Monday, December 11, 2023

Notable new resoures from National Crime Victim Law Institute

Via email I received word from the National Crime Victim Law Institute about two interesting new documents the NCVLI produced to help crime victims understand and safeguard their rights.  Here are links and some explanation from the email I received:

Identifying what remedies exist for a violation of a victim’s right can seem daunting; in fact, at times it can even seem like there are no options.  To help in this process we created a new resource.  Crime Victims' Rights Enforcement & Remedies is designed to answer some frequently asked questions about what rights enforcement can look like, and possible remedies for violations.  The resource includes citations for practitioners interested in reviewing case examples from around the country. In addition, it’s imperative to have an understanding of the most common victims’ rights across the United States when representing or advocating for a victim.  Our Common Victims' Rights resource provides a brief overview of ten of the most common victims’ rights, including a short summary and citations for each.

December 11, 2023 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (0)

Sunday, December 10, 2023

Thorough account of sentencing of Michigan school shooter Ethan Crumbley to LWOP

Constitutional law now requires a juveline murderer can be sentenced to life without parole "only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment."  Jones v. Mississippi, 141 S.Ct. 1307, 1311 (2021).  Last week in Michigan brought these procedural realities into sharp relief in the sentencing of a high-profile school shooter.  This Detroit Free Press article provides a very lengthy and quite wrenching account of the sentencing and victim statements. Here are a few excerpts focused on some legal particulars:

In the end, whatever mental illness Ethan Crumbley may have, the judge concluded it did not interfere with the teen's ability to plan and carry out the deadliest school shooting in Michigan's history.

Rather, Oakland County Circuit Court Judge Kwame Rowe said in locking up the teenage killer forever, Crumbley has an obsession with violence, planned the massacre for weeks in advance, carried it out — and chose to stay alive so that he could witness the suffering and enjoy the notoriety he desired.

Mental illness, the judge noted, didn't interfere with any of that. “This started with him asking for a better gun to carry out the school shooting," Rowe said of the killer, who was sentenced to life without the possibility of parole Friday for the 2021 massacre that killed four Oxford High School students and injured seven others, including a teacher.

“He could have changed his mind (after shooting his first victim)," Rowe said in handing down the sentence. “But he didn’t. He continued to walk through the school picking and choosing who was going to die.”...

Crumbley's punishment was handed down after a day of gut-wrenching statements from grieving parents, victims who survived and traumatized students whose sense of security has forever been shattered, including a 16-year-old student who looked at the killer in court and said: "Today I want you to look at me.” Crumbley, who kept his head down nearly the entire hearing, briefly glanced up to look at the girl....

In pushing for the harshest punishment possible, Oakland County Prosecutor Karen McDonald argued Crumbley's crimes triggered a tsunami of trauma for scores of students, parents and an entire community. All of it could have been avoided, she said, but the teen chose to keep his plan a secret. "He could have disclosed that he had a gun and was planning to shoot up his school, but he did not," McDonald said.

"Today was about victims. We heard their voices," the prosecutor said. But the trauma was far more severe than what was heard in court, she said, noting the parents suffered far more than what they discussed Friday....

Crumbley pleaded guilty to murder and terrorism charges last year, admitting he planned and carried out the shooting, and meant to cause panic and fear in the school that day. In September, Rowe determined that Crumbley was eligible for a sentence of life without parole following a lengthy and emotional Miller hearing, a mandatory proceeding that helps judges decide whether juveniles should spend the rest of their lives in prison.

Meanwhile, his parents, James and Jennifer Crumbley, continue to maintain their innocence in the unprecedented case as the first parents in America charged in a mass school shooting. They are accused of ignoring their son's mental health troubles and buying him a gun instead of getting him help — the same gun he used in the November 2021 massacre.

The parents maintain they had no way of knowing their son would shoot up his school, and that the gun was safely stored. They will face separate trials in January on involuntary manslaughter charges.

December 10, 2023 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, December 07, 2023

In a different context, some more notable circuit caterwauling over the categorical approach to criminal history

In this post a few days ago, I flagged the notable opinion from a Third Circuit judge in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here), lamenting the ugly story of the Armed Career Criminal Act's reliance on the "categorical approach" to assess criminal priors required by Supreme Court precedent.   Today, I see a Second Circuit jurist authoring a distinct chapter of this ugly story in a different sentencing context.  Concurring in US v. Chaires, No. 20-4162 (2d Cir Dec. 7, 2023) (available here), Judge Sullivan explains why he thinks his circuit has it all wrong in its approach to "the 'controlled substance offense' predicate to U.S.S.G. § 4B1.1 — the career offender enhancement."  Hard-core sentencing fans may be uniquely able to work through the whole opinion, but it is worth the full read.  And Judge Sullivan's opinion ends this way:

Given the Commission’s indecision and the Supreme Court’s reluctance, I think it imperative that the courts of appeal converge on the best reading of the career offender enhancement.  To my mind, there can be little doubt which of the two options is that best reading.  The state-dependent approach is firmly grounded in section 4B1.2(b)’s text and will permit a relatively straightforward inquiry.  The categorical approach lacks any foothold in that text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses — even though those convictions were in fact premised on a federally controlled substance.  For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held.  See Jones, 81 F.4th at 599 n.5.  I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.   

December 7, 2023 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, December 06, 2023

"The Verdict on Private Criminal Justice"

The title of this post is the title of this book chapter now available via SSRN which is the final chapter of the book Private Criminal Justice authored by my OSU colleague Ric Simmons. Here is its abstract:

This is the concluding chapter of my book Private Criminal Justice, which was recently published by Cambridge University Press.  The book traces the history of private parties’ involvement in responding to criminal activity, and examines the modern instances of private policing, private adjudications, and vigilante justice.  This chapter first considers how the implementation of a widespread private criminal justice system — that is, responding to and punishing criminal conduct without the participation of the state — can still be responsive to the needs and interests of the community.  The chapter argues that the state in fact does a poor job of representing community interests, due to the politicization of public criminal justice policy and the related rise of mass incarceration, and posits that the private criminal justice system could enhance the influence of community interests on criminal justice policy.

The chapter concedes that currently, the components of our private criminal justice system lack many of the basic procedural protections for defendants, and it explores ways that the private system can be regulated so that defendants receive these protections, or at the very least ensure that defendants are informed of the protections that they are forfeiting when they opt out of the public system.

The chapter then offers suggestions for improving the accountability of private police officers, and for using aspects of the private criminal justice system to ameliorate the inequalities of the public criminal justice system.  It concludes by imagining a world where private criminal justice enforcement, settlements, and adjudications are normalized and common, resulting in a wider net of social control in which more criminal conduct is detected and punished, but the punishments are far less severe than in the current system.

December 6, 2023 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, December 03, 2023

Impressive hand-wringing about the "categorical approach" to criminal history from Third Circuit judges

A helpful colleague made sure that I saw the notable opinion authored by Judge Jordan and joined by a half-dozen of his Third Circuit compatriots in US v. Harris, No. 17-1861 (3d Cir. Nov. 27, 2023) (available here).  The opinion is a concurrence in denial of rehearing en banc sought by the government hoping to overturn a key Third Circuit precedent, Mayo.  Mayo ruled a Pennsylvania's aggravated assault conviction did not qualify as "violent" to be a predicate for applying the Armed Career Criminal Act due to the "categorical approach" to criminal priors required by Supreme Court precedent. 

The full 42-page Harris opinion, which is filled with Mayo and mustard, is a must-read for anyone eager to better understand the mess that is federal law seeking to categorize state criminal priors.  I will here quote a number of paragraphs, mostly from the start and end of the opinion, though many more are worth reading: 

We recognize that our decision today declining en banc reconsideration of this matter will be a source of great frustration for the government.  Frustration is the gift that the “categorical approach” keeps on giving.  This peculiar analytical construct has forced us and other courts to reach perverse outcomes in many, many cases, this one being only the latest.  And even when the result of applying the categorical approach sometimes makes sense, time and effort is often wasted because a more obvious route to the sensible result is readily available.  Even worse is the difficulty of justifying the categorical approach and its outcomes to the citizenry we serve.  The public may not care whether anyone finds the categorical approach frustrating, but they do care about justice, and we are unable to explain how our holding in this case satisfies basic notions of right and wrong.  Despairing of that, we write to describe why the outcome here is compelled by precedent and to highlight why changes in the categorical approach are needed.

For those who may not be familiar with the categorical approach, we provide a brief overview of its origin and development, with particular focus on the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the legislation that, along with another firearms statute, 18 U.S.C. § 924(c), and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., has been the primary seedbed for this extraordinary doctrine.  We then explain how application of the categorical approach regularly generates unjust results and taxes judicial resources.  We conclude by explaining our support for a more fact-based approach that would maintain key aspects of Supreme Court precedent while allowing courts to take account of an individual’s actual conduct and, hence, provide real justice....

Time and again, federal courts have been required to hold that state law felony convictions for conduct that plainly involved the use of force — including convictions for voluntary manslaughter, aggravated assault, assault with a deadly weapon with intent to kill, attempted rape, first-degree sexual abuse, sexual abuse by forcible compulsion, taking indecent liberties with a child, maliciously damaging or destroying property by means of an explosive, first-degree robbery, second-degree robbery, first-degree burglary, and second-degree burglary — do not qualify as “violent felonies” under ACCA.  Today, we are likewise compelled to reiterate, bizarre though it sounds, that shooting at a fleeing victim is not a “violent felony,” Harris, 68 F.4th at 141, while in Mayo, we were forced to say that bashing a victim in the head with a brick was not “violent” under ACCA....

Considering the well-intentioned provenance of the categorical approach, it is ironic that it has come to be such an impediment to the sound administration of justice.  Last year, Justice Thomas chose a different metaphor than hole digging, but his point seemed much the same when he memorably observed that the “‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Taylor, 142 S. Ct. at 2026 (Thomas, J., dissenting) (quoting Lewis Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982)). We hope the journey, and the digging, ends soon.

In the meantime, we have no choice but to deny the government’s petition for en banc review.

December 3, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, December 02, 2023

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

December 2, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, November 28, 2023

Does Justice Gorsuch's praise for juries suggest he would be a vote against acquitted conduct sentencing?

The question in the title of this post flows from the notable comments made by Justice Gorsuch in today's Supreme Court oral argument in McElrath v. Georgia.  The full argument can be found here; and this Washington Post piece provides the essentials and starts this way:

Under delusions that she was poisoning him, a teenage Damian McElrath stabbed his mother, Diane, to death in 2012. He washed up, called 911 and told the dispatcher what he had done and why he was right to have done it. A few years later, when the state of Georgia prosecuted him, a jury found that McElrath was insane at the time — and also, not insane.

The jury found him “not guilty by reason of insanity” on the charge of “malice murder,” meaning that he lacked the capacity to distinguish right from wrong or that his delusions meant he lacked criminal intent. But on charges of felony murder and aggravated assault, the jury found him “guilty but mentally ill.”

When the Georgia Supreme Court reviewed the case, it said the conflicting verdicts were so illogical as to be “repugnant” and told prosecutors they could try McElrath again on all three charges. That decision created an exception to the U.S. Constitution’s double jeopardy clause, which says that once acquitted, a defendant cannot be retried on the same charge.

At a hearing Tuesday before the U.S. Supreme Court, the justices appeared ready to tell their Georgia counterparts that it is their turn for a do-over. Justices across the ideological spectrum seemed to believe that once a person has been acquitted of a charge — for whatever reason the jury chooses — the matter is closed.

As Justice Neil M. Gorsuch put it, for “230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

Regular readers likely know I wholeheartedly agrees with Justice Gorsuch's vision that "a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system...." But, of course, if prosecutors can pursue, and a judge can impose, a sentence based on acquitted conduct, then a jury does not serve as much of a check on judges or prosecutors or overreach, and we do not respect the democratic design of our Constitution.  If the Justices ever get around to taking up the issues of acquitted conduct, which they should at some point feel duty bound to do, I certainly hope Justice Gorsuch gives meaning to his words in that context.

November 28, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, November 27, 2023

Some division in headlines covering SCOTUS divisions in ACCA drug priors cases

I flagged here yesterday the Supreme Court's oral arguments scheduled for today in the ACCA cases of Brown and Jackson.  Like so many ACCA cases, the task here of sorting out what prior drug offenses trigger ACCA's 15-year mandatory minimum prison term for illegal gun possession is not for the faint of heart.  The full 85 minutes of argument can be accessed here, and I welcome thoughts about where the Court may seem headed.  The press accounts of the argument, partially linked below, seem to highlight the Justices' division though also suggest that the defense seem perhaps more likely to prevail:

From Bloomberg Law, "Justices Back Criminal Defendants in Firearm Sentencing Rule"

From Courthouse News Service, "Justices split over longer sentences for defunct drug charges"

From Law360, "Justices Hear Dueling Rules In ACCA Drug Definition Case"

From the New York Times, "Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes"

From the Washington Examiner, "Supreme Court divided on how firearm sentencing law applies to criminal drug offenders"

November 27, 2023 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Notable accounts of implementing Florida's new non-unanimous capital sentencing

This afternoon brought up two notable new items in my news feed concerning Florida's new experiences with its new laws for administering the death peanlty:

From the Death Penalty Information Center, "Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death":

On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote.  Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision.  Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor.

From the Tampa Bay Times, "Court weighs if Tampa rapper’s jury should be unanimous on death penalty: State law now allows death by a jury vote of 8-4. Courts disagree whether the new law can apply to pending cases":

This spring, the Legislature and Gov. Ron DeSantis approved a law that eliminated the requirement that juries be unanimous if they are to recommend the death penalty. The new minimum threshold is a vote of 8-4. Thus, even if four jurors vote for life in prison, a court can still impose capital punishment.  But the question lingers: What to do with defendants, like Adams, whose cases were pending when the law changed? Should they be subject to the new 8-4 rule?

Lawyers for [Billy] Adams argued in a court hearing last week that the change would amount to an ex post facto law — a law that applies retroactively — which is explicitly prohibited in the U.S. and Florida constitutions.

Assistant Public Defender Jamie Kane told a judge that the new law creates new pressure for the defense. Under the previous law, the defense only had to convince one juror that a life sentence was appropriate. Under the new law, they have to convince at least five.  “That is a big difference,” Kane said. “Our burden has increased dramatically.”

Hillsborough prosecutors responded that the new 8-4 standard was merely a procedural change in the law, and therefore it should apply to cases going forward, including Adams’. “Does this retroactively increase punishment for this crime?” Assistant State Attorney Lindsay Hodges said in the hearing.  “The answer is no. ... The punishment is still death.”

November 27, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Who Bears the Burden When Prison Guards Rape?"

The title of this post is the title of this new essay authored by Meredith Esser and available via SSRN. Here is its abstract:

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP).  Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years.  In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault.  However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims — in a manner inconsistent with other federal early release provisions — and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden.  For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances.  Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

November 27, 2023 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Sunday, November 26, 2023

SCOTUS hearing two criminal cases to start latest argument session

The Supreme Court is back to in-person work on Monday with the start of its final oral argument session for 2023.  And this one begins with two criminal cases over the first two days, as described in this SCOTUSblog post by Amy Howe:

The justices will kick off the December argument session on Nov. 27 with oral argument in a pair of consolidated cases, Brown v. United States and Jackson v. United States, involving the Armed Career Criminal Act.  The ACCA [provides a 15-year]  minimum sentence ... for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.”  The question before the justices is how to define “serious drug offense” for purposes of the ACCA. Eugene Jackson and Justin Rashaad Brown argue that the definition should incorporate the federal drug schedules that were in effect either when the individual committed the federal firearm offense (Jackson) or at the time of sentencing for that offense (Brown), while the federal government argues that it should instead incorporate the schedules that were in effect at the time of the state drug offenses.

On Tuesday, the justices will confront double jeopardy issues in the case of Damian McElrath, a Georgia man who was found not guilty by reason of insanity on one murder charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on a different murder charge (as well as an aggravated assault charge).  On appeal, the Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on all charges. It concluded that the verdict was “repugnant”: McElrath’s acquittal on one murder charge required the jury to find that he was insane when he killed his mother, but he could only be convicted on the other charges if the jury found that he was not insane.

When the case returned to the lower court, McElrath argued that the Constitution’s ban on double jeopardy barred the state from trying him again on the murder charge on which he had been acquitted.  But the Georgia Supreme Court rejected that argument.  It explained that a “repugnant” verdict is essentially “void” and therefore does not create a double jeopardy problem.  McElrath renews that argument in the Supreme Court, while the state defends the Georgia Supreme Court’s ruling.  Under state law, Georgia contends, there was never a valid verdict in McElrath’s case, and he can therefore be retried.

UPDATE: I just noticed that LawProf Michael Dorf has this lengthy post about the ACCA cases, titled “Today at SCOTUS: Guns or Drugs?,” which makes some great statutory interpretation points.  Here is a taste:

Each of the briefs proceeds as though the rule it proposes is somehow dictated by the statutory text understood in light of well-accepted background understandings. In fact, however, it's perfectly clear that the statutory language, even read in light of those background understandings, is highly under-determinative as to the question presented.

In such cases, we are accustomed to the Justices indulging (whether or not consciously) their ideological priors. Here those priors are unclear. The more liberal Justices don't like guns but are probably inclined to think that Congress has over-criminalized drug offenses. The more conservative Justices are not especially troubled by drug criminalization; nor are their Second Amendment sensors likely to be activated by the "bad guy with a gun" scenarios these cases present

November 26, 2023 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 21, 2023

Quite the SCOTUS Term shaping up for those intrigued by drugs on the docket

350x350bbRegular readers recall my eagerness to flag the work of the Drug Enforcement and Policy Center at The Ohio State University in the form of our "Drugs on the Docket" podcast.  As noted in prior posts when the podcast was first released, a set of six episodes comprises the first season, with each episode running under an hour.  The whole original season is fully available on Apple PodcastsGoogle Podcasts and YouTube.  As noted last month, the "Drugs on the Docket" team (of which I am a member) this fall produced some updated content through shorter recordings covering new developments related to issue each of the full episodes of Season 1. 

I have noted before my (admittedly biased) view that the curated discussions in this "Drugs on the Docket" podcast are all interesting and informative, and I am persistently eager to encourage everyone to check out this podcast webpage and to add the podcast to their holiday listening plans.   But it dawned on me today, as I was thinking about some of the Supreme Court's recent cert grants in criminal justice cases, that the current SCOTUS Term is full of drugs on their docket.  Specifically, I count at least five criminal cases on the Supreme Court's docket that are integrally connected to big issues in drug prosecutions and sentencings.  With help from SCOTUS blog, consider:

Pulsifer v. U.S.No. 22-340 [argued 10.2.2023]: sentencing in federal drug cases

Culley v. MarshallNo. 22-585 [argued 10.30.2023]: due process rules for forfeitures (often in drug cases)

Brown v. U.S.No. 22-6389 [to be argued 11.27.2023]: defining serious drug offenses for ACCA sentencing

Smith v. ArizonaNo. 22-899 [to be argued: 1.10.2024]: Confrontation Clause rules for experts (often in drug cases)

Diaz v. U.S.No. 23-14 [still to be set for argument]: expert testimony on mens rea in drug offense

And this list leaves out some other notable criminal cases, like Rahimi dealing with the reach of the Second Amendment and the new Erlinger case dealing with ACCA application (among others), that will surely echo through the prosecution of drug defendants in various ways.  We are already hard at work on Drugs on the Docket season 2, and SCOTUS may be helping to ensure we have plenty of content for many seasons to come.

November 21, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 20, 2023

Supreme Court grants cert on application of Sixth Amendment rights for key issue for applying ACCA

In this post two weeks ago, I flagged the Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case in Erlinger v. US, No. 23-370.  In that post, I noted the feds wanted cert granted in this case:

Petitioner [contends] that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context.  This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires. 

This morning, via this order list, the Supreme Court granted cert in Erlinger. Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

And though this case deals with a relatively little issue in the application of ACCA, I cannot help but wonder if this case could prove to be a big Sixth Amendment case.  Notably, we have not had a significant Sixth Amendment case on sentencing issues before SCOTUS since Haymond, and that was before Justices Barrett and Jackson were member of the Court. Moreover, as I noted in my prior post, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

I assume Erlinger v. United States, will get argued in the spring and may end up one of the last (small?) cases to get decided by the Justices this Term.  I also expect that SCOTUS will end up appointing someone to defend the Seventh Circuit's decision below since both the feds and the defendant here have the same (pro-defendant) view of this issue.

November 20, 2023 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Sunday, November 19, 2023

Extended discussion of mental illness and application of the death penalty

Law360 has this lengthy new article, headlined "They Are Mentally Ill; Some States Want Them Off Death Row," which effectively reviews various aspect of how mental illness intersects with capital punishment's application.  I recommend the piece in full, and here is an excerpt:

Death rows across the country are filled with people who ... are severely mentally ill.  While the U.S. Supreme Court has prohibited the death penalty for certain vulnerable groups — people with intellectual disabilities or who were minors at the time of their crime, for instance — it has not spoken about people who suffer from mental health conditions.

Legal experts say the high court has been reluctant to provide clarity in part because it is difficult to define mental illness in a legal sense.  And more broadly, the death penalty remains a political issue where the court dares not to venture, preferring instead to leave decisions on how to administer it to the states.

With the current Supreme Court unlikely to rule on the intersection of mental illness and capital punishment anytime soon, some states that still use the death penalty have taken steps to codify definitions and thresholds for mental illness that are supposed to ensure that only people with sound mental faculties can be executed.  Ohio and Kentucky pioneered those efforts, and more states could be following in the coming years.

"As with a lot of areas of the death penalty, the change in the foreseeable future is not going to happen from the Supreme Court. It's going to happen more at the state level," said John H. Blume, a scholar and director of the Cornell University Law School's Death Penalty Project.

In January 2021, Ohio was the first state to enact a bill that excluded people who suffered severe mental illness at the time of their crime from facing the death penalty.  The law, which passed with bipartisan support, also offered limited retroactive relief, giving people already sentenced to death one year to petition courts to vacate their sentences.  At least five people have been removed from death row under the law, according to the Office of the Ohio Public Defender.

In April, another bipartisan effort put a similar law — although one with no retroactivity provision — on the books in Kentucky.  And in 2022, California, which is currently under a death penalty moratorium, enacted a law to prevent people who are permanently mentally incompetent from being sentenced to death.  The law is the first of its kind in the nation.

November 19, 2023 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (32)

Wednesday, November 15, 2023

"The Embarrassing Sixth Amendment"

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

In his 1989 essay “The Embarrassing Second Amendment,” Sanford Levinson suggested that left-leaning scholars avoid studying the Second Amendment because they are embarrassed that its text might mean what gun-rights proponents claim it means — an individual right to bear arms.   Levinson urged such scholars to better engage the text, both to model intellectual integrity and to avoid unnecessarily ceding the terms of a critical constitutional debate.

This Article makes a similar argument with respect to the right to counsel.  The Sixth Amendment guarantees the “the assistance of counsel” in “all criminal prosecutions.”  To be sure, the Supreme Court held in Scott v. Illinois (1979) that the right is not “fundamental” in state cases where a defendant is not sentenced to jail time, citing federalism and budget concerns.  Relying on Scott, courts routinely subject defendants to criminal conviction, fines, pretrial detention, and significant collateral consequences like deportation, all without a lawyer.  Yet Scott appears squarely at odds with the Sixth Amendment’s text.  To retain Scott, the Court would either have to concede that “all criminal prosecutions” should not be enforced as written, or apply the text only in federal court, not state court.  Either concession would be hard for the current Court to make, given its ostensible commitments to textualism and to “single-track incorporation.”

Why, then, have progressives not pushed harder to overturn Scott on text-based grounds?  This Article suggests they may be embarrassed by the argument’s implications, for three reasons.  First, many scholars assume that the Sixth Amendment, under a textualist or originalist lens, does not guarantee a right to appointed counsel for indigent defendants.  It follows that progressives must avoid critiquing Scott on textualist grounds to avoid jeopardizing the right to appointed counsel under Gideon.  Second, progressives might be wary that the Court would embrace “dual-track incorporation,” justifying the dilution of other rights in state court.  Third, progressives appear to increasingly believe that an expanded right to counsel, like other procedural rights, is unimportant or even counter-productive.  This Article rebuts each of these concerns in turn and ultimately argues — as did Professor Levinson in the Second Amendment context — that scholars and litigants should engage the text and follow it where it leads: a right to counsel in all criminal prosecutions.

November 15, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

I have not sought to keep track of all the on-going litigation in district courts over whether federal felon-in-possession prosecutions under 18 USC § 922(g)(1) are still constitutional after Bruen.  But this new story in the Chicago Tribune, headlined "Chicago judge rules federal statute barring felons from possessing guns is unconstitutional but says it’s a ‘close question’," seemed notable because it appears that a federal district judge in Chicago has concluded that it violated the Second Amendment to prosecute for gun possession someone who would qualify for the Armed Career Criminal Act's 15-year mandatory minimum federal prison term.  Here are some of the reported details:

As a five-time convicted felon, Glen Prince was facing a mandatory minimum 15 years behind bars when he was charged in federal court with being a felon in possession of a handgun stemming from an armed robbery on CTA train in 2021. Instead, Prince’s case was tossed out earlier this month by a federal judge who ruled the statute barring felons from possessing handguns is unconstitutional in light of a recent U.S. Supreme Court decision.

The ruling by U.S. District Judge Robert Gettleman is the first of its kind to come down in Chicago’s federal court and joins a host of other similar cases that have thrown the decades-old law into a sort of legal limbo as the issue works its way back to the high court. The implications are particularly large in Chicago, where there are hundreds of pending felon-with-firearm cases stemming largely from the U.S. attorney’s office efforts to throw federal law enforcement resources into the fight against the city’s relentless gun violence.

Gettleman’s Nov. 2 ruling in Prince’s case was immediately appealed by the U.S. attorney’s office. The 7th Circuit U.S. Court of Appeals has set a Dec. 19 deadline for prosecutors to file a brief, court records show. It contradicts a handful of recent rulings by other district judges here upholding the felon-with-firearm law, saying that Second Amendment protections on gun possession have traditionally applied only to “law-abiding citizens.”

On the national level, the U.S. Justice Department last month urged the Supreme Court to overturn a lower-court ruling in Philadelphia that the law violated the constitutional rights of a man who possessed a weapon after pleading guilty years earlier to food-stamp fraud. The Biden Administration argued in its petition that the ruling conflicts decisions from two other appeals courts upholding the ban and “opened the courthouse doors to an untold number of future challenges by other felons.”...

In his opinion throwing out the charge against Prince, Gettleman wrote that while the government has historically prohibited certain people from possessing guns, prosecutors had not met their burden “to prove that felons are excluded from ‘the people’ whose firearm possession is presumptively protected by the plain text of the Second Amendment.”

Gettleman said the blanket ban on felons having guns “imposes a far greater burden” on gun rights than other historical categorical exclusions, such as one during the Revolutionary War when “individuals who refused to declare a loyalty oath to the emerging government” were barred from having firearms. The judge also wrote the fact that modern guns are more deadly and violence is more prevalent in today’s society doesn’t “justify a different result.”

“This nation’s gun violence problem is devastating, but does not change this result under Bruen, which this court finds rests on the severity of (the felon-with-firearm law) rather than its categorical prohibition.” Gettleman did, however, note the issue was a “close question” in his mind, as “violence plagues our communities and that allowing those who potentially pose a threat to the orderly functioning of society to be armed is a dangerous precedent.”

Prince, 37, was ordered released from the Metropolitan Correctional Center the day after Gettleman’s decision — but he didn’t walk free, records show. Court records show Chicago police arrested him at the jail at 71 W. Van Buren St. on new charges filed in Cook County accusing him of being an armed habitual criminal. He’s now being held without bond in the Cook County Jail.

According to the charges filed in federal court, Prince was a suspect in the armed robbery of three men on a CTA train in September 2021. After following the usage of a Ventra card stolen during the robbery, police arrested Prince on Sept. 12, 2021, on a CTA train platform in the 200 block of South State Street. He was allegedly carrying a loaded 9mm Smith and Wesson handgun as well as a fully loaded magazine, cocaine, and the victims’ Ventra card. He was originally charged in Cook County with aggravated unlawful use of a weapon by a felon, but those charges were dropped by state prosecutors after the federal indictment was filed last year, records show.

Prince’s criminal history includes three other armed robbery convictions as well as 2014 conviction for aggravated battery to a police officer, court records show.... Prince’s federal case was among more than 600 similar cases filed by the U.S. attorney’s office over the past five years where investigations by Chicago police and other local law enforcement are later removed to U.S. District Court. At least 50 people have been charged in 2023 alone with violating the felon-with-firearm ban, court records show.

The reasons to charge a defendant in federal court vary, but prosecutors generally promote it as a tool to get the city’s most violent, repeat offenders off the street instead of putting them back into the Cook County justice system. The potential penalties also are typically much tougher. Not only does the federal charge of unlawful possession of a weapon by a felon carry a maximum 10-year prison sentence, defendants must serve 85% of their sentence, instead of being eligible for day-for-day credit in the state system. If a defendant, such as Prince, has previously been convicted of three or more violent felonies, federal prosecutors can seek an enhanced, mandatory minimum sentence of 15 years behind bars, or up to life.

UPDATE: The 22-page opinion in US v. Prince, No. 1:22-cr-00240 (N.D. Ill Nov. 02, 2023), is available at this link.

November 15, 2023 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Monday, November 13, 2023

Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing

A lot of folks had a lot of interesting comments in response to my first post about the future sentencing of Sam Bankman-Fried following his conviction on all seven federal criminal counts brought against him at his first trial.  Since that post, I have seen a number of press pieces with various early takes on his sentencing (which is scheduled for March 2024 and, I would guess, will take place even later).  Here is a partial round up:

From CNBC, "Sam Bankman-Fried faces over 100 years in prison at sentencing. Experts weigh in on how much time he’ll actually get"

From CryptoSlate, "SBF will likely serve 25 years rather than max sentence, former DOJ prosecutor says"

From the Daily Mail, "Sam Bankman Fried, 31, likely faces 50 YEARS behind bars, legal expert believes: $10bn FTX crypto fraudster's crimes carry maximum of 115 years behind bars"

From Forbes, "Sam Bankman-Fried Faces 110-Year Max Sentence After FTX Trial — Here’s How Long Experts Think He’ll Be Behind Bars"

From the New York Times, "Sam Bankman-Fried Could Get 100 Years in Prison. What Is Fair?"

Because I do not trust my money in crypto, I am not sure I want to trust my sentencing predictions to CryptoSlate.  That said, and though I am never inclined to place any actual bets on any actual legal proceedings, I do think 25 years may serve as a reasonable over/under for Judge Lewis Kaplan's coming sentencing decision.  

Prior related post:

November 13, 2023 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Three Justices dissent from denial of cert in Illinois lawsuit over solitary confinement of mentally ill inmate

As mentioned in this prior post, this morning's new Supreme Court order list included a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  The cert grant in Diaz v. US could touch on a variety of interesting issues that might provide to divided the Justices in ways other than the now "usual" 6-3 divide.  But the state prison conditions case, Johnson v. Prentice, did produce the usual 6-3 split, with Justice Jackson authoring a lengthy dissent joined by Justices Sotomayor and Kagan.  Here is how this dissent starts:

This Court has long held that the test for evaluating an Eighth Amendment challenge to a prisoner’s conditions of confinement involves determining whether prison officials acted with “deliberate indifference” to a substantial risk to an inmate’s health or safety.  Estelle v. Gamble, 429 U. S. 97, 104 (1976).  With respect to the Eighth Amendment claim at issue in this case, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment to prison officials without applying that well-established standard. Given this indisputable legal error, I would grant certiorari and summarily reverse.

According to the dissent, the case involved an "unusually severe" example of solitary confinement for Johnson.  But I am not too surprised from reading the dissent if this may have seemed to other Justices like an error-correction case, especially with the dissent suggesting the case only concerned whether there was "a genuine issue of material fact for the jury, under the facts and circumstances presented here, such that summary judgment was not appropriate."  I certainly would like to see the full Court take up some of the issues surrounding "severe" use of solitary confinement, but I am not sure this Johnson case would have been ideal for addressing important broader issues.

November 13, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Supreme Court grants cert on federal drug case concerning expert testimony on defendant's knowledge

This morning brings this new Supreme Court order list that finally has something interesting for criminal justice fans.  Actually, there are two matters of interest, a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  In this post I will cover the cert grant and follow up with a separate post on the cert denial.

The cert grant comes in Diaz v. US, and John Elwood here at SCOTUSblog effectively summarized this case last week after it prompted a relist:

Delilah Diaz was stopped returning from Mexico to her home in California.  Officers were suspicious that Diaz’s window made a “crunching” noise when she rolled it down, so they searched the car and found nearly 28 kilograms of methamphetamine — worth almost $400,000 — in the door panels.  Diaz said that she had borrowed the car from her boyfriend and did not know about the drugs.  At her trial, prosecutors called a law-enforcement agent as an expert witness to testify that in most cases, couriers know they are transporting large quantities of drugs across the border and that traffickers rarely risk the potential of large losses on “blind mules” — couriers who are unaware what they’re carrying. Diaz was convicted.

On appeal, Diaz argued that the testimony was inconsistent with Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged,” which is a question “for the trier of fact alone.” The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction.  It concluded that Rule 704 only bars expert witnesses from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

Diaz has now petitioned the Supreme Court for review.  She argues that that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has held that such testimony is inadmissible.  The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border, and she argues that the conflict between two border states’ appellate courts must be resolved. The government acknowledges a “disagreement between the Fifth Circuits and other circuits” but it contends that any disagreement “does not warrant this Court’s review.”  The 5th Circuit’s test, the government claims, is heavily “fact dependent.”  The government also argues that any error from admitting the agent’s testimony was harmless because the evidence of guilt in Diaz’s case was strong, because her story was “flimsy”: She didn’t know where her supposed boyfriend lived or his phone number, and although she claimed to dislike driving at night, she arrived at the border at 2 a.m. 

Here is how the petition for cert presents the question in Diaz:

Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b).

The question is: In a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

November 13, 2023 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, November 09, 2023

"Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met"

The title of this post is a sentence from a state appellate court decision handed down earlier this week.  Eugene Volokh, via the Volokh Conspiracy post "Let Us Kill Your Dog or Go to Jail for a Year," gets credit for flagging the remarkable sentence and ruling in State v. Richards, No. 56949-3-II (Wash. Ct. App. Nov. 7, 2023)(available here).  Here are the basic facts and part of the sentencing discussion:

Jennifer Richards’ dog, Thor, twice bit another dog unprovoked.  As a result, Wahkiakum County determined that Thor was a dangerous dog under chapter 16.08 of the Revised Code of Wahkiakum County (RCWC).  One evening, Richards left Thor alone and unsecured on her property.  The county charged Richards with violating RCWC 16.08.050(F), an ordinance that makes it unlawful for a dangerous dog to be outside a proper enclosure unless the dog is muzzled and restrained by a substantial leash or physically restrained by a responsible person.  Neither state statute nor the county code authorizes destruction of the dog without an opportunity to cure a violation like this one.

After a bench trial on stipulated facts, the district court found Richards guilty and imposed the maximum jail time of 364 days.  However, the district court told Richards that it would suspend the sentence if Richards were to turn Thor over to animal control the next day....

At sentencing, the prosecution recommended that the district court impose the maximum sentence of 364 days in jail and a $5,000 fine, to be served until Richards gave Thor to the local animal control authority so he could be “put down.”   Richards asked for any sentence to be stayed pending appeal to the Wahkiakum County Superior Court. 

The district court imposed the maximum jail time of 364 days.  But it told Richards, “You shall not be required to go into custody if you provide written proof that the dog, Thor, has been surrendered . . . by tomorrow at 3:00 p.m.”  The district court added that if Richards were to fail to surrender Thor by that time, she would have to report to jail and remain there until she surrendered him.  Although the district court did not explicitly say Thor would be destroyed upon surrender, it appears that the judge, attorneys, and Richards all understood that Thor would be destroyed...

Richards asked if she could have a week to surrender Thor so that her boyfriend, who was away, would have a chance to say goodbye.  The district court denied her request.  It said, “Ms. Richards, you’ve had since . . . April of 2019 to come into compliance with the dangerous dog registration requirements.”  The district court added, “We are giving you a bit over 24 hours so that you can get your affairs in line, with both your daughter and your pet responsibilities here, and that is how much time the [c]ourt is willing to allow under the circumstances of this case.”... 

Richards argues that the district court could not impose a sentence that forced her to choose between having her dog destroyed and going to jail for 364 days.  She contends that while a district court “has broad discretion to impose sentencing conditions tending to prevent future commission of crimes,” it was unjust to order “the relinquishment of Thor as a condition of” avoiding imprisonment.   And she contends that tying her “personal freedom to the tormenting choice to kill her and her daughter’s dog is beyond cruel and unusual” under the federal and state constitutions.  The state responds that the district court had authority to impose Richards’ sentence under State v. Deskins, 180 Wn.2d 68, 322 P.3d 780 (2014). We conclude that the sentence imposed was outside the scope of the district court’s discretion....

While the crime of dangerous dog at large is a gross misdemeanor, under the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as a direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met. The district court acted outside the scope of its discretion by imposing a condition for achieving a suspended sentence that was untethered from these state and county laws.  The district court, therefore, abused its discretion when it imposed Richards’ sentence.

Because there is no evidence in the record that the district court would have imposed the 364-day term of confinement without the condition allowing suspension of a sentence, we reverse and remand for a new sentencing hearing. Given that we remand, we need not reach Richards’ constitutional argument that the punishment was cruel and unusual.

November 9, 2023 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

November 9, 2023 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

The Sentencing Project releases new report on “System Reforms to Reduce Youth Incarceration”

The Sentencing Project this morning has released this new report titled "System Reforms to Reduce Youth Incarceration: Why We Must Explore Every Option Before Removing Any Young Person from Home." Here is the start of the 25-page report's executive summary:

Well designed alternative-to-incarceration programs, such as those highlighted in Effective Alternatives to Youth Incarceration: What Works With Youth Who Pose Serious Risks to Public Safety, are critically important for reducing overreliance on incarceration.  But support for good programs is not the only or even the most important ingredient for minimizing youth incarceration.

To reduce overreliance on youth incarceration, alternative-to-incarceration programs must be supported by youth justice systems that heed adolescent development research, make timely and evidence-informed decisions about how delinquency cases are handled, and institutionalize youth only as a last resort when they pose an immediate threat to public safety.  In addition, systems must make concerted, determined efforts to reduce the longstanding biases which have perpetuated the American youth justice system’s glaring racial and ethnic disparities in confinement.

This report will highlight state and local laws, policies and practices that have maximized the effective use of alternative-to-incarceration programs and minimized the unnecessary incarceration of youth who can be safely supervised and supported at home.

November 9, 2023 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, November 08, 2023

New Prison Policy Initiative briefing covers "When parole and probation rules disrupt support systems"

Leah Wag of the Prison Policy Initiative has this new briefing titled "Guilty by association: When parole and probation rules disrupt support systems."  Here is how it begins (with links from the original):

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact.  Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.  Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision.  And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date.  We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.”  They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole.  As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

November 8, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Tuesday, November 07, 2023

US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act

A helpful reader made sure I saw a notable Supreme Court filing by the United States in response to a cert petition in an Armed Career Criminal Act (ACCA) case. Specifically, in Erlinger v. US, No. 23-370, a case scheduled to be conferenced by SCOTUS this week, the Solicitor General starts the discussion section of this filing in this way:

Petitioner renews his contention (Pet. 14-18) that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

Here is more from the filing:

In Wooden, this Court considered the proper test for determining whether prior convictions were committed on different occasions for purposes of the ACCA.  See 595 U.S. at 364. The government advocated an elements-based approach to determining whether two offenses occurred on different occasions, which it viewed as consistent with judicial determination of a defendant’s ACCA qualification.  See Gov’t Br. at 46, Wooden, supra (No. 20-5279); see also, e.g., Gov’t Br. in Opp. at 5-11, Walker v. United States, 141 S. Ct. 1084 (2021) (No. 205578).  The decision in Wooden, however, rejected the government’s elements-based approach to the different-occasions inquiry. 595 U.S. at 366.

The Court held instead that the inquiry is “holistic” and “multi-factored,” and that “a range of circumstances may be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 365, 369....

In light of the holistic and multi-factored standard adopted in Wooden, the government now acknowledges that the Constitution requires the government to charge and a jury to find beyond a reasonable doubt (or a defendant to admit) that ACCA predicates were committed on occasions different from one another....

It has recently become clear, however, that the courts of appeals will not embrace that analysis without this Court’s intervention. The question presented — which is important to the administration of criminal law — accordingly warrants this Court’s review this Term....

Through both their actions and their words, the courts of appeals have made the need for this Court’s review apparent. The Fourth Circuit’s denial of rehearing en banc — premised on the insufficiency of review by a lower court — means that the underenforcement of defendants’ constitutional rights will persist there.  The Eighth Circuit’s refusal to resolve the Sixth Amendment question, after granting en banc rehearing, suggests that its pre-Wooden precedent is also likely to endure.  And despite more than a year having passed since Wooden, no other circuit has reconsidered its pre-Wooden approach.

Wooden it be nice if SCOTUS would grant cert ASAP in this ACCA case?  Notably, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights, so maybe this (little?) ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.

November 7, 2023 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 06, 2023

"How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing"

The title of this post is the title of this notable new paper now available via SSRN and authored by Paul Cassell and Edna Erez. Here is its abstract:

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature.  But relatively little is known about the content of VISs and how victims use them.  This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries.  Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs.  The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs.  Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings.

November 6, 2023 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Were lots of new PRISMs filled in federal court last week as the new § 1B1.13 guideline became law?

The question in the title of this post is mostly designed to try to embrace a new term, PRISM, to refer to federal motions that are typically (and inaptly) called "compassionate release" motions.  Credit goes entirely to Doug Passon, who coins the term in the first part of this latest episode of his Set for Sentencing podcast.  Her explains that PRISM stands for "Prisoner Reduction In Sentence Motion."

Notably, federal law does not anywhere speak of "compassionate release" or making a motion for compassionate release.  Rather, 18 USC § 3582(c)(1)(A) describes the circumstances under which a prisoner can request a judge to "reduce the term of imprisonment."  That statutory section sets forth criteria that are about a lot more than just "compassion," and the US Sentencing Commission's key (and newly amended) guideline, titled "§1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)", also addresses many topics that are not simply about "compassion."  Consequently, I see the term "compassionate release" motion to be an inaccurate term, whereas PRISM is an accurate and memorable acronym for the actual filings that prisoners can now bring directly to courts under the FIRST STEP Act.

Sadly, I fear that a long history of use of the term "compassionate release" in this context might mean that PRISM is not likely going to happen (like fetch, I fear).  But if PRISM has any hope to become a new moniker, now would seem to be the right time in light of the US Sentencing Commission's amended guideline officially becoming law on November 1.  As of that day last week, a lot more prisoners, I suspect, had a lot more opportunities to seek a sentence reduction.  I am not sure if anyone is keeping track of new PRISM filings, but I am sure this new guideline story will be worth watching closely under any name.

November 6, 2023 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, November 05, 2023

"Justice by Algorithm: The Limits of AI in Criminal Sentencing"

The title of this post is the title of this new article authored by Isaac Taylor just published online for the journal Criminal Justice Ethics. Here is its abstract:

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector.  This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions.  It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed.  The act of condemnation is a valuable element of criminal sentencing, and using algorithms in sentencing — even in an advisory role  — threatens to undermine this value.  The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status.  This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions.  While this principle does not rule out the use of algorithms, it does require limits on how they are constructed.

November 5, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, November 03, 2023

Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee

I noted in this post a few days ago that the US House of Representative Committee on the Judiciary on November 2 had a markup scheduled on a set of bills including the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I predicted that HR 5430 bill would move forward, but I was still pleased to see this press release from a bill sponsor about what transpired:

Congressman Steve Cohen (TN-9) today led the Prohibiting Punishment of Acquitted Conduct Act through the Judiciary Committee.  His bipartisan measure was approved 23 to 0.  In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  It will now advance to the full House of Representatives for a floor vote.

During today’s markup of the bill, Congressman Cohen said in part:  “I would like to emphasize that Kelly Armstrong (R-N.D.) was a strong supporter and an excellent cosponsor and I appreciate him and Senators (Dick) Durbin and (Chuck) Grassley on the Senate side as sponsors. Just about every Supreme Court Justice who’s been around lately – John Paul Stevens, Anthony Kennedy, and Antonin Scalia…Ruth Bader Ginsberg, Clarence Thomas, going down to (Neil) Gorsuch and (Brett) Kavanaugh have all said this needs to be changed.  So with that I would ask that we move forward and arrive at justice.  People should be convicted of proven crimes and sentenced for those crimes. That’s why we need this bill – to make sure that people are only sentenced for the crimes they were convicted of.”

So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the US Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct.  This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the US Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

November 3, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, November 02, 2023

Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines

In this post more than 30 months ago, I asked "Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?"  That post was focused on US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here), where the panel ruled that a quirky part of the commentary to the 2B1.1 fraud guideline improperly expanded the guideline term "loss."  I thought that ruling could further undermine the key 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss."  Notably, last year in US v. Banks, No. 19-3812 (3d Cir. Nov. 30, 2022) (available here), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Savvy administrative law folks (or regular readers) likely know that this jurisprudence flows from the Supreme Court's work in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which recast  "the deference [courts] give to agencies ... in construing agency regulations."  (Of course, the Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.)  And savvy white-collar practitioners  likely know that this jurisprudence can be an especially big deal in high-profile fraud cases.  And this week, Bloomberg News has this lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling."  I recommend the piece in full, and here are extended excerpts:

In the case of [Gary] Frank, who pleaded guilty in 2019 to inflating the revenue of his legal benefits company to borrow millions, there was a big difference between the amount he intended to cheat his victims (as much as $150 million) and their actual losses (as much as $34 million).  And that just may help him get out of prison early.

The fallout started last year after the 3rd Circuit US Court of Appeals ruled that Frederick Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced.  The online trading company, the court found, suffered no actual losses given that it never sent him the funds.  The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...

The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims.  The commission suggests in its commentary using the greater of actual or intended loss when determining sentences.  But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.

Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference.  The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme.  Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct. “We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.

Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests.  Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.

The Banks decision could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations.  “Prosecutors often rely upon intended loss as a proxy for actual loss in securities and commodities fraud cases,” wrote Paul Hastings attorneys in a client alert.  “This practice has allowed the government to calculate large loss amounts and seek high guidelines sentences where actual loss is incalculable or impractical to determine.”  It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.

In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan.  The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”

In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.  But the following month, a 6th Circuit panel shot down an attempt by a chemical engineer to rely on the ruling after she was convicted of stealing trade secrets from her former employers.  The panel criticized the 3rd Circuit for imposing a “one-size-fits-all definition” for loss that could “lead to vastly different sentences for similarly culpable defendants.”

In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote.  That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.

Judges, prosecutors and defendants have all urged the sentencing commission to make changes.  One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

November 2, 2023 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

"Does type of counsel matter? A Comparison of outcomes in cases involving retained- and assigned counsel"

The title of this post is the title of this new empirical article just published in the Journal of Crime and Justice and authored by Ronald Burns, Brie Diamond and Kendra N. Bowen.  Here is its abstract:

Existing research yields inconsistent results with regard to differences among type of counsel in criminal cases.  Studies in the area generally compare the effectiveness of indigent versus retained counsel, and public defenders versus assigned counsel, and focus on broad categories of crime.  The present work expands this literature through comparing case outcomes between assigned and retained counsel in the processing of criminal trespassing cases.  It also contributes through measuring type of counsel in relation to the imposition of charge enhancements, a variable largely absent from the research literature.  Results suggest that type of counsel does impact case outcomes, as defendants with assigned counsel were more likely to have a charge enhancement, be sentenced to jail, and spend more time in jail.  Focusing on less serious offenses provides a more reflective account of what often occurs in court given that most crimes are less serious in nature.

November 2, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, November 01, 2023

Some notable acquitted conduct news and notes

A helpful colleague alerted me to two items of note for those (like me) who are interested in debates over acquitted conduct sentencing in the federal system. 

First, on the legislative front, as indicated at this webpage, the US House of Representative Committee on the Judiciary has a markup scheduled for tomorrow morning at 10am, and one of the bills scheduled to be marked up is The Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I believe we should expect the bill to move forward, recalling that the US House last year voted for the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a vote of 405 to 12.  Of course, the House is under different leadership and so nothing it every a given in the legislative process (and, of course, this kind of bill has yet to move forward in the US Senate).

Second, on the judicial front, a First Circuit panel handed down an interesting acquitted conduct sentencing ruling last week in US v. Carvajal, No. 22-1207 (1st Cir. Oct. 26 ,2023) (available here).  Because the outcome is standard for lower federal court acquitted conduct cases, I will just here provide the start of the opinion:

After a jury convicted Bernardito Carvajal of possession with intent to distribute and distribution of fentanyl, the district court sentenced him to 120 months in prison.  Carvajal appeals his sentence on two grounds.  First, he argues the district court considered impermissible evidence, including conduct of which the jury acquitted him, in determining his sentence. Second, Carvajal contends the district court should have reduced his sentence based on his acceptance of responsibility at trial.  Because controlling case law permits the consideration of acquitted conduct at sentencing and the record otherwise supports the district court's rulings, we affirm.

November 1, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, October 30, 2023

Some early accounts of SCOTUS oral arguments regarding civil forfeiture process

As previewed in this post, this morning the US Supreme Court heard oral argument in Culley v. MarshallNo. 22-585, which presents questions regarding what the Due Process Clause requires for state civil forfeiture processes.  My teaching schedule has so far kept me from listening to the full argument, which ran nearly 100 minutes and is now available at this link.   The headline of some of the press pieces discussing the argument suggests a split court, but one leaning in favor of the state and against individuals who have had their property seized:

From Bloomberg Law, "Justices Doubt Test Favoring Prompt Post-Seizure Hearings"

From Law.com, "'Hard Row to Hoe': Skeptical Supreme Court Hears Demand for Quick Forfeiture Hearings"

From Law & Crime, "Sotomayor, Gorsuch appear to team up against Alabama in civil asset forfeiture case"

From Reuters, "US Supreme Court leans toward Alabama in dispute over vehicles seized by police"

From the New York Times, "Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case"

October 30, 2023 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, October 29, 2023

"Original Understanding, Punishment, and Collateral Consequences"

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

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences?  This Article begins to tackle that question.  For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment.  Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose.  A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not.  Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine.  Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive.  Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes.  The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist.  Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment.  By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”.  If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence.  In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government.  These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.

October 29, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Fifth Circuit panel finds protected liberty interest for Louisiana prisoner seeking parole reinstatement

A helpful commenter flagged a notable new panel ruling from the Fifth Circuit handed down last week.  Though the factual particulars are complicated and critical in Galbraith v. Hooper, No. 22-30159 (5th Cir. Oct. 23, 2023) (available here), folks who litigate over parole or other back-end procedures in the criminal justice system may find a lot of aspects of the opinion interesting and important.  Here is how the 24-page opinion begins and ends:

Samuel Galbraith, a Louisiana prisoner, sued the Louisiana Board of Pardons and Parole (“Parole Board”), seeking to have his parole reinstated on the grounds that its rescission just prior to its effective date violated his due process rights. The district court agreed with Galbraith and ordered his release on parole within 30 days, subject to the original conditions of his parole. On appeal, the Parole Board’s arguments include that there is no constitutionally protected liberty interest in parole. Based on Louisiana’s parole statutes, we hold that, on the facts of this case, a liberty interest did arise. We AFFIRM....

[Quoting magistrate's ruling: "]While it is true that Louisiana’s parole statutes do not create a liberty interest in the granting of parole, once parole has been granted, the Parole Board’s discretion to rescind that parole was statutorily limited to an objective, fact-based finding that Petitioner had either: (1) violated the terms of his work release, or (2) engaged in misconduct.  Neither statutory basis was even argued, much less established in April 2017.  Under the Fourteenth Amendment, Petitioner was entitled to notice and a meaningful opportunity to be heard before rescinding his parole, which did not occur.["]

Galbraith’s parole was ostensibly rescinded because of an alleged problem with notice to a victim. He was notified of this reason on May 1, 2017, 10 days after his parole was rescinded. At the time, that was not a permissible reason to rescind his grant of parole.

Therefore, Galbraith’s parole was improperly rescinded.

October 29, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, October 26, 2023

Top Texas criminal court stays execution at last moment (and a quarter century after murder)

As reported in this AP piece, "Texas’ top criminal appeals court has stopped Thursday evening’s scheduled execution of a Texas inmate who had been condemned for killing another prisoner more than 26 years ago."  Here is more:

William Speer, 49, had been set to receive a lethal injection at the state penitentiary in Huntsville. The victim’s sister and religious leaders had recently asked authorities to spare his life.

Speer was convicted of the strangling death of Gary Dickerson in July 1997 at the Telford state prison, located near New Boston in northeast Texas.

His attorneys had asked the Texas Court of Criminal Appeals to stop his execution over allegations that prosecutors at his 2001 trial failed to disclose evidence, presented false testimony and that his trial lawyers failed to present evidence about Speer’s troubled childhood. They say Speer was physically and sexually abused as a child. Prosecutors have denied the allegations against them.

Less than five hours before his scheduled execution at 6 p.m. CDT, the appeals court granted the request by Speer’s attorneys. “We have reviewed the application and find that (Speer’s) execution should be stayed pending further order of this Court,” the appeals court wrote in its two-page order. Speer’s lawyers said the stay order cannot be appealed to federal courts because it is a state law issue.

His lawyers said Speer has transformed while in prison, expressed regret for his actions and now helps lead a religious program that ministers to other death row inmates.... The Texas Attorney General’s Office did not immediately reply to an email seeking comment....

At the time of inmate Dickerson’s killing, Speer had been serving a life sentence for fatally shooting a friend’s father, Jerry Collins, at the man’s Houston area home in January 1991. Speer was 16 then.

The paroles board on Tuesday voted 7-0 against commuting Speer’s death sentence to a lesser penalty. Members also rejected granting a six-month reprieve.

Speer killed Dickerson in a bid to join the Texas Mafia prison gang, prosecutors said. The gang ordered the hit after mistakenly concluding Dickerson had informed authorities about tobacco it had tried to smuggle into the prison. Speer and another inmate, Anibal Canales Jr. were sentenced to death for the killing. Canales remains on death row.

At Speer’s trial, Sammie Martin, who is Dickerson’s only living sibling, told jurors her mother was devasted by her brother’s death. But Martin asked that Speer’s life be spared. “I have spent much time reflecting on what justice my brother and my family deserved,” Martin wrote in federal court documents filed earlier this week. “In my heart, I feel that he is not only remorseful for his actions but has been doing good works for others and has something left to offer the world.”

Martin said she was never informed by prosecutors about Speer’s scheduled execution. In court documents filed this week, lawyers with the Texas Attorney General’s Office said that despite Martin’s feelings about Speer’s execution, “the state retains its interest in deterring gang murders and prison violence, as well as seeing justice done for Dickerson.”

A group of religious leaders from around the country have also asked that Speer be spared. In a letter to the paroles board and Gov. Greg Abbott, they wrote that Speer’s religious work with other prisoners “does not excuse his actions, but it gives us a fuller picture of who Will is as a human, Christian, leader, and teacher.”

October 26, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Wednesday, October 25, 2023

Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

A week from today, on November 1, 2023, the new US Sentencing Commission's amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works).  Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history.  But there is far more going on with all these amendments than can be readily summarized in this forum.  Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments.  Specifically, from a USSC training event, here is a slideshow that summarizes the USSC's amendment work, and a whole bunch of helpful "Amendment in Brief" documents assembled here provide primers on nine amendments.

As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead.  And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines.  Helpfully, the Commission has created this "Background Information" page to try to address some questions about retroactivity.  But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application. 

I predict questions and litigation in part based on an interesting little document that the USSC posted here titled "Comparison of Retroactive Guideline Amendments."   Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as "Group size" and "Eligible for reduction" under the new criminal history amendments.  In short form, the document estimates that over 85,000 prisoners are in the "Group size" who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction.  In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.

I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon.  I recommend these highly:

"How Zero-Point Offender Change Will Work Prospectively"

"How Zero-Point Offender Change Should Work Retroactively"

October 25, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Upon new review, split Ohio Supreme Court now upholds 65-year (functional life) prison term for woman who stole from nursing homes

As reported in this local article, the "Ohio Supreme Court on Wednesday in a split decision upheld the 65-year sentence − a new ruling that unravels a previous decision by the high court."  The full opinion in State v. Gwynne, Slip Opinion No. 2023-Ohio-3851 (Ohio Oct. 25, 2023), which runs a total of 61 pages, is available at this link. The press article effectively provides a summary and the notable backstories around this latest ruling in a long-discussed Ohio case:

Susan Gwynne admitted that she stole thousands of items from dozens of residents at nursing homes and assisted living facilities in Delaware and Franklin counties where she worked.  But she didn't think she should get 65 years in prison....

The case raises the questions: What is appropriate punishment for a first-time, non-violent felony offender, when consecutive sentences are merited and what oversight should appeals courts have?  The case also reflects what can happen when the balance of the Ohio Supreme Court shifts.

Writing for the majority, Chief Justice Sharon Kennedy said state law directs appellate courts to generally defer to trial courts' sentencing decisions.  She wrote that an appellate court could change a trial court's sentence if it "clearly and convincingly finds" the record doesn't support the trial court's findings.  The new opinion authored by Kennedy disagreed with the opinion issued in December 2022.

In December 2022, the Ohio Supreme Court said in a 4-3 ruling that trial courts need to consider an overall combined prison term when imposing consecutive sentences.  The court also found the Fifth District Court of Appeals erred in deciding it had no authority to review and vacate Gwynne’s 65-year sentence.  The high court sent it back to the appeals court to reconsider the length of Gwynne's sentence.

Once the control of the court shifted in January, the justices voted 4-3 to reconsider the December 2022 ruling.  Justice Melody Stewart wrote in her dissenting opinion that the court only decided to reconsider the case when Republican Joe Deters joined the court.  Gov. Mike DeWine appointed Deters to fill a vacancy created when Kennedy moved up to be chief justice.

She said that Kennedy's majority opinion will leave Ohio's law on consecutive sentencing − stacking prison time on multiple counts to run one after the other rather than concurrently − "so muddled that it will be virtually impossible for any defendant" to mount a successful challenge of a stacked sentence.  Trial court judges issue consecutive sentences in cases if they deem it necessary to protect the public and it'd be proportionate to the offenses.  Generally, though concurrent sentences are the default.

In a second dissent, Justice Jennifer Brunner noted other cases similar to Gwynne's crimes in which the defendants received far less prison time.  She said people who get 65 years in prison are almost always convicted of rape, kidnapping, torture or other heinous violent behavior.

Ohio Supreme Court Justice Michael Donnelly, who has been vocally critical of the Gwynne case and recused himself, said "This sentence is exhibit A in how the state of Ohio needs a total overhaul of its criminal sentencing scheme and we need a database."  The current system allows for disparity − grossly excessive and unexplainedly lenient sentencing, he said....   Donnelly supports establishing a statewide criminal sentencing database, which would allow researchers, judges and the public to compare outcomes of similarly situated defendants.

Gwynne, now 62, is incarcerated at the Ohio Reformatory for Women in Marysville.  Her release date is May 30, 2081 when she'd be 120-years-old.

October 25, 2023 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Tuesday, October 24, 2023

"The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness"

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

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague.  Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions.  This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.”  Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment.  By urging revival of the void for uncertainty doctrine, this Article outlines a novel path for state constitutional litigation and proposes how state legislatures can reform parole statutes to put them on sound constitutional footing.

October 24, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

October 24, 2023 in Campaign 2020 and sentencing issues, Celebrity sentencings, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (73)

Monday, October 23, 2023

Notable voices speaking out against civil forfeiture as SCOTUS argument over required process approaches

Next Monday, the US Supreme Court will hear oral argument in Culley v. MarshallNo. 22-585, which presents this question:

In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the "speedy trial" test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

Because there are many folks on both the left and the right who are not big fans of civil forfeiture of property, almost all of the advocate amicus briefing is in support of the individual for more process.  And some of the commentary I have seen recently on this case is likewise pretty one-sided (though coming from all political sides):

From Balls & Strikes, "How Easily Can Cops Steal Your Stuff, and Other Hard Questions For the Supreme Court"

From The Hill, "Ending state-sanctioned theft to preserve police legitimacy"

From The Federalist, "The Supreme Court Shouldn’t Let Governments Get Away With Impounding Innocent People’s Property"

From USA Today, "I was innocent, but police seized my car and stalled for years. Their scheme has to stop."

Though I do not follow forfeiture issues and doctrines all that closely, I am extremely interested to see how the current group of Justices approach a Due Process issue that could possibly have all sort of ripple effects.

October 23, 2023 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Friday, October 20, 2023

Prison Policy Initiative provides new resources on prison discipline policies

The folks at Prison Policy Initiative this week released this new briefing which provides a "collection of prison discipline policies [that] covers all 50 states, Washington, D.C., and the Federal Bureau of Prisons, and highlights how each system classifies the severity of offenses and punishments." Here is a bit more from the briefing:

[T]he Prison Policy Initiative is publishing a collection of discipline policies for all 50 state prison systems, the Washington, D.C. Department of Corrections, and the Federal Bureau of Prisons in our Data toolbox.  It includes the discipline policy for each system, a list of offense severity classifications from most to least severe, and links to additional documents to help you understand each system’s classification scheme.

Advocates, researchers, and lawmakers can use this collection to examine the rules, offenses, procedures, and associated punishments for each prison system, or to answer questions about prison discipline systems such as:

  • What behaviors are considered “violations” in your state’s prisons?
  • How are different violations punished? How does the severity of punishment for certain actions compare to others?
  • How many different rules can be applied to punish a single action, such as a fight, potentially allowing prison staff to pick and choose or “stack” violations?
  • Does your state’s prison system punish people more harshly than others for similar violations?
  • What does the severity of punishment for certain actions — such as refusal to work or organizing a strike — tell us about the culture and priorities of prisons?
  • What is the “justice” process like inside prisons? How do people defend themselves? Is there due process inside?

October 20, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 19, 2023

Detailing how sex offenders in New York can imprisoned long past their maximum sentences

The Nation has this notable lengthy new article detailing just how some New York offenders end up incarcerated well past the end of their actual sentences.  The article's full title previews the key points: "They Were Supposed to Be Free.  Why Are They Locked Up?: No one wants a person convicted of a sex offense in their neighborhood.  So New York keeps them in prison long past their release dates."  Here are some excerpts:

[Jory] Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years.  It’s not because the judicial system is afraid that he’ll commit another crime—a judge had determined that Smith’s “risk of re-offense is low.”  He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an 8-year-old girl, and state legislation severely restricts where people with such sex-offense convictions are allowed to live.  With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released.  They’re kept incarcerated until they can find a legal place to stay or until their parole is up — for Smith, that’s August 2025.  They wear normal prison uniforms.  They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date.  For his work assignments, Smith receives between $5 and $10 a week.  He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago—and the number of people subjected to it has increased.  In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation.  By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60 — almost 8 percent of the “parolees.”

New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates.  In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice — though that could soon change.  A judicial shake-up in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court.  And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.  “It’s very sensitive — people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case.  “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

October 19, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10)

Might a real originalist turn in Eighth Amendment jurisprudence help many more criminal defendants than it would hurt?

The question in the title of this post is prompted by this new Reuters article about a recent speech delivered by Judge Thomas Hardiman.  The press piece is headlined "US appeals judge urges new standard on 'cruel and unusual' punishment," and here are excerpts:

A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment."  In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.

The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society." But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants. "Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified."

Supreme Court rulings that have relied on that standard include one in 2005 barring capital punishment for offenders who were under 18 when they committed crimes and a 2008 decision striking down a Louisiana law allowing the death penalty for the rape of a child when the victim did not die. The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder....

The ideological split among justices has since changed, and thanks to three of Republican former President Donald Trump's appointments the court.... That newly constituted court in 2021 put an end to the court's run of decisions that put limits on life sentences without parole for juvenile offenders, making it easier for states to impose such sentences.

The court did so without mentioning the "evolving standards of decency" test, Hardiman said. He questioned whether the court would now "return to the text and original meaning of the 8th Amendment" as it has done in other areas, like the 2nd Amendment. He pointed to last year's Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, which set a new test for assessing firearms laws, saying restrictions must be "consistent with this nation's historical tradition of firearm regulation."

I have written in the past about the myriad challenges in giving meaning to the Eighth Amendment's prohibition on "cruel and unusual punishments," and I fully understand concerns and disconcert with "evolving standards of decency" test.  But, realistically, as interpreted through the years by the Supreme Court and lower courts, this "decency" test has only provided real constitutional protection to only a handful of capital and juvenile murderers.  As applied in modern times, 99.99% of all criminal defendants have zero chance of making a successful Eighth Amendment claim.

But if there were an originalist turn in Eighth Amendment jurisprudence, and especially if modern punishments were to be judged based on whether they were consistent with the nation's historical tradition, I could imagine a whole lot more criminal defendants having a whole lot more viable Eighth Amendment claims.  In a series of articles, Professor John Stinneford has forcefully argued that sound originalism would give the Eighth Amendment considerable bite.  Specifically, as the abstract of this article summarizes:

The original meaning of the Cruel and Unusual Punishments Clause calls into question the constitutionality of several current punishment practices, including lengthy prison sentences for certain offenses, longterm solitary confinement, the three-drug lethal injection protocol, and certain prison conditions, to name a few.

Professor Michael Mannheimer is another scholar who has made intriguing originalist claims about the Eighth Amendment as a unique and distinctive limit on federal punishments.  And I have seen various other claims and arguments in various other settings that could at least support arguments by various defendants that various modern punishments and not consistent with the nation's historical tradition. 

Notably, the experience of the post-Bruen originalist jurisprudence seems to be giving lower court judges considerable power to invalidate lots of laws in favor of (gun) defendants.  Consequently, I am not sure Judge Hardiman has thought this all through if he really in concerned about a constitutional jurisprudence that gives judges "too much power to invalidate laws in favor of defendants."  I sincerely think a real originalist turn in Eighth Amendment jurisprudence could actually help many more criminal defendants than it would hurt, at least relatively to existing Eighth Amendment jurisprudence.

October 19, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Sydney Powell, legal adviser to former Prez Trump, cuts plea deal to avoid incarceration in Georgia election prosecution

As reported in this new AP piece, "Sidney Powell pleaded guilty to reduced charges Thursday over efforts to overturn Donald Trump’s loss in the 2020 election in Georgia, becoming the second defendant in the sprawling case to reach a deal with prosecutors." Here is more:

Powell, who was charged alongside Trump and 17 others with violating the state’s anti-racketeering law, entered the plea just a day before jury selection was set to start in her trial. She pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.

As part of the deal, she will serve six years of probation, will be fined $6,000 and will have to write an apology letter to Georgia and its residents. She also agreed to testify truthfully against her co-defendants at future trials....

Powell, 68, was initially charged with racketeering and six other counts as part of a wide-ranging scheme to keep the Republican president in power after he lost the 2020 election to Democrat Joe Biden. Prosecutors say she also participated in an unauthorized breach of elections equipment in a rural Georgia county elections office. The acceptance of a plea deal is a remarkable about-face for a lawyer who, perhaps more than anyone else, strenuously pushed baseless conspiracy theories about a stolen election in the face of extensive evidence to the contrary....

Powell was scheduled to go on trial on Monday with lawyer Kenneth Chesebro after each filed a demand for a speedy trial. The development means that Chesebro will go on trial by himself, though prosecutors said earlier that they also planned to look into the possibility of offering him a plea deal. Jury selection was set to start Friday. Chesebro’s attorneys didn’t immediately respond to messages seeking comment Thursday on whether he would also accept a plea deal.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, last month pleaded guilty to five misdemeanor charges. He was sentenced to five years of probation and agreed to testify in further proceedings.

October 19, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12)

Wednesday, October 18, 2023

Urging the Justice Department to respect the US Sentencing Commission's new guidelines for compassionate release

When Congress enacted the Sentencing Reform Act (SRA) in 1984, it created the notable 18 USC § 3582(c)(1)(A) provision authorizing a judge, upon a finding of "extraordinary and compelling reasons," to reduce a term of imprisonment.  The SRA further provided that the US Sentencing Commission was to set out policy statements describing what judges should consider extraordinary and compelling reasons. Specifically, 28 USC § 994(t) states:

The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

I read this provision to mean that Congress sought to make the Commission the primary expositor of what factors "should be considered extraordinary and compelling reasons for sentence reduction."  And the Commission earlier this year promulgated new amendments to its "compassionate release" policy statement.   As blogged here and here, one key provision concerned the authority of judges to sometimes consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction.  See proposed USSG § 1B1.13(b)(6).

I have heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new guideline once it become effective on November 1.  And that serves as the backstory for this new USA Today piece authored Erica Zunkel and Nathaniel Berry. I recommend the piece in full, which is headlined "First Step Act advanced prison reform, but hundreds are still serving unjust sentences; New Sentencing Commission guidelines will give them a chance for compassionate release. But DOJ threatens to stand in the way." Here are excerpts:  

Under new guidance from the U.S. Sentencing Commission, the agency responsible for setting federal sentencing policy, individuals like Walker can now ask judges to reduce their “unusually long sentences."  The underlying legal basis is a law passed by Congress in 1984 — informally known as "compassionate release" — that permits judges to reduce a sentence when an individual can show an “extraordinary and compelling” reason for doing so.

The Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around.

Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain.  The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.

With the Sentencing Commission’s new guidance soon to be in effect and binding on federal judges, the DOJ and Attorney General Merrick Garland must decide whether they will support the commission — or whether they will fight to keep people such as Walker behind bars.

We urge AG Garland to follow the commission’s example and allow compassionate release to “rekindle” “the light of redemption (that) has almost been extinguished from our federal prisons,” as Commission Chair Judge Carlton W. Reeves explained when announcing the new sentencing guidelines....

The commission’s “unusually long sentences” provision is good policy.  Far from a get-out-of-jail free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary.

The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a “gross disparity” between their sentence and the one likely to be imposed today.  Even then, an individual still must demonstrate that they will not pose a danger to the community, and that their individualized circumstances weigh in favor of a sentence reduction....

We celebrate the Sentencing Commission for giving them that chance and urge the DOJ not to stand in the way when individuals like Walker take it.

October 18, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (19)

Monday, October 16, 2023

"No Release: Parole grant rates have plummeted in most states since the pandemic started"

The title of this post is the title of this new briefing from the Prison Policy Initiative authored by Emmett Sanders.  Here is how it gets started (with links from the original):

Earlier this year, Alabama’s Board of Pardons and Paroles made headlines when it denied parole to someone who had died ten days prior to their parole hearing.  This is just one of many threads in the Alabama parole board’s tapestry of dysfunction.  For months, their three-person parole board operated with just two members despite requiring a majority vote to grant parole.  It is no wonder that Alabama is on track to have a parole grant rate — the percent of parole petitions approved — of just 7% for 2023.  This also comes as studies show racial disparities in parole grant rates are widening: for example, non-white people in New York were released at a rate almost 29% less than their white counterparts in 2022 (up from a difference of around 19% between 2016 and 2021).

With parole board practices so much in the news, we thought it was important to look around the country and evaluate the direction in which state parole boards are moving.  We filed dozens of records requests and curated the best research to explore whether state parole boards are helping reduce mass incarceration or whether they are disregarding the hard-learned lessons of the pandemic, when they released even fewer people than before the crisis as people died behind prison walls.

In the 28 states for which we collected 2022 parole approval data, only 7 had grant rates above 50% — Connecticut, Idaho, Nevada, North Dakota, Utah, Vermont, and Wyoming. Wyoming had the highest grant rate of 78%.  At the other end of justice’s sliding scale, Alabama (10%) and South Carolina (7%) have the lowest parole approval grant rates in the nation.

With few exceptions, parole grant rates dropped significantly from 2019 to 2022.  In the 26 states for which Prison Policy Initiative was able to track changes in parole approval rates from 2019-2022, only 6 — Connecticut (+29%), Georgia (+17%), Texas (+11%), Hawai’i (+8%), South Dakota (+6%), and Nevada (+1%) — have seen any increase since 2019.  In the remaining 20 states from which we received data, parole grant rates have seen either no change or have seen a marked decline, with South Carolina (-80%) and Alabama (-67%) seeing the biggest drop offs in grant rates.

But state parole boards did not only choose to release fewer people.  They heard fewer cases as well.  With the exceptions of Oklahoma, South Dakota, and Arkansas, parole boards continued to hear significantly fewer total cases in 2022 than they did in 2019.  The result is that since 2019, the number of people released through discretionary parole has decreased across the board.

October 16, 2023 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Making the case against "mass supervision"

41hG5jF+RfLIn recent weeks, a number of new press pieces have discussed Vincent Schiraldi's notable new book titled "Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom."  (I have linked to some of those piece below.)  Today, I see that the author has this new opinion piece in the Washington Post under the headline "Parole and probation don’t work. Let’s think of a new approach." Here are excerpts:

There are nearly 4 million people in the United States on parole and probation — about twice as many as are incarcerated in our prisons and jails. These individuals are not quite free in the way that the rest of us take for granted. Their homes can be searched without a warrant; they can be incarcerated without representation and held without bail; they do not have the right to remain silent; and they can be convicted of, and imprisoned for, noncriminal acts based on evidence that does not need to be proved beyond a reasonable doubt.

Probation (a front-end sentence intended as an alternative to incarceration) and parole (early release from prison for good behavior) have been around since the 1800s. Both originated as alternatives to what was a new but increasingly brutal penitentiary system and were intended to rehabilitate people in the community. They are unsuccessful on both counts.

In the 1970s, rehabilitation became a dirty word in criminal justice, and the system took a sharply punitive turn, setting the country on a march toward mass incarceration and mass supervision. Probation and parole pivoted to a “trail ’em, nail ’em, and jail ’em” approach. This ushered in a mushrooming of hard-to-meet supervision conditions and imprisonment for noncriminal supervision violations. From 1980 to 2008, there was a fivefold increase in the number of people under community supervision — topping 5 million at the peak — alongside a similar expansion in prison populations. Nearly 1 in 4 people entering state prisons are incarcerated for a technical violation of their supervision, not a new offense, costing taxpayers $2.8 billion annually....

Mass supervision has managed to make us less free and no safer, all at great cost. As policymakers look to reform their supervision systems, they should consider reducing — or, for some groups, eliminating — probation and parole supervision, replacing them with services offered by nonprofit and volunteer groups, and carefully studying the outcomes.

A number of states have downsized supervision, saved money and improved public safety. In Missouri, policymakers reduced probation terms by 30 days for every 30 days of compliance while under supervision. In the first three years, 36,000 people were able to reduce their terms by 14 months, the number under supervision dropped by 18 percent, and reconviction rates for those released early were the same as for those discharged from supervision before the policy went into effect. If less supervision has better outcomes at lower cost, it’s plausible that no supervision — and investing the resulting savings in community supports such as housing, employment, and drug and mental health services — might yield even better ones.

After nearly two centuries, probation and parole have failed to prove their worth. Let’s carefully experiment with, and assiduously study, the alternatives instead.

A couple recent press pieces about this book:

From NPR, "Almost 4 million people are on probation or parole. Here's why that matters."

From Slate, "The Largest Form of Criminal Punishment in the United States Is Not Prison. It’s Still Awful."

October 16, 2023 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, October 15, 2023

Extensive account of clemency and the clemency process in Minnesota

The New York Times has this extensive new article on clemency in Minnesota (and elsewhere) titled "‘I Want to Be Forgiven. I Just Want to Be Forgiven.’: When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy." I recommend the long piece's intricate discussion of the Minnesota clemency process, and here is an excerpt from the article discussing clemency more generally:

No one can expect mercy. No one has the right to be forgiven. Pardons live beyond the parameters of the criminal code’s black-and-white text. They are, by nature, extraordinary.

Rooted in part in the ancient doctrine that monarchs derive power directly from God, pardons are a discretionary tool often given to the executive branch — the president and the governor — to override court-ordered sanctions: to shorten a prison sentence, restore civil rights or eliminate the obligation to identify oneself as a felon.

They are intended to provide relief from what Alexander Hamilton, in the Federalist Papers, called the “necessary severity” of the law — a kind of safety valve against injustices inherent in justice systems....

There are other systems for restoring legal and social status, including diversion programs, expungement and record-sealing. Pardons, though, carry the emotional heft of society’s forgiveness. And depending on the jurisdiction, their application can be transparent or mysterious, reasoned or arbitrary — even questionable, with some reformers calling them a capricious relic....

Two generations ago, as drug-related violence plagued many cities, presidents and governors adopted tough-on-crime stances that, among other consequences, led to fewer pardons. The many social benefits that might accrue from mercy were determined not to be worth the political risk. According to the nonprofit Collateral Consequences Resource Center, the pardon became “a shadow of its once-robust self.”

“It is a national struggle in legislatures to figure out how to deal with this enormous number of people with a criminal record who can’t get jobs or housing,” said Margaret Love, the founder of the resource center and a former United States pardon attorney. “We’re trying to reintegrate people, but we still won’t forgive them.”

October 15, 2023 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, October 12, 2023

"Defense Lawyering in the Progressive Prosecution Era"

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

The movement to elect so-called progressive prosecutors is relatively new, but there is a robust literature analyzing it from a number of angles.  Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic.  One essay offers a “progressive prosecutor’s handbook.”  But what about defense lawyers representing clients in progressive prosecution jurisdictions?  If the new prosecutor follows through on campaign promises, things may shift from a highly-charged adversarial relationship with a carcerally-focused office to something quite different.  Defenders in such jurisdictions face a number of complex decisions in both individual representation and systemic reform efforts in this new environment.  Yet there is no defense lawyer’s handbook for practicing in the progressive prosecution era.

The core role of the defender — zealously seeking the best outcome to meet the client’s goals — does not change when a progressive prosecutor enters the picture.  But the fact that the new prosecutor’s goals and policies are different shifts defender goalposts in significant ways.  These shifts must be accounted for in assessing opportunities and challenges for defenders in these new situations.  After examining criminal defense lawyering theory and regulation in actual practice, this Article discusses an existing typology of progressive prosecutors — from the “progressive who prosecutes” to the “anti-carceral prosecutor” — and then sketches out a typology of defense attorneys in progressive prosecution jurisdictions.  Next, it examines an overarching concern for defenders, which is the progressive prosecutor who posits themself as the main reformer (and sometimes even transformer or hero) of the criminal legal system.  This is a narrative that some progressive prosecutors seek to advance, and others do not disclaim.  Defenders should not fight to claim this narrative as theirs, as they do not own it.  But simply ignoring prosecutors who claim the reform mantle might negatively affect defenders’ relationships with clients, their families, and the communities they serve.

Consideration of the defender’s individual advocacy role in a progressive prosecution jurisdiction raises a number of questions, the most fundamental being: what changes might defenders make to get even better outcomes for clients?  Although such changes could touch upon every phase of a criminal case, this Article focuses on opportunities and challenges for defense advocacy at the pre-charging and plea bargaining stages.  Finally, the Article turns to the defender’s role in advocating for systemic change in the potentially (although not necessarily) receptive environment of a progressive prosecution jurisdiction.  There are many reforms that defenders might advocate for in the mass criminalization era, with an eye on changes that survive the ephemeral and precarious position of the progressive prosecutor. The two examined here are defenders pushing progressive prosecutors to give up some of their own funding and support parity of funding for public defense, and challenging prosecutors to move beyond low-hanging fruit — like declining to prosecute minor misdemeanor cases — and take on reform in the realm of serious and violent offenses.

October 12, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 05, 2023

Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi

This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen.  Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi.  A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:

The State of California aggressively criminalizes the possession of firearms.  We have seen that this disproportionately affects people of color, particularly Black people.  Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment.  And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.”  We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence.  Many of our clients are themselves victims of domestic violence.  But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

A few prior related posts:

October 5, 2023 in Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (6)