply "Drug-Induced Homicide Prosecutions." Here is "Summary" found at the start of the 12-page document:

This is one of a series of FJP’s “Issues at a Glance” briefs addressing strategies for improving responses to overdose deaths and incorporating harm reduction approaches into prosecutors’ work.  As prosecutors face the tragedy of rising overdose deaths in their communities, this series of briefs urges them to embrace interventions grounded in the philosophy of harm reduction.  This brief focuses on drug-induced homicide prosecutions.  It describes why they are inherently problematic, while offering more effective, humane, and fiscally responsible alternatives.  It is intended as a guide for prosecutors who are grappling with how to respond effectively to an increased number of overdose deaths in their communities and seeking to do so with evidence-based and compassionate approaches.

“Drug-induced homicide” (DIH) prosecutions – the practice of charging individuals who supply drugs that result in a fatal overdose with homicide, even in the absence of specific intent to cause death — have dramatically increased in the wake of the overdose crisis.  While an estimated 28 individuals faced DIH prosecutions in 2007, close to 700 DIH cases were filed in 2018 based on media reports.  This brief outlines the evidence regarding DIH prosecutions, including their inefficacy in reducing overdoses, the proportionality and racial injustice concerns they raise, and their role in ultimately exacerbating the harms of the overdose crisis.  The brief recommends that prosecutors cease to seek DIH charges absent evidence of specific intent to kill, and delineates more effective approaches that have the potential to save lives.

July 15, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing 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.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Wednesday, July 13, 2022

Some more coverage and commentary on what criminalization of abortion can and will mean 

In a few posts here and here not long after the Dobbs decision, I flagged some news pieces and some commentaries discussing how the overruling of Roe and the criminalization of abortion in some states might echo through our criminal justice system.  In recent days, have now seen a few more notable pieces further exploring what abortion criminalization could and will mean:

From The 19th, "Prosecutor explains what preparing for a future of post-Roe abortion cases might look like"

From Bloomberg Law, "Progressives Look to Pardon Power as Abortion Access Fix"

From CNN, "Michigan governor signs executive order to protect abortion providers and patients from extradition"

From Mother Jones, "Why Progressive Prosecutors Won’t Save Us in a Post-Roe World"

From Slate, "Why Even Progressive Prosecutors Won’t Be Able to Keep Women Who Have Abortions Out of Jail"

From The Texan, "Texas Freedom Caucus Warns Law Firm of Criminal Liability for Covering Employees’ Abortion Costs"

From the Texas Observer, "Abortion Is (Again) A Criminal-Justice Issue

A few prior related posts:

July 13, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Monday, July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

Prior recent related posts:

July 11, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 10, 2022

Couple of choice Concepcion commentaries

The Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), is an important sentencing precedent that is sure to be overshadowed by this Term's higher profile cases.  But I have been pleased to see  a couple new notable commentaries on Concepcion.  Here are links and excerpts from two pieces worth reading in full:

From CNN by Van Jones and Nisha Anand, "A rare Supreme Court ruling this term where conservative and liberals joined forces"

The Supreme Court's ruling in Concepcion could mean reduced sentences for thousands of people.  It also means that the Court just made it easier to reward those who take steps to better themselves.  And allowing judges to take new information into account will help ensure that rehabilitation becomes the main point of our criminal justice system.

Helping people transform their lives reduces crime.  It keeps us all much safer than simply locking people behind bars with no hope for the future. If members of a deeply divided Supreme Court can recognize this, then surely the rest of us can as well.

From Law360 by Mark Osler, "Justices' Resentencing Ruling Boosts Judicial Discretion"

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law.  However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities.  After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing....

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant.  While this decision, in isolation, may bring mixed results, that trend is a good one.

Prior related posts:

July 10, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11)

Saturday, July 09, 2022

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

July 9, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, July 07, 2022

Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack"

In this post last month, I noted the AP's interesting accounting of all the federal sentences given to January 6 rioters so far.  Now, to mark the 1.5 year anniversary of the riot, Politico has this lengthy review of all where Jan 6 matters stand.  I recommend the full piece, and here is how it starts and some of its sentencing discussion:

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy.  Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes.  But the most crucial tests of the Justice Department’s work are still to come....

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes.  As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration.  That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time.  But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases.  The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

Some of many prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

July 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Still more discussion of the BOP's failings with FIRST STEP Act

At Forbes, Walter Pavlo has this new piece under the headline "Bureau Of Prisons Holding Inmates For Longer Than Law Allows." The piece provides another account of the difficulties the BOP is having in giving persons in federal prison the credits set forth in the FIRST STEP Act. Here is an excerpt:

The FSA, signed into law by President Donald Trump in December 2018, allows many prisoners to earn additional time off of their sentence, up to a year, and also earn extensive time in pre-release custody (halfway house and home confinement). Those credits, up to 15 days for every 30 days of holding a job and participating in programs/education, can be significant. It means the difference between rejoining one’s family a year or more earlier than before the FSA. However, there are reports from around the country that the BOP is not providing accurate information to prisoners about their FSA credits and some are staying in prison longer than necessary....

A declaration by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse of the challenges the BOP faces in trying to implement FSA. Giddings is the Chief of the Unit Management Section of the Correctional Programs Branch at the BOP’s Central Office in Washington DC. In addition to her role overseeing Correctional Systems, she has been involved in the development and implementation of the BOP’s FSA procedures. As part of Giddings’ declaration for the Petitioner, inmate Robert Stewart, she noted that “... for reasons that are not apparent to me, Petitioner’s FSA credits were in fact incorrectly calculated.” If one person’s is wrong, many others are as well. One of the reasons might be that the BOP is currently calculating these FSAs manually....

Thousands of inmates are in the position to be freed under FSA but many will be held longer than necessary as the BOP tries to get its computer system up to speed. As one family told me about waiting for the BOP’s new sentence calculator, “it can’t come soon enough.”

Some prior related posts:

July 7, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, July 05, 2022

Does commitment to equal justice mean AG Garland must or must not seek the death penalty for racist Buffalo mass murderer?

The question in the title of this post is prompted by this new Washington Post article, headlined "Garland weighs racial equity as he considers death penalty in Buffalo."  Here are excerpts from a long article:

The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May.

Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron, according to people involved in the discussion.  Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities....

Garland, under pressure from civil rights groups, issued a moratorium last summer on federal executions, after the administration of President Donald Trump carried out 13 in the final six months of his presidency.  As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.  “The reality for us is that the system is too often infused with racial bias. That doesn’t change because someone who is White, and who perpetrated violence against Black people, is put to death,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights.

President Biden opposed the death penalty during his 2020 campaign, but he has not pushed forcefully for a blanket federal ban on executions since taking office.  His administration is under pressure to do more to confront rising white supremacy, a spike in hate crimes and a wave of gun violence.  While Garland’s moratorium does not ban prosecutors from seeking the death penalty, the Justice Department has not filed a notice to seek capital punishment under his leadership, officials said....

Federal prosecutors have charged Gendron with 26 hate crime counts.  But it is an additional gun-related charge that carries the potential penalty of death. He also faces state-level first-degree murder and hate crimes charges in New York, which does not allow state-sponsored executions....

Making matters more complex, some of the attorneys representing the families are advocates who vocally oppose the death penalty, including Ben Crump, a prominent civil rights attorney, and Terrence M. Connors, a Buffalo trial lawyer. So do some of Garland’s top deputies, including Associate Attorney General Vanita Gupta, who joined him in Buffalo....

Garland gained national acclaim in the 1990s for helping lead the Justice Department’s successful capital conviction of Oklahoma City bomber Timothy McVeigh, who was put to death in 2001.  During his confirmation hearing last year, Garland said he stands by the outcome of that case but has since developed reservations over the death penalty.

At the hearing, Sen. Tom Cotton (R-Ark.) cited the case of Dylann Roof — a White man sentenced to death for fatally shooting nine Black parishioners at a church in Charleston, S.C., in 2015 — and asked whether Garland would pursue capital punishment in a similar case. Garland responded that it would depend on the Biden administration’s policy.

The Justice Department has continued to back Roof’s death sentence, which was upheld by a federal appellate court last summer.  The department also is seeking the death penalty for Robert Bowers, a White man accused of killing 11 people and wounding six in an antisemitic attack at the Tree of Life synagogue in Pittsburgh in 2018....

In opposing the death penalty, some opponents cite cases in which convicts on death row are exonerated in light of new evidence. But legal experts said the Buffalo case appears to lacks ambiguity: The suspected gunman allegedly wrote a 180-page screed denouncing Black people, shared plans for the attack on social media and live-streamed some of the shooting.

“Congress passed the law allowing the federal death penalty for the most heinous of crimes. If the Buffalo massacre doesn’t qualify, then it’s hard to see what would,” Cotton said in a statement. “Merrick Garland and President Biden ought to put aside their personal feelings, enforce the law, and focus on securing justice for the victims of this horrific crime.”

Garland has not been completely clear about his intent in pausing executions, said Nathan S. Williams, a former assistant U.S. attorney who helped prosecute Roof.  Though Garland cited technical issues concerning lethal injection in his memo announcing the moratorium, he also referenced fundamental unease about the death penalty’s “disparate impact on people of color.”  Garland’s moratorium “does not resolve what was posited in that memo: ‘Is the death penalty fundamentally unfair in its application?’ If you believe that, you would not pursue it” in Gendron’s case, Williams said.

Especially because the facts in Gendron's case are relatively similar to those that led to Roof being sent to federal death row, I can see a basis to say a commitment to equal justice demands pursuing the death penalty for Gendron. But, if one sincerely believes the entire system is fundamentally inequitable, I can also see a basis for saying a commitment to equal justice demands never seeking the death penalty. It will be interesting to see what AG Garland decides.

Prior related post:

July 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Saturday, July 02, 2022

"Crushing the Soul of Federal Public Defenders: The Plea Bargaining Machine’s Operation and What to Do About It"

The title of this post is the title of this notable new article recently posted to SSRN and authored by Walter Gonçalves.  Here is its abstract:

Existing scholarship on the vanishing federal trial does not explain how assistant federal public defenders (AFPDs) have been affected by the plea-bargaining machine.  Without an understanding of the repercussions to line attorneys, heads of federal public defender offices (FPDOs) cannot take proactive measures.  The result is low morale among staff, difficulty training litigation skills, and lower quality representation.  This state of affairs exacerbates non-trial resolutions as defenders know only how to push pleas.

FPDOs must train AFPDs to better screen cases for trial and improve courtroom litigation.  They must also focus on how the plea-bargaining machine has affected racial minorities as seen in charging and sentencing disparities.  The historical oppression of African Americans, Latinxs, and American Indians made it easier to justify laws that ignited plea-bargaining hegemony: sentencing guidelines, mandatory minimums, and fast-track programs.

David Patton, Executive Director for the Federal Defenders of New York, authored an influential essay published in the Yale Law Journal, “Federal Public Defense in an Age of Inquisition.”  He compared federal practice in 2012, when he wrote it, to the time of Gideon v Wainwright.  Patton concludes that today’s criminal defendant is more likely to be of color, in custody, face more prison time, and less likely to go to trial.  While relevant a decade later, the analysis does not develop problems of race, nor realistic improvements.

The better theoretical lens considers race and supplies solutions through training.  This Article shows how sentencing guidelines, mandatory minimums, and fast-track programs operate in AFPD work, highlights problems for defendants of color, and proposes strategies FPDOs can apply to blunt the impact of the decreasing trial rate.

July 2, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Thursday, June 30, 2022

Lots and lots of note in big SCOTUS order list at close of Term for the ages

I suspect I am not the only one fatigued from the historic Supreme Court Term that was concluded today (and I only pay really close attention to the Court's criminal docket).  But criminal justice fans may want to find some energy to review this morning's final order list, which includes lots of note.

For starters, the the order list begins with more than a few GVRs based on all the big cases of the last week including Concepcion and Ruan and Castro-Huerta.

Then, SCOTUS granted cert on three new cases, including these two criminal ones involving fraud convictions under federal law: Percoco v. US and Ciminelli v. US.

And, last but not least, the Court has a long series of statements about the denial of cert.  To cover them all, I can borrow from How Appealing's helpful posting:

In Grzegorczyk v. United States, No. 21–5967, Justice Brett M. Kavanaugh issued an opinion, in which Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Samuel A. Alito, Jr., and Amy Coney Barrett joined, respecting the denial of certiorari. And Justice Sonia Sotomayor issued a dissent, in which Justices Stephen G. Breyer, Elena Kagan, and Neil M. Gorsuch joined, from the denial of a grant, vacate, and remand order.

In Storey v. Lumpkin, No. 21–6674, Justice Sotomayor issued an opinion respecting the denial of certiorari.

In Canales v. Lumpkin, No. 20–7065, Justice Sotomayor issued a dissent from the denial of certiorari.

In Ramirez v. Guadarrama, No. 21–778, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

In Cope v. Cogdill, No. 21–783, Justice Sotomayor issued a dissent from the denial of certiorari.

In Dr. A. v. Hochul, No. 21–1143, Justice Thomas issued a dissent, in which Justices Alito and Gorsuch joined, from the denial of certiorari.

And in Hill v. Shoop. No. 21–6428, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

I hope to find time before too long to review all of of these statement and later comment on those that strike me as particularly notable.  Readers are, of course, encouraged to flag in the comments items of particular interest.

June 30, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (19)

Reviewing and reflecting on what criminalization of abortion could and will mean

In this recent post, I flagged some news articles discussing how the overruling of Roe allowing for the broad criminalization of abortion has brought attention to whether, when and how prosecutors might charge persons for abortion-related activities.  I have now seen a few more recent pieces exploring more broadly what abortion criminalization could and will mean:

From the Atlantic, "Roe Is the New Prohibition: The pro-life movement needs to know that such culture wars result not in outright victory for one side but in reaction and compromise."

From the New York Times, "In States Banning Abortion, a Growing Rift Over Enforcement: A reluctance by some liberal district attorneys to bring criminal charges against abortion providers is already complicating the legal landscape in some states."

From the New York Times, "When Brazil Banned Abortion Pills, Women Turned to Drug Traffickers: With Roe v. Wade overturned, states banning abortion are looking to prevent the distribution of abortion medication. Brazil shows the possible consequences."

From Salon, "The right's war on abortion will become the new War on Drugs: The drug war has been a colossal, expensive disaster. Now the right can build a police state to pursue a new enemy"

From the Texas Tribune, "Abortion funds languish in legal turmoil, their leaders fearing jail time if they help Texans: It’s unclear whether Texas’ tangled web of abortion laws would make it a crime to pay for a Texan to leave the state to get an abortion, but the threat has compelled the funds to cease services."

A few prior related posts:

June 30, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17)

Wednesday, June 29, 2022

Furman at 50: so much and so little

On this date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court's history.  But the actual opinion of the Court is a so short that I can be reprinted it in full here: 

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969).  Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969).  Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971).  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.  The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.  THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50.  As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little.  I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.

June 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Via 5-4 ruling, Supreme Court limits reach of McGirt to rule states can "prosecute crimes committed by non-Indians against Indians in Indian country"

The last big criminal law case on the Supreme Court's docket was handed down this morning, and the Court split 5-4 in Oklahoma v. Castro-Huerta, No. 21-429 (S. Ct. June 29, 2022) (available here). The opinion for the Court was authored by Justice Kavanaugh, and it starts and ends this way: 

This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes?  Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes?  We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country....

We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.  We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion.

Justice Gorsuch authored the dissent, which was joined by Justices Breyer, Sotomayor and Kagan. It starts this way:

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license.  Really, the prosecution was a show of force — an attempt by the State to demonstrate its authority over tribal lands. S peaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign.  See Worcester v. Georgia, 6 Pet. 515, 561 (1832).  The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it.  But in time, Worcester came to be recognized as one of this Court’s finer hours.  The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.  Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).

Where this Court once stood firm, today it wilts.  After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities.  Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.  At various points in its history, Oklahoma has chafed at this limitation.  Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation.  Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.  Respectfully, I dissent.

June 29, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, June 27, 2022

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It 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....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

SCOTUS unanimously rejects federal convictions for opioid docs in Ruan, with majority stressing mens rea requirement

Every member of the Supreme Court agreed this morning in Xiulu Ruan v. US, No. 20-1410 (S. Ct. June 27, 2022) (available here), decided that the federal drug distribution convictions of two doctors who prescribed opioids was problematic.  But the Court divided on the rationale, with Justice Breyer writing the opinion for the majority that starts this way:

A provision of the Controlled Substances Act, codified at 21 U.S.C. § 841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. 84 Stat. 1260, 21 U.S.C. § 841(a) (emphasis added). Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2021).

In each of these two consolidated cases, a doctor was convicted under § 841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

Justice Alito authored a lengthy opinion to concur in the judgment which was joined in full by Justice Thomas and partially by Justice Barrett. Here is how it begins:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

We granted certiorari in these cases to decide whether a physician may be convicted of dispensing or distributing drugs by prescription under a provision of the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §841(a), if he or she believed in good faith that the prescription was within the course of professional practice. In my view, there is a straightforward answer to this question. The CSA contains an exception for prescriptions issued in the course of professional practice, and this exception is a carry-over from the CSA’s predecessor, the Harrison Narcotics Act of 1914, 38 Stat. 785. In interpreting the Harrison Act, this Court held that a registered physician acts “in the course of his professional practice” when the physician writes prescriptions “in good faith.” Linder v. United States, 268 U.S. 5, 17–18 (1925). I would hold that this rule applies under the CSA and would therefore vacate the judgments below and remand for further proceedings.

June 27, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It 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. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Lots of GVRs based on Taylor limiting "crime of violence" for applying 924(c) sentence enhancement

As night follows day, it regularly follows after a significant new Supreme Court decision limiting the reach of a federal criminal statute that a subsequent Supreme Court order list grants, vacates and remands (GVRs) a number of cases "for further consideration in light of" the new decision.  In this morning's order list, the Supreme Court's 7-2 decision last week in US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here), provides the basis for twenty GVRs.

Because Taylor limited the reach of what serves as a "crime of violence" under 18 U.S.C. § 924(c)(3)(A), a statute which impacts whether and when an "individual may face a second felony conviction and years or decades" of additional mandatory imprisonment for having a gun involved in the commission of certain offenses (basics here), I suspect there will be future Taylor GVRs and likely lots of other echoes from the decision.  

Especially in the wake of the Supreme Court's high-profile ruling in Bruen changing the jurisprudence of the Second Amendment (basics here, questions here and here), it is interesting to note that two big wins for criminal defendants this SCOTUS Term came in cases limiting the reach of federal criminal statutes imposing severe mandatory punishments for gun-related offenses.  Though Taylor and Wooden (basics here, analysis here) will not get nearly as much attention as Bruen, for certain folks they will prove even more important.

June 27, 2022 in Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 24, 2022

SCOTUS overrules Roe with Dobbs ruling, raising new criminal justice and sentencing issues

The Supreme Court this morning released its much anticipated opinion in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. June 23, 2022) (available here).   The opinions are 200+ pages long, but these lines from the start of the Court's opinion authored by Justice Alito provides the basics: "We hold that Roe and Casey must be overruled ... [and so] return the issue of abortion to the people’s elected representatives."

Both before and after the Dobbs majority opinion was leaked last month, I spotlighted in a few posts a few issues that would seem to arise from existing state laws poised to criminalize and punish abortions in various ways:

There are, of course, lots of other jurisprudential and policy and political questions outside the criminal justice area that flow from Dobbs and its aftermath.  But I think it is quite important and will be quite legally consequential that most laws seeking to restrict or prohibit abortions will be criminal laws raising all sorts of (obvious and not-so-obvious) enforcement and sentencing issues.

June 24, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (79)

Thursday, June 23, 2022

By 6-3 vote, SCOTUS rules Miranda violations cannot provide a basis for § 1983 suit

The Supreme Court this morning handed down a notable procedural ruling in the criminal justice space likely to be of interest to many. In Vega v. Tekoh, No. 21-499 (S. Ct. June 23, 2022) (available here), the Court on standard ideological lines limited federal legal remedies for violations of Miranda rights. The opinion is authored by Justice Alito and starts this way:

This case presents the question whether a plaintiff may sue a police officer under Rev. Stat. § 1979, 42 U.S.C. § 1983, based on the allegedly improper admission of an “un-Mirandized” statement in a criminal prosecution.  The case arose out of the interrogation of respondent, Terence Tekoh, by petitioner, Los Angeles County Sheriff ’s Deputy Carlos Vega. Deputy Vega questioned Tekoh at his place of employment and did not give him a Miranda warning.  Tekoh was prosecuted, and his confession was admitted into evidence, but the jury returned a verdict of not guilty.  Tekoh then sued Vega under § 1983, and the United States Court of Appeals for the Ninth Circuit held that the use of Tekoh’s un-Mirandized statement provided a valid basis for a §1983 claim against Vega.  We now reject this extension of our Miranda case law.

Justice Kagan authored the dissent, which was joined by Justices Breyer and Sotomayor.  It starts this way:

The Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), affords well-known protections to suspects who are interrogated by police while in custody. Those protections derive from the Constitution: Dickerson v. United States tells us in no uncertain terms that Miranda is a “constitutional rule.” 530 U.S. 428, 444 (2000). And that rule grants a corresponding right: If police fail to provide the Miranda warnings to a suspect before interrogating him, then he is generally entitled to have any resulting confession excluded from his trial.  See 384 U.S., at 478–479.  From those facts, only one conclusion can follow — that Miranda’s protections are a “right[]” “secured by the Constitution” under the federal civil rights statute. Rev. Stat. § 1979, 42 U.S.C. § 1983.  Yet the Court today says otherwise. It holds that Miranda is not a constitutional right enforceable through a § 1983 suit.  And so it prevents individuals from obtaining any redress when police violate their rights under Miranda.  I respectfully dissent.

June 23, 2022 in Procedure and Proof at Sentencing | Permalink | Comments (2)

By 5-4 vote, SCOTUS reaffirms all method of execution challenges can proceed as § 1983 actions

In an important ruling for capital case litigation, the Supreme Court this morning held in Nance v. Ward, No. 21-439 (S. Ct. June 23, 2022) (available here), that all method of execution claims can be brought via § 1983.  Justice Kagan wrote the opinion for the Court, which starts this way:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.  To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.  In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim.  We have held that such a claim can go forward under 42 U.S.C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.  See Nelson v. Campbell, 541 U.S. 637, 644–647 (2004).  Here, the prisoner has identified an alternative method that is not so authorized.  The question presented is whether § 1983 is still a proper vehicle.  We hold that it is.

Justice Barrett authored the dissent in this case, and she is joined by Justices Thomas, Alito and Gorsuch. Here is how her opinion starts:

An inmate must bring a method-of-execution challenge in a federal habeas application, rather than under 42 U.S.C. § 1983, if “a grant of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547 U. S. 573, 583 (2006).  Under this criterion, Michael Nance must proceed in habeas because a judgment in his favor would “necessarily bar” the State from executing him. Ibid.  Nance asked the District Court to “enjoin the Defendants from proceeding with [his] execution . . . by a lethal injection,” claiming that the use of such method would violate the Eighth Amendment as applied to him. App. to Pet. for Cert. 103a– 104a.  But lethal injection is the only method of execution authorized under Georgia law.  See Ga. Code Ann. §17–1038(a) (2020). Thus, if Nance is successful, the defendants in this case — the commissioner of the Georgia Department of Corrections and the warden — will be powerless to carry out his sentence.  That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.

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

Wednesday, June 22, 2022

Split North Carolina Supreme Court rulings declares sentences excluding parole for over 40 years unconstitutional for juveniles

Last week, as reported in this local article, the Supreme Court of North Carolina issues two notable opinions placing a notable limit on sentences for juvenile offenders.  Here are the basics:

Juveniles convicted of the most violent crimes in North Carolina cannot spend more than 40 years behind bars before becoming eligible for parole.  The N.C. Supreme Court made that determination Friday in a pair of 4-3 decisions.  The court’s four Democratic justices ruled in favor of the defendants in both cases.  The three Republican justices dissented.

In State v. Conner, Democratic justices determined that a 15-year-old convicted of rape and murder faced an excessive prison sentence.

According to Justice Michael Morgan’s majority opinion, Riley Dawson Conner pleaded guilty to raping his aunt outside her home in 2016, then killing her “with blows from a shovel.” He then left her dead body in a wooded area near her home.

Under the original consecutive sentences on rape and murder charges, Conner would have reached the age of 60 before having the chance to seek parole. Such a lengthy sentence would violate federal court precedents involving juvenile offenders, Morgan argued. Instead he and his fellow Democratic justices set a new 40-year maximum prison sentence before a juvenile offender would become eligible for parole....

Republican Justice Phil Berger Jr. rejected the argument. He accused Democratic justices of writing the 40-year maximum sentence into law.  “[T]he majority darts into the legislative lane, usurping legislative authority by enacting its new law simply because they find this result ‘desirable’ for violent juveniles,” Berger wrote in dissent....

Democratic and Republican justices also split in State v. Kelliher.  As with the Conner case, the court’s majority ruled that defendant James Ryan Kelliher should serve no more than 40 years in prison for murders committed when he was 17.

All of the opinions in the Connor and Kelliher cases make for interesting reads. From a quick review, I was struck by the fact that the Connor ruling suggests that both the US and North Carolina constitutions supported the 40-year cap announced by the court. But the Kelliher ruling more expressly relies on the NC constitution as revealed in this paragraph from near the start of the opinion:

After careful review, we hold that it violates both the Eighth Amendment to the United States Constitution and article I, section 27 of the North Carolina Constitution to sentence a juvenile homicide offender who has been determined to be “neither incorrigible nor irredeemable” to life without parole.  Furthermore, we conclude that any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole within the meaning of article I, section 27 of the North Carolina Constitution because it deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison.  Thus, Kelliher’s sentence, which requires him to serve fifty years in prison before becoming eligible for parole, is a de facto sentence of life without parole under article I, section 27.  Because the trial court affirmatively found that Kelliher was “neither incorrigible nor irredeemable,” he could not constitutionally receive this sentence.

June 22, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, June 21, 2022

Ruling 5-4 against state prisoner, SCOTUS rules federal court misapplied All Writs Act in habeas proceeding

In a technical (and seemingly little) ruling, the Supreme Court reversed a procedural order in Shoop v. Twyford, No. 21-511 (S. Ct. June 21, 2022) (available here). The opinion for the Court was authored by Chief Justice Roberts, and it starts and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing.  The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief.  The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse....

A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U.S.C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored the main dissent, which Justices Sotomayor and Kagan joined. It starts this way:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition.  Ante, at 1. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding.  See ante, at 9–10.  I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch authored a solo dissent, which runs only two paragraphs and merits reprinting in full:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question.  The District Court’s transportation ruling was an interlocutory order, not a final judgment.  To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases.  See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545–547 (1949). In a terse footnote today, the Court does just that.  Ante, at 5, n. 1.

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 (2009).  If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ibid.

June 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

June 21, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

June 21, 2022 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 20, 2022

"The Trump Clemencies: Celebrity, Chaos, and Lost Opportunity"

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

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term.  Buried beneath this rolling disaster was a brief moment of hope and  a lost opportunity: the chance for a restructure of the clemency process in the Fall of 2018, enabled by a rare alignment of factors including Trump’s alienation from the Department of Justice and the interest of his son-in-law, Jared Kushner. This article explores the fullness of Trump’s clemency legacy and explores what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

June 20, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Mississippi Supreme Court upholds, against Eighth Amendment challenge, mandatory LWOP habitual-offender sentence for marijuana possession

Last year in this post, I reported on a Mississippi state intermediate appeal court ruling that upheld a mandatory life without parole sentence for possession of over 30 grams of marijuana because the defendant was a violent habitual offender under Mississippi law.  Last week, the Supreme Court of Mississippi, by a 6-3 vote, affirmed this sentence in Russell v. Mississippi, No. 2019-CT-01670-SCT (Miss. June 16, 2022) (available here).  Here is the start and some concluding parts of the  majority opinion:

This certiorari case considers whether Allen Russell’s life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State, No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021).  We affirm Russell’s sentence....

In the limited scenario in which the mandatory sentence facing a defendant under Section 99-19-83 is life without parole and the crime for which the defendant is being sentenced, unenhanced, is a nonviolent crime that carries a minimal-maximum sentence (i.e. less than ten years), trial judges should specifically consider “all matters relevant to” the sentence as contemplated in Presley to determine the issue of gross disproportionality and the constitutionality of the sentence as to that particular defendant. Presley, 474 So. 2d at 620....  None of this benefits Russell. We reiterate, once again, that the burden is upon the defendant to show that the sentence mandated by the legislature is unconstitutional as to that particular defendant.  Because Russell presented no evidence, the only substantive evidence before the court were the prior convictions....

The record is replete with additional evidence, as documented in the separate opinion of the chief justice.  We would refer the reader to the chief justice’s separate opinion for a thorough recounting of the details surrounding Russell’s arrest.  However, it is pertinent to note that the arrest came while law enforcement was attempting to serve another drug related warrant on Russell as well as execute a search warrant on his premises. The search warrant came about as a result of Russell’s being developed as a suspect in a murder in a hotel room where a medical document naming Russell was found....

In Russell’s case, the trial judge followed our procedure and the law, Russell presented no evidence related to the Solem factors and the trial judge sentenced Russell to the only sentence available.  Therefore, we affirm.

The lengthy separate concurring opinion is an interesting read that seeks to highlight "Solem’s weaknesses." Here is how it concludes:

Based on both this Court’s precedent and the rulings of the United States Supreme Court in Rummel, 445 U.S. 263, Harmelin, 501 U.S. 263, Andrade, 538 U.S. 63, and Ewing, 538 U.S. 11, Russell’s sentence as an habitual offender was not grossly disproportionate.  His sentence meets the prescribed statutory punishment.  There is no legal basis to vacate Russell’s sentence.  It is neither cruel nor unusual.  As Russell has failed to prove that the threshold requirement of gross disproportionality was offered and met, because his sentence fell within the statutory requirement, and because his sentence is a constitutionally permissible sentence, we should affirm Russell’s conviction and sentence.

The short dissenting opinion includes this point in making the case Solem ought to help Russell:

Recent developments in Mississippi and elsewhere concerning the treatment of marijuana possession arguably provide a material difference between Solem and Russell that favors Russell as to the objective factors.  In the past year, the state of Mississippi joined many of its sister states in adopting a medical marijuana program.  Pursuant to the bill creating the program, the difference going forward between going to jail for possessing 2.5 ounces of marijuana and owning it legally would be a prescription.  See S.B. 2095, 2022 Miss. Laws.  For better or for worse, the adoption of a medical marijuana in Mississippi is in keeping with a nationwide change on the treatment of marijuana in the law.  An April 2021 law journal article points out that thirty-six states now have medical marijuana programs, and fourteen states and the District of Columbia now allow its recreational use.  Paul J. Larkin, Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215, 216-217 (2021).  Less than thirty years ago, however, all states and the federal government outlawed its distribution. Id. Whether it be wisdom or folly, the above-described move toward decriminalizing the use of marijuana considered in light of the first objective Solem factor, i.e., the gravity of the offense and the harshness of the penalty, surely weighs in favor of Russell.  There appears to be no similar widespread movement to legalize “uttering a ‘no account’ check[.]” Solem, 463 U.S. at 281.

June 20, 2022 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, June 17, 2022

"Free-World Law Behind Bars"

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

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, 'free-world' regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

June 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, June 16, 2022

Bipartisan group of House members introduce bill to allow judges to reduce sentences to "protect the constitutional right to trial"

This press release from the office of Representative Victoria Spartz reports on a notable new bill seeking to address concerns with so-called "trial penalties."  Here is the text of the release:

U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues Reps. Hakeem Jeffries (NY-08), Kelly Armstrong (ND-AL), Karen Bass (CA-37), Morgan Griffith (VA-09), Cathy McMorris Rodgers (WA-05), Guy Reschenthaler (PA-14), and David Trone (MD-06). This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

“Our Founding Fathers provided for trial by jury in our Constitution as a safeguard of our liberties,” said Rep. Spartz.“This constitutional right is essential to protect against the tyranny of government and the police state.”

Approximately 97% of defendants subject to federal charges plead guilty, up from nearly 85% in the early 1990s. Despite their constitutional right to trial, defendants face steep mandatory minimum sentences if they choose to exercise this right—driving defendants into one-sided plea negotiations.

“Throughout my time as a district judge, I saw the extreme disparities between sentences offered in plea deals and sentences given to those who went to trial. Americans shouldn’t face drastically different judicial outcomes when exercising their constitutional rights,” said Rep. Reschenthaler. “The Right to Trial Act will address the trial penalty sentencing disparity and ensure our judicial system reflects the spirit of the Sixth Amendment.”

The ‘Right to Trial Act’ seeks to temper these incentives by granting federal courts the authority to impose sentences, in some circumstances, below established statutory minimums.

The full text of the bill, which runs only three pages, is available here. The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial."

June 16, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (15)

"Letting Offenders Choose Their Punishment?"

The title of this post is the title of this new paper now available via SSRN and authored by Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi. Here is its abstract:

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options.  We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes.  We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. 

Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare.  We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions.  After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

June 16, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)