Wednesday, June 10, 2020

"Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring"

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

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision.  This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and,as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections.  The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way.

This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence.  First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision.  While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate.  Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine.  This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect.  But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed.  Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.

June 10, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (0)

Monday, June 08, 2020

"America’s Criminal Justice System Is Rotten to the Core"

The sharp title of this post is the sharp title of this new commentary authored by Clark Neily at Cato.  Here is how it gets started:

Before you can fairly assess the legitimacy of the ongoing protests or the quality of the government’s response, you must understand the relevant facts.  And the most relevant fact is that America’s criminal justice system is rotten to its core.  Though that certainly does not justify the violence and wanton destruction of property perpetrated by far too many protesters, it does provide useful context for comprehending the intensity of their anger and the fecklessness of the government’s response.  If America is burning, it is fair to say that America’s criminal justice system — which is itself a raging dumpster fire of injustice — lit the fuse.

I feel moved to write these words because it appears from some of the commentary I’ve been reading — including even from libertarian circles — that many people who consider themselves to be generally skeptical of government and supportive of individual rights have no idea just how fundamentally broken our criminal justice system is and how wildly antithetical it has become to our core constitutional values.

Within days or weeks, most protesters will renounce the use of lawless violence as a tool of politics; but the state will not.  That’s the key takeaway and the thing you really need to understand about this moment in time.

As I will explain below, I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government.  Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐​and‐​convict adjudication; and (3) near‐​zero accountability for police and prosecutors.

June 8, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3)

SCOTUS issues short unanimous opinion clarifying prisoner filing limits of PLRA

With a large number of high-profile (and likely divisive) civil cases still left to resolve in the current SCOTUS Term, the US Supreme Court this morning just issued one little unanimous opinion and it happened to be the one last case on the docket dealing with criminal justice matters.  Specifically, Justice Kagan wrote a seven-page opinion for a unanimous Court in Lomax v. Ortiz-Marquez, 18-8369 (S. Ct. June 8, 2020) (available here).  The opinion begins and ends this way:

To help staunch a “flood of nonmeritorious” prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.  Jones v. Bock, 549 U.S. 199, 203 (2007).  That rule generally prevents a prisoner from bringing suit in forma pauperis (IFP) — that is, without first paying the filing fee — if he has had three or more prior suits “dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.” 28 U.S.C. §1915(g).  Today we address whether a suit dismissed for failure to state a claim counts as a strike when the dismissal was without prejudice.  We conclude that it does: The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without....

The text of the PLRA’s three-strikes provision makes this case an easy call.  A dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.  We therefore affirm the judgment below.

June 8, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Justice Sotomayor flags due process concerns with how Eleventh Circuit considers inmate efforts to file second/successive habeas petition under AEDPA

The US Supreme Court has kicked off another work week with another anticlimactic order list this morning.  The Court granted cert only on a procedural immigration issue, while failing to take any action on an array of Second Amendment and qualified immunity cases that it has been sitting on for a number of weeks.  Still, there are some in crumbs for hard-core habeas fans thanks to a statement on the denial of cert from Justice Sotomayor concerning the process the Eleventh Circuit uses to consider and resolve requests from inmates seeking to file a second or successive habeas petitions under the Antiterrorism and Effective Death Penalty Act.  Here are parts of the start of Justice Sotomayor's six-page statement to provide a flavor of her concerns:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes several restrictions on inmates seeking to file a second or successive habeas petition.... But an inmate seeking such authorization from the Court of Appeals for the Eleventh Circuit faces even greater hurdles.
Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application.  In re Williams, 898 F.3d 1098, 1102 (2018) (Wilson, J., concurring).  Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F.3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc).  That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture....

These factors make out a troubling tableau indeed.  Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process.  The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case.  In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

June 8, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, June 05, 2020

NC Supreme Court limits reach of repeal of state's Racial Justice Act in capital cases

Over a decade ago, North Carolina enacted a Racial Justice Act that allowed a capital defendant to seek relief on a claim that race was a significant factor in the decision to seek or impose the death penalty in his case. After nearly every person on North Carolina's death row made a claim under this statute, it was repealed by the legislature. Today the North Carolina Supreme Court in North Carolina v. Ramseur, No. 388A10 (N.C. June 5, 2020) (available here), limits the impact of this repeal. The majority opinion in this 6-1 ruling starts this way:

Defendant, Andrew Darrin Ramseur, was convicted of two counts of firstdegree murder and sentenced to death in 2010.  After his trial, defendant filed a motion seeking relief pursuant to the newly enacted North Carolina Racial Justice Act on the basis that race was a significant factor in the decision to seek or impose the death penalty in his case.  Before the trial court ruled on defendant’s motion, the General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed the Racial Justice Act in its entirety. The trial court determined that this repeal rendered defendant’s pending motion void and therefore dismissed defendant’s Racial Justice Act claims.  Here we are asked to decide the constitutionality of the retroactive application of the repeal of the Racial Justice Act. For the reasons stated herein, we hold that applying the repeal retroactively violates the constitutional prohibition on ex post facto laws, and therefore we reverse the trial court.

The dissent by Justice Newby starts this way:

The narrow issue presented by this case is whether, as applied to defendant, legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post facto law. The majority incorrectly answers this question in the affirmative.  The repeal plainly does not qualify as an ex post facto law because it left defendant in precisely the same legal situation as the one he occupied on 16 December 2007, when, according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck.  The repeal did not subject defendant to more serious or additional charges for past conduct, nor did it increase the punishment in effect on 16 December 2007.  When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence.  The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.

June 5, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Bernie Madoff denied federal sentence reduction, but many others receive relief under § 3582(c)(1)(A) on same day

As reported in this Courthouse News Service report, a high-profile federal white-collar prisoners was denied compassionate release yesterday afternoon.  Here are the basics (and a link to the opinion):

Bernie Madoff’s terminal illness will not alter a federal judge’s ruling from just more than a decade ago: The man behind an “extraordinarily evil” Ponzi scheme will die in prison.

“When I sentenced Mr. Madoff in 2009, it was fully my intent that he live out the rest of his life in prison,” Judge Denny Chin, who dealt Madoff’s 150-year sentence before being appointed to the Second Circuit, wrote on Thursday. “His lawyers asked then for a sentence of 12 to 15 to 20 years, specifically with the hope that Mr. Madoff would live to see ‘the light of day.’ I was not persuaded; I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking."... 

Madoff’s attorney Brandon Sample said his client suffers from end-stage renal disease and other conditions that give him less than 18 months to live.  “Judge Chin recognized today that Madoff’s health is in serious decline and that he is, in fact, terminally ill,” Sample wrote. “Nonetheless, Judge Chin essentially found that because of the nature of Madoff’s crimes — Madoff is beyond redemption. We are disappointed with Judge Chin’s refusal to grant Madoff any compassion.”

The financial criminal will seek clemency from President Donald Trump. “We implore the president to personally consider Madoff’s rapidly declining health,” Sample added....

Letters opposing Madoff’s release showed that [negative victim] sentiment has not ebbed. Prosecutors said that more than 500 victims opposed his release, and only 20 wrote in support.  “I also agree that at age 81, with his declining physical condition, Mr. Madoff probably does not pose a danger to any person or the community,” Chin wrote. “But as the recent victim letters show, many people are still suffering from Mr. Madoff’s actions. I also believe that Mr. Madoff was never truly remorseful, and that he was only sorry that his life as he knew it was collapsing around him. Even at the end, he was trying to send more millions of his ill-gotten gains to family members, friends, and certain employees.”

Madoff is confined to the Federal Medical Center in Butner, North Carolina, which — like many prisons throughout the country — is grappling with the coronavirus.  Neither Madoff’s request nor the ruling mentions the pandemic.

While this 16-page opinion from Judge Chin does not mention COVID, a whole lot of other compassionate release rulings handed down yesterday did.  I figured here it might be useful to highlight a number of the positive rulings from just the same day as this Madoff denial that already appear on Westlaw (and this weekend I will try to compile the more extended list of  positive § 3582(c)(1)(A) rulings from other days):

United States v. McKinney, No. 18-CR-6035L, 2020 WL 2958228 (WDNY June 4, 2020)

United States v. McCall, No. 2:18cr95-MHT, 2020 WL 2992197 (MD Ala. June 4, 2020)

United States v. Burke, No. 4:17-CR-3089, 2020 WL 3000330 (D Neb. June 4, 2020)

United States v. Green, No. TDC-10-0761, 2020 WL 2992855 (D Md. June 4, 2020)

United States v. Rivera-Amaro, No. 1:18-CR-00183 EAW, 2020 WL 3000392 (WDNY June 4, 2020)

I am pretty confident that this list of grants are not all of those that will show up on Westlaw eventually, and I am even more certain that there were a number of federal sentence reductions granted under § 3582(c)(1)(A) yesterday that will not ever show up on Westlaw.  In other words, while high-profile cases like Bernie Madoff will garner headlines, an ever-growing number of federal defendants are garnering sentence reductions thanks to the FIRST STEP Act.

June 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Thursday, June 04, 2020

"The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction"

The title of this post is the title of this notable new article now available via SSRN authored by Erica Zunkel and Alison Siegler. Here is its abstract:

While state drug law reform is moving apace, federal drug law reform has moved much more slowly.  Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years.  But Congress has not acted.  As a result, the federal system continues to single out drug offenses for harsh treatment at the front end — the bail stage — and the back end — the sentencing stage — of a case.

This article examines the judiciary’s crucial role in federal drug law reform at the front and back ends of a drug case.  On the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention in drug cases and giving little, if any, weight to the Bail Reform Act’s presumption of detention at the detention hearing stage.  Data shows that the drug presumption is over-broad and does a poor job of determining who is a risk of flight or a danger to the community.  At the back end, judges should issue categorical policy disagreements with the drug sentencing guideline and the career offender sentencing guideline under the Supreme Court’s rationale in Kimbrough v. United States.  These guidelines are not based on empirical evidence and national experience, and therefore do not exemplify the Sentencing Commission’s “exercise of its characteristic institutional role.”  At both ends, judges should emphasize the evidence that the drug presumption, the drug sentencing guideline, and the career offender sentencing guideline are flawed.  While these actions are not a cure for Congress’ inaction, they send a clear message from one co-equal branch of government to another that substantive reform is urgently needed.

June 4, 2020 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report"

The title of this post is the title of this notable new report coming from the National Association of Criminal Defense Lawyers.  This press release summarizes some highlights: 

The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), today released a comprehensive set of principles and report — Criminal Court Reopening and Public Health in the COVID-19 Era. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.”

“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently — enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.  “While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial, for example, and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of a constitutional criminal proceedings in the United States.”

Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights.  Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.

“There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community,” Ginsberg added.

As provided in the report, because of numerous constitutional concerns, the absence of a vaccine or rapid testing, and highly-infectious asymptomatic transmission, the fact is “that resuming criminal jury trials — particularly in areas of significant community-based transmission — would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”

UPDATE: Here are just a few recent press pieces providing some additional perspectives on this topic:

"Judges Worried About Virus' Impact On Upcoming Trials"

"Your right to a jury trial is on hold. Here’s how coronavirus is changing the justice system"

"Judges try to balance legal rights and courtroom health"

June 4, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, June 03, 2020

"Retributive Expungement"

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

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy.  Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry.  But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief.  Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel.  And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy.  Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records.  But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm.  While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state.  Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors.  An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.

This Article suggests a different paradigm: retributive based expungement.  It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners.  Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment.  A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied.  As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap.  It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue.  In fact, some states are already moving in this direction and can serve as a model for the rest of the country.  In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.

June 3, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Eight years after Miller and four after Montgomery, many juveniles still waiting for court consideration of their Eighth Amendment rights

The Marshall Project has this lengthy new piece focused on how many juveniles still have not received court consideration of the Eighth Amendment rights recognized a full eight years ago in Miller v. Alabama, 567 U.S. 460 (2012). The article's fill headline captures its essence: "'Juvenile Lifers' Were Meant to Get a Second Chance. COVID-19 Could Get Them First. The Supreme Court gave teens sentenced to life in prison a shot at freedom. Many are still waiting."  Here is how the piece gets started:

Darnell Johnson long believed that he would die alone in a prison cell.  In 1998, a Michigan court sentenced him to life behind bars without the possibility of parole for killing a woman and shooting two others during a botched armed robbery when he was 17, court records show.

Johnson had been in prison for more than a decade when the U.S. Supreme Court issued two rulings, one in 2012 and another in 2016, that said “juvenile lifers” like him must have their sentences reviewed, taking into account that they were not yet adults when they committed their crimes.  In many states, hundreds saw their prison terms shortened or were released.

But Johnson and nearly 1,000 others incarcerated since their youth across the United States are still waiting for a court hearing — and now they face a growing fear that they will lose their lives to COVID-19, the disease caused by the coronavirus, before getting their chance at freedom.

Johnson, 40, who is black, has asthma and hypertension, risk factors for serious complications from the coronavirus.  He is incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, one of the nation’s worst prison hot spots with more than 725 confirmed COVID-19 cases as of Monday.  “All hope of being released is fading away every minute, every hour, every day,” Johnson said via a prison email app. “To have made it to the ‘finish line’ only to possibly die from this virus is that much more frightening.”

The United States is the only country in the world that sends children to prison with no chance of getting out, according to The Sentencing Project, a prison research organization. Roughly 80 percent of juvenile lifers are people of color. As the pandemic devastates prisons and jails, some governors, parole boards and prosecutors are releasing some prisoners who were serving short sentences for low-level crimes. The rationale is that they are less likely to re-offend, according to public statements by officials. Juvenile lifers have rarely been mentioned in this conversation.

That omission is misguided, prisoner advocates say. “These are human beings who brain science shows have ‘aged out’ of crime,” said Renée Slajda, spokeswoman for the Louisiana Center for Children’s Rights, a legal advocacy organization. “If you had to pick between people who just got to jail or ones who have decades of good behavior under their belt, which is a safer bet to release?” asked Ashley Nellis, a senior analyst focusing on lifers at The Sentencing Project.

Johnson, for instance, has received just one misconduct ticket during his entire incarceration: in 2001, according to court records.  He also scored a “low” risk rating for violence or re-offending on a corrections department-administered risk assessment, the document shows.  Johnson’s good behavior in prison had given him hope that the 2016 Supreme Court decision, Montgomery v. Louisiana, would apply to him.  The court ruled that because young people’s brains are still developing, along with their awareness of the consequences of their actions, those who had been sent to adult prison for life for crimes committed as children should get an opportunity to be resentenced — a chance to prove they have been redeemed.

When Johnson heard about the decision, he and friends who also were incarcerated as teens were “slapping each other on the back, saying, ‘We made it!’” he said.  Yet his dream of freedom has been deferred nearly five years because of court delays and because his prosecutor, who has the ability to grant him a shorter sentence, has been unwilling to do so.  At a hearing in December, Johnson will have the chance to challenge the prosecuting attorney’s decision, citing the Supreme Court ruling, says his attorney, Sofia Nelson of Michigan’s State Appellate Defender Office.

Johnson is one of about 200 of Michigan’s more than 350 juvenile lifers who have yet to receive a new sentence, according to court and prison records.  That is the most of any state.  Michigan is also third only to Ohio and Texas with more than 3,000 confirmed COVID-19 cases among incarcerated people, according to The Marshall Project’s tracker. Johnson said he has watched his prison friends catch the virus and worries he could be next.

June 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 02, 2020

Sixth Circuit panel rules so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A) to be "mandatory claim-processing rule"

A few months ago, I discussed in this post some sloppy Third Circuit panel dicta in Raia on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A).  Among my complaints about the ruling in Raia was that the issue had not be directly brought or fully briefed before the Third Circuit in that case.  But today the Sixth Circuit addressed this issue squarely in US v. Alam, No. 20-1298 (6th Cir. June 2, 2020) (available here).  Here is how the opinion begins:

Like many Americans in poor health, 64-year-old Waseem Alam has legitimate fears about the health risks created by the COVID-19 pandemic.  And like many inmates, he has ample reason to fear that a prison exacerbates those risks.  But when Alam moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), he failed to invoke all of the options for obtaining relief from the prison.  Alam asks us to overlook that reality by finding the requirement non-mandatory or by fashioning an exception of our own.  But because this exhaustion requirement serves valuable purposes (there is no other way to ensure an orderly processing of applications for early release) and because it is mandatory (there is no exception for some compassionate-release requests over others), we must enforce it.  We affirm the district court’s dismissal of Alam’s request without prejudice to filing a new one.

The panel decides (rightly in my view) that the so-called "exhaustion" procedural requirement for sentence-reduction motions is a "claim-processing rule" (and thus not jurisdictional).  But the panel also decides (wrongly in my view) that no "exceptions to mandatory claim-processing rules — waiver or forfeiture — apply here."  The panel in reaching this conclusion makes some reasonable policy arguments:

Even if federal courts possessed a general power to create equitable carveouts to statutory exhaustion requirements, Alam does not show why an exception would make sense in the context of this statute.  Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. 18 U.S.C. § 3582(c)(1)(A).  For such prisoners, time usually will be of the essence.  That would make nearly every prisoner eligible to invoke “irreparable harm” and eligible to jump the line of applications — making the process less fair, not more fair.

Appending a futility requirement does not improve things.  How could we divine whether the Bureau of Prisons may wish to act on any given petition?  And, in any event, why must we assume that the Bureau of Prisons’ failure to act would render the act of waiting “futile”?  Speed matters, yes.  But accuracy matters too.  Preventing prisoners from charging straight to federal court serves important purposes.  It ensures that the prison administrators can prioritize the most urgent claims.  And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist.  These are not interests we should lightly dismiss or re-prioritize.

These policy arguments, though sound in the abstract, fail to give effect and suggest a lack of understanding for why and how Congress changed the process for compassionate release motions in the FIRST STEP Act.  As I stressed in this prior post what this panel decision ignores, namely all the reasons Congress sought to now enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by prison administrators.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and so Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper precisely because Congress concluded BOP could and should no longer be trusted to "prioritize the most urgent claims" or to adequately "investigate the gravity of the conditions" supporting a claim

Critically, with the FIRST STEP Act revision, Congress did not even actually require defendants to exhaust the BOP motion-request process before turning to the courts — which is what would have made sense if Congress still trusted the BOP process to some extent.  Rather Congress provided that a sentence-reduction motion could be considered by courts after "the lapse of 30 days from the receipt of such a request."   Put another way, this statute actually does have an express "carveout to statutory exhaustion requirements" in the form of the "lapse of 30 day" provision.  But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  But, disappointingly, rather than give full effect to the fundamental interest of Congress in giving ailing prisoners a chance to have speedy access to the courts based on the equities of the case, this panel decision determines that it is good policy to be respectful of BOP interests that Congress itself was eager to de-prioritize.

Prior related posts:

June 2, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4)

"Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel"

The title of this post is the title of this notable new paper authored by Neel Sukhatme and Jay Jenkins now available via SSRN. Here is its abstract

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay.  Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise.  These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete.  Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests.  This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States.  We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

We then show how campaign finance exacerbates this problem.  Specifically, we provide empirical evidence that elected trial court judges and criminal defense attorneys regularly engage in “pay to play,” where judges appoint attorneys who donate to their campaigns as counsel for indigent defendants.  We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments.  These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a 27-fold return on her donation.  Indeed, we find indigent defense appointments can be surprisingly lucrative, with many donor attorneys earning tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.

Worse, this apparent quid pro quo between judges and defense attorneys appears to directly harm defendants.  We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences.  We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.

Our study is the first empirical analysis of how campaign finance distorts criminal trial court decision-making.  While our data are from Harris County (Houston), Texas — the nation’s third most populous county — we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others — accept attorney donations to fund their electoral campaigns.  Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants.

The New York Times today has this article about this research under the headline "Campaign Funds for Judges Warp Criminal Justice, Study Finds; Judges in Harris County, Texas, were far more likely to appoint lawyers who had donated to their campaigns to represent poor criminal defendants."

June 2, 2020 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Timely reminders that racial disparities may persist and grow even as the carceral state begins to shrink

The Marshall Project has this notable new piece about arrest rates during the COVID era under the full headline "Police Arrested Fewer People During Coronavirus Shutdowns — Even Fewer Were White: Racial disparities grew in five cities as arrests fell, according to our new data analysis."  Here are excerpts:

As protesters clash with police across the country, they are venting not only their rage about the death of George Floyd at the hands of Minneapolis police, but more broadly their frustration with decades of racial inequality in the American criminal justice system.

These inequalities persisted during the coronavirus outbreak, a new Marshall Project analysis of arrest data found. Even as crime rates fell while much of the country was ordered to shelter in place, arrest data from five U.S. cities suggests racial disparities worsened in March and April.  Across these cities, arrests of white people dropped 17 percent more than arrests of black people and 21 percent more than Hispanic people.

In March, the New York City Police Department made about 13,000 arrests, a 30-percent drop from the same month a year before. While most people in the city were confined to their homes, the changes in arrest practices did not affect residents of all races equally.  White people experienced the largest decreases in arrests, whereas arrests of black and Hispanic people dropped at a much slower rate.

New York is not an outlier. The Marshall Project’s analysis found that arrests in Los Angeles, Baltimore, Pittsburgh and Tucson, Arizona, reflected similar patterns.  As the total number of arrests plummeted through March and April, they didn't drop equally across the board. Arrests of white people decreased far more than the arrests of black and Hispanic people. Though they were much fewer to begin with, arrests of Asians, Native Americans and people of other backgrounds declined faster than arrests of white people.

These disparities in arrests took place during the same time period when some police departments came under fire for how they enforce social distancing orders. In New York City, more than 80 percent of people arrested for violating those orders were black. In major cities across Ohio, black residents were more than four times as likely to be charged with violating stay-at-home orders than their white peers. 

In Los Angeles, New York and Tucson, three cities that break down arrests by the severity of the alleged offense, The Marshall Project found that with each racial and ethnic group, misdemeanor arrests plummeted during the early weeks of the pandemic, while felony arrests, for the most severe crimes, declined slightly.  For example, from February to March, the Los Angeles Police Department made 1,000 fewer arrests for misdemeanor charges, such as driving under the influence or traffic violations. Meanwhile, arrests for felony charges, like aggravated assault and rape, dropped by 100.

These COVID-era data remind me of the data we often now see on marijuana-related arrests in the wake of legalization or decriminalization, where the total number of arrests decline (often significantly) but with racial disparities persisting or even growing.  Here are just a few recent studies on this topic via my coverage at my Marijuana Law, Policy & Reform blog:

Also worth recalling in this context is the notable reality that a number of US states with relatively smaller prison populations often have the most racially disparate prison populations.  This 2016 Sentencing Project report on the topic detailed that the states with the largest disparities in their prison population between whites and blacks were Iowa, Minnesota, New Jersey, Vermont, and Wisconsin.  Notably, all of these states have well below the national average in per-capita prison population.

These numbers do not surprise me because I often notice, in both policies and practices, how disparities and discrimination can find express in the exercise of leniency or mercy.  I see this especially in death penalty administration, when so many different actors in the system (prosecutors, judges, jurors) have formal and/or informal authority to prevent a murderer from being subject to the death penalty.  Disparities can and will result merely not from legal actors being distinctly punitive toward certain defendants, but also from these actors being distinctly willing to act leniently or mercifully toward only certain other defendants.  Other sentencing systems, where prosecutorial charging and bargaining discretion in turn shape judicial sentencing discretion, also surely reflect differential expressions of leniency as well as differential expressions of punitiveness.

I bring all this up not too create cynicism or fatalism about what legal and social change might achieve, but rather to highlight how much work there is to do even as we make progress in reducing the scope and impact of mass criminalization, mass punishment and mass incarceration.  In recent years, I have grown ever more hopeful about the potential, politically and practically, to shrink the carceral state in America.  But the events of this past week provide a critical reminder of our need to keep our eyes on all the prizes that we are aspiring to achieving in this critically important work.

June 2, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Monday, June 01, 2020

SCOTUS, voting 7-2, limits reach of AEDPA's limit on second habeas petitions in Bannister v. Davis

The Supreme Court handed down a number of opinions this morning, and habeas/criminal procedure fans — or civil procedure fans since habeas actions are technically civil actions — will be excited to see one of the group is Bannister v. Davis, No. 18–6943 (S. Ct. June 1, 2020) (available here).  The opinion in Bannister is a notable procedural win for habeas petitioners, and I am intrigued and a bit surprised the ruling came down 7-2 given how long the opinions took to be issued (the case had been argued in December 2019).  The opinion for the Court was authored by Justice Kagan, and it starts and ends this way:

A state prisoner is entitled to one fair opportunity to seek federal habeas relief from his conviction.  But he may not usually make a “second or successive habeas corpus application.” 28 U.S.C. §2244(b).  The question here is whether a motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment qualifies as such a successive petition.  We hold it does not.  A Rule 59(e) motion is instead part and parcel of the first habeas proceeding....

Our holding means that the Court of Appeals should not have dismissed Banister’s appeal as untimely.  Banister properly brought a Rule 59(e) motion in the District Court.  As noted earlier, the 30-day appeals clock runs from the disposition of such a motion, rather than from the initial entry of judgment.  See supra, at 3.  And Banister filed his notice of appeal within that time. The Fifth Circuit reached a contrary conclusion because it thought that Banister’s motion was really a second or successive habeas application, and so did not reset the appeals clock. For all the reasons we have given, that understanding of a Rule 59(e) motion is wrong. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Justice Alito pens a dissent that is joined by Justice Thomas.  This dissent, intriguingly, runs the same length as the opinion for the Court, and here are excerpts from how it starts and ends:

If Banister had labeled this motion what it was in substance — another habeas petition — it would have been summarily dismissed under 28 U. S. C. §2244(b)(1).  If he had labeled it a motion for relief from judgment under Federal Rule of Civil Procedure 60(b), it would also have been subject to dismissal under our decision in Gonzalez v. Crosby, 545 U.S. 524 (2005). Instead, he gave it a different label, styling it as a motion to alter the judgment under Rule 59(e), and the Court now holds this label makes all the difference.

The question in this case is whether a state prisoner can evade the federal habeas statute’s restrictions on second or successive habeas petitions by affixing a Rule 59(e) label. The answer follows from our decision in Gonzalez, and the answer is no.  If a Rule 59(e) motion asserts a habeas claim, the motion functions as a second or successive habeas petition and should be treated as such....

I would hold that a Rule 59(e) motion that constitutes a second or successive habeas petition is subject to §2244(b) and that such a motion does not toll the time to appeal.  I therefore conclude that the Fifth Circuit was correct to dismiss Banister’s untimely appeal.  Because the Court holds to the contrary, I respectfully dissent.

June 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 31, 2020

"Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences"

The title of this post is the title of this new Yale Law Journal note authored by Salil Dudani.  Here is its abstract:

The deprivation of a fundamental right triggers strict scrutiny, and freedom from physical restraint is a fundamental right.  Indeed, the right to be free from physical restraint lies at the very core of the liberty protected by the Due Process Clause.  In the contexts of pretrial detention and civil commitment, courts hold that due process prohibits unnecessary incarceration and requires the government to prove the necessity of incarceration in each individual case.  Without explanation, courts do not apply these same principles to criminal sentences, which just as surely infringe on physical liberty.  This Note argues that they should: there is no good reason to exempt sentences of confinement from the fundamental due-process right to freedom from physical restraint.  If the government cannot prove that a criminal sentence is necessary to achieve a compelling state interest, the sentence is unconstitutional, even when it is purportedly required by a statute establishing a “mandatory minimum sentence” for the crime of conviction.  The Note discusses how courts should implement this scrutiny and suggests that state courts should lead the way in doing so.

May 31, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Saturday, May 30, 2020

"The Case for a Federal Criminal Court System (and Sentencing Reform)"

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

This article proposes the establishment of a federal criminal court system, comprised of separate criminal trial courts, circuit courts of appeal and a National Court of Criminal Appeals, with discretionary review by the Supreme Court.  Compared to the 1970s, when there were many fewer cases per judge than there are today, federal criminal adjudications take twice as long, magistrates take on much greater adjudicatory load, and appellate courts much more frequently forego oral arguments, rely on legal staff, and issue unpublished opinions . A specialized judiciary would significantly enhance trial court efficiency and appellate court capacity to produce quality decisions.  Furthermore, because there would be a superior appellate court devoted to ensuring uniform nationwide rules, such a system could more easily resolve doctrinal conflict on criminal justice issues than the current system, which relies on a Supreme Court that is failing to address most of the conflicts among the circuits. 

Perhaps the most important potential benefit of a division of the civil and criminal systems, however, is that the civil system would function more efficiently once criminal cases, which have docket priority at the trial court level, are diverted.  This article also proposes that this separate federal criminal court system return to a more indeterminate sentencing regime that would shift much of the heavy lifting regarding criminal dispositions from judges to expert parole boards.  This proposal would also lessen the appellate workload and ensure that trial judges in a specialized criminal court are not debilitated by the psychologically demanding analysis that currently accompanies sentencing.

May 30, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, May 22, 2020

Sharp review of discouraging (and opaque) realities surrounding BOP release of some offenders to home confinement

As regular readers know, I have highlighted a few high-profile cases of federal prisoner being moved into home confinement by the Bureau of Prisons. But I cannot report on all the cases in which seemingly vulnerable inmates have been denied such a transfer, in part because there are far too many of those cases to cover in this space. This notable new Marshall Project piece helps document this reality, and the full headline provide a summery: "Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception. Just a small fraction of federal prisoners have been sent home. Many others lack legal help and connections to make their case." Here are excerpts from a lengthy article worth reading in full:

New data show that [Michael] Cohen, along with former Trump campaign manager Paul Manafort, released last week, are among the relatively few federal prisoners to win early release in the seven weeks since Attorney General William Barr cited the pandemic in ordering more federal prisoners to be let out. During that time, the number of people in home confinement increased by only 2,578, about 1.5 percent of the nearly 171,000 people in federal prisons and halfway houses when Barr issued his memo.

Cohen, President Donald Trump’s former personal lawyer, was sentenced to three years in prison, and Manafort to seven and a half years. Manafort has served less than a third of his sentence, so he, too, did not meet the federal criteria for early release, although he and Cohen do have health conditions that put them at added risk if they contract the virus....

Groups and relatives advocating for the release of prisoners at risk from the virus say they don’t begrudge well-connected people achieving that goal. The problem, they said, is that many other people who could meet Barr’s criteria languish in prison, without legal help, unable to understand the complex process or lacking connections to help them as the pandemic spreads. As of Wednesday, the official tally had 59 federal prisoners dying from COVID-19 and more than 4,600 testing positive, though health experts believe that’s almost certainly an undercount.

Melissa Ketter, a Minnesota woman whose daughter has served just over half of her sentence for a federal nonviolent drug crime, said she almost cried when she heard about Cohen’s release."I'm happy for him don’t get me wrong — but at the same time it was like, the rich white guy gets out early. I don’t wish for bad things to happen to these people, but it’s like can everybody be treated the same?" Ketter said.

The release process has been marked by foot-dragging and confusion, critics say, and a federal judge in a ruling Tuesday labeled the results “paltry.” The Bureau of Prisons won’t release data, won’t answer questions and keeps shifting policy on who qualifies for release, according to Georgetown Law professor Shon Hopwood, an expert on criminal justice reform. “The Bureau of Prisons is operating all behind closed doors, and that’s a big part of the problem,” Hopwood said....

The tally on people in home confinement and other federal prison data, obtained from the Bureau of Prisons and Congress, did not itemize how many people finished their sentences in the last seven weeks and are no longer included in the count.  It also did not specify how many prison-to-home transfers were approved by the bureau, as was the case with Manafort and Cohen, and how many were ordered by judges — many over objections from federal prosecutors, despite Barr’s order.

The total population in federal custody has gone down by about 10,800 people since April 2, the data show.  That includes emergency releases.  But it also includes people whose sentences were set to end during the past seven weeks, a figure the bureau on Thursday put at about 7,600.  The data did not specify how many new prisoners the bureau accepted.... 

Prisoners previously had to finish 90 percent of their sentence before they could be sent to home confinement. But the relief law Congress passed in March gave the attorney general broad powers to release prisoners during the pandemic. That process is internal, with the Bureau of Prisons able to select people for release and prisoners able to request release. But if bureau officials deny a request for home confinement, a prisoner can’t appeal.

By contrast, compassionate release allows prisoners to ask a federal judge for release if they show “extraordinary and compelling” reasons under the 2018 First Step Act. But many prisoners lack the education or skills to navigate the courts, and successful attempts usually require a lawyer.  The latest figures show that since early April, 268 prisoners nationwide received compassionate release. Since Trump signed the law in 2018, only 144 people had been granted such release before April 2, bureau data show.

The Department of Justice has been fighting many coronavirus-related requests for compassionate release in court, according to records and advocates monitoring the process. In a case decided this week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.”  Instead, the Bureau of Prisons is starting to put people in home confinement, but slowly, according to Kevin Ring, president of FAMM, a national criminal justice advocacy group.

“I think the mass effort we’re putting into compassionate release is forcing them to designate more people for home confinement because I think they’d rather have these people in home confinement than completely released,” he said of federal officials. “It feels totally contradictory — you’re saying that ‘we’re doing everything we can to get people out of harm’s way,’ but you have this tool that you’re not using at all.”

May 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Full issue Columbia Human Rights Law Review devoted to capital sentencing practices and problems

A helpful reader alerted me to the latest issue of the Columbia Human Rights Law Review, which has these nine terrific-looking article about the ugly realities of capital sentencing past and present.  Here are the titles and links:

Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment by Jeffrey Fagan

Local History, Practice, and Statistics: A Study on the Influence of Race on the Administration of Capital Punishment in Hamilton County, Ohio (January 1992-August 2017) by Catherine M. Gross, Barbara O'Brien, and Julie C. Roberts

Hurricane Florida: The Hot and Cold Fronts of America’s Most Active Death Row by Hannah L. Gorman and Margot Ravenscroft

Valuing Black Lives: A Case for Ending the Death Penalty by Alexis Hoag

Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System by Mona Lynch

A Systematic Lottery: The Texas Death Penalty, 1976 to 2016 by Scott Phillips and Trent Steidley

Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion by Steven F. Shatz, Glenn L. Pierce, and Michael L. Radelet

Hidalgo v. Arizona and Non-Narrowing Challenges by Sam Kamin and Justin Marceau

Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing by Joseph J. Perkovich

May 22, 2020 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Recommended reading, Who Sentences | Permalink | Comments (0)

Thursday, May 21, 2020

Florida Supreme Court seemingly finds way avoid retroactive application of proper determination of who is exempt from execution under Atkins

As reported in this local article, headlined "Conservative Florida Supreme Court reverses itself again on death penalty legal issue," the top court in Florida authored this lengthy opinion which seems to permit the state to go forward with executing a person who would be exempt from execution under the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. Here are the press details:

Harry Franklin Phillips, a convict who shot a Miami parole officer to death in 1982, was hoping to get his death sentence reversed by convincing the courts that he is intellectually disabled. But the Florida Supreme Court, backtracking on its own case decided only years ago, on Thursday ruled that Phillips isn’t ineligible, the court’s latest reversal in how sentences in major cases are meted out.

The court ruled that an earlier decision allowed for the broadening of who can be deemed intellectually disabled — generally someone with an IQ of 70 or less — does not apply “retroactively” to older cases such as Phillips’.  The court ruled 4-1. The only dissenter was Justice Jorge Labarga....

The decision in Phillips’ case drew immediate criticism from opponents of the death penalty, who say the Florida Supreme Court has yet again thumbed its nose at the legal concept of stare decisis, or making decisions drawing from legal precedents. “I am personally shocked at the Court’s audacity and frankly its meanness,” said defense lawyer Stephen Harper, of Florida International University’s Florida Center for Capital Representation. “So many people who were already granted relief by the Florida Supreme Court are now being deprived of that relief by the Florida Supreme Court. “And stare decisis has been abandoned, and this will have a much more devastating effect on the public’s trust in the judicial system.”

Two years ago, the Florida Supreme Court backtracked on allowing certain juveniles — who had been eligible for parole because their murder convictions were from decades ago — to get new sentencing hearings. In January, the Florida Supreme Court reversed itself in ruling that unanimous jury verdicts were not needed to mete out the death penalty, a ruling excoriated by opponents of capital punishment. Florida law, however, still require juries to be unanimous in handing down a death sentence.

In Hall v. Florida, 572 U.S. 701 (2014), the US Supreme Court said that the "old" rule that Florida had used to determine who was ineligible to be executed under Atkins was "invalid under the Constitution’s Cruel and Unusual Punishments Clause."  But now the Florida Supreme Court is saying the state does not have to apply the constitutionally proper Atikns rule to "old" cases decided before Hall.  That strikes me as wrong because Atkins is fundamentally a substantive constitutional rule and its proper application should be fully retroactive because it involves "prohibiting a certain category of punishment for a class of defendants because of their status." Montgomery v. Louisiana, 136 S. Ct. 718, 728-29 (2016).  If the Constitution demands a certain approach to determining the applicable "class of defendants" (which is what Hall says), I do not think a state can dodge its retroactive application.

This matter seems sure to end up in federal courts, and it will be interesting to see how it plays out in the years ahead. 

May 21, 2020 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Feds asking SCOTUS to stay judicial order to transfer vulnerable prisoners "out of Elkton through any means"

Last month, as detailed here, US District Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison in Ohio.  Federal officials appealed this order to the Sixth Circuit, but a Sixth Circuit panel two weeks ago refused to stay it.  And a few days ago, Judge Gwin issued this follow-up order which stated that "Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order."

Though one might hope federal officials would now really focus on making better progress moving medically vulnerable prisoners from the Elkton prison, they are still trying to get the order stayed by now turning to the Supreme Court.  Amy Howe here at SCOTUSblog reports on the filing from last night, while also providing useful context for this notable battle: 

U.S. Solicitor General Noel Francisco ... new filing ... was on behalf of the federal Bureau of Prisons and federal prison officials, asking the justices to put a temporary hold on an order by a federal district court that would require the BOP to remove or transfer as many as 800 elderly or medically vulnerable inmates from a federal prison in Ohio where nine inmates have died from COVID-19.

The case was filed last month by inmates at FCI-Elkton, a low-security prison in Ohio that houses 2,500 inmates.  The inmates argued that, as a result of COVID-19, conditions at the prison violated their Eighth Amendment right to be free of cruel and unusual punishment.  In an order issued on April 22, the district court ordered the BOP to “determine the appropriate means of transferring” elderly and medically vulnerable inmates out of the prison — for example, by compassionate release or parole or by moving them to another federal facility.

Yesterday, after the district court was unsatisfied with the BOP’s efforts to comply with its original order, it ordered the BOP to revise the criteria for deciding whether an inmate is eligible for home confinement and to quickly reevaluate whether inmates might be eligible under the new criteria.  It also instructed the BOP to explain, within seven days, why ineligible inmates could not be moved to another prison “where social distancing is possible.”

The federal government asked the justices to put these rulings on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if necessary, the Supreme Court.  The government emphasized that, “even in normal times, an order requiring the transfer or release of ‘prisoners in large numbers * * * is a matter of undoubted, grave concern’” that runs the risk not only of “jeopardizing public safety” but also interfering in the management of prisons.  Moreover, the government added, the inmates are unlikely to prevail on the merits of their claim: Although “COVID-19 presents significant health risks,” the BOP has worked hard to reduce the risk of the virus in the prison, and the number of inmates in the hospital is on the decline.

The government’s request went to Justice Sonia Sotomayor, who fields emergency appeals from the 6th Circuit.  She ordered the inmates to respond to the government’s request by Friday, May 22, at 10 a.m. EDT.

I am inclined to predict that there is at least one Justice inclined to vote against a stay and at least one Justice inclined to vote for a stay (readers can probably guess which ones). It will be quite interesting to see how the Chief Justice steers the Court forward on this matter.

Prior related posts:

May 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After extended resistance (and likely lots of legal fees), Lori Loughlin and her husband agree to plead guilty in college admission scandal with fixed short prison sentence

As reported in this CNN piece, headlined "Lori Loughlin and Mossimo Giannulli agree to plead guilty in college admissions scam," perhaps the highest profile remaining defendants in the college admissions scandal have now finally capitulated the prosecutorial pressure and decided to plead guilty. Here are the details:

Actress Lori Loughlin and her husband, fashion designer Mossimo Giannulli, have agreed to plead guilty to conspiracy charges in connection to their role in the college admissions scam, the US Attorney's Office in the District of Massachusetts said.

Loughlin, 55, and Giannulli, 56, had been accused of paying $500,000 to get their two daughters into the University of Southern California as fake crew team recruits. They had pleaded not guilty for more than a year and moved to dismiss charges as recently as two weeks ago.

As part of the plea agreement, Loughlin will be sentenced to two months in prison and Giannulli will be sentenced to five months in prison, subject to the court's approval, according to authorities. In addition, Loughlin faces a $150,000 fine, two years of supervised release and 100 hours of community service, and Giannulli faces a $250,000 fine, two years of supervised release and 250 hours of community service.

They are scheduled to plead guilty on Friday at 11:30 a.m., prosecutors said. Loughlin's publicist said she had no comment.

Loughlin will plead guilty to conspiracy to commit wire and mail fraud, and Giannulli will plead guilty to conspiracy to commit wire and mail fraud and honest services wire and mail fraud. The actress, best known for her role as Aunt Becky on the sitcom "Full House," and her husband had previously been charged with three counts of conspiracy.

"Under the plea agreements filed today, these defendants will serve prison terms reflecting their respective roles in a conspiracy to corrupt the college admissions process and which are consistent with prior sentences in this case," said US Attorney Andrew E. Lelling. "We will continue to pursue accountability for undermining the integrity of college admissions."

Loughlin and Giannulli were some of the most famous names wrapped up in the brazen scheme to cheat, bribe and lie in the hyper-competitive college admissions process.  They allegedly paid $500,000 as part of a scheme with Rick Singer, the scam's mastermind, and a USC athletics official to get their two daughters into the university as members of the crew team, even though they did not participate in crew....

If Loughlin and Giannulli had gone to trial and been convicted, they could have faced up to 20 years in prison for the conspiracy charge. "The stakes at trial were really high for these two," CNN legal analyst Elie Honig said. "Had they gone to trial and lost, they were looking at several years each.  So they really cut their losses here by cutting these pleas."

They are the 23rd and 24th parents to plead guilty in the case. Actress Felicity Huffman pleaded guilty to conspiracy last year for paying $15,000 to the scam's mastermind as part of a scheme to cheat on the SATs and boost her daughter's test scores, and she ultimately served 11 days in prison. 

The way that this plea is described in this press release form the US Attorney leads me to suspect that this is a Rule 11(c)(1)(C) plea in which the agreement states "a specific sentence ... is the appropriate disposition of the case [which] ... binds the court once the court accepts the plea agreement."  Sure enough, the Loughlin plea agreement makes clear that it is a (c)(1)(C) plea.  I do not recall many of the other defendants in the college admissions scandal who entered plea agreements having a fixed sentence built into the agreement, though that may well have been because, earlier, neither defendants nor prosecutors were inclined to lock in a particular sentence when it was unclear just what "sentencing price" judges were inclined to attached to this conduct.  Now that a few months seems to be the "norm," these latest defendants and the prosecutors now may have been content to lock in the sentence via the plea deal.

As for the "sentencing price" set here by the parties, Lori Loughlin seemingly got a pretty good deal given how much money was spent seeking to get two kids into college.  On the surface, her case seems somewhat similar to Toby MacFarlane's case; as noted here, he spent $450,000 to get his two kids into USC as fake athletic recruits and received a sentence of six month back in November.  But, were anyone concerned about a possible "celebrity discount," it is important to realize that the "Loughlin family" is getting a total of seven month and federal prosecutors may have had many reasons to believe that Loughlin's culpability was reduced compared to her husband and MacFarlane.

A few prior posts focused on these defendants:

A few of many prior posts on other defendants in college admissions scandal:

May 21, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, May 20, 2020

TRAC data report provides snapshot into impact of COVID-19 on referrals for federal criminal prosecution

The Transactional Records Access Clearinghouse (TRAC) has this great new online report under the title "How Is Covid-19 Impacting Federal Criminal Enforcement?". The figures in the report are worth checking out by clicking through, but this introductory text highlights the main story:

Law enforcement agencies across the country have been referring fewer criminal cases to federal prosecutors since the coronavirus pandemic began.  While weekly referrals for federal prosecution during February and the first half of March averaged around 4,500 per week, referrals fell to only 1,800 during the last week of March.  The Trump administration issued new guidance on Sunday evening, March 15, allowing some federal employees to work from home.  Previously, only those at high risk of health problems could telework.

Figure 1 plots the number of referrals recorded as received by these federal prosecutors day-by-day during the first six months of FY 2020 (October 2019 - March 2020). Starting in mid-March the numbers decline sharply. (As the plot shows, normally few referrals are recorded during Saturday or Sunday producing a predicable weekly cycle in the plot. A decline during the holidays over Christmas is also evident.)

Each weekday, U.S. Attorney offices from around the country typically receive hundreds of referrals.  Most of these came from federal investigative agencies.  Some originate from local and state law enforcement.  Each referral is typically assigned to an assistant U.S. attorney who determines whether or not to charge the suspect with committing one or more federal crimes.

I am inclined to guess that this 60% decline in federal prosecutions persisted through April, and that into May there might have started to be a rebound. Whatever the particulars, these TRAC data provide one accounting of how the cornoavirus and lockdowns have dramatically impacts the usual flow of cases into the federal criminal justice system.  Lockdown realities have surely disrupted this flow at other junctures (e.g., indictments, trials/pleas, sentencings), and I suspect it will be many months (maybe even years) before we can take full stock of COVID shock.

May 20, 2020 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Shadow Bargainers"

The title of this post is the title of this notable new article authored by Ronald Wright, Jenny Roberts and Betina Wilkinson.  Here is its abstract:

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate.  This article looks into the bargaining part of plea bargaining.  It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the “shadow of the trial.”  This is a theory that some defenders embrace and others reject.  Describing the factors they believe to be important in plea negotiations, some public defenders — those who emphasize the importance of collateral consequences or the pre-trial custody of their clients — do not stress the likely outcome at trial.  Instead, these attorneys focus on the wants and needs of clients, hoping to persuade the prosecutor to operate outside a trial-prediction framework.  These defense attorneys might ask the prosecutor to dismiss charges, to divert the defendant out of the system, or to recommend a sentence far below the expected outcome.  Such dispositions based on equitable factors, many of them related to the larger life circumstances of the defendant, point the prosecutor towards an outcome that is independent of any likely trial result or post-trial sentence.  These defense attorneys, we argue, bargain in the “shadow of the client” rather than the shadow of the trial.  Multivariate analysis of the survey answers allows us to identify which background factors identify the attorneys that embrace each of the distinct theories of negotiation.

After asking public defenders about their plea bargaining aspirations, our survey turns to actual negotiation practices.  Here, defenders’ self-reported bargaining methods do not measure up to their declared aspirations.  Their own descriptions of the fact investigations and legal research they typically perform ignore some viable outcomes that their clients might prefer.  Particularly for attorneys who aim to negotiate in the shadow of the client, there is a wide gap between theory and practice.

May 20, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 18, 2020

An overview of federal compassionate release issues during this pandemic

As regular readers know, in lots of posts since enactment of the FIRST STEP Act, and especially since federal prisons started dealing with the current urgency of a global pandemic, I have made much of a key provision allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Unsurprisingly, as the number of motions and rulings around this provision increase, others are taking notice of how courts are taking stock.  This new Bloomberg Law piece, headlined "Virus Forces Judges Into Life-or-Death Calls on Inmate Releases," provides a timely overview of this developing jurisprudence.  Here are excerpts:

Judges are interpreting the law on the fly as they face an unprecedented spike in requests for “compassionate release” from prison, coming to different conclusions about what can be done in the context of a pandemic.  The swell of requests for what’s known as compassionate release come after the passage of a law, written before the Covid-19 outbreak, that made it easier for those requests to be filed with the courts.

Federal judges ruled on more than 400 petitions for compassionate release in March and April, compared with only 16 in the same months last year, according to a Bloomberg Law analysis of trial court-level filings.  “I had never seen a compassionate release motion before the pandemic, and now I’ve seen more than 10,” U.S. District Judge Jed S. Rakoff, a senior judge in the Southern District of New York, said in an interview.

Under the law passed in 2018, judges can make a determination about compassionate release after the U.S. Bureau of Prisons has said “no” or doesn’t respond to the inmate’s request in 30 days.  Those determinations are highly individualized and outcomes can vary widely from judge to judge, all of whom are now weighing requests without updated guidance.

The influx is touching every corner of the legal system. Lawyers and advocates are frustrated releases aren’t being granted more often, while probation officers are working with limited resources to respond to an influx of them, and inmates in close quarters fear for their lives....

“A system that normally takes years to resolve disputes suddenly has to resolve a mountain of life-or-death disputes in days. All that judges can do is their level best,” said Matthew Stiegler, an attorney who focuses on federal appeals in the Third Circuit, told Bloomberg Law....

The decision to grant a compassionate release largely hinges on whether that inmate has what the statute calls “extraordinary and compelling” circumstances. That includes failing health in old age, a terminal illness, or caring for a partner or child if they are incapacitated.

In the past, those requests only made their way into court after the Bureau of Prisons agreed the request should be granted.  That system was criticized for being slow and inefficient.  The First Step Act, a bipartisan bill that became law in 2018, addressed those concerns, in part, by giving inmates the route to take their requests to court.

“When Congress passed the law and that language was in there it made sense, but no one expected a pandemic,” Ricardo S. Martinez, chief judge of the Seattle-based U.S. District Court for the District of Western Washington, said in an interview.  “After the First Step Act came into place we immediately saw a jump in those petitions,” said Martinez, who is chair of the Criminal Law Committee of the Judicial Conference, the federal judiciary’s policy-making body. That’s been exacerbated by the virus, but even after the pandemic subsides, Martinez said he foresees a continuing high number of petitions each year....

The influx of cases may bring more clarity to the statute those determinations rely on.  “The best that could come out of this is that through this process we really see where the statute could have areas for improvement and definition and those things happen as a result of these decisions being made,” [Sarah] Johnson, the supervising U.S. probation officer, said in an interview.

Judges are making a point to say that their decisions are being made in the special context of the virus, but that doesn’t mean they will adhere to that when the pandemic is over, Rakoff said.  “Many of us, including myself, are taking a much deeper look at this statute than we’ve ever had reason to do before and some of what we’re deciding may shape the law for a long time to come,” he said. 

May 18, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

Writing al Law360, Emma Cueto has this notable new piece headlined "With First Step, Courts Diverge In Filling In The Law's Gaps."  Here are excerpts:

More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.  And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.

In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.  The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence....

In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated.  With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.

The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.

The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria....

At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing. In that case, USA v. Hegwood, Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.... The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed....

The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits.  In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.

"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.... Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.

May 18, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, May 17, 2020

After DC Circuit denies en banc review, wondering what might be next for litigation over federal lethal injection plans

As reported in this Bloomberg News piece, headlined "D.C. Circuit Won’t Reconsider President Trump’s Execution Win," on Friday "President Donald Trump and Attorney General William Barr got one step closer in their quest to resume federal executions, as a full panel at the U.S. Court of Appeals in Washington has declined to reconsider last month’s three-judge panel ruling in the government’s favor."  The DC Circuit order, available here, was unanimous with only Judge Tatel adding this statement:

TATEL, Circuit Judge: Even though I believe this case is en banc worthy, I did not call for a vote because, given that the Supreme Court directed this court to proceed “with appropriate dispatch,” Barr v. Roane, 140 S. Ct. 353 (2019), I agree that “[our] review should be concluded without delay,” Opp’n to Pet. for Reh’g En Banc 15.

Normally, it might be a given that this development would prompt the federal capital defendants to seek review in the US Supreme Court. But, critically, I do not believe there are pending execution date from these capital defendants and the split nature of the DC Circuit's panel ruling, as discussed here and here, may make it hard for DOJ to move forward with any execution plans.  The Bloomberg article speaks to some of this enduring uncertainty:

But it’s not clear that the prisoners are in a hurry to get back before the high court. They might prefer to go back down to the district court, whose Nov. 21 preliminary injunction the three-judge panel upended, to further litigate the issues in this complex case.

“The federal death row prisoners’ challenge to the government’s flawed execution protocol will continue,” their lawyer, Cate Stetson, said on Friday after the full-panel denial.  “The Court of Appeals’ fractured decision leaves many questions about the legality of the government’s execution protocol unresolved,” she said. “We will be actively assessing all available avenues to ensure that no federal executions take place until the courts have had an opportunity to review all outstanding issues.”

Given that the federal capital defendants previously got a favorable ruling from the district judge presiding over these matters, and especially given that it seems that at least five SCOTUS Justices are not too keen on litigation over execution protocols, I would be inclined to predict that the defendants here might be content to continue fighting various battles in the low courts before risking a loss in any litigation war waged at SCOTUS.

Prior related posts:

May 17, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, May 16, 2020

Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court's failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence.... The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals....

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate....

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline....

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which "considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress."

May 16, 2020 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Friday, May 15, 2020

"Deep Disadvantage, Blameworthiness, and Sentencing"

The title of this post is the title of this new paper authored by Michael Tonry just recently posted to SSRN. Here is its abstract:

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against.  People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders.  The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine.  Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing.  Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority.  The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

May 15, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

How might an "Office of Plea Integrity" be best constructed and tasked to improve our bargained system of justice?

The question in the title of this post is a riff off this great new commentary from Clark Neily that seeks to turn the many lemons of the Flynn kerfuffle into tasty criminal justice reform lemonade.  The extended piece, headlined "Department of Injustice," is worth a read in full, and here is how it starts and closes:

While the Michael Flynn prosecution is currently imploding, no matter how it ends, the key lesson is clear: The nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  Congress should act immediately to restore public confidence in the integrity of our criminal justice system by reforming this fundamentally lawless and un-American practice.  And the Flynn case shows why that reform should be a top legislative priority....

Simply put, the reason we still have no clear understanding of precisely what Flynn did or didn’t do, and what crimes he did or didn’t commit, is because the entire case against him boils down to an in-court admission that Flynn now claims was coerced by DOJ prosecutors applying intolerable pressure to induce him to waive his right to a trial and simply confess his guilt, just as more than 90% of federal criminal defendants do today.  Indeed, it is hardly an exaggeration to say that criminal jury trials are nearly extinct on American soil: Some 97.4% of federal criminal convictions are obtained through plea bargains, and in some judicial circuits, it’s as high as 99%.

Recent developments in the Flynn case, including evidence that senior FBI officials engaged in shockingly inappropriate, perhaps even criminal, behavior during the Flynn investigation, give rise to a stark but crucial question: How many other guilty pleas would disintegrate as spectacularly as Flynn’s if the underlying case were subjected to the same searching review that Flynn’s finally received more than two years after the entry of his guilty plea?

Proponents of the current plea-driven system will likely counter that Flynn’s case was a politicized fluke, nothing more.  But there are good reasons to doubt that assurance. Consider the 2018 prosecution of rancher Cliven Bundy in Nevada for inciting violence against federal agents in the midst of a dispute over federal grazing land.  That case was dismissed with prejudice after the judge determined that DOJ prosecutors showed a “reckless disregard for the constitutional obligation to seek and provide evidence” by withholding documents and misstating facts about the case.  Or consider the 2008 corruption prosecution of Sen. Ted Stevens before the same judge in the Flynn case, Emmet Sullivan, during which DOJ prosecutors systematically withheld explosive exculpatory evidence that would have thoroughly gutted their case against Stevens.  Besides dismissing the charges against Stevens, an incensed Sullivan commissioned a thorough investigation of the DOJ’s misconduct in the case that culminated in a 500-page report that documents, in mind-boggling detail, prosecutors’ serial misdeeds in their corrupt attack upon a sitting senator.

Again, defenders of the current system will say those particular examples are rare, which is true — but so are trials in our plea-driven federal system, in which just 2% of cases go to trial.  If every single case went to trial with defense counsel as tenacious and aggressive as Flynn’s new team, how many of those cases might blow up as spectacularly as the Flynn, Bundy, or Stevens cases?  And if every one of those cases got the same internal tire-kicking by the DOJ that Flynn’s finally received, how many of them would simply be dismissed outright, as the DOJ now seeks to do with Flynn?

There’s no reason the latter question has to remain hypothetical, and Congress should move swiftly to ensure that it does not.  The pathologies engendered by the DOJ’s overreliance on coercive plea bargaining are too numerous and too deeply ingrained in our system to address all at once.  But something Congress can do immediately is establish within the Department of Justice an Office of Plea Integrity that would be charged with doing on a full-time basis what Jeff Jensen was brought in to do in the Flynn case, namely, pop the hood and give the whole case a searching and perhaps even skeptical review before clearing it to proceed to a guilty plea.  With upwards of 80,000 federal criminal prosecutions each year, it probably isn’t feasible to review every case, but it should not be unduly difficult to develop a system for selecting a mix of random and specially designated cases, including ones involving prosecutions of particular public interest, such as the Flynn and Stevens cases, for review.

Other reforms Congress should consider in the longer term include a statutory cap on the notorious “trial penalty,” which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.

Again, those are policies Congress may consider in the fullness of time.  But the creation of a Plea Integrity Unit within the DOJ is an obvious and urgent response to a botched high-profile prosecution that has justifiably shaken people’s faith in the competence and the integrity of the federal criminal justice system.

I love the idea of a body committed to ensuring pleas have integrity, but I am not quite sure why Clark Neily would trust the DOJ fox to review critically its favorite fat hen in its prosecutorial henhouse.  As I see it, there needs to be a body, largely independent of prosecutors, that is charged with takes a close and skeptical look at individual pleas and our entire modern bargained system of justice.

In this area, I have long been a fan of Professor Laura Appleman's clever idea of a "plea jury" (as detailed in an article and book): "a lay panel of citizens [that] would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."  I do not think a "plea jury" would solve all or even most of the modern problems with modern plea practices, but it strike me as a good start.  Perhaps that case-specific innovation could be coupled with an new independent judicial-branch commission, one perhaps structurally modeled like the US Sentencing Commission, that would be tasked with gathering data and issuing guidelines on sound plea bargaining practices.

As Neily notes, more than nine of every ten convictions come from the plea process, and yet there are few rules and even less data to inform the discretion exercised by prosecutors as they pursue investigation and structure the terms of plea bargains.  Wherever located and however structured, an "Office of Plea Integrity" would not instantly improve our bargained systems of justice, but it strikes me a good place to start. 

May 15, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, May 14, 2020

COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts from the start and end of her statement:

Under the circumstances of this case, where the inmates filed a lawsuit before filing any grievance with the prison itself, it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.

I write separately to highlight the disturbing allegations presented below.  Further, where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.  Finally, while States and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death....

While I disagree with much of the Fifth Circuit’s analysis at this preliminary juncture, the court required reports every 10 days on the status of the inmates in the prison’s care.  I expect that it and other courts will be vigilant in protecting the constitutional rights of those like applicants.  As the circumstances of this case make clear, the stakes could not be higher.  Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” Supp. Brief Regarding Emergency Application 1.

Nothing in this Court’s order, of course, prevents the Fifth Circuit from amending its stay.  Nor does anything in our order prevent applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.  Finally, administrative convenience must be balanced against the risk of danger presented by emergency situations.  The prison, for example, has failed to explain why it could not simply decrease dorm density, despite having an empty unit at its disposal.

It has long been said that a society’s worth can be judged by taking stock of its prisons.  That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.  May we hope that our country’s facilities serve as models rather than cautionary tales.

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

As federal prison population continues remarkable decline, can anyone predict what might be a new normal?

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers. In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now two weeks into May, and the new numbers at this webpage continue to show an even bigger weekly decline in total number of federal inmates as calculated by BOP: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to now now a total of 167,803 (as of May 14, 2020).

As I have detailed before, upticks in the number of persons placed on home confinement reported on the BOP's COVID-19 Update page seemingly account for less than a third of recent reported BOP population decreases.  Thus the data continue to suggest that a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is playing a huge role in the significant population declines in recent months.

As the question in the title of this post is meant to flag, I really have no idea what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus.  Just like the whole nation is likely to be unsure about what kinds of activities are "safe" for quite some time, it may be quite some time before anyone can state with confidence that federal prisons are "safe."  And, of course, with profound disruptions to federal grand juries and so many other aspects of federal criminal justice administration, it seems likewise impossible to predict just when the huge federal criminal justice machinery that typically sends over 5000 people to federal prisons each month will be operating at full capacity again.  And, as discussed in this prior post, perhaps at least some judges may be more reticent to send some people to prison even after federal officials say their facitlies are "safe" again.

So, dear readers, anyone bold enough to predict what the federal prison population might look like in, say, mid May 2021 or 2025 or 2030?

A few of many prior related posts:

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Wednesday, May 13, 2020

Members of Congress submit amicus brief urging Ninth Circuit to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing

In this post way back in 2018 just a few days after the FIRST STEP Act became law, I took note of the notable provisions in the Act which expressly addressed just which types of offenders should get the benefit of the Act's new statutory sentencing provisions if their cases were already in the criminal justice pipeline.  In that post, I complimented Congress for addressing these issues, but I also noted that some matters left unclear such as whether "a defendant already sentenced earlier in 2018 [who has] his sentence reversed on some other ground and now he faces resentencing [could] get the benefit of any new provisions of the FIRST STEP Act upon resentencing."

Via this new press release, I now see that this resentencing question is before the Ninth Circuit and that a notable group of Senators are seeking to ensure the defendant gets the benefit of the FIRST STEP Act at his resentencing.  Here is the text of the press release:

U.S. Senators Dick Durbin (D-IL), Chuck Grassley (R-IA), and Cory Booker (D-NJ), lead authors and sponsors of the First Step Act — landmark criminal justice reform legislation — today submitted a bipartisan Amicus Brief to the Ninth Circuit Court of Appeals in United States of America v Alan L. Mapuatuli, a case related to the reduction of the second strike and third strike drug mandatory minimums.

The bipartisan Brief argues that Congress intended the First Step Act (FSA) to apply at post-FSA sentencing hearings, including when a defendant is before a court for sentencing after his or her initial sentence was vacated on appeal.  Congress intended to cover these cases by stating that the FSA applies “if a sentence for the offense has not been imposed” as of the FSA’s date of enactment.  However, the Justice Department is litigating the contrary position in United States of America v Alan L. Mapuatuli.

The Members wrote: “… the interpretation advanced by the Executive Branch and adopted by the district court in this case is contrary to Congress’s language and intent.  Reduced to its simplest form, that interpretation assumes that Congress intended to give legal effect to sentences that otherwise are void.  That assumption finds no support in the statutory text, contradicts the fundamental considerations that motivated Congress to enact the First Step Act, and produces inequitable outcomes that undermine the fairness and legitimacy of our criminal justice system.  That unquestionably is not what Congress intended.  For these reasons, amici respectfully submit that the district court’s judgment should be vacated and the case remanded for resentencing in conformity with the First Step Act.”

The full 20-page amicus brief in this matter is available at this link, and I applaud the Senators and their lawyers for urging the Ninth Circuit to ensure that the FIRST STEP Act is given the broad reach that it seems Congress intended and that its text reasonably supports.

May 13, 2020 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 12, 2020

Judge Breyer rejects plea agreement seeking to restrict defendant's statutory authority to pursue compassionate release

Amidst my review of the many federal sentence reductions under § 3582(c)(1)(A) that appear each day on Westlaw, a notable new opinion emerged from a notable judicial author.  Specifically, US District Judge Charles Breyer yesterday issued a 10-page "Order rejecting plea agreement" in US v. Funez Osorto, No. 19-cr-00381-CRB-4 (ND Cal. May 12, 20202) (available here).  For sentencing fans, Judge Breyer is notable in part because he is one of only two remaining active US Sentencing Commissioners (others might also think it notable that he is Justice Stephen Breyer's brother).  And the Funez Osorto opinion is notable for its rejection of a plea agreement based on a provision that is especially relevant in these pandemic days. 

I recommend the full Funez Osorto opinion, and here is a small taste including its start and finish:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed?  Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences?  What if the defendant’s children are effectively orphaned by the death of their other parent?  What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it?  What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence?  What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail?  When should a court be able to consider such events and revise a previously imposed sentence accordingly?  How difficult should it be for a defendant to request this type of relief?

Congress has provided one set of answers to these questions, in the First Step Act ..... The United States attorney’s office has very different answers in this case, for this defendant.  Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement....

The point is this: while the Plea Agreement leaves open a path to compassionate release, it is hardly wider than the eye of a needle. It is far narrower than the avenues to relief provided by § 3582(c)(1)(A), and too narrow to provide meaningful relief in many of the circumstances that would render Funez Osorto eligible for relief.  And there is no doubt the Government would rely on the waiver provision to deny Funez Osorto compassionate release. It has recently attempted to do exactly that in another case before this Court.  That result is unacceptable for two reasons.  First, it undermines Congress’s intent in passing the First Step Act.  Second, it is inhumane....

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table.  See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010).  As to terms such as this one, plea agreements are contracts of adhesion.  The Government offers the defendant a deal, and the defendant can take it or leave it.  Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”).  If he leaves it, he does so at his peril.  And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on.  See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940).  Now imagine the choice the Government has put Funez Osorto to.  All that power — and the all too immediate consequences of opposing it — weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass.  That Faustian choice is not really a choice at all for a man in the defendant’s shoes.  But the Court has a choice, and it will not approve the bargain.

That leaves only one question, which is why?  Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?  Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner.  Inspector General Report at 49–50.  And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities.  Id. at 45–48. The waiver of compassionate release is senseless.

Judge Breyer asks a lot of good questions throughout this great opinion, but the final one seems to me to be depressingly easy to answer. He asks: "Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?".  The answer, as I see it, is that so many prosecutors get so accustomed to exercising their tremendous discretion in this way that it now seems to be a professional expectation.

May 12, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Friday, May 08, 2020

Yet another Texas execution postponed, though purportedly not for COVID reasons

Texas had an execution scheduled for next Wednesday, but no longer as explained in this local article: "An East Texas man who asserts that he is intellectually disabled has won a reprieve from his execution scheduled for next week for a 2007 shootout that left two sheriff’s officers dead." Here is more:

Randall Wayne Mays was set to receive lethal injection May 13 for the shootings at his Henderson County home.  In an order issued Thursday, the Texas Court of Criminal Appeals issued an execution stay and remanded Mays’ case to the trial court in Henderson County for review of his intellectual-disability claim.

Mays’ attorneys say the 60-year-old suffers from delusions and thinks Texas wants to execute him over a renewable energy design he believes he created....  Mays had previously won reprieves in October and in 2015.

Six other executions scheduled in Texas for earlier this year have been postponed because of the novel coronavirus outbreak statewide.  Besides Mays' intellectual-disability claim, his attorneys had also asked the appeals court for an execution stay because of the pandemic. The appeals court did not address that request in its order.

The next execution in Texas is scheduled for June 16.

Though this reprieve was not based on the COVID pandemic, I wonder if the Texas Court of Criminal Appeals was just a little bit more willing to grant the defendant his requested relief because of the many challenges posed to courts and corrections officials these days. I suspect that, even when courts and litigants do not make express reference to COVID concerns, they still cannot help but look at all criminal justice issues through a somewhat different lens.

With Texas starting to open up, it will be especially interesting to see if the state's two scheduled excutions for mid June and early July go forward. And, in the meantime, Missouri has an execution schedule for May 19, and it seems that the state is seriously prepared to move forward (see, e.g., press reports from Mother Jones and the St. Louis Dispatch).

Some prior related capital COVID posts:

May 8, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 07, 2020

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

"Justice Dept dropping Flynn’s criminal case"

The title of this post is the title of the notable news in this new AP report.  Here is the first part of the article:

The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.

The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller.  It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview.  Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”  The documents were obtained by The Associated Press.  The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended the move to Attorney General William Barr last week and formalized the recommendation in a document this week.  “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

The decision is certain to be embraced by Trump, who has relentlessly tweeted about the case and last week pronounced Flynn “exonerated,” and energize supporters who have taken up the retired Army lieutenant general as something of a cause celebre.  But it may also add to Democratic concerns that Attorney General William Barr is excessively loyal to the president, and could be a distraction for a Justice Department that for months has sought to focus on crimes arising from the coronavirus.

The Justice Department’s action comes amid an internal review into the handling of the case and an aggressive effort by Flynn’s lawyers to challenge the basis for the prosecution.  The lawyers cited newly disclosed FBI emails and notes last week to allege that Flynn was entrapped into lying when agents interviewed him at the White House days after Trump’s inauguration.  Though none of the documents appeared to undercut the central allegation that Flynn had lied to the FBI, Trump last week pronounced him “exonerated

The decision is the latest dramatic turn in a years-old case full of twists and turns.  In recent months, his attorneys have leveled a series of allegations about the FBI’s actions and asked to withdraw his guilty plea.  A judge has rejected most of the claims and not ruled on others, including the bid to revoke the plea.

Prior related posts:

May 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circuit panel solicited amicus briefs of the case, and then concludes this way: 

No extraordinary circumstances justified the panel’s takeover of the appeal.  Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others.  Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. 910 F. 3d, at 483–484.  Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)).

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.

Justice Thomas concurs in an opinion that starts this way:

I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether 8 U.S.C. §1324(a)(1)(A)(iv) is unconstitutionally overbroad.  In my view, however, the Court of Appeals’ decision violates far more than the party presentation rule.  The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.  That doctrine provides that “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008)).  Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application.  It appears that the overbreadth doctrine lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.  I would therefore consider revisiting this doctrine in an appropriate case.

May 7, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 06, 2020

Noting some new tales of the COVID-era challenges of criminal justice administration

In reviewing the news of the day, I came across a number of notable new stories about the (many) unique challenges that now arise as a global pandemic dramatically alters the administration of criminal justice.  Here are headlines and a highlight from a few of these pieces:

From The Appeal, "Covid-19 Is Creating A State Of Emergency For Incoming Public Defenders. Diploma Privilege Is The Only Solution."

The public defender system that sprung out of Gideon, however, has faced crises ranging from underfunding to staggering caseloads that make it impossible for defenders to effectively represent their clients.  Now, COVID-19 is ushering in a new crisis: several states including California as well as the District of Columbia have postponed their bar exams, while other states have enacted a provisional licensing scheme, meaning that while law school graduates may be able to work in temporary, limited capacities performing the work that Gideon mandates, they will also bear the burden of preparing for the bar.  So, what will happen to the marginalized — and Gideon’s mandate — when an entire class of public defenders cannot begin their jobs as scheduled in the fall of 2020?

From Law360, "Grand Jury Suspensions A Looming Problem For Prosecutors":

As court closures stretch on during the coronavirus pandemic, the suspension of federal grand juries is causing headaches for prosecutors by jeopardizing older cases and slowing down complex ones, requiring judges to consider how to bring the panels back.

From The Marshall Project, "A Dangerous Limbo: Probation and Parole in the Time of COVID-19":

When people are accused of violating their probation or parole, they often have to wait behind bars for a series of hearings and procedural hurdles to determine if they are guilty and what the consequences will be.  Think of a criminal trial, but less formal and with fewer constitutional protections.  Even “one day in custody can totally disrupt someone’s life to the point of almost no return,” says Michael Nail, Georgia’s commissioner of community supervision.  Now, coronavirus can make custody downright dangerous.

p>From WSYX/WTTE, "Ohio prosecutors have backlog of cases, courtrooms not expected to fully reopen until June":

Right now many victims and cases are in limbo because of the coronavirus pandemic.  Court systems all across Ohio are looking at how to handle the volume of cases that haven't been touched in weeks and new cases too. In Fairfield County, Prosecutor Kyle Witt says they've been working diligently to figure out how to give those arrested and victims their day in court.  The county's grand jury met for the first time today in weeks. "We're resuming today, we're limiting the number of people in that room. We are providing masks and gloves and social distancing," said Witt.

May 6, 2020 in Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, May 04, 2020

SCOTUS wastes no time taking up new case to address whether new Ramos jury unanimity rule is retroactive

In the US Supreme Court's Sixth Amendment unanimous jury ruling a couple of weeks ago, Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here, basics here), a couple of the Justices already started debating whether the ruling would be give retroactive effect.  Interestingly, this new SCOTUS order list includes this new certiorari grant revealing that the Justices were eager to formally take up this issue before lower courts even had a chance to try to hash it out:

EDWARDS, THEDRICK V. VANNOY, WARDEN

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

Long-time readers should know that I generally view getting matters "right" in the criminal justice system as much more important than keeping that which is wrong "final."  (This is especially true  in the sentencing area as I explained in "Re-Balancing Fitness, Fairness, and Finality for Sentences" a few years ago.)  I always believe it especially important for new substantive laws and rules to be retroactive, and Ramos is obviously "just" a procedural rule.  But I have long hoped that the Supreme Court's Teague doctrine for limiting the retroactivity of procedural rules would someday identify the long-discussed "watershed" procedural rule that implicates the fundamental fairness and accuracy of the trial and thus should be fully retroactive.  See 489 U. S. 288, 311-312 (1989) (plurality opinion).  I suspect and hope jury unanimity might prove to be just such a rule (though I am certainly not holding my breath in light of the opinions in Ramos).

Prior related posts:

May 4, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, May 01, 2020

Exciting DEPC and OJPC sentencing project: "Drafting Contest: An Ohio 'Second Look' Statute"

Second-Look-Contest_for-web-email-survey-2I am pleased to be able to note — and everyone should be prepared for me to repeatedly promote — an exciting new project from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC).  The basic details are explained on this webpage, more background appears in this document, and here are the essentials:

About

A robust national discussion about how best to remedy extreme and unwarranted prison sentences has prompted various new proposed remedies. In hopes of encouraging discussion and debate around the creation of a comprehensive “second-look sentencing provision” in Ohio law, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC), a statewide criminal-justice nonprofit, are sponsoring a legislative-drafting contest for law students and recent law school graduates.

Contest Objective and Deliverable

DEPC and OJPC encourage law students and recent graduates (from class years 2015-2020) to submit (1) proposed language for a new Ohio statutory provision and (2) accompanying commentary to allow courts to take a second look at Ohio prison sentences.  The proposal should address both substance (e.g., when and to whom does it apply) and procedure (e.g., how should such a second look be initiated and decided).  Entrants may, but are not required to, address the public-health issues that have come to the fore with COVID-19 (e.g., the proposal might have a special provision allowing more prisoners to seek resentencing when a public-health emergency has been declared).  Group submissions are acceptable and encouraged.

Contest Timeline and Awards

Submissions are due June 30, 2020.  The winning submission will receive a prize of $2,000, and up to two runner-up prizes of $1,000 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the groups members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full version of the winning proposal will also be presented to the Ohio Criminal Sentencing Commission at a forthcoming meeting and may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

May 1, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 28, 2020

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 27, 2020

Feds appealing last week's judicial order to transfer vulnerable prisoners "out of Elkton through any means"

As reported in this local article, "Federal prosecutors on Monday said they would appeal a federal judge's decision to order the Bureau of Prisons to release or transfer hundreds of inmates at an Ohio federal lock-up where an outbreak of the novel coronavirus killed several inmates."  Here is more:

Assistant U.S. Attorney James Bennett filed a motion asking the Sixth Circuit in Cincinnati to review U.S. District Judge James Gwin’s Wednesday granting of the ACLU of Ohio for a temporary injunction seeking the release of prisoners from the Federal Correctional Institution Elkton. The BOP announced on Sunday that a seventh inmate at the facility, identified as 55-year-old Richard Nesby, had died due to complications related to the COVID-19 virus.

The filing came just before a scheduled 10:30 a.m. teleconference hearing in which Bennett told Gwin he would also on Monday ask Gwin to put his order on hold.  BOP identified more than 800 prisoners who would fall under Gwin's order for the prison to either release or relocate prisoners who are 65 years old and older and those who have certain pre-existing conditions that put them at risk of serious illness associated with the virus.

Gwin gave the government two weeks to determine which prisoners it can release on parole, furlough, compassionate release or home confinement.  The government also has the option to move the inmates to other prisons "where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished."  

Bennett last week requested Gwin's permission to file the list of prisoners under seal. He argued in Monday's hearing that publicly naming those prisoners would divulge their personal and private medical information.  Gwin rejected the motion and ordered the government to make public a list that includes the name and prison identification number of each prisoner, and the underlying court and case number for each one.  Gwin separately ordered the bureau to give the plaintiffs' lawyers a list of the specific medical conditions that it included in its search criteria....

The ACLU sued after the coronavirus spread among prisoners and staff.  It said staff members didn't take proper precautions to protect the inmates and prisons violated the constitutional rights of the inmates.  Attorneys for the prisons bureau had urged the judge not to release any inmates, saying the staff was taking the proper precautions to isolate those with the virus, conduct health screenings and identify suitable candidates for home confinement.  Gwin, however, wrote that staff wasn't doing enough and believed the prison bureau's number constitutes an undercounting of the actual number of cases at Elkton.

This BOP page on FCI Elkton indicates the facility has an inmate population of just over 2400 persons. I find it remarkable, though not all that surprising, that a full one-third of this population is at-risk according to CDC guidelines.

Prior related post:

April 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

A dozen GVRs based on Ramos (with Justice Alito always commenting along the way, and Justice Thomas dissenting in a few)

Of criminal justice interest on this order list released by the Supreme Court this morning are a series of orders sending cases back to lower courts for reconsideration in light of the Court's unanimous juries ruling last week in Ramos v. Louisiana (basics here).  I count 12 total cases being remained, nearly all from Louisiana and one from Oregon.  Here is how the first of these orders reads:

The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the Court of Appeal of Louisiana, First Circuit for further consideration in light of Ramos v. Louisiana, 590 U. S. ___ (2020).  Justice Alito, concurring in the decision to grant, vacate, and remand: In this and in all other cases in which the Court grants, vacates, and remands in light of Ramos v. Louisiana, I concur in the judgment on the understanding that the Court is not deciding or expressing a view on whether the question was properly raised below but is instead leaving that question to be decided on remand.  Justice Thomas would deny the petition for a writ of certiorari.

Notably, this comment by Justice Alito appears with every remand order, but Justice Thomas indicates he would deny the petition in only five of the twelve cases.  (I would guess that the five cases that Justice Thomas would deny are in a distinct procedural posture from the other seven.)

Prior related posts:

April 27, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, April 24, 2020

Some exhausted musings on the so-called "exhaustion" procedural requirement for sentence-reduction motions under § 3582(c)(1)(A)

I tend to start many mornings these COVID-tainted days on Westlaw checking out new district court opinions responding to motions by persons in federal prison seeking a sentence reduction under § 3582(c)(1)(A).  A dozen or more new opinions appear each day now, but many deny relief simply on the basis of the so-called "exhaustion" procedural requirement in § 3582(c)(1)(A).  A few weeks ago, I discussed in this post the sloppy Third Circuit panel dicta on this issue in Raia, and it is frustrating (but not surprising) that many district courts nationwide are now citing Raia when rejecting motions under § 3582(c)(1)(A) on this procedural ground.  At the end of another long week, I wanted to explain why it seems to me misguided, on various grounds, to interpret this "exhaustion" procedural requirement as an absolute bar to courts considering the merits of sentence-reduction motions under § 3582(c)(1)(A). 

First, the statutory basics. The text now of § 3582(c)(1)(A), after amendment by the FIRST STEP Act (in bold), provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier." 

Based on the text alone, I can understand why courts read this provision as precluding consideration of a prisoner's sentence-reduction motion until at least 30 days after a BOP request is made by the defendant.  As I explained in my Raia post, this provision is pretty clearly not jurisdictional because the language and structure make it much more what the Supreme Court calls a "nonjurisdictional claim-processing rule."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  Still, even as a claim-processing rule, the text is seemingly clear and mandatory: "The statute provides no exceptions to the exhaustion requirement, and the Supreme Court has clearly stated that courts may not manufacture exceptions where they do not exist." United States v. Miamen, No. 18-130-1 WES, 2020 WL 1904490 (D RI Apr. 17, 2020).  Further, as another court has put it: "the administrative exhaustion requirement for compassionate release motions serves important policy functions [because the] BOP is often in the best position to evaluate the scope of an inmate’s medical condition, the adequacy of the release plan, and any danger posed to the community if they are released."  United States v. Gamble, No. 3:18-cr-0022-4(VLB), 2020 WL 1955338 (D Conn Apr. 23, 2020).

Though this basic textual and policy analysis is not misguided, it largely looks past all the reasons that Congress in the FIRST STEP Act enabled district judges to consider the merits of a sentence reduction under § 3582(c)(1)(A) without awaiting even full consideration of a request by BOP.  For years, BOP failed to use its authority to seek reductions even in the most compelling of cases, and Congress decided to district courts could and should assess sentence-reduction requests without BOP serving as any kind of gatekeeper.  Critically, with the FIRST STEP Act revision, Congress did not actually require defendants to exhaust the BOP motion-request process before turning to the courts — which would have made sense if Congress still trusted the BOP process to some extent; Congress added, critically, that a sentence-reduction motion could be considered after "the lapse of 30 days from the receipt of such a request."  Put another way, this statute actually does have an express exception to a true exhaustion requirement in the form of the "lapse of 30 day" provision.

But, so the argument might go, even though Congress did create an exception to BOP exhaustion in the form of a "30 day" lapse requirement, why should courts even consider short-circuiting that express timeline?  Well, in the midst of a pandemic, a timeline intended by Congress to give a prisoner quick access to the court sensibly can and should be sped up consistent with the overall goals of § 3582(c)(1)(A).  In the word of one court:  "The question therefore becomes whether applying equitable exceptions to section 3582(c)(1)(A) would be incompatible with Congressional intent .... [and] this Court agrees with Judge Rakoff that 'Congress cannot have intended the 30-day waiting period ... to rigidly apply in the highly unusual situation in which the nation finds itself today'."  United States v. Bess, No. 16-cr-156, 2020 WL 1940809 (WDNY Apr. 22, 2020). 

Especially important here seems to be a consideration emphasized in this New York Times editorial: "Releasing these prisoners during this crisis is not just an act of mercy to protect prisoners’ health, [it also serves] the health of the prison staff.  Fewer sick inmates means less strain on the already burdened prison hospital system."  Does it really make sense to believe Congress would want courts to refuse to consider (for a few weeks) a request for a sentence reduction when any delay will further imperil prison staff as well as inmates?  In normal times, the procedural requirement of § 3582(c)(1)(A) shows some respect for BOP officials; in COVID times, rigid application may inadvertently cost the lives of some BOP officials.

Last but not least, at a time when at least 24 federal inmates have died from COVID and in a week in which a federal judge has found that federal inmates in one facility "have demonstrated a likelihood of success on the merits" of an Eighth Amendment claim, an equitable exception to the procedural requirement of § 3582(c)(1)(A) arguably has a strong constitutional foundation.  I say this because, in order to prevail substantively, a defendant seeking a sentence reduction under § 3582(c)(1)(A) must make the case that "extraordinary and compelling reasons warrant" a reduction with consideration given also to "the factors set forth in 3553(a)."  In other words, the only persons who are ultimately impacted by so-called "exhaustion" requirement are those who can make a truly compelling case to a federal judge that, consistent with congressional sentencing purposes, a shorter sentence is now justified.  Amidst a pandemic which has already killed dozens of federal prisoners, to deny deserved substantive relief on questionable procedural grounds strikes me as quite constitutionally suspect. 

April 24, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, April 23, 2020

In praise of (split) Fourth Circuit panel prioritizing sentencing fitness over finality

A few years ago, I wrote this article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," in which I urged policy-makers and judges to be "less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences."  The article came to mind as I reviewed a new (split) panel ruling from the Fourth Circuit in US v. Chambers, No. 19-7104 (4th Cir. Apr. 23, 2020) (available here).  Here is how the majority opinion gets started:

Erroneously sentenced as a career offender, Brooks Tyrone Chambers is currently serving an almost 22-year prison sentence on a pre-2010 crack-cocaine offense.  In 2019, he moved to reduce his sentence to time served under the First Step Act.  Because the First Step Act gives retroactive effect to sections 2 and 3 of the Fair Sentencing Act of 2010, his statutory minimum would drop from 20 years to 10 years.  In his motion, he asked the district court to apply retroactive intervening case law, under which he would not be a career offender.  Without the enhancement, Chambers’s Guidelines range would also drop to 57 to 71 months; with it, his Guidelines range would remain the same — 262 to 327 months.

The district court determined that Chambers was eligible for a sentence reduction under the First Step Act, but it proceeded to perpetuate the career-offender error when recalculating the Guidelines.  Nor did it exercise its discretion to vary downward.  Instead, the court denied Chambers’s motion to reduce his custodial sentence, though it granted the motion as to his supervised release term.  Because the First Step Act does not constrain courts from recognizing Guidelines errors, and because the district court seemingly believed that it could not vary from the Guidelines range to reflect post-sentencing information, we vacate the district court’s resentencing order.  Additionally, we now hold that any Guidelines error deemed retroactive, such as the error in this case, must be corrected in a First Step Act resentencing.

Here is how the dissent gets started:

Modification of a final sentence requires express congressional authorization.  The majority’s decision sidesteps this statutory imperative and instead reasons that district courts are free — and here, required — to modify final sentences unless specifically prohibited from doing so.  Congress enacted Section 404 of the First Step Act to retroactively reduce disparities between the crack and powder cocaine sentencing schemes; the statute is silent about other changes to a defendant’s final sentence.  The majority finds in this silence an implicit grant of authority to retroactively correct Sentencing Guidelines errors based on intervening law, an authority this Court has rejected in the context of collateral challenges to final sentences.  I would instead conclude that 18 U.S.C. § 3582(c)(1)(B) authorizes only the modification “expressly permitted” by the First Step Act, which does not include reevaluating a defendant’s career-offender Guidelines designation in light of a post-sentencing change in the law.

Since a judge at any full resentencing is now obligated to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 18 USC 3553(a)(2), it really ought not matter too much what sentencing range gets spit out in a guideline calculation.  But because many judges still focus a lot on guideline calculations, I am pleased to see the majority here is eager to make sure the district court is focused on a correct guideline calculation.

April 23, 2020 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 20, 2020

A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination

I am only through the first part of the Supreme Court's first opinion in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here), which finally declares that the Sixth Amendment jury trial right, as incorporated against the states, requires unanimous juries for conviction.  I was drawn back to blogging because a passage early in Justice Gorsuch's opinion for the Court reminder me why "acquitted conduct" sentencing enhancements still make me crazy.  Here are the passages from the Ramos opinion slip op. at 3-4) to set the table (emphasis in original):

The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”  The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails.

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single person rubberstamping convictions without hearing any evidence — but simultaneously insisting that the lone juror come from a specific judicial district “previously ascertained by law.” And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial.

Here is how the second paragraph could and should be modified if (and I hope when) the Supreme Court finally sees it needs to give the jury trial right real meaning by limiting sentencing enhancements based on acquitted conduct:

Still, the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down.  Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely overridden by judges at sentencing.  Imagine a constitution that allowed a “jury trial” to mean nothing but a single judge rotely enhancing sentences without regarding any acquittals — but simultaneously insisting that jurors not be told that acquitted conduct will be used to make guideline calculations “previously ascertained by law.”  And if that’s not enough, imagine a constitution that included the same hollow guarantee twice — not only in the Sixth Amendment, but also in Article III.  No: The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a judge's sentencing acquittals by a jury trial. See generally Blakely v. Washington, 542 U. S. 296 (2004).

I obviously added the citation to Blakely, in part because I continue to by aghast that the Justices have work so hard to avoid confronting the this issue for now 16 years since it handed down the opinion that should have helped bring the ugliness of acquitted conduct enhancement to an end.

April 20, 2020 in Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

In lengthy split opinion (with interesting splits), Supreme Court holds Sixth Amendment applies to states to require unanimous verdict to convict of serious offense

The Supreme Court this morning handed down a lengthy (surprisingly?) split decision in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here). At issue in Ramos was a set of hlaf-century old SCOTUS precendents in which the Court had held that the Sixth Amendment right to a jury trial, as incorporated against the states, did not require states to adopt a unanimity requirement even for serious cases. Those precedents went up in smoke today, but the break down of votes shows that not all of the Justices were eager to blaze a Sixth Amendment new path:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

I am going to need some time (and perhaps a number of posts) to process all that appears here, but for now I can spotlight Justice Gorsuch's notable closing paragraph:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life?  Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.  No one before us suggests that the error was harmless.  Louisiana does not claim precedent commands an affirmance.  In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.  But where is the justice in that?  Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory.  But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.  The judgment of the Court of Appeals is Reversed.

April 20, 2020 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic.  People who are incarcerated are more likely to have chronic health conditions than the general public.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.

April 14, 2020 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

A divided Eleventh Circuit panel today handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant. The opinion for the court authored by Judge Newsom in In re Courtney Wild, No. 9:08-cv-80736-KAM (11th Cir. April 14, 2020) (available here), gets started this way:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004.  Petitioner Courtney Wild is one of more than 30 women — girls, really — who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein.  In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government lawyers, we find ourselves constrained to deny her petition.  We hold that at least as matters currently stand — which is to say at least as the CVRA is currently written — rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment.  Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered.  It’s not a result we like, but it’s the result we think the law requires.

Judge Hull issued a near 60-page dissenting opinion (roughly matching the length of the majority opinion). Here is are key passages from its opening:

This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which grants a statutory “bill of rights” to crime victims.  In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA.  Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights — the right to confer with the government’s attorney and the right to be treated fairly — that were repeatedly violated by the U.S. Attorney’s Office in the Southern District of Florida....

I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute.  Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute.  Rather, the Majority’s contorted statutory interpretation materially revises the statute’s plain text and guts victims’ rights under the CVRA.  Nothing, and I mean nothing, in the CVRA’s plain text requires the Majority’s result.

It will now be very interesting to see if this this matter gets further attention from either the full Eleventh Circuit and/or the US Supreme Court.

April 14, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Monday, April 13, 2020

"Tips For Prisoner Release Requests During Pandemic"

The title of this post is the title of this timely new Law360 piece authored by William Athanas, JD Thomas and Charles Prueter.  Here are excerpts:

This article reviews the legal framework applied to assess compassionate release requests seeking relief based on the pandemic, and endeavors to extract guiding principles from 70 of the decisions issued by federal courts in the past three weeks in an effort to inform eligibility determinations and increase the likelihood of success of future motions....

Defendants began to file motions for compassionate release premised on COVID-19 fears in the third week of March. In reviewing 70 of the orders issued in response to these motions since March 17, it is interesting to note that only one was filed by an inmate actually suffering from the disease. Instead, those seeking relief premised their requests on risk of harm that would result were they to become infected.

A review of decisions issued as of April 10 reveals a number of guiding principles:

  • Exhaustion of administrative remedies is the key factor.  In all but three of the 43 cases where courts denied relief, failure to exhaust administrative remedies was the primary reason given.  In the 24 cases where relief was granted, the defendant was found to have exhausted administrative remedies, or the court determined that an exception to the exhaustion requirement existed.
  • Government consent is an important, but not essential, factor.  To be sure, a defendant’s ability to secure government consent to the motion was valuable.  Compassionate release was granted in all of the cases where the government consented to the relief sought.  But even in the remaining cases where the government objected to the motion, compassionate relief was granted in 13 instances (note that it was unclear whether the government opposed relief in the remaining cases).
  • Types of health conditions matter.  As one would expect, motions filed by inmates with significant respiratory issues were granted most frequently.  Success was not limited to inmates experiencing those conditions, however, as courts also granted compassionate release for those suffering from diabetes, hypertension, Crohn’s disease, and other instances where inmates suffered from chronic conditions which left them immunocompromised.  Note that not all inmates suffering from such conditions have been deemed eligible for relief, however, if they failed to exhaust administrative remedies.
  • Length of sentence remaining was not a determinative factor.  While many of the defendants successful in gaining release had a relatively short amount of time left before completing their sentences, courts have not required deemed that a perquisite.  In fact, of the defendants whose motions have been granted, 10 had a year or more left to serve.
  • Presence of the virus in the facility.  Several courts which granted relief cited this factor as evidence of “extraordinary and compelling reasons,” including one which distinguished cases denying relief on the grounds on the fact those defendants were not housed in facilities where “where COVID-19 was spreading.”  At least half the cases made no mention of this factor, however, suggesting that it is not a necessary prerequisite. In one instance, relief was granted even though the defendant had already been released to a residential reentry center....

The number of compassionate release motions premised on COVID-19 is likely to increase as pandemic worsens in the days and months to come.  Because the law governing evaluation of such motions is so recent, those seeking relief on the basis of “extraordinary and compelling reasons” are well served by understanding which factual scenarios and legal arguments best position those requests for successful outcomes.

Prior recent related posts:

April 13, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)