Thursday, December 03, 2020

"Cruel & Unusual Non-Capital Punishments"

The title of this post is the title of this new article available via SSRN authored by William Berry.  Here is its abstract:

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences.  Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences.  State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases.

Nonetheless, in a handful of state cases, state courts have found that state punishments violate the Eighth Amendment or its state constitutional analogue.  This article examines those cases to identify what non-capital punishments have caused courts to limit state punishment practices even in the shadow of an overwhelming, albeit unfortunate, trend of according constitutional deference to state punishment practices.  In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule.

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment.  Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate.  In Part III, the Article advances one set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under state constitutions.  Part IV, the Article advances a second set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under the Eighth Amendment.

December 3, 2020 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

Lions-and-tigers-and-bears-oh-my

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.  This Bloomberg Law account of the argument, headlined "Justices Divided on Making Jury Unanimity Decision Retroactive," provides a great summary, and here are excerpts:

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them. 

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides....  It’s unclear how the newest justice, Amy Coney Barrett, will vote.  She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity.  Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively....

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison.  The lone Black juror voted to acquit on all counts.  The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes.  Nonetheless, those states, Puerto Rico — which also had them — and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.  That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals.... 

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.  Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”  Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.  “You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said.  “I mean, some of those people actually enforce laws in city court and — or do — you know, they collect money from — they do civil cases.”

One way for decisions to apply retroactively is if they reaffirmed an old rule.  Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.  Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively.  But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right — it has indicated the right to counsel that predated Teague could be one — leading Gorsuch to wonder if the watershed test is a “false promise.”  Alito said it reminds him “of something you see on some TV shows about the — the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.  “I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the — and the one dissenter in the jury or the two dissenters in the jury were right?”...

[T]hough she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.  “I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked....

The court could also avoid the retroactivity issue entirely.  Some justices — at least Thomas, Alito, and Kavanaugh — expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

December 2, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I am very pleased to see today yet another important circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Then, on the same day last month, the Sixth Circuit in Jones and the Seventh Circuit in Gunn issued similar opinions recognizing that district court now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Now, today, the Fourth Circuit has become the fourth circuit to get into this act with a great panel opinion in US v. McCoy, No. 20-6821 (4th Cir. Dec. 2, 2020) (available here).  Here is how this opinion gets started:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

Like the other circuit opinions and many comparable district court opinions, this Fourth Circuit ruling is the real McCoy, and its closing paragraph provides a fitting summary of the sound work that district courts are doing in accord with the congressional guidance in the FIRST STEP Act:

We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.  Zullo, 976 F.3d at 230.  The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A).  We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.  Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c).

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change

The lame-duck end of a presidential (or gubernatorial) term is often a time for lots of discussion of clemency possibilities.  And who follows this space surely sensibly expected that the Term of Prez Trump would wind down with plenty of clemency chatter.  But, as detailed via these recent headlines and links, the array of stories afoot are remarkable:

From Business Insider, "Joe Exotic's lawyer thinks he's 'very, very close' to getting a presidential pardon from Trump"

From the New York Times, "Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani"

From NPR, "Justice Department Investigating Possible Bribery-For-Pardon Scheme"

Though I might have "hot takes" about the latest clemency news, the recent piece most worth considering in this space comes from Emily Galvin-Almanza via The Appeal under the headline "Biden Must Fix The Broken Executive Clemency Process.  This Is Who He Should Select To Lead That Effort."  Here are excerpts:

[W]e must work at all levels to transform our criminal legal system.  But we can’t neglect powerful, fast tools like clemency.  We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices.  And yet, we have done exactly that: As [Rachel] Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice.  That’s where a brave new Administration must begin....

As you might expect, this choking process has left clemency in a state of crisis.  It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change.  Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions.  Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy.

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own.  Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform.  For context, this makes it significantly less controversial than, say, legalizing marijuana — a policy many, many states are already enacting.

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum.  She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013.  But importantly, her views aren’t limited to the ivory tower — she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014....

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system.  She could change the game by building a faster, smarter process.  For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau.  Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB.

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area.  They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994 — and 1990s punitive measures more generally — with this unique and deceptively simple action.

December 2, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act

Last night in this post, I noted the big compassionate release ruling from the Sixth Circuit in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), which ruled that "the passage of the First Step Act rendered § 1B1.13 'inapplicable' to cases where an imprisoned person files a motion for compassionate release."  In other words, the Sixth Circuit held that district courts now have broad authority to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) despite the fact that a pre-FIRST STEP provision of the guidelines, § 1B1.13, might seem to limit that authority. 

Helpfully, a couple of readers made sure I did not miss another ruling from another circuit on the same topic that happened to be handed down the same day as Jones.  Specifically, a Seventh Circuit panel in US v. Gunn, No. 20-1959 (7th Cir. Nov. 20, 2020) (available here), had this (and more) to say on this topic:

Like the Second Circuit, see United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), we disagree with this reading of the statute’s trailing paragraph.  It says that a reduction must be “consistent with” all “applicable” policy statements.  Section 1B1.13 addresses motions and determinations of the Director, not motions by prisoners.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to Gunn’s request.  And because the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of §3582(c)(1)(A) does not curtail a district judge’s discretion.  Any decision is “consistent with” a nonexistent policy statement.  “Consistent with” differs from “authorized by”.

The statute itself sets the standard: only “extraordinary and compelling reasons” justify the release of a prisoner who is outside the scope of §3582(c)(1)(A)(ii).  The substantive aspects of the Sentencing Commission’s analysis in §1B1.13 and its Application Notes provide a working definition of “extraordinary and compelling reasons”; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused.  In this way the Commission’s analysis can guide discretion without being conclusive....

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members.  Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release.  District judges must operate under the statutory criteria — “extraordinary and compelling reasons” — subject to deferential appellate review.

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 01, 2020

Seventh Circuit panel upholds 140-year with parole state sentence for 15-year-old offender

Via How Appealing, I just saw an interesting new opinion from the Seventh Circuit in Sanders v. Eckstein, No. 2:11‐cv‐868 (7th Cir. Nov. 30, 2020) (available here).  The start of the opinion explains why I describe the matter as interesting:

Rico Sanders received a 140‐year sentence for raping four women.  He was 15 at the time of the sexual assaults, and his offense conduct was heinous and cruel in the extreme.  Now 40 years old, Sanders will first be‐ come eligible for parole under Wisconsin law in 2030.  He sought post‐conviction relief in state court, arguing that Wisconsin’s precluding him from any meaningful opportunity of parole before 2030 offends the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48 (2010).  Sanders later added a claim that the sentencing court’s failure to meaningfully con‐ sider his youth and prospect of rehabilitation when imposing the 140‐year sentence runs afoul Miller v. Alabama, 567 U.S. 460 (2012). After the Wisconsin courts rejected these claims, Sanders invoked 28 U.S.C. § 2254 and sought relief in federal court.  The district court denied the application, and we now affirm.

Here is a part of the unanimous panel's substantive analysis:

The Wisconsin Court of Appeals determined Sanders’s chance of parole at age 51 — twelve years before his expected end of life at 63 — respects Graham’s requirement of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at 75.  Nothing about that conclusion reflects an unreasonable application of Graham.  In time the Supreme Court may give more definition to what constitutes a “meaningful opportunity” for early release.  For now, however, the Wisconsin court’s conclusion that Sanders will have his first chance at parole at the age of 51 is by no means unreasonable.

December 1, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, November 30, 2020

Two criminal cases up for SCOTUS oral argument this week

A day before the calendar makes it official, the Supreme Court starts its December argument sitting this morning. Two cases being heard this week are interesting criminal matters, and here are the basics thanks to SCOTUSblog:

Van Buren v. United States (Nov. 30): Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Case preview: Justices to consider breadth of federal computer fraud statute (Ronald Mann)

 

Edwards v. Vannoy (Dec. 2): Whether the Supreme Court’s decision in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.

November 30, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, November 29, 2020

Reviewing CJUTF Recommendations: will the Biden Administration go all in with progressive prosecutors?

Right after the election, I blogged a bit (here and here) about some criminal justice reform recommendations from the Biden-Sanders Unity Task Force (available here pp. 56-62).  And last week, as explained here, I decided to start a series of posts to spotlight and amplify some recommendations from the CJUTF that ought to be of particular interest to sentencing fans.  This post will focus on prosecutors, and  begin by noting this recent Hill commentary by Miriam Krinsky headlined "Biden can rebuild trust in our justice system by prioritizing prosecutorial reform."  I recommend this piece in full, and here are a few choice passages:

[P]rosecutors wield vast power to determine whether someone comes into the justice system and the course of their case thereafter.  They control which charges to bring and make the high-stakes determination of whether to seek to keep people in jail as they await trial — which, in turn, makes them four times more likely to be sentenced to prison than if released pre-trial....

[T]he new administration’s ability to impact the criminal justice system will depend, in significant part, on its ability to support and work alongside local prosecutors.  To start, a robust task force on “21st Century Prosecution” can propel a new national vision of what it means to be a fair and just prosecutor — and a strategy for how to get there.

In other words, prosecutors are arguably the most consequential players in the criminal justice system, and reform advocates are eager to see the Biden Administration advance a "new national vision of what it means to be a fair and just prosecutor."   So, here is some of what the CJUTF has to say on this front:  

Task Force on Prosecutorial DiscretionCreate a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions....

Federal Prosecutorial Guidelines: Immediately withdraw the Trump Administration’s guidance advising prosecutors to pursue the harshest penalties possible, even for low-level offenses.  Reinstate the Obama-Biden Administration's Smart on Crime Initiative, and issue new federal guidelines that advise prosecutors not to overcharge cases in order to coerce plea deals, or to pursue harsher sentences in order to penalize citizens for exercising their right to a jury trial....

Appointing Prosecutors:  Appoint people committed to criminal justice reform to key prosecutorial positions, including AG, DAG, and U.S. Attorneys.

Transparency & Data Collection: Direct DOJ to collect data on federal prosecution practices and make it public. Include opening investigations, charging, pretrial detention and release, plea offers, and sentence recommendations. Include data on racial disparities....

Support Progressive Prosecutors: Support new state prosecutors through funding and technical support in their efforts to ensure public safety while reducing incarceration.

The commitment to reinstate the Obama-Biden Administration's Smart on Crime Initiative strikes me as notable, though not quite game-changing.  A serious commitment to require DOJ to collect comprehensive data about its practices could be a bigger deal than any particular substantive policy change, though it is unclear just how this data might be collected and used.  Perhaps an independent task force on prosecutorial discretion can and will figure out how to effectively gather and operationalize federal prosecutorial data. 

In the end, the biggest game-changer could be if the Biden Administration were really to go all in with the progressive prosecutors movement.  Directing special federal funding and support to local progessive prosecutors could add momentum to an already significant local movement.  And the commitment to appoint reform-minded folks to all "key prosecutorial positions, including AG to DAG, and U.S. Attorneys" sounds like a commitment to having progressive prosecutors throughout the federal criminal justice system.

In the end, I suspect we will see a broad definition of "people committed to criminal justice reform" in key Biden appointments, and I do not think anyone should expect dramatic change in this arena right away.  But I do think there is reason to be hopeful that in coming years the US Department of Justice could become more of an ally, rathen than a persistent opponent, of at least some progressive criminal justice reforms.

Prior related posts:

November 29, 2020 in Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, November 24, 2020

Great discussions of progressive prosecution in latest issue of the Journal of Criminal Law and Criminology

Anyone and everyone intrigued by the progressive prosecutor movement should be sure to check out Volume 110, Issue 4 of the Journal of Criminal Law and Criminology.  These great-looking articles are in this great-looking issue:

November 24, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, November 23, 2020

"Some Modest Proposals for a Progressive Prosecutor"

the title of this post is the title of this new piece now available via SSRN authored by Steven Zeidman. Here is its abstract:

The progressive prosecutor movement has spawned a number of races for District Attorney where candidates fight to claim the mantle of most progressive potential prosecutor. However, the promises made by self-described forward thinking, if not exactly radical, prosecutor candidates, as well as those made by newly elected District Attorneys, are at best the kind of reformist reforms criticized by many as having little impact on entrenched systems of oppression and as ultimately expanding their reach.

It is incumbent on those looking for fundamental change in prosecutorial practices to try and assess whether any candidates are willing to take bolder steps than simply promising to prosecute more fairly and compassionately.  Instead, the inquiry must be whether the candidate is willing to give up any aspects of the awesome power and the vast resources bestowed upon the office, particularly when it comes to the trial process.

November 23, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Highlighting the need for second-chance sentencing reforms

This new Law360 piece, headlined "2nd Look Law Needed To Fix Broken Criminal Justice System," gives attention to a recent ABA panel discussing second-look sentencing reforms.  Here are excerpts:

To address the mass incarceration that has resulted from older policing practices, which has disproportionately impacted Black men, federal and local governments should adopt so-called second look laws that allow incarcerated individuals to petition judges to reevaluate their sentences after a certain period of time, experts said Thursday at the American Bar Association's annual fall criminal justice conference.

Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, a nonprofit advocacy organization seeking to end mandatory sentencing, said that our criminal justice system has been addicted to putting people in prison to manage problems leading to mass incarceration, and this needs to stop.  "I don't think we are going to be able to achieve justice in the system until we not only reform the police and practices, but we also ensure that the legacy of older policing — in the form of people serving sentences that are way out of proportion with their conduct, and also people who are thrown away because the nature of the offense or the addiction — is also addressed," Price said.

Last year, Sen. Cory Booker, D-N.J., along with Rep. Karen Bass, D-Calif., introduced the Second Look Act of 2019 that proposes allowing any incarcerated individual who has served at least 10 years to request that their sentence be reevaluated to determine if they are eligible for early release or a sentence reduction, but the bill hasn't passed in the U.S. Senate or House of Representatives yet.

David Singleton, the executive director of the Ohio Justice and Policy Center, said during a panel titled Second Look & Incarceration with Price at the ABA conference that a challenge to getting a federal second look law passed is that lawmakers want carveouts that would exempt certain crimes, such as murder or sex offenses, from the law. Singleton said carveouts defeat the purpose of the law because they leave people behind. "We have to move away from these carveouts," Singleton said.  "If we accept carveouts, the advocates of change, we are throwing people under the bus."...

Booker reinforced the panelists' words during his keynote speech at the conference on Friday, saying that criminal justice reform needs to be throughout the country's entire justice system.  "We must commit ourselves to continuing the work of reforming a savagely broken system and that means everything — our policing to what happens with sentencing to what happens inside our prisons to what happens upon release," Booker said.

November 23, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 22, 2020

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

November 22, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze"

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

Drug treatment courts represent a paradigm shift in the American criminal justice system.  By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century.  The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society.  Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide.  My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

November 22, 2020 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, November 20, 2020

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

November 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

SCOTUS grants cert on two new Fourth Amendment cases

The US Supreme Court released this brief order list this afternoon granting certiorari in these two new cases with these questions presented:

19-1414 UNITED STATES V. COOLEY, JOSHUA J.

Cert petition question presented: "Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law."

20-157 CANIGLIA, EDWARD A. V. STROM, ROBERT F., ET AL.

Cert petition question presented: "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."

November 20, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, November 19, 2020

"'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing"

the title of this post is the title of this new paper authored by Michael Perlin and Alison Lynch now available via SSRN. Here is its abstract:

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases.  This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”).  The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts.  If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those — be they elected politicians, editorial writers and commentators in the conservative media, or judges — who urge retributive and punitive sentences for adolescents and children.

In this paper, we will first give a brief overview about the current neuroscientific findings about juvenile brain development in the context of criminal behavior, and then discuss the current sentencing standards and regulations that are in place.  Then, we will discuss the impact of therapeutic jurisprudence as a framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate trauma.  Finally, we will offer recommendations for how experts can work with attorneys who are presenting sentencing arguments, in order to make the most comprehensive, scientifically persuasive case for leniency in juvenile sentencing.

November 19, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

County in Washington State approves new diversion program focused on community restoration

This local article, headlined "King County Council OKs plan to let community groups decide some punishment -- not judges," reports on a notable new diversion program just approved in Seattle's county.  Here are the interesting details:

The King County Council on Tuesday voted Tuesday to approve funding for a groundbreaking criminal justice diversion program that will let community groups decide what punishment -- if any -- should be handed out for a select group of accused felons.

The county council voted 9-0 to approve a program known as Community Restorative Pathways, adding funding for it in the county's $12.59 million biennium budget. Instead of facing a judge, juveniles and adults accused of a first-time, non-violent felony offense will be offered an alternative where a non-profit community panel will decide how the accused person can be held accountable for their crime.

Suspects accused of violent crimes and crimes against persons would not be eligible for the diversion program, and if the offender fails to follow through with the community groups recommended punishment or accountability, the original criminal charges could still be pursued in court.

“We can send that person instead (of jail) to a community accountability group, who will define what they think accountability means,” said King County Prosecutor Dan Satterberg. It’s a new concept for King County Superior Courts and the King County Prosecutor’s Office, which has 7,000 cases waiting for disposition, double the amount in a normal year. Accountability would not include jail or even a conviction, said Satterberg, who declined to define what accountability means.

“That’s up to the community groups,” he said, adding that it would target 800 juveniles and 1,000 adults to start. “These are low-level felonies, property offenses, no domestic violence, no sexual assault cases (and) decisions you would make if you were in my shoes.”

The program is slated to begin in mid-2021 and be implemented no later than the start of 2022. The budget for the program is set at $6.2 million, money that would have gone to the King County Sheriff’s Office.

King County Executive Dow Constantine proposed the idea along with Satterberg. Constantine has pledged to phase out the King County Jail after the pandemic is over, what he described as a cost-cutting move. “Locking people up is very costly and it’s not affirmative for people's lives,” King County Councilmember and Budget Chairperson Jeanne Kohl-Welles told KOMO News just before the budget vote. “But we also have to make sure to protect the public, so this is hard, it’s not going to be easy."

November 18, 2020 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, November 16, 2020

"Presidential Pardons and the Problem of Impunity"

The title of this post is the title of this quite timely article authored by Frank Bowman III now available via SSRN. Here is its abstract:

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates.  It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates.  The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate.  But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable.  A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities.  A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

November 16, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 15, 2020

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, November 12, 2020

"Nondelegating Death"

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

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

November 12, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 09, 2020

After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

As reported in this local article, "Tennessee Gov. Bill Lee has granted death row inmate Pervis Payne a temporary reprieve due to the COVID-19 pandemic."  Here is more:

Payne's execution was scheduled for Dec. 3, 2020. The reprieve lasts until April 9, 2021. Lee said in a written statement that the reprieve was issued "due to the challenges and disruptions caused by the COVID-19 pandemic," but did not elaborate further.

Payne, who is being held on death row in Riverbend Maximum Security Institution in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie.  Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took place in Christopher’s apartment.

“This additional time will also allow us to investigate Mr. Payne’s strong innocence claim, together with the Innocence Project," said Kelley Henry, Payne's attorney.  "We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne’s family, we will continue the fight to prove Mr. Payne’s innocence.”

The reprieve also allows time for the Tennessee Black Caucus of State Legislators to potentially pass legislation that would allow a defendant already sentenced to the death penalty and whose conviction is final to still bring a petition regarding a claim of intellectual disability. Although members of the caucus filed the bill Wednesday, it cannot be passed until January at the earliest, initially after Payne's scheduled execution.

Payne has maintained his innocence, and his attorneys have said that he is intellectually disabled, but have been unable to litigate the claim in Tennessee due to procedural reasons. In federal court, Payne’s attorneys have filed a petition asking the court to prevent his execution until hearing his claim that he is intellectually disabled....

During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment. He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

The Shelby County District Attorney's Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming. An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there.  His baseball cap was found looped around the 2-year-old victim's arm, and his fingerprints were found inside the apartment.

Payne’s case has drawn the support of a large coalition of advocates, led by the Ben F. Jones Chapter of the National Bar Association, urging for the DNA testing.  The coalition includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH) and several leaders in the Church of God in Christ (COGIC), of which Payne is a member.

It strikes me as quite notable and ultimately disturbing that, for a crime that took place 33 years ago(!), it seems that a global pandemic was needed to justify a short reprieve to provide time "to investigate Mr. Payne’s strong innocence claim."  Also, if Payne is actually intellectually disabled and thereby categorically ineligible for execution under the Eighth Amendment, it seems quite problematic to preclude him from properly litigating this constitutional issue fully for mere procedural reasons.

These case specifics aside, this Death Penalty Information Center page details that this planned Tennessee execution had been the last state execution scheduled for 2020.  So, due to lots COVID disruptions as well as other factors, it appears the total number of state executions in 2020 will be only seven individuals, marking the lowest yearly total of state executions in almost 40 years.  But, of course, the federal government really revved up its machinery of death in 2020, and there have already been seven federal executions in 2020.  Moreover, there are three more federal executions still scheduled for 2020: as this BOP page details, one execution is scheduled for next Thursday, and two more are scheduled for the second week of December.

Even if we did not have a consequential federal election this month, the federal defendants scheduled for execution in the coming weeks would surely be seeking a reprieve based on COVID concerns and perhaps on other grounds as well.  But, especially given that the Joe Biden campaign talked about seek to abolish the federal death penalty, if these condemned defendants can find a way to get their executions postponed until after January 20, 2021, they might benefit from a new Administration eager to now completely turn off the entire federal machinery of death.

November 9, 2020 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 08, 2020

Tomorrow can be today for some Biden-Sanders Unity Task Force criminal justice recommendations

Now that former VP Joe Biden is starting to begin work as Prez Elect Joe Biden, I started thinking about some of Dr. Martin Luther King's famous words about the persistent and pressing need for urgent action to advance justice.  As MLK put it in one 1967 speech:

We are now faced with the fact, my friends, that tomorrow is today.  We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there is such a thing as being too late.  Procrastination is still the thief of time.

With the fierce urgency of now in mind, I looked through the criminal justice reform recommendations [available here] from the Biden-Sanders Unity Task Force (discussed here) to see which ones might be acted upon ASAP.  Many of the recommendations involve matters that will require congressional action (e.g., "End the federal crack and powder cocaine disparity in sentences") or that must await Prez Elect Biden officially taking office (e.g., "Direct DOJ to collect data on federal prosecution practices").  But there are at least two notable recommendations involving the creation of an independent task force or board which could begin work right away: 

Task Force on Prosecutorial Discretion: Create a new task force, placed outside of the U.S. Department of Justice, to make recommendations for tackling discrimination and other problems in our justice system that result from arrest and charging decisions.

Clemency Board: To avoid possible institutional bias and ensure people have a fair and independent evaluation, establish an independent clemency board, composed and staffed by people with diverse backgrounds. Expand Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences.

Notably, Prez Elect Biden has now promised to announce on Monday a COVID task force. I am pleased he is acting fast on this critical front; but in this unfolding conundrum of life and history, I am always going to be urging leaders to treat tomorrow as today with regard to criminal justice reforms.

November 8, 2020 in Campaign 2020 and sentencing issues, Clemency and Pardons, Criminal justice in the Biden Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, November 05, 2020

"The Compassionate Computer: Algorithms, Sentencing, and Mercy"

The title of this post is the title of this notable new article by Netanel Dagan now available on SSRN. Here is its abstract:

Sentencing scholarship largely neglects the possibility of applying algorithms to mercy.  This ‎doesn’t come as a surprise: Is there any greater contradiction than between algorithmic decision-‎making and the compassionate, human and interpersonal nature of mercy?   Such polarity brings ‎some theorists and policy makers to reject algorithm-based sentencing altogether. 

In this chapter, ‎we offer a preliminary attempt at integrating mercy within algorithmic sentencing.  First, we ‎distinguish between two main concepts of mercy — justice and pure — and different types of ‎algorithms — deductive and inductive.  Second, we argue: (a) As long as justice mercy can be ‎reduced to a proportionality-related calculus (e.g., extra harsh suffering) it can be introduced ‎through a deductive algorithm; (b) Pure mercy, being unpredictable, and deviating from justice, ‎can be incorporated mainly through an inductive algorithm.  This is true, at least to some extent, ‎even for theories that permit deviation from equality when exercising mercy.‎

November 5, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, November 04, 2020

Rounding up some accounts of SCOTUS oral arguments in Jones, the latest juvenile LWOP case

I listened live yesterday morning to the Supreme Court oral argument in Jones v. Mississippi18-1259, which will address "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole."  The full argument in Jones is available here, and it is worth the 90 minutes for a full listen because nearly all the Justices were quite engaged and the arguments by counsel were consistently strong and interesting.

If you would rather read accounts of the case and argument, here are a few: 

From Kent Scheidegger at Crime & Consequences, "An Aggressive Interpretation of Precedent

From Amy Howe and SCOTUSblog, "Argument analysis: Justices debate requirements for life sentences for juveniles"

From Nina Totenberg at NPR, "Supreme Court Examines When Juveniles May Be Sentenced to Life Without Parole"

From Steven Erickson at Crime & Consequences, "The Muddy Waters of Miller"

From Mark Walsr at Education Week, "High Court Weighs Whether Juvenile Life Without Parole Requires 'Incorrigibility'"

November 4, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

"Shrinking the Accountability Deficit in Capital Charging"

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

The price of capital trials, appeals, and clemency proceedings have skyrocketed since the U.S. Supreme Court lifted its moratorium on the death penalty, but this has not translated to more reliable case outcomes — the rate of serious reversible error and wrongful convictions has steadily increased during the same time period.  The overly aggressive use of the death penalty by prosecutors has not only been convincingly linked to these high reversal rates, but may also increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants.  It follows that limiting hawkish prosecutorial decision‐making in potentially capital cases may be particularly effective in reducing the prevalence of error and reducing unnecessary expense.  Curbing the virtually unfettered discretion of prosecutors is not a new idea, but extant proposals tend to suffer from shortcomings that are likely to render them impractical or ineffective.  Any viable legal intervention must increase prosecutorial accountability for inadequate charge‐screening in capital cases while still permitting prosecutors to retain discretion in seeking the death penalty.  This essay describes a reform that consists of two primary components: (1) an advisory (i.e., non‐binding) opinion from a reviewing authority assessing the appropriateness of a prosecutor’s decision to seek the death penalty in a case based on the totality of evidence, and (2) financial and administrative cost-shifting mechanisms capable of disincentivizing prosecutorial overreaching in capital charging.

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

Monday, November 02, 2020

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Will reform of quirky approach to jury sentencing greatly impact Virginia's criminal justice system?

A helpful reader reminded me that I had forgotten to blog about a recent significant change in sentencing procedure in Virginia, which is effectively explained in this local article from a few weeks ago headlined "Virginia lawmakers vote to reform 224-year-old jury sentencing law."  Here are the basics:

Virginia lawmakers passed a closely watched bill Friday aimed at ensuring people can exercise their right to a jury trial without risking much steeper punishments.

Criminal justice reform advocates frequently called the legislation one of the most important changes the General Assembly could adopt during a special legislative session that has been largely devoted to issues of policing, courts and prisons.  “Everything else is window dressing compared to this bill,” said Sen. Joe Morrissey, D-Richmond, who proposed the measure.  “The result will be an end to excessive sentencing in the Commonwealth of Virginia.”

Virginia and Kentucky are currently the only two states where if a defendant or prosecutor asks for a jury trial, the jury must also hand down the sentence....  Morrissey’s bill will transfer sentencing responsibilities to the judge unless a defendant specifically requests it be set by the jury.

The state’s unusual approach to sentencing dates to 1796 and has been called the jury penalty because it often leads to criminal sentences that are significantly longer than defendants would have faced if they had opted for a trial before a judge or taken a prosecutor’s plea deal.  That’s because unlike judges, juries must hand down sentences that fall within statutory sentencing ranges.  And unlike judges, juries aren’t provided the sentencing guidelines that tell them what the typical punishment is for a similarly situated defendant.

That means a defendant facing a robbery or drug distribution charge would face a five year mandatory sentence if a jury finds him guilty, whereas a judge issuing the sentence could suspend time based on the facts of the case and mitigating circumstances.  Juries exceeded sentencing guidelines in half of the cases they heard in 2018, according to the Virginia Sentencing Commission, which found they issued prison sentences that were on average four years longer than would have been recommended.  Judges, meanwhile, handed down sentences that exceeded guidelines in just 9 percent of cases.

Lawmakers and advocates say prosecutors often take advantage of the arrangement by tacking on charges with steep mandatory penalties and threatening to demand a jury trial if the defendant doesn’t accept a plea agreement. “Most defendants plead out, even when they did not do it.  This is a very difficult decision people have to make,” said Del. Don Scott, D-Portsmouth, who like many lawmakers argued the leverage the law gives to prosecutors contributes to Virginia’s higher than average incarceration rates.  “This would be a revolutionary change in the way we do sentencing.”

While the bill won limited bi-partisan support, Republicans mostly opposed the measure, as did most prosecutors in the state.  They warned that the reform could lead to a huge uptick in jury trials that would require more judges, more courtrooms and more prosecutors — all things that would cost the state millions of dollars.... 

The Virginia Association of Commonwealth’s Attorneys estimated the change could lead to an eightfold increase in jury trials, writing in a letter to lawmakers that without additional money to hire more prosecutors, they’d be forced to agree to plea deals “that are not commensurate with the crime or the harm inflicted upon the victim.”...

Supporters of the bill, which included a contingent of commonwealth’s attorneys from some of the state’s most populated areas, said the concerns about an explosion of jury trials were misplaced, noting that Virginia would simply be adopting the system already used in most states.  And even if the number of jury trials did increase, that would only prove that the existing system was preventing defendants from exercising their constitutional rights.

I would like to be optimistic that this procedural reform would ensure an "end to excessive sentencing" in Virginia, but we see an awful lot of excessive sentencing in a lot of other jurisdictions that have a more "traditional" approach to trials and sentencing.  And, as the question in the title of this post is meant to suggest, I sincerely doubt Virginia will see a huge increase in jury trial  after this law becomes effective.  As we see nationwide, in all jurisdictions, there are a broad array of legal and structural factors that create, in the words of Justice Kennedy in Lafler v. Cooper, 566 U.S.156 (2012), "the reality that criminal justice today is for the most part a system of pleas, not a system of trials."

Because I generally believe juries should play a larger role in the administration of our modern criminal justice systems, I tend to be a supporter of jury sentencing in principle.  But Virginia's recent experiences, which prompted these latest reforms, serve as an important reminder that just how jury sentencing operates in practice plays a critical role in whether this form of sentencing can serve as a help or hinderance to a more fair and transparent and effective criminal justice system.

November 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

No new cert grants from SCOTUS, but order lists includes interesting per curiam reversals including one on prison conditions and qualified immunity

This morning's Supreme Court order list starts by noting that "Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List." That fact may in part explain why the Court did not grant certiorari in any cases. But the order list is still an interesting read because it included two per curiam opinions, in McKesson v. Doe and Taylor v. Riojas, summarily reversing lower court opinion to order further proceedings in the Fifth Circuit. 

The fed courts nerd in me really likes Mckesson decision because it orders the Fifth Circuit to certify a fascinating questions of Louisiana tort law to the Louisiana Supreme Court in an effort to potentially avoid having to resolve a challenging First Amendment question.  But the Taylor decision gets to the issue of prison conditions and qualified immunity because "Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice [who alleged] that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells."  Here is how SCOTUS kept his lawsuit going:

The Fifth Circuit erred in granting the officers qualified immunity on this basis.  “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).  But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.  See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment).  The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency.  Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.  And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Notably, only Justice Thomas dissented from the Taylor ruling in favor of the prisoner in Taylor, although Justice Alito wrote an extended "concurring in the judgment" statement to explain why he thoughts the "petition [was] ill-suited for review."

November 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, October 31, 2020

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Friday, October 30, 2020

"Criminal Justice Citizenship"

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

The American criminal justice system is fundamentally democratic and should reflect an ideal of citizenship that is equal, participatory, and deliberative.  Unfortunately, the outcomes of criminal cases are now almost always determined by professionals (prosecutors, defense attorneys, and judges) instead of by juries.  This overly bureaucratized system of adjudication silences the voice of the people.  A better system would strengthen “criminal justice citizenship,” which refers to the right of the citizenry to participate, directly and indirectly, in the criminal justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are membership, participation, and deliberation. Membership refers to who can participate and whether they can participate on an equal basis.  Where the justice system adheres to this principle, people enjoy a greater sense of belonging, solidarity, and trust in government.  Participation refers to public participation in democratic processes, such as jury service.  Deliberation refers to structured dialogues between lay persons that affect governmental decisions.  Institutions and procedures must be designed to give the people an important role in government, but the nature and extent of that role should be limited by other considerations, such as procedural accuracy and preventing racial discrimination.

This theory of criminal justice citizenship has important applications to jury trials.  Regarding membership, providing broad and equal opportunities for jury service is necessary for democratic legitimacy and fair and effective deliberations. Regarding deliberation, jury trials need to be more transparent; the prevailing procedures of jury deliberations need to be modified; and unanimous verdicts must be required to protect the voice of potentially marginalized jurors.  Regarding participation, jury trials are so rare that it will be necessary to improve criminal justice citizenship by democratically reforming other aspects of the criminal justice system, such as plea bargaining.  The overarching principle is that the people need a more significant role in criminal adjudication, not only because popular participation is good for defendants, but also because it strengthens American democracy.

October 30, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

"How Criminal Law Lost Its Mind"

The title of this post is the great title of this new Boston Review commentary by Michael Serota focused on the need for mens rea refrom.  Here is an excerpt:

In our era of mass incarceration, most would say that we need fewer criminal convictions and less punishment.  But exactly what conduct are we prepared to decriminalize, and which sentences are we ready to shorten?  These are hard questions in part because low-level, non-violent offenders account for only a small percentage of the total number of incarcerated people; the vast majority of people in prison are there for serious offenses, including homicide, assault, and drug trafficking.  But it’s also true that our most serious offenses are being applied in overly broad ways that conflict with our moral intuitions about guilt.  To commit a crime, after all, is not just to do a bad thing.  Conduct becomes criminal only when it is accompanied by a blameworthy state of mind. Or at least that’s the idea behind the legal principle of mens rea (Latin for “guilty mind”).

All too often, this principle is ignored by our criminal justice system — both in who it convicts of crimes and in the length of sentences it hands out.  That should change. Good intentions may not be enough to shield someone who stumbles into harm’s way from civil liability, but they should keep individuals outside the reach of the criminal justice system. And even for those who act with a guilty mind, the criminal justice system should recognize important moral gradations between culpable mental states.  Reforming our criminal codes in these ways won’t rid our system of all its problems, but doing so is an important part of a just vision for change.

October 28, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Tuesday, October 27, 2020

"Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?"

A helpful reader made sure I did not miss this recent article with the title that I used for this post.  This piece is available on SSRN, was authored by Bruce Green and Ellen Yaroshefsky, and here is its abstract:

Criminal justice reform groups typically explore multiple avenues for improving the law and legal processes.  Among the campaigns are calls for more demanding laws governing prosecutors’ conduct and more effective oversight and enforcement of prosecutors’ compliance with their legal obligations.  Yet little advocacy is directed toward ethics rules governing prosecutors and encouraging courts and disciplinary bodies to adopt, interpret, and enforce professional conduct rules so as to demand more of them.  This article considers the reasons for such limited focus upon ethics rules and suggests the ways in which current rules regarding prosecutors' disclosure obligations and post-conviction ones can be effective avenues to enhance prosecutorial practices.

October 27, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 26, 2020

Court filing by California Gov seeks tougher rules for state’s death penalty

This local article, headlined "Newsom, California district attorneys seek tighter standards for application of death penalty," reports on a notable new court filing by Governor of California. Here are the details:

Gov. Gavin Newsom, who has already declared a moratorium on executions in California, went a step further Monday with an unprecedented court filing that asserted the state’s death penalty law is applied in a racist manner against African Americans.

Newsom’s state Supreme Court filing did not call for abolition of the death penalty — an option narrowly rejected by California’s voters in 2012 and 2016 — but argued that a jury imposing a death sentence should be required to find beyond a reasonable doubt that it was the proper punishment, rather than life in prison without parole.

The governor also said jurors should be allowed to consider factors favoring the death penalty, such as other violent acts by the defendant, only if they agreed unanimously that those events had occurred. Those standards would make it more difficult for prosecutors to persuade jurors to return a death sentence....

“Since its inception, the American death penalty has been disproportionately applied — first, to enslaved Africans and African Americans, and, later to free Black people. With this filing, we make clear that all Californians deserve the same right to a jury trial that is fair, and that it is a matter of life and death.”

The brief was the first ever filed by a California governor challenging the state’s application of the death penalty and calling for restrictions.  A similar brief was submitted in the same case Monday by four district attorneys — Chesa Boudin of San Francisco, Diana Becton of Contra Costa County, Jeffrey Rosen of Santa Clara County and Tori Verber Salazar of San Joaquin County — and two former district attorneys, George Gascón of San Francisco and Gil Garcetti of Los Angeles County.

The six have varying views on capital punishment, but said in their filing that they wanted to “ensure that the death sentence is chosen (if at all) for only the worst offenders and offenses.”

Boudin, who like every San Francisco district attorney since 1995 has vowed not to seek the death penalty, said, “California’s death penalty is not only inconsistent with the values of a humane society, but is administered in a racially biased way.” Gascón, San Francisco’s chief prosecutor from 2011 to 2019, is running for district attorney in Los Angeles.

Newsom issued an executive order in March 2019, his third month in office, suspending executions in California, which has not executed a prisoner since January 2006.  He said at the time that the death penalty “is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

The state has 711 inmates on Death Row — more than one-third of them Black, Newsom said in his court filing. African Americans are also much more likely than others to be arrested and searched by police and to be the victims of police violence, the governor’s lawyers told the court.

The moratorium on executions has not stopped most county prosecutors from seeking death sentences, and has not stopped Attorney General Xavier Becerra’s office from defending those sentences before the state’s high court.

Monday’s filings were submitted in the case of Donte McDaniel, sentenced to death for fatally shooting two people in Los Angeles in 2004 in what prosecutors described as murders related to gangs and drugs.

In preparing for a hearing in McDaniel’s case, the state Supreme Court asked lawyers whether the California law should be interpreted to require jurors to decide beyond a reasonable doubt — the same standard required for convictions — whether death was the proper punishment.  The court also asked whether the law prohibits jurors from considering so-called aggravating factors, like a defendant’s past violent acts, unless they agree on those facts unanimously.

Newsom’s brief and the filing by the current and former prosecutors answered both questions affirmatively.  Requiring jurors to “unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict” are essential to preserving “the full protections of the jury right in capital sentencing,” said the governor’s lawyers, Dean Erwin Chemerinsky and Prof. Elisabeth Semel of the UC Berkeley Law School.

UPDATE: I came across the filing by the six current and former DAs, and it can be accessed at this link.  Here is the first paragraph of the filing's introduction:

On June 17, 2020, the Court asked the parties to address the following question: “Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?”  This brief addresses that question from the perspective of four present district attorneys and two former district attorneys.  While these amici take different positions as to whether the death penalty should be abolished, they unanimously believe that death sentences are arbitrarily imposed under the current California death penalty statutes, and that the failure to construe the California Constitution and Penal Code Section 1042 to require the jury to choose death beyond a reasonable doubt and to unanimously find disputed facts relating to aggravating circumstances exacerbates the arbitrariness inherent in the State’s death penalty regime.

October 26, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

"Populist Prosecutorial Nullification"

The title of this post is the title of this notable paper authored by Kerrel Murray and available via SSRN.  I flagged this paper in a long list when it first showed up earlier this year.  But with so much voting going on these days, I thought it now especially timely to note the paper again and reprint its abstract:

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt.  Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it.  Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws.  Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework.  To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges.  In so doing, it finds that local elections make all the difference.  There may well be something suspect about unilateral prosecutorial negation of democratically enacted law.  Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification.  It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement.  These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail.  Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification.  Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

October 26, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Friday, October 23, 2020

"Framing Individualized Sentencing for Politics and the Constitution"

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

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment.  In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders.  With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come.  With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative.  Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations.  When making Eighth Amendment arguments to the Court, framing is important.

This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing.  While the Court has historically reserved this requirement for capital cases, its more recent cases have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment.  Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some extent.  While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play.  If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. 

First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences.  It could also work to effect more humane prison conditions.  Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing.  On the other hand, individualized sentencing may also have appeal across the political aisle with religious conservatives — at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs.  Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means.  Finally, the increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines.  A heightened constitutional focus on individualized sentencing would be consistent with such expectations.  Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation.  This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.

October 23, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 20, 2020

Notable ideas and efforts to take on the trial penalty

A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:

Commentary from Shon Hopwood and Brett Tolman, "Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System."  An excerpt (links from original):

The Constitution matters.  Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon.  When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.

The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”  Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

News Release from the National Association of Criminal Defense Lawyers, "NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House."  An excerpt (links from original): 

On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House.  Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence.  Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden.  The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty.  In the interim, this Project provides an opportunity for a second chance to those individuals who are living it....

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

A few prior related posts:

October 20, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 19, 2020

US Sentencing Commission releases its latest updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

I just noticed that the US Sentencing Commission today released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report." The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through June 30, 2020 and for which court documentation was received, coded, and edited at the Commission by October 15, 2020.

These new updated data from the USSC show that 3,363 prisoners have been granted sentence reductions.  The average sentence reduction was 71 months of imprisonment (roughly a quarter of the original sentence) among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to now assert that this part of the FIRST STEP Act alone, by shortening nearly 3361 sentences by nearly 6 years, has resulted in nearly 20,000 federal prison years saved! (That is an eliminations of two hundred centuries of scheduled human time in federal cages, if you want to think of it another way.)

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation. But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives. And, of critical importance and note to be overlooked, people of color have been distinctly impacted: the USSC data document that nearly 92% of persons receiving these FSA sentence reductions were Black and more than another 4% were Latinx.

October 19, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"The Complexities of Conscience: Reconciling Death Penalty Law with Capital Jurors’ Concerns"

The title of this post is the title of this notable new paper available via SSRN and authored by Meredith Rountree and Mary Rose. Here is its abstract:

Jurors exercise unique legal power when they are called upon to decide whether to sentence someone to death.  The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are ‘best able to express the conscience of the community on the ultimate question of life or death.’” Many lower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed essential.

Combining moral theory and original empirical evidence, this Article breaks new ground by linking these to a legal framework that gives full effect to the Supreme Court’s vision of the jury.  Aided by a novel dataset of federal capital jury verdict forms, the Article focuses on three types of evidence frequently excluded in state and federal courts: the impact of the defendant’s execution on loved ones, co-participant sentences, and the government’s negligent facilitation of the murder.

The data show that jurors consistently find all three forms of evidence highly salient in their mitigation deliberations.  Further, two of these — execution impact evidence and co-participant sentences — have a statistically significant correlation with the jurors’ sentencing decision.  This Article’s empirical and moral account of juror behavior strongly supports expanding the admissibility of this evidence to reflect the Supreme Court’s evolution in defining the relevance of mitigating evidence as a moral, rather than legalistic, question, appropriately recognizing the jury’s normative role.

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

Sunday, October 18, 2020

Heartening stories of problematic sentences ameliorated by parole grants

A few years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  My basic thinking is that parole can and sometimes will usefully serve as a kind of second-look sentencing mechanism to indirectly fix the most problematic of sentences. This article and thinking came to mind when I recently saw these two heartening press stories about ugly sentences partially ameliorated by parole grants:

From Alabama, "Disabled Iraqi War vet imprisoned for medical marijuana possession granted parole."  An excerpt:

Disabled Iraqi War veteran Sean Worsley, who was arrested while driving through in Pickens County in 2016 and charged with felony possession of medical marijuana legally prescribed in his home state of Arizona, was granted parole on Wednesday by the Alabama Board of Pardons and Parole after being incarcerated more than eight months.

With marijuana illegal in Alabama, Worsley, a Purple Heart recipient, was sentenced to five years in prison.  On September 23, he was transferred from the Pickens County Jail to the Draper Correctional Facility. Parole was granted with special conditions — that Worsley undergoes a drug test upon release.

From Louisiana, "Black man serving life sentence for stealing hedge clippers granted parole." An excerpt:

A Black man in Louisiana serving life in prison for stealing hedge clippers more than two decades ago was granted parole — months after the state's Supreme Court declined to review his sentence.  The Board of Pardons and Committee on Parole voted Thursday to release Fair Wayne Bryant, 63, records show.  He walked out of prison later that day after serving more than 20 years at the state penitentiary in Angola, his attorney said....

Bryant was 38 when he was arrested in January 1997 for taking a pair of clippers from a carport storeroom at a home in Shreveport. The homeowner was alerted to the theft and chased Bryant off.  That same year, a jury convicted him of attempted simple burglary of an inhabited dwelling, and Bryant, who had previous convictions, was sentenced to life in prison because he was considered a "habitual" offender under state law.

Bryant in previous appeals argued that his sentence was "unconstitutionally harsh."  But in July, the state's Supreme Court declined to review his sentence.

October 18, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, October 16, 2020

Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?

The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined "US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once 'Pandemic Is Declared Over'."  Here are excerpts:

It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country.  As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered .... 126 have died.  Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered....

On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond.  The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement ... that could include a return to prison....

[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] ... "the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over."...

While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison ... or they could be asked to be immunized in order to return .... or the inmate could refuse immunization .... or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.  If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.

I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action.  Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years.  Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.

Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.  Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off.  But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are "lucky" enough to return to "normal" in the federal prison section of incarceration nation.

October 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (2)

Wednesday, October 14, 2020

Criminal justice issues again on the SCOTUS oral argument docket today (though again attention is on confirmation hearings)

The criminal justice cases on the SCOTUS docket that are likely of the greatest interest to sentencing fans are scheduled for oral argument on Nov 3 (aka Election Day): Jones v. MississippiNo. 18-1259, will address the Eighth Amendment rules for imposing LWOP sentences on juvenile murders, and Borden v. USNo. 19-5410, will explore another variation on the application of the severe mandatory minimum term in the Armed Career Criminal Act.  Based on what I am hearing about the pace and content of the on-going confirmation hearing for Judge Amy Coney Barrett, it sounds as though the Supreme Court might be back to nine Justices by that time.

Today, though, the Supreme Court is operating with only eight Justices, and those eight are scheduled to hear oral arguments in these two criminal cases (previewed via SCOTUSblog):

Torres v. Madrid, No. 19-292 [Arg: 10.14.2020]

Issue(s): Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

Case preview: When is a fleeing suspect “seized”? (authored by Jeffrey Bellin)

 

Pereida v. BarrNo. 19-438 [Arg: 10.14.2020]

Issue(s): Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Case preview: Harsh immigration consequences from ambiguous state criminal convictions (authored by Kate Evans)

October 14, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, October 13, 2020

Noticing a lurking Eighth Amendment issue in SCOTUS arguments over statute of limitations for military rape prosecutions

The US Supreme Court issued another order list this morning with little of interest for sentencing fans, and I am not expecting much criminal law discussion in the on-going confirmation hearings for Judge Amy Coney Barrett.  But SCOTUS is hearing oral argument today in US v. Briggs, which is worth watching for reasons Evan Lee explains in this post at SCOTUSblog under the title "Case preview: Determining the statute of limitations for military rape — and possibly a lot more."  Here is an excerpt:

When the Supreme Court entertains argument on Tuesday in United States v. Briggswhich had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations.  And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel.  Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions.  The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations.  The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes.  That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted.  The U.S. Court of Appeals for the Armed Forces agreed with the defendants....

A key issue in this litigation is which subsection of the UCMJ, 10 U.S.C. Section 843, applies: subsection (a), which states that “any [military] offense punishable by death may be tried and punished at any time without limitation,” or subsection (b), which creates a five-year statute of limitations for other military offenses.  The government argues that Section 843(a) applies because military rape is made “punishable by death” by 10 U.S.C. Section 920(a), which states, “Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.”  The three defendants argue that military rape is not “punishable by death” because the Supreme Court’s Eighth Amendment precedents prohibit capital punishment for non-fatality rapes.  And if military rape is not punishable by death, then the applicable limitations period is the default provision of Section 843(b)....

At oral argument, it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.  

I strongly agree it will be interesting to see how the Justices may bring up the Eighth Amendment during oral argument today, and I will plan to update this post accordingly.

UPDATE: The oral argument transcript in Briggs is now available here.  A quick search reveals the term "Eighth Amendment" coming up 32 times over the transcript's 65 pages.  Over at Crime & Consequences, Kent Scheidegger has this extended post on the case under the title "The Eighth Amendment and Statutes of Limitations." Here is how this post starts and ends:

What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system....

I won’t venture a prediction based on this argument. If the eight justices divide four-four, we might be seeing a reargument.

October 13, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 08, 2020

"Decarceration and Default Mental States"

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

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation.  I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform.  Therefore, I suggest an alternative frame through which to view mens rea reform efforts — a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.  To reform opponents, the criminal system might be flawed (see, e.g., the War on Drugs, racial disparities, police violence, etc.), but that doesn’t mean it is illegitimate or without important uses.  The brutalities of the system’s treatment of marginalized people don’t indicate an irredeemable system; rather, prosecutors could right the balance by shifting their attention to the wealthy and “white collar” offenders, and lawmakers and judges could grease the wheels of these prosecutions by reducing the burden on prosecutors to prove mens rea elements.  Arguments from opponents and proponents offer little to commentators who see the problems with the criminal system as deeper or more intractable — problems of structure, rather than scope.

Ultimately, therefore, I offer a different frame for mens rea reform and for understanding the stakes of the debate that might resonate with more radical critics.  I suggest that mens rea reform can be analogized to the rule of lenity and the libertarian or anti-statist aspects of the Bill of Rights — these rules are not solely focused on sorting the guilty and the innocent; rather, I suggest, they can be viewed as “anti-criminalization” rules, directives to put a thumb on the scale in favor of defendants and against the state, state violence, and criminal punishment.  Framed in this way, I argue that mens rea reform should be appealing to commentators concerned about mass incarceration, state violence, and the sweeping reach of criminal law and its enforcement.  Perhaps more provocatively, I also argue that mens rea reform could be understood as consistent with more radical calls for abolition or dismantling of the carceral state.

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

Tuesday, October 06, 2020

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

October 6, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, October 05, 2020

"Remote Criminal Justice"

The title of this post is the title of this timely new article authored by Jenia Iontcheva Turner now available via SSRN.  Here is its abstract:

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay.  The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over.  To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020.  The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.

The survey responses paint a complicated picture.  They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public.  Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials.  These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely.  Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients.  Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.

Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice.  It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over.  Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations.  Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings.  If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

October 5, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (0)

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

October 5, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 01, 2020

"Transparency in Plea Bargaining"

The title of this post is the title of this forthcoming article authored by Jenia Iontcheva Turner available via SSRN. Here is its abstract:

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism.  Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record.  Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations.  For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny.  Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently.  It can help protect cooperating defendants from retaliation.  And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns.  It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients.  It can also potentially impair victims’ rights and interests.  Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.

October 1, 2020 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)