Sentencing Law and Policy

In 6-3 opinion for (police officer) defendant, SCOTUS limits reach of federal Computer Fraud and Abuse Act

The Supreme Court issued one opinion this morning, and it is an interesting criminal law decision with an interesting divide of Justices limiting the reach of a notable federal criminal statute.  The majority opinion in Van Buren v. US, No. 19–783 (S. Ct. June 3, 2021) (available here), is authored by Justice Barrett and it starts and ends this way:  

Nathan Van Buren, a former police sergeant, ran a license-plate search in a law enforcement computer database in exchange for money.  Van Buren’s conduct plainly flouted his department’s policy, which authorized him to obtain database information only for law enforcement purposes.  We must decide whether Van Buren also violated the Computer Fraud and Abuse Act of 1986 (CFAA), which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

He did not.  This provision covers those who obtain information from particular areas in the computer — such as files, folders, or databases — to which their computer access does not extend.  It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them....

In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer —  such as files, folders, or databases — that are off limits to him.  The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could.  Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.  We therefore reverse the contrary judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion.

Justice Thomas authored a dissent joined by the Chief Justice and Justice Alito. It starts this way:

Both the common law and statutory law have long punished those who exceed the scope of consent when using property that belongs to others.  A valet, for example, may take possession of a person’s car to park it, but he cannot take it for a joyride.  The Computer Fraud and Abuse Act extends that principle to computers and information.  The Act prohibits exceeding the scope of consent when using a computer that belongs to another person.  Specifically, it punishes anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains” information from that computer. 18 U.S.C. §1030(a)(2).

As a police officer, Nathan Van Buren had permission to retrieve license-plate information from a government database, but only for law enforcement purposes.  Van Buren disregarded this limitation when, in exchange for several thousand dollars, he used the database in an attempt to unmask a potential undercover officer.

The question here is straightforward: Would an ordinary reader of the English language understand Van Buren to have “exceed[ed] authorized access” to the database when he used it under circumstances that were expressly forbidden? In my view, the answer is yes.  The necessary precondition that permitted him to obtain that data was absent.

The Court does not dispute that the phrase “exceeds authorized access” readily encompasses Van Buren’s conduct. It notes, instead, that the statute includes a definition for that phrase and that “we must follow that definition, even if it varies from a term’s ordinary meaning.”  Tanzin v. Tanvir, 592 U.S. ___, ___ (2020) (slip op., at 3) (internal quotation marks omitted). The problem for the majority view, however, is that the text, ordinary principles of property law, and statutory history establish that the definitional provision is quite consistent with the term it defines.

I am pretty sure that this is the first (non-unanimous) opinion in which all the Trump-appointed Justices joined with all the Justices appointed by Democratic presidents, and I am very sure that I am hopeful that this will not be the only case in which these Justices combine to limit the application of questionable criminal laws and doctrines. Interesting times.

UPDATE:  I see Kent Scheidegger at Crime & Consequences has this age-related take on the alliances of the Justices in this Van Buren:

For those who like to categorize Justices and tally statistics, it may (or may not) be noteworthy that the six Justices appointed by Republican Presidents split by age, with the three younger ones supporting the narrower interpretation of this criminal law. There is perhaps a more libertarian streak in the more junior Justices and more wariness of overcriminalization.

In latest sentencing filings, Derek Chauvin requests probation while prosecutors ask for him to get 30 years in prison

As detailed in this CBS News piece, the parties in the case of Minnesota v. Chauvin are making very different sentencing requests:

Derek Chauvin asked a judge to sentence him to a term of probation or a shorter prison term than suggested by Minnesota guidelines in a sentencing memorandum filed Wednesday.  The memo cites Chauvin's lack of previous criminal history, his previous work as a police officer and the risk he could be victimized in prison as factors the judge should consider as he weighs a sentence.

But in another memorandum filed Wednesday, prosecutors asked for a sentence of 30 years for the convicted former Minneapolis officer, a term they said would "properly account for the profound impact of [Chauvin's] conduct on the victim, the victim's family, and the community."...

Last month, Judge Peter Cahill found "aggravating factors" exist that allow for him to sentence Chauvin to a term longer than the suggested 15 years. Cahill agreed with prosecutors that four such factors exist: that Chauvin committed a crime in front of a child, that Chauvin acted with particular cruelty, that he acted as part of a group, and that he abused his position of trust and authority as a police officer.  Cahill found that Chauvin acted with particular cruelty because he killed Floyd slowly despite Floyd's pleas that he couldn't breathe.  Floyd was "begging for his life and obviously terrified by the knowledge that he was likely to die" but Chauvin "objectively remained indifferent to Floyd's pleas," Cahill wrote.

Wednesday, prosecutors said the aggravating factors support their recommendation of double the 15-year upper end of the sentencing range, or 30 years.  Chauvin, they said, "brutally murdered Mr. Floyd, abusing the authority conferred by his badge."  "His actions traumatized Mr. Floyd's family, the bystanders who watched Mr. Floyd die, and the community. And his conduct shocked the Nation's conscience," the prosecution's memo read. "No sentence can undo the damage [Chauvin's] actions have inflicted.  But the sentence the Court imposes must hold [Chauvin] fully accountable for his reprehensible conduct."

But in the defense memo, Chauvin's attorney Eric Nelson asked Cahill to discount his finding that aggravating factors apply, and rule instead that mitigating factors allow either for a term of probation or a shorter sentence than guidelines suggest.  Nelson asked the judge to "look beyond" his findings to Chauvin's "background, his lack of criminal history, his amenability to probation, to the unusual facts of this case, and to his being a product of a 'broken' system."

Nelson said that Chauvin has been "painted as a dangerous man," but argued that "behind the politics, Mr. Chauvin is still a human being."  He cited Chauvin's 19-year history with the Minneapolis police department, several on-the-job commendations and the support of his family and friends.  "In spite of his mistakes, Mr. Chauvin has demonstrated that he has a capacity for good and that he has the discipline to consistently work toward worthwhile goals," the memo reads.

The defense memo says Chauvin, 44, has been diagnosed with heart damage and that he may be likely to die at a younger age like other ex-law enforcement officers.  It also says Chauvin may be more likely to be victimized in prison because he was convicted as a police officer, pointing to the fact that he is being segregated from the general prison population before his sentencing over safety concerns.  It also says Chauvin has no previous criminal convictions and complied with pre-trial release conditions and court procedures. "Throughout these proceedings, and in the face of unparalleled public scorn and scrutiny, Mr. Chauvin has been very respectful to the judicial process, the Court, and the State," the memo said.

These new sentencing filings are available at these links:

• Attachment to State's Memorandum of Law On Sentencing
• State's Memorandum of Law On Sentencing
• Defense's Post-Verdict Memorandum
• Defense's Sentencing Memorandum

Prior related posts:

• Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors 
• Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing 
• State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing 

Fascinating split Third Circuit ruling on federal drug distribution prohibition (and death resulting 20-year mandatory minimum)

A helpful colleague made sure I did not miss yesterday's notable new ruling from a Third Circuit panel in US v. Semler, No. 19-2319 (3d Cir. Jun. 1, 2021) (available here). This split (non-precedential?) decision address the persistently problematic issue of when and how social sharing of drugs constitutes distribution and all of the potentially severe consequences that can follow.  Here is how the majority opinion authored by Judge Roth gets started: 

Emma Semler is an addict who bought and injected heroin with a fellow user, then failed to intervene as that user overdosed and died.  She now appeals her conviction and sentence under the Controlled Substances Act for distribution of heroin resulting in death, a charge that carries a mandatory minimum sentence of twenty years’ imprisonment.

We hold that the definition of “distribute” under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.  Because a reasonable jury could find that Semler and the decedent jointly acquired possession of the heroin in question for their personal use, we will vacate Semler’s conviction and remand this case for a new trial so that the jury can be instructed on the correct legal standard.

The dissent authored by Judge Porter starts this way:

The Controlled Substances Act prohibits the distribution of certain drugs.  In that statute, Congress carefully defined the meaning of “distribute.”  Dissatisfied with the breadth of Congress’s handiwork, the majority vacates Emma Semler’s judgment of conviction.  It holds that Semler did not “actually transfer” heroin when she handed it to Jennifer Werstler.  Because that “is flatly contrary to standard English usage” and contradicts our Court’s precedent, I respectfully dissent.  Kansas v. Garcia, 140 S. Ct. 791, 802 (2020).

A few prior posts on drug-causing-death prosecutions and punishments:

• "Heroin, Murder, and the New Front in the War on Drugs" 
• Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death 
• "America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis" 
• Another look at trend to prosecute some opioid overdose deaths as homicides
• "Drug-Induced Homicide Defense Toolkit" 
• "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"

"Victims’ Rights in the Diversion Landscape"

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

In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect.  I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion.  Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes.  Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.

High-profile reminder that parole is rarely a given, especially for a prisoner claiming innocence

Though decided earlier this month, a high-profile denial of parole is garnering headlines this week.  This USA Today story, headlined "Bill Cosby denied parole after he refuses sex offender treatment program," provides these details:

Bill Cosby will not be released from prison anytime soon.  The 83-year-old actor, who is currently serving three to 10 years in Pennsylvania state prison after being convicted of sexual assault in 2018, has been denied parole nearly three years into his sentence.

The Pennsylvania State Parole Board declined Cosby's parole request on May 11 partly over his need to participate in "a treatment program for sex offenders and violence prevention," and "failure to develop a parole release plan," according to a state board action letter provided to USA TODAY.  The board also cited a "negative recommendation" from the Department of Corrections.

Cosby's representative, Andrew Wyatt, told USA TODAY Thursday that the decision "is not a surprise" to the disgraced TV star because the board explicitly stated he would be denied parole "if he did not participate in SVP (Sexually Violent Predator) courses."  But Wyatt said Cosby, who has maintained his innocence, has no plans to attend the therapy programs. "The Cosby Show" star has previously said he expects to serve his full 10-year sentence and vowed to show no remorse for crimes he said he didn't commit.

"Mr. Cosby has vehemently proclaimed his innocence and continues to deny all allegations made against him, as being false, without the sheer evidence of any proof," Wyatt said in a statement to USA TODAY on Thursday.  "Mr. Cosby continues to remain hopeful that the Pennsylvania State Supreme Court will issue an opinion to vacate his conviction or warrant him a new trial."

Cosby was the first celebrity to go on trial in the #MeToo era and was convicted of drugging and raping Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia in 2004.  Cosby appealed his conviction, citing multiple alleged "errors" by the trial judge in his case, but the state appeals court upheld his verdict in December 2019.  The Pennsylvania Supreme Court accepted Cosby's appeal in June 2020, thus raising the possibility it might be overturned in the future....

He's currently serving out his sentence at State Correctional Institution at Phoenix, a state prison in Skippack Township, Pennsylvania.  He will be eligible for parole in September after serving the three-year minimum of his sentence.  To be considered for parole, the Pennsylvania State Parole Board said Cosby not only needs to complete a treatment program, but he must maintain a "clear conduct record."

Most of California DAs file court action challenging new rules expanding good behavior credits to state prisoners

As reported in this recent AP piece, "three-quarters of California’s district attorneys sued the state Wednesday in an attempt to block emergency rules that expand good conduct credits and could eventually bring earlier releases for tens of thousands of inmates."  Here is more about the suit:

The lawsuit objects on procedural grounds, arguing that Corrections Secretary Kathleen Allison used the emergency declaration to bypass the usual regulatory and public comment process.  The rules affecting 76,000 inmates, most serving time for violent offenses, took effect May 1, although it will be months or years until inmates accumulate enough credits to significantly shorten their sentences.

Forty-four of the state’s 58 district attorneys brought the lawsuit, which says the only stated emergency was the corrections department’s desire to follow the “direction outlined in the Governor’s Budget Summary” nearly a year earlier.  Notably absent were district attorneys in Los Angeles and San Francisco who have backed criminal sentencing changes.

The lawsuit asks a Sacramento County Superior Court judge to throw out the regulations and bar the department from granting any of the good conduct credits until it goes through the regular process.  “There is no actual emergency, and they cannot meet those emergency requirements,” the lawsuit contends.  “Nowhere in the supporting documents is there an explanation of how last year’s budget has become an operational need for the adoption of the regulations on an emergency basis.”

The department said it acted under the authority given it by voters when they passed Proposition 57 in 2016, allowing earlier parole for most inmates.  It “filed regulations to promote changes in good behavior credits, and followed all policies and procedures by the Office of Administrative Law,” the department said in a statement promising to “continue to work with our partners to promote rehabilitation and accountability in a manner consistent with public safety.”

The emergency rules boost good behavior credits for a projected 63,000 inmates convicted of violent crimes, allowing them to prospectively serve two-thirds of their sentences rather than the previous 80%.  Another 10,000 prisoners convicted of a second serious but nonviolent offense and nearly 2,900 nonviolent third strikers would be eligible for release after serving half their sentences, down from two-thirds.  Inmate firefighters and minimum-security inmates in work camps, regardless of the severity of their crimes, are eligible under the new rules for a month of earlier release for every month they spend in the camp.

A press release about the suit from the Sacramento County District Attorney's Office is available here, and the actual filing is available here.

A few recent related posts:

• Reviewing how California got under 100,000 prisoners, a huge cut from modern high and the lowest since the 1980s (but still above designed capacity)
• With new good behavior rules, is California on track to achieve historic "cut 50" in its prison population? 

"What's the right age for juvenile criminals to be considered adults? Advocates and some states push it past 20."

The title of this post is the headline of this notable recent lengthy Des Moines Register piece. Here are excerpts:

Four years ago, juvenile justice advocates celebrated a huge win: North Carolina ended its status as the last state in the nation that automatically considered anyone 16 years old or older an adult in the criminal justice system.  When North Carolina raised the age to 18, the change was more than a dozen years in the making.  Now, advocates are setting their sights — and their desired age limit — higher.

And they're winning.  Vermont, Massachusetts, Connecticut and Illinois raised or are looking to increase the age of juvenile jurisdiction through age 20 or created separate courts or parole allowances for those ages 18 to 25.  Similar bills have moved or are being considered in California, Colorado, Washington, D.C., and Florida.  Backed by evidence of racial disparities, court cases and research showing a person’s brain isn’t fully developed until at least 25, states see kids as kids and emerging adults as not fully developed and still prone to immature behavior.

“We've really seen a reversal of the trend in the ’90s, which was to treat more children as adults — sort of the ‘adult crime and adult time’ mindset,” said Karen Lindell, senior attorney with the Juvenile Law Center.  Studies showed minors sentenced in the adult system not only committed more crimes upon release than peers in the juvenile system but also engaged in more serious crimes, Lindell said.

U.S. Supreme Court rulings struck down the death penalty for juveniles and ended mandatory life without parole in all but homicide cases — then for all crimes.  Faced with the research and those rulings, state officials started looking at trends showing juvenile crime rates were plummeting.  In 2019 — the latest year data is available — minors accounted for the fewest arrests in nearly 40 years, roughly 700,000, according to the U.S. Department of Justice.  The biggest drops in juvenile crime were over the past 10 years — a 58% drop overall and a 40% falloff in violent crime.  By comparison, the department said violent crime among adults was down 7%.

Forty-seven states automatically charge those under 18 as juveniles for all but the most serious offenses, such as murder or sexual assault.  Michigan and Missouri joined the list over the past year.  Michigan is working on the Holmes Youthful Trainee Act, which would give people ages 17 to 23 the chance to wipe even felonies from their records.  "No state should want to be the last jurisdiction to automatically prosecute and sentence youth under 18 as adults," said Lael Chester, director of the Emerging Adult Justice Project at Columbia University’s Justice Lab.

Officials in the remaining three states — Georgia, Wisconsin and Texas — have considered bumping the cutoff age to 18.  All three states set the age at 17.  It's not just the ceiling for juvenile jurisdiction being raised: The floor is being lifted as more states increase the age at which minors can first enter the juvenile system. Massachusetts set the floor at age 12. Illinois lifted it to 14.

As on most state-level changes, states look to their peers for guidance, said Anne Teigen, the program director for juvenile justice at the National Conference of State Legislatures.  Other state lawmakers are looking at Vermont.  That state set the age of juvenile jurisdiction through age 18 last year, and that limit will increase to 19 in July 2022 and 20 in 2024.  Vermont started moving in the direction of raising the age in 2016, when then-Gov. Peter Shumlin, a Democrat, signed a law enabling anyone 21 or younger charged with a nonviolent crime to be eligible for juvenile offender status....

Recently, Illinois lawmakers have debated a bill that would raise the age for juvenile consideration to those under 21 and separately, a measure to reintroduce parole to the state  — something that was ended in 1978.  Illinois, like other states, says adulthood begins at 21 for alcohol and tobacco use, so the same age should be applied to criminal behavior, said state Sen. Laura Fine, a Democrat.  "Their brains are not fully developed," Fine said. "And if you put yourself in their position, think of what you did when you were 18. A lot of people were lucky because they did stupid things, and they didn't get caught."

Many law enforcement organizations oppose the move, and the bill, which won early support, stalled as lawmakers worked on other major criminal justice changes, such as getting rid of cash bail.  "We think that what people do when they're 20 or 21 is quite a bit different from what people do when they're 13 and 14.  And the kinds of opportunities that we give to 13- and 14-year-olds seem rather appropriate most of the time," said Ed Wojcicki, executive director of the Illinois Association of Chiefs of Police, which opposes the measure....

If the Illinois bill becomes law, Columbia University's Chester said, it could swing other states in that direction.  “Illinois would be the second state to move in that direction, but it would be a big deal," Chester said. "As momentous as Vermont is, it's a very small state.  And I think the bigger states, having Illinois with a very large population — the big city of Chicago — that is more influential on the national stage.”

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon: 

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.  The district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.  Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

• Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences
• Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

"Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration"

The title of this post is the title of this new paper authored by Michael Conklin now availabe via SSRN.  Here is its abstract:

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism.  States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs.  The need for such common-sense reform is timely.  COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes.  This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

This Article presents the findings of a first-of-its-kind study, the results of which strongly support juror incarceration-cost salience.  This Article also includes analysis of the arguments for and against the practice. Such consideration results in a clear preference for juror incarceration-cost salience.  It would save valuable state resources that could then be invested into more productive programs, lead to a reduction in crime rates due to the criminogenic effect of incarceration, and would benefit not only incarcerated individuals but also their families and communities.  These benefits, combined with the promising results of this study and the near-perfect converging of political interests in favor of prison reform, all point to a climate that is ripe for such social change.

Another accounting of Ninth Circuit's significant FIRST STEP safety-valve expansion Lopez ruling

In this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve.  Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:

The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases.  All three judges signed on to the result, and on balance it was a relatively conservative panel.  The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.

To understand the opinion, it is first necessary to understand the “safety valve” exception.  This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.

This last exclusion, based on criminal history, was at issue in Lopez.  Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve.  This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.  The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve.  So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum.  But is that what the provision means?  Apparently not, says the panel!  Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.”  And the plainest reading of three items connected by “and” is that the list includes all three.  So, reasoned the panel, to be excluded from safety valve you must have every item on the list.

The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.”  The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points.  So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A).  The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.

Only a small number of defendants meet all three criteria.  The Lopez opinion thus lets many more people avoid mandatory minimum sentences.  With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.  

Prior related post:

• Ninth Circuit panel interprets FIRST STEP amendment to statutory safety valve to greatly expand who can avoid federal mandatory-minimum sentences

Spotlighting how "death in prison" LWOP cases still get so much less attention than capital punishment

Way back in 2008, I lamented in an article, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," that all the "Supreme Court attention and constitutional scrutiny given to capital cases necessarily means less attention and constitutional scrutiny given to non-capital cases."  Though that article was particularly focused on SCOTUS dockets, regular readers know I have long fretted about the tendency of so many media, lawyers, advocates and legal decision-makers to give so much time and energy to very rare capital cases when there are so many other cases with so many other ugly sentencing realities that could benefit from more attention.

Over the last decade, mass incarceration and a range of other sentencing and punishment realities have thankfully garnered considerably more attention in so many quarters.  But I think there are still problematic imbalances in coverage and commentary and concern: for example, South Carolina's decision to bring back firing squads even though the state has not had an execution in a decade got lots of attention, while a Mississippi court's decision to uphold an LWOP sentence for marijuana possession has gotten far less attention.

Against this backdrop, I was pleased to see this new lengthy article in The Marshall Project under the headline "Life Without Parole Is Replacing the Death Penalty — But the Legal Defense System Hasn’t Kept Up."  I recommend this piece in full, and here are excerpts:

Life-without-parole sentences are steadily replacing the death penalty across the United States.  Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66% since 2003, according to The Sentencing Project, a nonprofit that advocates for shorter prison terms. 

By comparison, only 2,500 people nationally are on death row according to the Death Penalty Information Center; the number of new death sentences dwindled to 18 last year, as prosecutors increasingly seek life instead.  Executions are less popular with Americans than they used to be, according to Gallup, and are astronomically expensive to taxpayers.  In Dallas, the district attorney’s office says it asks for capital punishment only for egregious crimes where defendants present a continuing threat to society.

But as life without parole displaces capital punishment, the country’s patchwork system of public defense hasn’t kept up.  Only 11 states report having minimum qualifications for lawyers who represent impoverished people facing a lifetime behind bars, according to the nonprofit Sixth Amendment Center.  In Texas, there’s a continuing dispute over whether the standards for death penalty defense apply if prosecutors seek life without parole instead.

Most states have no rules, The Marshall Project and The Dallas Morning News found.  Someone just out of law school could handle a life-without-parole case in Illinois or Nebraska.  In California, where a third of the prison population is serving some form of life sentence, minimum qualifications apply only in death penalty cases; the state hasn’t executed anyone since 2006.  Other states have minimal standards. South Carolina requires just three years of experience in criminal law; Arkansas specifies that lawyers should have handled at least one homicide trial.

When it comes to life without parole, “the idea that you would treat these cases like you would treat other felonies is somewhat incomprehensible to me,” said Pamela Metzger, the director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.  “The sentencing stakes are so high and often irreversible.”  People facing life have far fewer chances to appeal than those facing capital punishment, and their cases draw far less scrutiny, she said....

Though thousands are serving life without parole for violent crimes such as homicide, courts in almost a dozen states have given hundreds of people that penalty for drug crimes.  Prosecutors have found that jurors are less squeamish about locking people up for the rest of their lives than about executing them. And life-without-parole trials cost thousands of dollars less than death penalty cases. They are shorter, involve fewer lawyers, allow limited appeals and often end in plea deals before trial....

“Prosecutors have gone wild with life-without-parole sentences -- but in particular counties and for particular marginalized people,” said Brandon Garrett, a Duke University law professor who wrote a book on the decline of capital punishment.  His study of North Carolina found that more than 60% of the prison population serving life without parole was Black.  Only 30% was White....

In 2003, the American Bar Association updated its guidelines for what lawyers should do for clients who face death sentences. Among other things, the guidelines say these lawyers should have extensive criminal trial experience and knowledge of death penalty case law and should hire investigators and mental health experts.  Some state legislatures and courts have adopted these standards, including Texas. But experts say enforcement is a problem.  And in almost every state, the standards don’t apply to life-without-parole cases. 

Noticing a lack of pleas, so far, in Capitol riot prosecutions

I keep saying that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  This recent Reuters piece, headlined "Few plea bargains in U.S. Capitol riot cases as prosecutors stand firm," provides another interest update on these cases:

Nearly four months after the U.S. Capitol attack, just one of more than 440 people charged has pleaded guilty, a sign of tough conditions set by prosecutors for plea deals and resistance by defense lawyers to their demands.  This reflects the high stakes of cases stemming from the worst violence at the Capitol in modern history, which left five people dead.

U.S. officials have suggested in court hearings that defendants might be interested in pleading guilty, a move that typically can result in a shorter sentence.  Prosecutors routinely seek to resolve cases through plea bargains.  But legal experts said it is relatively early in this process for either prosecutors or defense lawyers to be reaching quick deals.

Lawyers for more than a dozen defendants said plea talks so far have foundered because prosecutors demanded their clients turn over social media data, cell phones and other evidence, while also pushing for prison sentences they would not accept.  Without plea deals, hundreds of separate trials will move forward, a time-consuming process now extended by a case backlog resulting from the COVID-19 pandemic.

Moreover, without evidence provided under plea bargains, federal prosecutors may have a harder time building cases against leaders of the violence on more serious charges such as conspiracy or violation of laws intended to fight organized crime....

The charges have ranged widely, from disorderly conduct to assaulting officers and conspiracy. Key conspiracy cases have largely focused on leaders of the right-wing Oath Keepers and Proud Boys groups. They face charges of obstruction of an official proceeding, destruction of government property and occupying a restricted building.

Some defendants facing lesser charges have been surprised by prosecutors' demands. Defense lawyers have complained that their insistence on obtaining cell phones and other physical and digital evidence is excessive. That data could be used to build cases against planners of the violence.

Attorney Steven Metcalf said he rejected a plea deal that would have sent his client Richard Barnett to prison for several years. The man from Gravette, Arkansas was seen in a widely circulated photograph sitting at a desk with his feet up in House of Representatives Speaker Nancy Pelosi's office. "We might consider something more reasonable," Metcalfe said....

Former federal prosecutor Laurie Levenson, a law professor at Loyola Law School in Los Angeles, said that by taking a tough stand in plea-bargain negotiations, prosecutors are "sending a message" about how seriously they take the riot cases. "It is still relatively early in the process," Levenson said. "Prosecutors don't want to ... set the standards too low. There's not a lot incentive for prosecutors to give a sweetheart deal."

Prosecutors are also likely focused on amassing as much evidence as they can, she said, hence the requests for defendants to surrender phones and other data. The one person who has pleaded guilty so far, Oath Keepers founding member Jon Schaffer, agreed to turn over "any and all evidence" of crimes that he was aware of and to fully cooperate with prosecutors, according to his plea deal filed in federal court.

The lawyer for Jacob Chansley, the man nicknamed the "QAnon Shaman" who was photographed wearing a horned headdress inside the Capitol, said the prosecutors he has talked to appear to have less leeway to negotiate deals without consulting Washington than he normally encounters in federal cases. "We have been working as collaboratively as we can with the government," said Albert Watkins, a St. Louis lawyer who represents Chansley and three other Jan. 6 defendants....

At a court hearing this month, prosecutors indicated that senior officials had approved possible plea deal offers for four defendants charged with attacking police in a Capitol tunnel with firecrackers and chemicals. But lawyers for some of them said no offers have materialized....

Plea discussions appear to be advanced in the case of at least one other accused rioter, court records showed. Douglas Jensen of Des Moines, Iowa, faces charges including violent entry of the Capitol and disrupting government business. Court records showed that a conference in early May was postponed until June while the parties decide if they want to proceed with a plea. Jensen’s lawyer declined to comment.

I am quite confident that many of these cases will be resolved via pleas and that there will not be "hundreds of separate trials" moving forward.  Indeed, because prosecutors are still building more cases and likely still figuring out relative culpability, it is not all that surprising that they are aggressively seeking cooperation and information in the plea negotiation process before agreeing to reduced sentences.  Also, as Prof Levenson rightly highlights, federal prosecutors are likely disinclined to have early pleas involve less serious charges with what may be perceived as light sentencing outcomes, both because of the optics of any deal perceived to be "sweetheart" and because early plea deals often set benchmarks for later plea negotiations and sentencings.  In other words, these case still reflect classic federal prosecutorial dynamics, even if plea deals are being struck a little more slowly.

Prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot
• Covering some interesting developments in some Capitol riot prosecutions 

"Population-Based Sentencing"

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

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses.  How have courts responded to this trend?  Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques.  First, the courts have expanded individual procedural rights into sentencing where they once did not apply.  Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment on individual defendants.  These responses exist in deep tension with policymakers’ goals to shape sentencing outcomes in the abstract.  While courts seek to preserve the sentencing process, advocates encourage the courts to manage the population-based sentencing tools. The courts’ response is potentially problematic, as refusal to regulate the tools can undermine criminal administration.  However, it presents an underexplored opportunity for courts and opponents of the recent trend toward institutionalizing actuarial risk assessments to jointly create the intellectual and policy-driven space for more fundamental, structural reforms relating to the U.S. criminal legal apparatus. This Article urges the courts and legal scholars to consider these alternatives going forward.

Notable data on BOP resistance to compassionate release requests from federal prisoners

As regular readers likely surmise, I have been quite pleased that federal courts have seized their new authority under the FIRST STEP Act 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.  This BOP "First Step Act" page reports that there have been a total of 3,414 "Compassionate Releases / Reduction in Sentences" approved by courts since passage of the FIRST STEP Act, but the BOP has not reported on how many of such motions have been support by the BOP.  But this week, a letter from the BOP to members of Congress (which was apparently written in mid April and can be downloaded below) provides more details on how many compassionate release requests have been made and how few have been endorsed by the BOP.

Specifically, the letter to members of Congress authored by Ken Hyle, BOP's General Counsel, reports that since March 1, 2020, a little over 30,000 compassionate release requests were made by federal prisoners,  Of that number, only 374 of these requests were recommended for approval by prison wardens and then only 36 were approved by the BOP's Director.  In other works, during global pandemic, only about 1 out of 83 requests for compassionate release got approved by a federal warden, and then less than one out of every 10 requests approved by a warden was approved by the BOP Director.

Thankfully, federal judges had a much more fulsome view of compassionate release during a pandemics.  Specifically, given that around 3250 motions for compassionate release were granted by judges during the pandemic, it seems that for every compassionate release motion found satisfactory by the BOP Director, there were an additional 90 motions that federal judges concluded were satisfactory to  justify a sentence reduction under the provisions of 18 U.S.C. § 3582(c)(1)(A).

Download Response from BOP re. compassionate release during COVID 4.16.21

Senate Judiciary Committee to mark up three criminal justice and sentencing reform bills

I was pleased to see today this press release from Americans for Prosperity noting that the US Senate Judiciary Committee has a meeting scheduled on Thursday which includes plans "to mark up three key bills: the First Step Implementation Act, the COVID-19 Safer Detention Act, and the Prohibiting Punishment of Acquitted Conduct Act."  Here is how the press release describes these bills:

• First Step Implementation Act — will allow certain sentencing reforms passed in the First Step Act to be applied retroactively, provide judges with additional discretion to apply the appropriate punishment in criminal cases, and provides for the sealing and expungement of nonviolent crimes individuals committed as a minor, among other things.

• COVID-19 Safer Detention Act — will require individualized determination of suitability for compassionate release or transfer to home detention. This is particularly important for persons who are especially vulnerable due to age or medical condition

• Prohibiting Punishment of Acquitted Conduct Act — will eliminate the ability for federal judges to enhance sentences for conduct which a defendant has previously been acquitted by a jury during trial.

I have blogged about all these bills in these prior posts:

Senators Durbin and Grassley introduce new "First Step Implementation Act"

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act" 

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act" 

It is exciting to all three of these bill poised to move forward in the legislation process.  None alone would be a massive reform, but all together would be a significant advance in federal criminal justice reform.

Idaho delays scheduled execution for terminally ill condemned man to allow for commutation hearing

As reported in this new AP piece, a "scheduled June execution for an Idaho man who is dying of terminal cancer has been canceled so the state’s Commission of Pardons and Parole can consider whether to commute his sentence."  Here are a few details:

Gerald Ross Pizzuto Jr. was scheduled to die by lethal injection on June 2 in connection with the 1985 murders of two people at a remote Idaho County cabin.  On Tuesday, the Idaho Commission of Pardons and Parole granted Pizzuto’s request for a commutation hearing, and attorneys for the state and Pizzuto agreed that the execution should be stayed until the hearing is concluded.  The hearing will be held in November, the commission said....

Pizzuto, 65, has terminal bladder cancer, diabetes and heart disease and is confined to a wheelchair.  He’s been on hospice care since 2019, when doctors said he likely wouldn’t survive for another year....

Court records show Pizzuto’s life was marred by violence from childhood.  Family members offered gruesome testimony that Pizzuto was repeatedly tortured, raped and severely beaten by his stepfather and sometimes by his stepfather’s friends, and he sustained multiple brain injuries.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area. Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money.  He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies and all three were accused of robbing the cabin.

Pizzuto is one of eight people on Idaho’s death row.  Idaho has executed three people since capital punishment was resumed nationwide in 1976.  Keith Eugene Wells was executed in 1994, Paul Ezra Rhodes was executed in 2011 and Richard Albert Leavitt was executed in 2012.

Uninspired comments and plans emerging from Biden White House concerning clemency vision

The New York Times has this new story that reinforces some of the buzz I have been recently hearing that Prez Biden is disinclined to significantly transform either the process or the practice of federal clemency anytime soon.  Regular readers know I have been urging clemency action by Prez Biden since his first days in office, but the first line of the article suggests we ought not expect any grants until at least mid to late 2022: "Administration officials have quietly begun evaluating clemency requests and have signaled to activists that President Biden could begin issuing pardons or commutations by the midpoint of his term."

The article does goes on to suggest Prez Biden might at least be considering a clemency approach akin to what Prez Obama eventually adopted at the very end of his second term. But it sounds like any program would still be administered through the Pardon Attorney's office still problematically located in the Department of Justice.  Here are excerpts of a piece worth reading in full:

Mr. Biden’s team ... has signaled in discussions with outside groups that it is establishing a more deliberate, systemic process geared toward identifying entire classes of people who deserve mercy.  The approach could allow the president to make good on his campaign promise to weave issues of racial equity and justice throughout his government.

The White House has publicly offered few details about his plans for issuing pardons, which wipe out convictions, and commutations, which reduce prison sentences.  But White House officials have indicated in private conversations with criminal justice activists, clemency seekers and their allies that Mr. Biden’s team is working with the Justice Department’s Office of the Pardon Attorney to process clemency requests with an eye toward having the president sign some before the 2022 midterm elections.

“We asked them not to wait to the end of a term to execute pardon and commutation power for photo ops, and they definitely assured us that is not this administration’s plan,” said DeAnna Hoskins, the president of the criminal justice group JustLeadershipUSA, who participated in a Zoom session for former prisoners with White House officials last month. “This administration is looking at early on,” said Ms. Hoskins, who worked on prisoner re-entry issues for county, state and federal government agencies after serving a 45-day sentence for theft in 1999.

Participants in the Zoom session and other meetings with the White House have come away with the impression that Mr. Biden intends to use clemency grants — which are among the most unchecked and profound powers at a president’s disposal — to address systemic issues in the criminal justice system.  The Biden campaign hinted at such an approach in its criminal justice platform, which indicated that he intended to use clemency “broadly” to “secure the release of individuals facing unduly long sentences for certain nonviolent and drug crimes.”

Among those supporting the administration’s efforts is Susan E. Rice, who leads Mr. Biden’s Domestic Policy Council. She is focused on instilling racial equity in all of the administration’s initiatives and has recruited a team with deep roots in civil rights and justice....  But the White House has indicated that it will rely on the rigorous application vetting process overseen by the Justice Department’s Office of the Pardon Attorney.

Mr. Biden’s White House has already signaled that even its allies will have to go through the process, as was made clear to Desmond Meade, who in 2018 led a successful push to restore voting rights to more than 1.4 million Floridians with felony convictions.  Mr. Meade, who has expressed interest in a federal pardon for a decades-old military conviction for stealing liquor and electronics on Navy bases while he was serving in the Army, was steered this year to the Justice Department’s pardon attorney...  In an interview, Mr. Meade said that the department’s clemency process was “way too bureaucratic,” adding that “the pardon application in itself is daunting, and it screams that you need to hire an attorney to make that happen.”  He said he was among the activists who urged White House officials to consider moving the process out of the Justice Department, noting the paradox of entrusting an agency that led prosecutions with determining whether the targets of those prosecutions deserve mercy.

But the Biden administration is not inclined to circumvent the department, according to a person familiar with the White House’s thinking. Instead, Mr. Biden’s team has pointed to the approach adopted by President Barack Obama, who issued more than 1,900 clemency grants.  Most went to people recommended by the Justice Department, many of whom had been serving sentences under tough antidrug laws, including those convicted of low-level, nonviolent crimes like possession of cocaine.

In outreach sessions to criminal justice activists, White House officials have collected recommendations on categories of clemencies that should be prioritized.  The sessions have included groups with strong connections in the Black community and those that aggressively opposed Mr. Trump, including the American Civil Liberties Union, as well as the libertarian Cato Institute and the Prison Fellowship, which counts evangelical conservatives among its staff and supporters....

The A.C.L.U. highlighted those prisoners and others in an online and newspaper advertising campaign during Mr. Biden’s inauguration week.  It urged him to grant clemency to 25,000 people in federal prison, including “the elderly, the sick, those swept up in the war on drugs and people locked up because of racist policies of the past that have since been changed.”  Udi Ofer, the director of the A.C.L.U’s justice division, said that Mr. Biden “has a special obligation given his history to use the power of clemency to fix these issues, because he was the architect of so many of the mass incarceration policies that we are now trying to repeal.”

I suppose I should be pleased that clemency issues continue to get significant attention, but I remain displeased that all we have seen so far is a lot of clemency talk (or proclamations about second chances) and no actual clemency grants.  Notably, recent polling shows lots of support for commuting the sentences of a wide variety of persons serving problematic sentences, and  almost everyone readily recognizes that there are many, many persons in the federal criminal justice system still subject to problematic sentences.  I say "almost everyone" because I sense that federal prosecutors working in the Department of Justice do not see all that many federal sentences as so problematic, which is why so many others (myself included) think it so problematic that the Justice Department’s Office of the Pardon Attorney continues to serve as the gatekeeper (and wet blanket) in the federal clemency process.  

A few prior recent related posts:

• Might Prez Biden use his clemency power relatively soon?
• New detailed polling reveals broad support for broad use of clemency power to commute sentences
• How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation?
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison 
• How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day? 

SCOTUS rules unanimously that "community caretaking" does not create special exception to Fourth Amendment for warrantless home entry

Though I will be thinking a lot about what a split Supreme Court did to Teague doctrine today with its ruling in Edwards v. Vannoy (discussed here), the Court also was notably unanimous this morning in another criminal case, Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021) (available here). The start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:

Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment.  Cady v. Dombrowski, 413 U.S. 433 (1973).  In reaching this conclusion, the Court observed that police officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents.  Id., at 441.  The question today is whether Cady’s acknowledgment of these “caretaking” duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.  It does not....

What is reasonable for vehicles is different from what is reasonable for homes.  Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”  Collins, 584 U.S., at ___ (slip op., at 8).  We thus vacate the judgment below and remand for further proceedings consistent with this opinion.

Intriguingly, Justices Alito and Kavanaugh write distinct concurring opinions, both longer than the opinion of the Court, in order to set out questions unresolved and examples of what Justice Kavanaugh views as "warrantless entries that are perfectly constitutional under the exigent circumstances doctrine."  Here is a notable passage from Justice Alito's concurrence that brings to mind a famous commercial (footnotes removed):

Today, more than ever, many people, including many elderly persons, live alone.  Many elderly men and women fall in their homes, or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance.  In those cases, the chances for a good recovery may fade with each passing hour.  So in THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive.  This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.

By 6-3 vote, SCOTUS in Edwards v. Vannoy rewrites Teague to say all new procedural rules not retroactive in federal habeas

The Supreme Court this morning handed down an opinion in Edwards v. Vannoy, No. 19–5807 (S. Ct. May 17, 2021) (available here), which holds that the "Ramos jury-unanimity rule ... does not apply retroactively on federal collateral review." Justice Kavanaugh wrote the opinion for the Court, and it starts this way:

Last Term in Ramos v. Louisiana, 590 U.S. ___ (2020), this Court held that a state jury must be unanimous to convict a criminal defendant of a serious offense.  Ramos repudiated this Court’s 1972 decision in Apodaca v. Oregon, 406 U.S. 404, which had allowed non-unanimous juries in state criminal trials.  The question in this case is whether the new rule of criminal procedure announced in Ramos applies retroactively to overturn final convictions on federal collateral review.  Under this Court’s retroactivity precedents, the answer is no.

This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review.  See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion); see also Linkletter v. Walker, 381 U.S. 618, 639–640, and n. 20 (1965).  Indeed, in the 32 years since Teague underscored that principle, this Court has announced many important new rules of criminal procedure.  But the Court has not applied any of those new rules retroactively on federal collateral review.  See, e.g., Whorton v. Bockting, 549 U.S. 406, 421 (2007) (Confrontation Clause rule recognized in Crawford v. Washington, 541 U.S. 36 (2004), does not apply retroactively).  And for decades before Teague, the Court also regularly declined to apply new rules retroactively, including on federal collateral review.  See, e.g., DeStefano v. Woods, 392 U.S. 631, 635 (1968) (per curiam) (jury-trial rule recognized in Duncan v. Louisiana, 391 U.S. 145 (1968), does not apply retroactively).

In light of the Court’s well-settled retroactivity doctrine, we conclude that the Ramos jury-unanimity rule likewise does not apply retroactively on federal collateral review.  We therefore affirm the judgment of the U. S. Court of Appeals for the Fifth Circuit.

Notably, the Edwards Court here goes beyond saying that it refuses yet again to find a procedure to meet the "watershed" exception to the retroactivity limits in Teague, it says there is no longer to be such an (hypothetical) exception:

At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts.... It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U.S. ___, ___ (2019) (slip op., at 11)(internal quotation marks omitted).

Justice Kagan authors the dissent (joined by Justices Breyer and Sotomayor), and its starting passage concludes this way:

The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule.  Nor can the majority explain its result by relying on precedent.  Although flaunting decisions since Teague that held rules non-retroactive, the majority comes up with none comparable to this case.  Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.

So everything rests on the majority’s last move — the overturning of Teague’s watershed exception.  If there can never be any watershed rules — as the majority here asserts out of the blue — then, yes, jury unanimity cannot be one.  The result follows trippingly from the premise.  But adopting the premise requires departing from judicial practice and principle.  In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis.  It discards precedent without a party requesting that action.  And it does so with barely a reason given, much less the “special justification” our law demands.  Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014).  The majority in that way compounds its initial error: Not content to misapply Teague’s watershed provision here, see ante, at 10–14, the majority forecloses any future application, see ante, at 14–15.  It prevents any procedural rule ever — no matter how integral to adjudicative fairness — from benefiting a defendant on habeas review.  Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.

SCOTUS grants cert on a capital habeas procedure case, while Justice Sotomayor makes district statement about capital sentencing process

The Supreme Court is back in action this morning, and the big news from this new order list is its decision to grant cert on an abortion case from Mississippi.  But the Court granted cert in a couple of other cases, including a capital case from Arizona, Shin v. Ramirez, No. 20-1009, which raises this issue:

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

In addition, at the end of the order list, Justice Sotomayor has a statement respecting the denial of certiorari in a capital case out of Texas, Calvert v. Texas, No. 20–701.  The statement laments various procedural developments in this case and ends this way:

Although this case does not meet this Court’s traditional criteria for certiorari, it still stands as a grim reminder that courts should rigorously scrutinize how States prove that a person should face the ultimate penalty.  Juries must have a clear view of the “uniquely individual human beings” they are sentencing to death, Woodson, 428 U.S., at 304 (plurality opinion), not one tainted by irrelevant facts about other people’s crimes.  The Constitution and basic principles of justice require nothing less.

"Drug Supervision"

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

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society,” Judge Latrice Westbrooks wrote. “The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

Fascinating compassionate release ruling based on clear sentencing error without other means of remedy

Regular readers are likely familiar with many of my (pre-COVID) prior posts making much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds.  A helpful reader alerted me to an especially interesting example of the granting of a sentencing reduction in US v. Trenkler, Cr. No. 92-10369 (D. Mass. May 6, 2021) (available for download below).

Trenkler is a fascinating case and opinion for many reasons, and the discussion of the case particulars and compassionate release jurisprudence more generally make Trenkler a must-read for anyone working in this space.  Here are some small snippets from the start and heart of the 50+ page opinion to encourage downloads:

Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer.  On November 29, 1993, a jury convicted Trenkler of illegal receipt and use of explosive materials and attempted malicious destruction of property by means of explosives, in violation of 18 U.S.C. §§ 844(d), 844(i) (Counts 2 and 3), and conspiracy, in violation of 18 U.S.C. § 371 (Count 1). See Jury Verdict, ECF No. 487. Trenkler is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”).  Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence....  The Court reduces Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years... 

In addition to the risks associated with the COVID-19 pandemic, Trenkler urges the Court to reduce his sentence to time served in light of the “unique circumstances” surrounding his case.  Those unique circumstances, in Trenkler’s view, include questions surrounding his guilt and the fundamental unfairness of his conviction; the disproportionality of his sentence as compared to Shay, Jr.’s sentence; and his unlawfully imposed life sentence.

[Despite limits in AEDPA concerning habeas petitions,] now Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction....  [A series of discussed] cases — and others like them — leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case....

Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.

Download Trenkler CR opinion

"Representing juvenile lifers: do attorneys in parole hearings matter?"

The title of this post is the title of this new article authored by Stuti Kokkalera and just published online in the Journal of Crime and Justice.  Here is its abstract:

Courts and scholars have advocated for the right to legal representation in the parole process. The state examined in this study qualified that juvenile lifer parole candidates have the right to an attorney at their initial parole board hearing.  Data drawn from written decisions issued by the state parole board were analyzed to determine the association between having an attorney and type of legal representation on two parole outcomes: (1) whether a candidate was granted or denied parole, and (2) length of interval terms, that is, number of years that a candidate waits for another hearing.  While having an attorney at the hearing was not related to both outcomes, type of representation was associated with interval terms.  Hearings with appointed (non-retained) attorneys were associated with reduced odds of a maximum interval term, while having retained attorneys was related to higher odds of a maximum interval term.  Hence, state efforts to provide counsel are necessary since their presence is significantly associated with the ultimate time served by juvenile lifer candidates.  Findings support the need for more comparative research across states as well as the inclusion of other parole-eligible populations.

State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing

As reported in this new AP piece, a "Minnesota judge has ruled that there were aggravating factors in the death of George Floyd, paving the way for the possibility of a longer sentence for Derek Chauvin, according to an order made public Wednesday."  Here are more details and context:

In his ruling dated Tuesday, Judge Peter Cahill found that Chauvin abused his authority as a police officer when he restrained Floyd last year and that he treated Floyd with particular cruelty. He also cited the presence of children when he committed the crime and the fact Chauvin was part of a group with at least three other people.

Cahill said Chauvin and two other officers held Floyd handcuffed, in a prone position on the street for an “inordinate amount of time” and that Chauvin knew the restraint was dangerous. “The prolonged use of this technique was particularly egregious in that George Floyd made it clear he was unable to breathe and expressed the view that he was dying as a result of the officers’ restraint,” Cahill wrote.

Even with the aggravating factors, legal experts have said, Chauvin, 45, is unlikely to get more than 30 years when he is sentenced June 25....

Even though Chauvin was found guilty of three counts, under Minnesota statutes he’ll only be sentenced on the most serious one — second-degree murder. Under Minnesota sentencing guidelines, he would have faced a presumptive sentence of 12 1/2 years on that count, and Cahill could have sentenced him to as little as 10 years and eight months or as much as 15 years and still stayed within the guideline range.

But prosecutors asked for what is known as an upward departure — arguing that Floyd was particularly vulnerable with his hands cuffed behind his back as he was face-down on the ground. They noted that Chauvin held his position even after Floyd became unresponsive and officers knew he had no pulse.

With Tuesday’s ruling, Cahill has given himself permission to sentence Chauvin above the guideline range, though he doesn’t have to, said Mark Osler, professor at the University of St. Thomas School of Law. He said attorneys for both sides will argue whether an upward departure is appropriate and how long the sentence should be.

A pre-sentence investigation report will also be conducted. These are usually nonpublic and include highly personal information such as family history and mental health issues, as well as details of the offense and the harm it caused others and the community....

Cahill agreed with all but one of the prosecutors’ arguments. He said prosecutors did not prove that Floyd was particularly vulnerable, noting that even though he was handcuffed, he was able to struggle with officers who were trying to put him in a squad car....

No matter what sentence Chauvin gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of the penalty in prison and the rest on supervised release, commonly known as parole.

Chauvin has also been indicted on federal charges alleging he violated Floyd’s civil rights, as well as the civil rights of a 14-year-old he restrained in a 2017 arrest. If convicted on those charges, which were unsealed Friday, a federal sentence would be served at the same time as Chauvin’s state sentence. The three other former officers involved in Floyd’s death were also charged with federal civil rights violations; they await trial in state court on aiding and abetting counts.

The full six-page ruling reference in this article is available at this link.

Prior related posts:

• Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors 
• Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing 

The Sentencing Project releases new report urging "A Second Look at Injustice"

Long-time readers know that I have long been a supporter of laws and practices that facilitate taking a second look at long sentences (see links below).  I continue to be pleased to see more and more advocacy for second look sentencing efforts, and I am especially pleased to see this new 50-page report from The Sentencing Project titled " " Here is the start of its Executive Summary:

Lawmakers and prosecutors have begun pursuing criminal justice reforms that reflect a key fact: ending mass incarceration and tackling its racial disparities require taking a second look at long sentences.

Over 200,000 people in U.S. prisons were serving life sentences in 2020 — more people than were in prison with any sentence in 1970. Nearly half of the life-sentenced population is African American.  Nearly one-third is age 55 or older.

“There comes a point,” Senator Cory Booker has explained, “where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long.”  He and Representative Karen Bass introduced the Second Look Act in 2019 to enable people who have spent at least 10 years in federal prison to petition a court for resentencing.

Legislators in 25 states, including Minnesota, Vermont, West Virginia, and Florida, have recently introduced second look bills.  A federal bill allowing resentencing for youth crimes has bipartisan support.  And, over 60 elected prosecutors and law enforcement leaders have called for second look legislation, with several prosecutors’ offices having launched sentence review units.

This report begins by examining the evidence supporting these reforms.  Specifically:

•  Legal experts recommend taking a second look at prison sentences after people have served 10 to 15 years, to ensure that sentences reflect society’s evolving norms and knowledge.  The Model Penal Code recommends a judicial review after 15 years of imprisonment for adult crimes, and after 10 years for youth crimes.  National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have recommended a second look for all after 10 years of imprisonment — a timeframe that corresponds with what criminological research has found to be the duration of most “criminal careers.”

•  Criminological research has established that long prison sentences are counterproductive to public safety.  Many people serving long sentences, including for a violent crime, no longer pose a public safety risk when they have aged out of crime.  Long sentences are of limited deterrent value and are costly, because of the higher cost of imprisoning the elderly.  These sentences also put upward pressure on the entire sentencing structure, diverting resources from better investments to promote public safety.

•  Crime survivors are not of one mind and many have unmet needs that go beyond perpetual punishment.  Ultimately, a survivor’s desire for punishment must be balanced with societal goals of advancing safety, achieving justice, and protecting human dignity.

A few on many recent prior posts on second-look topics:

• NACDL releases model "Second Look" sentencing legislation providing for resentencing after a decade in prison
• An awesome reading list on "Second Look Sentencing"
• "Fighting for a Second Look: Efforts in Ohio and Across the Nation"
• "Prosecutor-Driven 'Second Look' Policies Are Encouraging, But Not A Panacea"
• "Judges should be able to take a 'second look' at prison sentencing" 
• "Taking a second look at life imprisonment"

A sampling of my prior writing on this front through the years:

• "Sentencing is Dang Hard... And So..."
• "Re-Balancing Fitness, Fairness, and Finality for Sentences"
• "Reflecting on Parole's Abolition in the Federal Sentencing System"
• "Encouraging (and Even Requiring) Prosecutors to be Second-Look Sentencers"
• "Leveraging Marijuana Reform to Enhance Expungement Practices"
• "Turning Hope-and-Change Talk Into Clemency Action for Non-Violent Drug Offenders"
• "Exploring the Theory, Policy and Practice of Fixing Broken Sentencing Guidelines"
• "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions"

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

• Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

"Old law" federal prisoners provide new reminder that parole does not cure all ills

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which lamented the federal sentencing system's decision to abolish parole back in 1984.  Among other points, in this piece I suggested that "parole could have been, and perhaps should now become, a bulwark against the kind of impersonalized severity that has come to define much of the modern federal sentencing experience."  I realized while working on that piece that there was a bit of "grass is always greener" thinking driving my modern "ivory tower" affinity for part of a sentencing scheme that has long been beset with problems in practice. 

Today, the imperfect realities of parole is highlighted in this new NPR piece a helpful reader made sure I saw headlined "Forgetting And Forgotten: Older Prisoners Seek Release But Fall Through The Cracks."  I recommend the full piece, and here is how it starts and a few other passages:

Davon-Marie Grimmer has been struggling to get help for more than year for her cousin, Kent Clark. Sometimes, when he calls from prison, he asks to speak with relatives who are no longer alive. Sometimes, he forgets the name of his cell mate. "As far as I know, he hasn't received any medical attention for the dementia, and he's just so vulnerable in there," Grimmer said. "He's 66 years old. He can't take care of himself."

Clark is one of about 150 people in federal prison who time mostly forgot. This group of "old law" prisoners committed crimes before November 1987, when the law changed to remove the possibility of parole. But even with the grandfathered-in chance for parole — and despite a push to reduce prison populations — dozens of men in their 60s, 70s and 80s still have little hope of release.

When Congress tweaked the law three years ago to allow sick and elderly people behind bars to apply to a judge for compassionate release, that change didn't apply to the "old law" prisoners. They're easy to overlook.

"They are the oldest and most vulnerable cohort of people within the federal prison system today," said Chuck Weisselberg, a law professor at the University of California, Berkeley. "I mean, their only path for release is through the parole commission, an agency that's been dying for decades."

A bipartisan group of senators has introduced legislation that would give "old law" prisoners the chance to petition judges for release based on their age and poor health, but it's awaiting action in Congress....

As for Kent Clark, the U.S. Parole Commission reviewed his case last year.  According to written records, Clark's case manager told the commission that Clark is showing signs of dementia.  He pointed out that as a young man, Clark was a boxer who may have a history of head injuries.

But the parole examiner denied Clark's bid for release.  The examiner wrote that if Clark can't remember what he did, "how can the Commission be certain he has learned something from his mistakes and/or that he has developed the skills to avoid engaging in the same behavior?"

"Constraining Criminal Laws"

The title of this post is the title of this notable new article authored by F. Andrew Hessick and Carissa Byrne Hessick now available via SSRN. Here is its abstract:

Most criminal law is statutory.  Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes.  They say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal

This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past.  Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law.  The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability.

Split Eleventh Circuit panel creates circuit split over compassionate relief criteria after FIRST STEP Act

I have blogged in recent months about a significant number of significant circuit rulings addressing the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine "extraordinary and compelling" reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below). 

But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits.  The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021) (available here), gets started this way:

Thomas Bryant is a corrupt former police officer who was sentenced to prison for running drugs and guns. He filed a motion seeking a reduction in his sentence under 18 U.S.C. § 3582(c)(1)(A), and the district court denied that motion based on the Sentencing Commission’s policy statement found at U.S.S.G. § 1B1.13.  In resolving Bryant’s appeal, we must answer two questions about the relationship between Section 3582(c)(1)(A) and 1B1.13.

First, we must decide whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement.  Under Section 3582(c)(1)(A), a court can reduce an otherwise final sentence for “extraordinary and compelling reasons,” as long as the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”  The statute commands the Commission to publish a policy statement that defines “extraordinary and compelling reasons,” 28 U.S.C. § 994(t), and the Commission did: 1B1.13, which is entitled “Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A).”  At the time, the statute required all motions to be filed by the BOP.  The policy statement repeats that then-existing statutory language and, in its application notes, lists several circumstances that are “extraordinary and compelling reasons” that justify a sentence reduction.

So far, so good.  But after Congress changed the statute to allow defendants to file motions in addition to the BOP, several of our sister circuits have held that 1B1.13 is not an “applicable policy statement[]” for those defendant-filed motions.  This is so, they say, because the policy statement, quoting the pre-existing statute’s language, begins with the following phrase: “Upon motion of the Director of the Bureau of Prisons.”  Based mostly on that language, our sister circuits have held that this policy statement is not an “applicable policy statement” that binds judicial discretion as to defendant-filed motions.

We disagree with that reasoning.  The statute’s procedural change does not affect the statute’s or 1B1.13’s substantive standards, specifically the definition of “extraordinary and compelling reasons.”  The Commission’s standards are still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant.  And the structure of the Guidelines, our caselaw’s interpretation of “applicable policy statement,” and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.

Second, because we conclude that 1B1.13 is an applicable policy statement, we must determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A).  Bryant argues that Application Note 1(D) of 1B1.13 conflicts with the statute’s recent amendment.  As a catch-all provision, Application Note 1(D) says that a court may grant a motion if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”  Bryant argues that, because the statute now allows for defendant-filed motions, we should replace “as determined by the [BOP]” with “as determined by the [court].”  This alteration to the policy statement would give courts effectively unlimited discretion to grant or deny motions under Application Note 1(D).

But we cannot do that. Application Note 1(D) is not inconsistent with the procedural change in the statute that allows defendants to file motions.  Because we can apply both the amended Section 3582(c)(1)(A) and Application Note 1(D), we must apply both.

In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop “other reasons” that might justify a reduction in a defendant’s sentence. Accordingly, we affirm.

Judge Martin's dissent gets started this way:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”).  Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act.  And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.  The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement.  Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it.  With all respect due, I dissent.

A few of many, many prior related posts:

• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority

Split(?) Sixth Circuit panel clarifies disparity between actual sentence and sentence under current law can be proper compassionate relief factor

I have been pleased to be able to blog about a significant number of significant circuit rulings on the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth Sixth, Seventh, Ninth and Tenth Circuits issued generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).  And, yesterday a split(?) Sixth Circuit issued another ruling in this line of important precedents with US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), which gets started this way and thereafter makes key observations on the way to reaching its holding:

Ian Owens appeals the district court’s order denying his motion for compassionate release because it concluded that the disparity between his lengthy sentence and the sentence that he would receive following the passage of the First Step Act was not an extraordinary and compelling reason to support compassionate release.  For the reasons set forth in this opinion, we REVERSE the district court’s order and REMAND for reconsideration of Owens’s motion for compassionate release consistent with this opinion....

Many district courts across the country have taken the same approach as McGee and Maumau and have concluded that a defendant’s excessive sentence because of mandatory minimum sentences since mitigated by the First Step Act may, alongside other factors, justify compassionate release. [cites to more than a dozen notable district court rulings modifying sentences]... 

As explained above, Owens presented three factors that he asserted together warranted compassionate release.  The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.  In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings.

I keep putting a question mark next to the notation "split" with respect to this panel decision because here is the (seemingly peculiar) start to the opinion in Owens:

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J., will deliver a separate dissenting opinion that will be appended to the majority opinion at a later time.

Until Judge Thapar appends his dissenting opinion, I am not sure if he disagrees with the main holding of the panel majority or if he has some other concern with this decision.  I presume he is dissenting on the merits, but the idea that sentencing disparities can be at least a factor in considering compassionate release motions does not seem to me to be a particularly controversial proposition since the text of the applicable statute does not expressly provide for any excluded factors concerning what can serve an "extraordinary and compelling reason" to support a sentence modification.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority 

Covering some interesting developments in some Capitol riot prosecutions

I have previously noted that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  And today I noticed a bunch of recent press pieces with interesting accounts of certain parts of this federal case processing story for certain defendants.  Here are links and headlines:

From BuzzFeed News, "They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway."

From CNN, "Justice Department preps plea deals for rioters from viral video of cops trapped in Capitol tunnel"

From Law & Crime, "Federal Appeals Court Upholds Decision to Keep Proud Boy Behind Bars Ahead of Trial for Pepper Spraying Police"

From NBC News, "FBI still after 'worst of the worst' in Capitol riot as new arrests come at steady pace"

From the New York Times, "‘There Was a Big Battle in Here’: Lawyers Tour Capitol as a Crime Scene"

Prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Harsh penal treatment of some Capitol rioters being criticized by notable progressive 
• Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

New Urban Institute resources on FIRST STEP Act prison particulars

I learned today via email about two notable new resources from the folks at the Urban Institute engaging with some of the intricacies of the prison reform elements of the FIRST STEP Act. 

First, this posting by Emily Tiry and Julie Samuels, titled "Three Ways to Increase the Impact of the First Step Act’s Earned Time Credits," suggests how this piece of the Act could be improved. Here is a snippet:

The 2018 First Step Act—the first major federal criminal justice reform legislation in nearly a decade—established earned time credits (ETCs) to provide early release opportunities for people incarcerated in the federal Bureau of Prisons (BOP).

But to date, implementation of the ETC program has fallen short of expectations. No one has been released early via ETCs, it remains unclear how many — or if any — have actually received any ETCs, and BOP’s proposed rules for accruing and applying credits are restrictive and incomplete.

Though the COVID-19 pandemic has interfered with ETC implementation plans by severely disrupting available programming, without changes now, the outlook for ETCs having a meaningful impact on opportunities for early release is bleak....  Although the progress so far has been disappointing, we suggest three ways to maximize the ETC system’s impact. The first would require congressional action; BOP could make the other two changes on its own. 

Second, this new resource, titled "The First Step Act’s Risk Assessment Tool: Who is eligible for early release from federal prison?," walks through the risk assessment instrument now applied to all federal prisoners. Here is how the resource is set up (links from original):

The First Step Act offers people incarcerated in federal prison the opportunity to earn credits toward early release.  To help determine who is eligible (after excluding people with certain prior offenses), the US Department of Justice created the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), a risk assessment tool that predicts the likelihood that a person who is incarcerated will reoffend.  This interactive version of PATTERN shows how each risk factor raises or lowers a person’s risk score and can estimate whether they qualify for early release.

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

Another round of early (mostly critical) commentary on Jones

I shared in this post some of my first thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here), and then I rounded up a few days later in this post some notable initial critical commentary.  Just over a week later, I have seen a number of additional notable takes on the ruling, and here is another abridged round up: 

From Andrew Cohen, "Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison"

From Brandon Garrett, "Justices' Life Sentence Ruling Is A Step Back For Youth Rights"

From Jack Karp, "Jones Marks Shift In High Court's Juvenile Justice Rulings"

From Marc Levin, "Supreme Court Puts Onus on Lawmakers to Provide Second Chances for Kids"

From Christine Sarteschi and Daniel Pollack, "Life Without Parole for Minors: The Supreme Court and the Statistics"

From Kent Scheidegger, "Dumping a Dishonest Precedent Less Than Honestly — Part I"

From Beth Schwartzapfel, "Supreme Court Conservatives Just Made It Easier to Sentence Kids to Life in Prison"

Some prior recent related posts:

• SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi
• A few first thoughts on Jones and juve LWOP
• Rounding up some early (mostly critical) commentary on Jones
•  Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

UPDATE: I just noticed this notable observation from Kent Scheidegger over at Crime & Consequences concerning action by the Justices in related cases via the May 3 order list:

The U.S. Supreme Court released its regular Monday orders list today.  Not surprisingly, there were several wake-of-Jones orders in cases that had been on hold for that decision.  Oklahoma v. Johnson, No. 19-250, and United States v. Briones, No. 19-720, were sent back for reconsideration.  These were cases where the lower court decided in an under-18 murderer’s favor based on a broad interpretation of Montgomery v. Louisiana.  Cases where the lower court ruled against the defendant based on a narrow interpretation of Montgomery were simply denied, including Newton v. Indiana, No. 17-1511, and Garcia v. North Dakota, No. 19-399.

"Obstruction of Justice: Redesigning the Shortcut"

The title of this post is the title of this new paper authored by Ellen Podgor just published in the BYU Law Review and now available at this link. Here is its abstract:

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important.  It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity.  Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment.  But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, or varying interpretations of government officials.

This Article examines obstruction of justice in the federal system, looking at it in three different contexts: as a criminal offense, as a sentencing enhancement, and as a basis for a judicial or presidential impeachment.  It provides a comprehensive picture of the elements of obstruction of justice crimes, the challenges brought to courts, and the constituencies handling these matters.  It focuses on the prosecutorial practices in bringing obstruction charges in federal court including its use as a "short-cut" offense that is easily proved in some contexts, while noting the difference in other arenas, such as impeachment inquiries.  Like its practice regarding false statements and perjury, and unlike that for corporate criminal liability, the Department of Justice offers little internal guidance when selecting obstruction of justice crimes as the basis for a criminal prosecution.  The actual practice, as recently seen in the differing view of Special Counsel Robert Mueller and Attorney General William Barr in examining the allegations of obstruction conduct by President Donald Trump — outlined in the Mueller Report — highlights the inconsistency in this area of the law.  This Article provides an empirical and diagnostic lens to study the law and practice of whether federal obstruction of justice crimes require an underlying criminal offense or, alternatively can be prosecuted as a sole charge or in conjunction with other shortcut offenses such as false statements and perjury.

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

Detailing the "nightmare" following the Supreme Court's McGirt ruling

The Washington Times has this lengthy new article discussing the fallout of the Supreme Court's notable ruling last summer in McGirt v. Oklahoma under the headlined, "'A nightmare': Supreme Court ruling upends Oklahoma prosecutions of American Indians."  Here are excerpts:

A Supreme Court ruling that bars state prosecutions of American Indians in Oklahoma for crimes on tribal land has led to a wave of appeals from convicts, a rising backlog of cases in federal and tribal courts, and an accused serial rapist walking away free on a technicality. “If you were going to make a nightmare, you couldn’t make one better than this,” said Scott Walton, sheriff in Rogers County, Oklahoma.

Before the high court handed down its ruling in July, the U.S. attorney’s office for the Northern District of Oklahoma prosecuted about 240 cases a year. The office now is indicting about 100 cases a month, about five times more, as the federal government picks up cases formerly in the state’s jurisdiction.

In the past eight months, the U.S. attorney’s office has accepted 600 major felony cases for prosecution and sent 830 less-serious cases to tribal courts. Some prosecutions are falling through the cracks because of statutes of limitation for some federal crimes — a legal hurdle state prosecutors didn’t face.

“There is a small percentage of cases that cannot be prosecuted due to lack of/loss of evidence or due to the federal statute of limitations,” said a spokesperson for the U.S. attorney’s office in the Northern District of Oklahoma. “Our office continues to work closely with district attorneys and tribal attorneys general to ensure a seamless transfer of cases for prosecution.”

For minor crimes that carry maximum prison sentences of three years or less, tribal courts have the authority to prosecute defendants.  Critics say the Supreme Court’s 5-4 ruling in McGirt v. Oklahoma left certain crimes such as larceny, which can carry a five-year sentence, in limbo between tribal courts and federal courts. Another concern is that federal prosecutors will focus on violent crimes such as rape and murder, leaving home burglary and others unresolved.  “Those cases just won’t get prosecuted,” Sheriff Walton said.

The McGirt case has major implications in Oklahoma because about half of the land in the state is considered Indian country, covering dozens of tribes.  The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.  The high court’s ruling, which sent shock waves through the state, overturned the conviction of Jimcy McGirt, an American Indian charged with sexually abusing a 4-year-old girl in 1996.

The court’s majority agreed with McGirt’s argument that the state didn’t have jurisdiction to prosecute him because the crime took place on a reservation and he is American Indian.  The justices said Congress never disestablished the 1860s-era boundaries of the Muscogee (Creek) Nation’s reservation.  Justice Neil M. Gorsuch, a Trump appointee, joined four Democratic appointees, including Ruth Bader Ginsburg, in overturning McGirt’s conviction....

The U.S. attorney’s office for the Eastern District of Oklahoma, like the Northern District, has had a surge in cases. In one week this month, the office returned 90 felony indictments — more than the office normally brings in a full calendar year.  An internal source said the U.S. attorney’s office for the Eastern District could be handed 200 murder cases to try by the end of May.  “It is a conundrum without certainty,” the source told The Washington Times, speaking on the condition of anonymity. “We need some sort of legislative fix.

Many convicted felons are citing the McGirt case in appeals in an effort to overturn their sentences.  Robert Gifford, a lawyer who works with tribes in Oklahoma, dismissed law enforcement’s concerns. He said most accused felons will be prosecuted again.  “They are portraying it that these people are walking free, but most of the major cases are being picked up federally,” he said.  “Any major crimes would go to the U.S. attorney’s office.”

Prior related posts:

• SCOTUS holds in McGirt, via 5-4 vote with Justice Gorsuch authoring majority opinion, that big part of Oklahoma is a reservation precluding state prosecutions
• Noting some of McGirt's early and uncertain echoes 

"Handling Aggravating Facts After Blakely: Findings From Five Presumptive-Guidelines States"

The title of this post is the title of this great new paper authored by Nancy King ow available va SSRN. Here is its abstract:

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range.  Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice.  This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

"A Primer on Risk Assessment for Legal Decisionmakers"

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

This primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use.  It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly.  This primer does not take a position on whether RAIs should be integrated into the criminal process.  Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use.

Third Circuit panel explores curious loss calculations in federal fraud guidelines

A helpful reader made sure I did not miss the interesting Third Circuit panel ruling this past week in US v. Kirschner, No. 20-1304 (3d Cir. April 22, 2021) (available here), discussing loss calculations under the fraud guidelines. There are lots of element to the Kirschner opinion, but the introduction provides an effective overview:

In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud.  At sentencing, the District Court applied to Kirschner’s sentence three enhancements pursuant to the U.S. Sentencing Guidelines — a 2-level enhancement because Kirschner’s fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth of that.

Kirschner appeals the District Court’s judgment of sentence and challenges the three enhancements it applied.  For the reasons that follow, we will vacate Kirschner’s sentence and remand for resentencing.  While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.

I have always thought the federal fraud guideline deeply misguided due to commentary basing offense severity calculations on the greater of intended or actual loss (and the guideline is also deeply problematic for placing extreme emphasis on "loss" and by only requiring proof by a preponderance).  In this case, a focus on intended loss meant a guy who netted only about $30,000 selling fake goods when caught was sentenced as if he had netted $36 million! 

Ultimately, the panel here concluded intended loss was not subject to the "deeper analysis" needed to justify the district court's calculation.  But, for those following broader debates over the basic validity of guideline commentary, the panel had this interesting aside:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

This kind of aside reinforces my sense — or perhaps I should just say my hope — that it is only a matter of time before the US Supreme Court will consider, in some context, the validity of guideline commentary that arguably “sweeps more broadly than the plain text" of the guideline.

A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts:

1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing.  Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed  the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller.  But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states. 

2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues.  For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere).  But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over.  Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.

3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens).  Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied.  If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.

4.  Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder.  A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner.  Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice.  The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.

"Race-Based Remedies in Criminal Law"

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

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system.  Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety.  As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions.  Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge.  The apprehension is understandable.  Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

This Article, however, contends that within the criminal system, strict scrutiny requirements do not pose an insurmountable obstacle to race-based policies.  There is promising decisional law surrounding the use of race-conscious efforts to address criminal-system challenges.  Drawing on this favorable doctrine, the Article tests the constitutionality of race-based remedies in one of the most dynamic areas in the criminal system: the use of risk assessment tools, which jurisdictions are increasingly relying upon to make decisions, even as these tools reproduce racial harms.  To enrich the analysis, the Article presents a case study of a jurisdiction struggling to mitigate racial harms perpetuated by its pre-trial risk assessment tool.

The Article finds reasons to be optimistic about how race-based remedies might fare within the criminal-system context, where courts are predisposed to granting broad discretion to the stated needs of criminal law stakeholders.  Within this unique context, the Article provides a template for a race-based approach that potentially survives an Equal Protection challenge.

Notable new US Sentencing Commission primers on federal crime victim rights

The US Sentencing Commission has just released a couple of new primers on crime victims' right in the federal criminal justice system. Here are links to USSC pages about the short reports and descriptions:

Crime Victims' Rights

(April 2021) This primer provides a general overview of crime victims’ rights under the Crime Victims’ Rights Act (“CVRA”), as described in 18 U.S.C. § 3771, the related provisions of the Mandatory Victim Restitution Act (“MVRA”) and the Victim and Witness Restitution Act (“VWRA”), and the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Sentencing Guidelines implement the CVRA through USSG §6A1.5 and the related restitution provisions through USSG §§5E1.1 and 8B1.1.  Although the CVRA applies broadly to pretrial, trial, sentencing, and post-sentencing proceedings, this primer focuses primarily on its application to sentencing and post-sentencing issues, including revocations of probation, supervised release, habeas proceedings, and parole proceedings.  This primer is not intended as a comprehensive compilation of case law or as a substitute for independent research and primary authority.

Economic Crime Victims

(April 2021) This primer provides a general overview of selected guideline issues related to victims in offenses sentenced under §2B1.1 (“Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud or Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States”).  Although the primer identifies some of the relevant cases and concepts, it is not intended as a comprehensive compilation of the cases or analysis related to these issues.

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

• New Jersey commission releases big report recommending numerous big sentencing reforms
• Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Gary, the court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

"Qualifying Prosecutorial Immunity Through Brady Claims"

The title of this post is the title of this notable new paper now available via SSRN and authored by Brian Murray, Paul Heaton and Jon Gould. Here is its abstract:

This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations.  While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims — those who are subjected to wrongful imprisonment due to Brady violations — with no access to justice.  Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system.  After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.

SCOTUS grants cert on Confrontation Clause case, and Justice Sotomayor has much to say about two criminal case denieal

The Supreme Court is back in action this morning after a short hiatus, getting started with this new order list that has most of its limited action in criminal law cases.  Specifically, the Justices granted certiorari in a single case, Hemphill v. New York, 20-637, which presents this criminal procedure issue:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

In addition, in Brown v. Polk County, No. 20–982, a case concerning Fourth Amendment requirements for a penetrative cavity search of a pretrial detainee, Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari.  And in Whatley v. Warden, Ga. Diag. & Classification Prison, No. 20–363, a case concerning defense counsel's failure to object to a capital defendant's shackling, Justice Sotomayor issued this lengthy dissent from the denial of certiorari.

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

A few weeks ago in this post I flagged the notable new empirical research indicating that nonprosecution of nonviolent misdemeanor offenses produced a large reductions in the likelihood of new criminal complaints.  This research is rightly getting a lot of attention, though this new National Review piece wonders if it might be getting too much attention.  The piece, by Charles Fain Lehman, is headlined "Progressives Are Overreacting to a Startling Crime Study."  And though I might dicker with some points made in the piece, I recommend the full discussion.  Here are excerpts:  

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less flashy than felonies, but they are the main way Americans experience the criminal-justice system.

We prosecute misdemeanors because, among other things, we want there to be fewer of them, and we believe prosecution deters reoffending.  But a recent blockbuster paper makes a startling claim to the contrary: Prosecuting misdemeanants actually increases the likelihood that they will offend again.

The paper has been heralded by supporters of progressive district attorneys who have used their position to unilaterally impose reforms on the criminal-justice system, including refusing to prosecute many misdemeanants.  Boston D.A. Rachael Rollins, who provided the data for the study, has claimed it confirms the wisdom of her approach.  So have other reformers such as Chicago-area state’s attorney Kim Foxx and San Francisco district attorney Chesa Boudin.

Policy-makers, however, should exercise caution before reaching such expansive conclusions.  The paper can just as easily be read to endorse more modest reforms — especially keeping in mind long-established principles of criminal justice on which it is silent....

Most of the non-prosecution effect they measure is the result of first-time offenders, who become much more likely to commit crime if prosecuted.  By contrast, prosecuting repeat offenders of any sort has little discernible effect on the likelihood they will offend again in the future....  Diverting [first-time misdemeanants] offenders, with the threat of more serious punishment if they reoffend, could help clear dockets while minimizing crime. It would also free ADAs to focus on repeat misdemeanants....

The above approach is different from the idea that we should in general prosecute misdemeanants a lot less — a valid interpretation of the paper’s findings, but not necessarily the right one, for two reasons.

First, deterrence is not the only reason to prosecute an offender.  Advocates of not prosecuting misdemeanors tend to invoke “victimless” crimes such as drug possession and prostitution. But misdemeanors can also include offenses such as simple assault and auto theft — crimes that harm others.  Such crimes reasonably elicit a demand for retributive justice. It offends our moral sensibilities to think that a person who commits a serious but not felonious assault could get off scot-free.

Second, systematic reductions in leniency may affect all criminals’ decision-making, increasing their propensity to offend in the long-run. The paper shows that Rollins’s move toward non-prosecution of misdemeanors did not in the aggregate increase misdemeanor offenses, but the data it uses account only for the period between her election in January 2019 and March 2020, when the coronavirus crisis began.  It’s entirely possible that criminals will adapt, and misdemeanor offending will increase, in the long run....

Coming face to face with the justice system can be time-consuming and exhausting, and may, at the margins, increase rather than reduce a person’s propensity to offend.  Even those of us highly concerned with public safety should be interested in creative solutions that minimize crime and disorder.

At the same time, policy-makers should not get ahead of themselves — as some have in the rush to defund police departments and decrease the use of more serious charges.  Good research is the basis of good policy, and this research makes a valuable contribution to public-safety policy.  But we should be cautious in how far we go with it — careful changes around the edges are always safer than blanket transformations.

Prior recent related post:

• New empirical study finds "nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint"