Friday, October 21, 2022

Federal judge sentences Steve Bannon to 4 months of imprisonment for contempt of Congress

As reported in this USA Today piece, "Trump White House strategist Steve Bannon was sentenced to four months in prison Friday, three months after his conviction on contempt of Congress charges for defying a subpoena from the special House committee investigating the Jan. 6, 2021 Capitol attack." Here is a bit more:

The Justice Department had sought a six month prison term for Bannon and recommended that he pay a maximum fine of $200,000 for "his sustained, bad-faith."... While Bannon initially refused to comply with the panel's summons, citing a claim of executive privilege, prosecutors said Monday that the Trump operative's actions were "aimed at undermining the Committee’s efforts to investigate an historic attack on government."

Bannon's attorneys argued that a sentence of probation was more appropriate. "The legal challenges advanced by Mr. Bannon were not meritless or frivolous and were aimed at protecting his constitutional rights," attorney Evan Corcoran argued in court documents. "For these reasons, the fact that Mr. Bannon chose to put the Government to its burden at trial should not preclude him from receiving a reduction to his offense level based on acceptance of responsibility."

Prior related posts:

October 21, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, October 17, 2022

Half dozen GVRs provide only "excitement" for CJ fans in latest SCOTUS order list

Regular readers now know I am making a regular habit (see here) of complaining about the relative lack of interesting criminal matters on the Supreme Court's docket this Term.  That reality leads me to eagerly await each new SCOTUS order list with the hope the Justices will add something spicy for sentencing fans (or really any criminal cases concerning more than just intricate procedural issues).  So, I opened today's SCOTUS order list ... and the title and start of this post surely made it plain that there were not any exciting new criminal justice cert grants or even opinions dissenting about any denials (in fact, there were no cert grants or opinions at all).

That said, I was intrigued to see that the new order list did include six GVRs based on criminal justice rulings last Term.  Specifically, there were five GVRs based n Ruan (basics here) and one based on Concepcion (basics here).  I have not kept a running list of the number of GVRs from these cases or others, but maybe that will be my best bet for SCOTUS excitement these days.

But hope springs eternal in the SCOTUS fall, and the Justices will release another order list in a couple of weeks on October 31.  Perhaps someone can scare up some spirited cert grants for that special day.  And, not to be forgotten, a big case for federal prisoners seeking review of convictions and sentences, Jones v. HendrixNo. 21-857, is be argued on November 1.  (And, as I will discuss in another coming post, in the meantime sentencing fans do have the excitement of the first public US Sentencing Commission hearing in nearly four years on October 28.)

October 17, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, October 12, 2022

Severe federal drug sentence in a sad, high-profile case with so many stories within

I sometimes say to students (and on this blog) that certain cases could alone provide a robust foundation for teaching about so many different aspects of sentencing theory, policy and practice. Upon reading this Washington Post account of the high-profile federal sentencing of Eric Kay for providing the drugs that led to the death of Tyler Skaggs, I am yet again struck by how many notable issues and stories are sometimes tucked within a single sentencing. Here are some of the details:

Eric Kay, the former communications director for the Los Angeles Angels, was sentenced Tuesday to 22 years in prison after being convicted in February of providing the drugs that caused the 2019 death of pitcher Tyler Skaggs.  District Judge Terry Means said he went above the minimum 20 years Kay faced because of remarks he made in prison.   Prosecutors played a tape of a prison phone conversation in which Kay, whose calls were monitored and recorded, said of Skaggs: “I hope people realize what a piece of s--- he is. … Well, he’s dead, so f--- him.”

Means said he had been dreading sentencing Kay, 48, who was convicted of drug distribution resulting in death, because he felt mandatory minimums were “excessive.”  But the judge said the prison conversations showed a “refusal to accept responsibility and even be remorseful for something you caused.”

In his own remarks, Kay apologized for having “spewed vitriol” about Skaggs, prosecutors and the jury, in that and other prison correspondence. “I wanted to blame Tyler for all of this,” Kay said, calling his words “so wrong and foul.”

The emotional sentencing hearing spelled a bleak end to this phase of a legal saga that began when Skaggs, 27, was found dead in a Southlake, Tex., hotel room July 1, 2019, with oxycodone and fentanyl in his system. Kay has indicated he will appeal his conviction.  Kay, like Skaggs, was a user of illicit opioids.  During Kay’s trial in February, witnesses including several Major League Baseball players said he shared black market pain pills with them, though the government has not suggested he did so for profit.

Federal prosecutor Erinn Martin stated that Kay was in Skaggs’s hotel room when he choked on his own vomit — a contention based on key card evidence — and that he didn’t try to save the pitcher because “he freaked out and decided to save himself and his job” or because he was incapacitated himself. Martin said Tuesday that Kay knew the drugs he gave Skaggs were “likely or potentially counterfeit” and could contain fentanyl.

Kay, who did not take the stand in his own defense during the trial, did not directly address the government’s version of events Tuesday but expressed remorse for his actions, blaming his addiction.  “I will spend the rest of my days in repair,” said Kay, who wore an orange jumpsuit and was in arm and leg shackles, during remarks in which he sometimes sobbed.

Skaggs’s family members said Kay was responsible for the pitcher’s death in their own remarks in court Tuesday. “Eric Kay knew that the drugs he was giving to my son and other players [were] laced with fentanyl,” said Skaggs’s mother, Debbie, adding that “a strict sentence … has the power to dissuade people from providing lethal drugs to others.” ...  “I know no matter how much time Eric Kay gets it won’t bring back Tyler,” Skaggs’s father, Darrell, said in a statement read in court by Tyler’s aunt. “But the longer he is incarcerated, the safer everyone is.”

Kay, who was raised upper-middle class in Southern California and educated at Pepperdine University before rising to earn a six-figure salary with the Angels, had no previous criminal record.  But Martin, the prosecutor, said Kay’s prison correspondence was evidence that he hadn’t learned his lesson.  In emails and phone calls, Kay referred to the “trash-ass Skaggs family,” derided the jurors as “rednecks” with missing teeth and referred to a federal prosecutor’s “horrible makeup.” Martin also noted that Kay was allegedly caught with suboxone while in jail. “That kind of person reoffends,” Martin said. “Eric Kay isn’t going to stop.”

Kay’s attorney, Cody Cofer, said his client’s jailhouse remarks reflected the resentment of a man coming to terms with being separated from his family for two decades. “The notion that he is likely to reoffend is just not supported,” Cofer said.

Means said Kay should be incarcerated near his home of California, where he has three sons, the youngest of whom is 12. Kay’s middle child, 20-year-old Carter, said during the sentencing hearing that his father “wouldn’t do something bad willingly” and urged the judge to be lenient. “My little brother needs him most,” Carter Kay said. “I haven’t seen him smile in a while.”...

Since Kay’s trial, one of his attorneys, Reagan Wynn, has been suspended from practicing law after a Texas bar panel found he “failed to explain” to another client the facts of his criminal case. In a May hearing in Kay’s case, his other attorney at the time, Michael Molfetta, appeared to blame Wynn for having left Kay without representation during a meeting with probation officials before his sentencing....

Molfetta also has since left the case. In an interview with The Washington Post, Sandy Kay said her son had received a poor legal defense. “Tyler Skaggs was an adult male who willfully chose to engage in dangerous behavior that ended in his death,” Sandra Kay said. “And to hold someone else accountable for that is a great injustice.”

October 12, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

October 12, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

October 11, 2022 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

October 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 05, 2022

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

October 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

October 5, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"Expanded Criminal Defense Lawyering"

The title of this post is the title of this new article recently posted online and due to be published in the January 2023 issues of the Annual Review of Criminology. The article is authored by Ronald Wright and Jenny Roberts, and here is its abstract:

This review collects and critiques the academic literature on criminal defense lawyering, with an emphasis on empirical work.  Research on criminal defense attorneys in the United States has traditionally emphasized scarcity of resources: too many people facing criminal charges who are “too poor to pay” for counsel and not enough funding to pay for the constitutionally mandated lawyers.  Scholars have focused on the capacity of different delivery systems, such as public defender offices, to change the ultimate outcomes in criminal cases within their tight budgetary constraints.  Over the decades, however, theoretical understandings of the defense attorney's work have expanded to include client interests outside the criminal courtroom, reaching the broader social conditions connected to the alleged criminal act.  Researchers have responded by asking a broader range of questions about the effectiveness of defense counsel outside the courtroom and by using improved data to study the effectiveness of lawyers at discrete procedural stages.

October 5, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, October 04, 2022

Intriguing report on intriguing "equitable criminal sentencing technology" being formally adopted in Florida county

This local article out of Florida, headlined "Alachua County makes history with approval of equitable criminal sentencing technology," report on an interesting new development with some interesting sentencing technology. Here are the developments:

With the finalization of its budget Tuesday evening, Alachua County made the joint-effort of state attorney Brian Kramer and public defender Stacy Scott a historic reality: Florida’s Eighth Judicial Circuit will become Florida’s first judicial circuit to integrate equitable sentencing software as an official part of its case management system and plea-bargaining process. Roughly 95% of cases are settled in plea negotiations.

“We feel like this is an important step forward in trying to create more parity in our criminal justice system so that there aren’t these disparate sentences that exist today,” Scott said when she and Kramer presented the system to county commissioners Aug. 2.

Known as the Equity in Sentencing Analysis System (ESAS), this fairly new software provides legal practitioners with a searchable database of statewide sentencing data from the Florida Department of Corrections going back to 1998. It enables them to analyze past sentences that people with similar criminal backgrounds have received for similar crimes.

“That dataset is going to provide the lawyer things like the mean, the mode, the median,” Kramer told WUFT. “So that’s giving the lawyer data upon which to say, ‘OK, is this situation that I’m looking at, is it less serious than the average? Is it more serious than the average? And it gives them a starting point from which to develop a sentence that hopefully eliminates some of the inequities in the criminal justice system.”

Scott further reiterated this, adding that the sentencing data would allow for more honesty and consistency in plea negotiations, “instead of the way we’ve always done it, which is just sort of somebody’s gut feeling about what should happen.”

Its initial integration into the current system will cost Alachua County $73,000, followed by an annual subscription cost of roughly $23,000 for each office. But the software’s owner, Al Barlow, said he didn’t create it to make money. An attorney with 37 years of legal experience, Barlow was motivated by unfair sentencing he had encountered first-hand and presented the concept behind the sentencing analysis system to the Senate Judiciary Committee in 2017. He was looking to give the software to the state of Florida if the committee set him up with a programmer, but he didn’t receive the response he had hoped for. “They thought I was an alien. They kind of blew me off,” Barlow said. “I came back to Jacksonville, and I got with this programmer and another guy, and we built the software ourselves.”

And so his company, Technologies for Justice, was born along with his sentencing database. Barlow’s ensuing analysis, powered by this new software, showed him that the sentencing guideline system established by the Criminal Punishment Code in 1998 fails to ensure equitable sentencing across Florida. And he said ESAS could serve as a means to audit it....

Some attorneys, Scott and Kramer included, said ESAS is not the end-all-be-all. To them, it’s one of many factors worth considering when determining fair sentences. Still, Kramer saw something in Barlow’s software that other state attorneys haven’t acted on: the potential to combat intrinsic bias. “Does it eliminate bias? No, not at all, because you can’t eliminate bias,” Kramer said. “But what it would do is give us an unbiased starting point. And then we could work from there to try and make those adjustments upward or downward as appropriate.”

Until now, Florida prosecutors have almost entirely avoided this sentencing analysis system: Barlow said there was one other state attorney’s office that contacted him, piloted ESAS but ultimately never used it. Defense attorneys are generally the ones who use it to reduce sentences, according to a spokesperson for the Eighth Judicial Circuit.

Even among all Florida attorneys, the software isn’t well-known. Only 150 are currently registered to use it, with some others occasionally performing one-time searches, Barlow said. (Note that over 100,000 people are currently registered to practice law in Florida, according to the Florida Bar.) And he estimated two-thirds aren’t even aware of it.

Barlow also said software like ESAS doesn’t seem to exist outside of Florida. He said he receives calls from lawyers in Washington, New York, Seattle and all over the nation who are shocked to hear about such technology. “Florida is on the cusp of doing something very, very special,” Barlow said. “If it works half as good as we know it can, Gainesville will set a precedent for equitable sentences that the whole nation can follow.”

I have never previously heard of Equity in Sentencing Analysis System (ESAS) or Technologies for Justice, no doubt because it seems ESAS is a propriety technology that has not been widely used (or even widely known) in Florida. 

October 4, 2022 in Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Recapping lots of (little?) new criminal justice reforms in California

Late last week, California Gavin Newsom had a deadline to sign or veto a bunch of criminal justice reform bills.  This AP piece, headlined "Newsom has mixed verdict on California criminal justice laws," reports on some of the bill and choices made by Gov. Newsom:

California Gov. Gavin Newsom delivered a mixed verdict on more than three dozen criminal justice laws before his bill-signing deadline Friday, approving measures to seal criminal records and free dying inmates but denying bids to restrict solitary confinement and boost inmates’ wages.

Starting in July, one new law will give California what proponents call the nation’s most sweeping law to seal criminal records, though it excludes sex offenders. It will seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years, as well as records of arrests that don’t bring convictions, while former prison inmates convicted of serious felonies will be able to ask a judge to seal their records.

Backers estimate that 70 million Americans and 8 million Californians are hindered by old criminal convictions or records. They estimated the law could give more than a million Californians better access to jobs, housing and education. Newsom also approved related measures, one allowing record sealing and expungement even if former offenders still owe restitution and other court debt, and another making it easier to apply for certificates of rehabilitation....

Newsom also relaxed standards to allow more ill and dying inmates to be released from state prisons. The new law will allow inmates to be freed if they are permanently medically incapacitated or have a serious and advanced illness “with an end-of-life trajectory,” the standard used by the federal prison system. “It reduces incarceration costs, but more importantly, ensures there is a more humane and effective relief process for all people in California’s state prisons,” said Claudia Gonzalez of Root & Rebound, one of the reform groups that sought the measure....

He also expanded a 2020 law allowing suspects to allege they were harmed by racial bias in their criminal charges, convictions or sentences. The earlier law was limited to cases after Jan. 1, 2021. But this measure extends the safeguards to prior convictions.

Newsom, a Democrat who says he supports second chances and reducing incarceration, has had a mixed record on criminal justice bills. He has backed many reform efforts but in years past also vetoed other legislation he felt went too far or duplicated existing efforts. This year, he blocked a bill that would have made California the latest state to restrict segregated confinement in prisons and jails, as well as for the first time adding immigration detention facilities....

Newsom also vetoed one bill that would have given the state prison system five years to marginally boost the wages of inmates who usually earn just dollars a day, and a second bill that would have increased the “gate money” inmates are given upon their release from the current $200 to $1,300. The bills had survived even as lawmakers this year rejected a constitutional change that might have required much more compensation for inmate workers.

From another accounting, Daniel Nichanian has this Twitter thread on thread on "13 of the biggest [bills from California] and why they matter." Among the bills highlighted in that thread: "Gavin Newsom SIGNED a bill to make phone calls free from prison" and "Newsom SIGNED a bill that will 'vacate the death sentences of people who have become permanently incompetent'" and "Newsom SIGNED a bill to decriminalize jaywalking in California." 

Though I am inclined to call the record sealing bill "big" because of the number of people and families potentially impacted, the title of this post conveys my general sense that a lot of these reforms are fairly little.  But little does not mean unimportant, and it will be interesting to see if any of these reforms end up having major crime and punishment echoes.

October 4, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 03, 2022

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. HendrixNo. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

October 3, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, September 30, 2022

"The Lost Right to Jury Trial in 'All' Criminal Prosecutions"

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

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.”  Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less.  These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse.  This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace.

While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable.  Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions.  Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court.  The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

September 30, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (76)

Thursday, September 29, 2022

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

September 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Wednesday, September 28, 2022

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

September 28, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 26, 2022

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

September 26, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, September 25, 2022

Rounding up some notable justice coverage and commentary from Law360's Access to Justice

I find a lot of Law360 coverage and commentary to be blogworthy, but I also find a lot of it behind a paywall.  Fortunately, the Law360 folks have the good sense to keep its Access to Justice section open access.  And that section has had a number of recent pieces that ought to be of interest to sentencing fans:

"Access To Justice Cases To Watch This Supreme Court Term"

"Racial Disparities In State Imprisonment Continue To Decline"

"Mich. Ruling Widens Sentencing Protections For Young Adults"

"Algorithms Have Potential To Reduce Sentencing Disparities"

September 25, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Friday, September 23, 2022

Noticing notable aspect of SCOTUS vote on Alabama execution stay

The story of Alabama botched execution last night has many interesting elements, but this new Washington Examiner piece flags one (small) part of the story that ought not be overlooked.  The article, headlined "Barrett sides with liberal justices in opposition to halted Alabama execution," merits a full read for SCOTUS fans.  Here are excerpts:

Supreme Court Justice Amy Coney Barrett sided with the high court's three liberal justices on Thursday in dissenting a decision to allow the execution of an Alabama inmate, but the state called off the execution at the last minute....

In a 5-4 vote prior to the halted procedure, the Supreme Court ruled that the execution of Miller could move forward, lifting a lower court's injunction that had blocked his death by lethal injection. Barrett joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent....

Barrett has sided with the liberal justices in other death penalty cases.

In February 2021, Barrett sided with Sotomayor, Kagan, former Justice Stephen Breyer, and a justice who did not disclose his vote in a "shadow docket" case that blocked the execution of Alabama inmate Willie Smith....

In January 2022, Barrett once again sided with Sotomayor, Kagan, and Breyer in voting to block the execution of Alabama inmate Matthew Reeves, who was convicted of robbing and killing a tow truck driver in 1998.

However, Barrett has not exclusively voted against the death penalty in Supreme Court cases. She went against liberal justices in the March 2022 case that reinstated the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Though it may be pure coincidence, it seems Justice Barrett often has particular concerns with how Alabama is seeking to move forward with executions.  In almost all other capital cases, Justice Barrett seems to be a fairly predictable vote for the state. Indeed, Justice Barrett's first official SCOTUS vote in November 2020, as detailed here, had her joining with her five more conservative colleagues to lift a stay on a federal execution.

A range of distinct and complicated procedural issues attended the stay in this latest Alabama execution effort, and the SCOTUS order lifting the stay only notes the dissent without any explanation for any of the votes.  It will be interesting to see if this case or other capital cases will give us further clues on what issues are driving various votes in these kinds of matters.

September 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

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

Thursday, September 22, 2022

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

September 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, September 19, 2022

Interesting report on the echoes of the Supreme Court's recent Ruan decision

As noted in this post last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law has this great panel discussion scheduled for tomorrow to discuss various aspects of the Supreme Court's work last term in Ruan v. United States.  (Folks can and should register here for this event.)  Coincidently, CBS News has this lengthy new piece discussing the case's impact under the headline "Doctors rush to use Supreme Court ruling to escape opioid charges."  Here are excerpts:

Dr. Nelson Onaro conceded last summer that he'd written illegal prescriptions, although he said he was thinking only of his patients. From a tiny, brick clinic in Oklahoma, he doled out hundreds of opioid pills and dozens of fentanyl patches with no legitimate medical purpose. "Those medications were prescribed to help my patients, from my own point of view," Onaro said in court, as he reluctantly pleaded guilty to six counts of drug dealing. Because he confessed, the doctor was likely to get a reduced sentence of three years or less in prison.

But Onaro changed his mind in July. In the days before his sentencing, he asked a federal judge to throw out his plea deal, sending his case toward a trial. For a chance at exoneration, he'd face four times the charges and the possibility of a harsher sentence.

Why take the risk? A Supreme Court ruling has raised the bar to convict in a case like Onaro's. In a June decision, the court said prosecutors must not only prove a prescription was not medically justified ― possibly because it was too large or dangerous, or simply unnecessary ― but also that the prescriber knew as much. Suddenly, Onaro's state of mind carries more weight in court. Prosecutors have not opposed the doctor withdrawing his plea to most of his charges, conceding in a court filing that he faces "a different legal calculus" after the Supreme Court decision.

The court's unanimous ruling complicates the Department of Justice's ongoing efforts to hold irresponsible prescribers criminally liable for fueling the opioid crisis. Previously, lower courts had not considered a prescriber's intention. Until now, doctors on trial largely could not defend themselves by arguing they were acting in good faith when they wrote bad prescriptions. Now they can, attorneys say, although it is not necessarily a get-out-of-jail-free card. "Essentially, the doctors were handcuffed," said Zach Enlow, Onaro's attorney. "Now they can take off their handcuffs. But it doesn't mean they are going to win the fight."

The Supreme Court's decision in Ruan v. United States, issued June 27, was overshadowed by the nation-shaking controversy ignited three days earlier, when the court erased federal abortion rights. But the lesser-known ruling is now quietly percolating through federal courthouses, where it has emboldened defendants in overprescribing cases and may have a chilling effect on future prosecutions of doctors under the Controlled Substances Act.

In the three months since it was issued, the Ruan decision has been invoked in at least 15 ongoing prosecutions across 10 states, according to a KHN review of federal court records. Doctors cited the decision in post-conviction appeals, motions for acquittals, new trials, plea reversals, and a failed attempt to exclude the testimony of a prescribing expert, arguing their opinion was now irrelevant. Other defendants have successfully petitioned to delay their cases so the Ruan decision could be folded into their arguments at upcoming trials or sentencing hearings.

David Rivera, a former Obama-era U.S. attorney who once led overprescribing prosecutions in Middle Tennessee, said he believes doctors have a "great chance" of overturning convictions if they were prohibited from arguing a good faith defense or a jury was instructed to ignore one. Rivera said defendants who ran true pill mills would still be convicted, even if a second trial was ultimately required. But the Supreme Court has extended a "lifeline" to a narrow group of defendants who "dispensed with their heart, not their mind," he said.

"What the Supreme Court is trying to do is divide between a bad doctor and a person who might have a license to practice medicine but is not acting as a doctor at all and is a drug dealer," Rivera said. "A doctor who is acting under a sincerely held belief that he is doing the right thing, even if he may be horrible at his job and should not be trusted with human lives ― that's still not criminal."...

To defense attorneys, the unanimous ruling sent an unambiguous message. "This is a hyperpolarized time in America, and particularly on the court," Enlow said. "And yet this was a 9-0 ruling saying that the mens rea ― or the mental state of the doctor ― it matters."

Some prior related posts:

September 19, 2022 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Sunday, September 18, 2022

Notable developments as defense rests in capital trial of Parkland school shooter

I have been following the capital sentencing trial of Parkland school shooter Nikolas Cruz somewhat more closely than I follow other capital trials in part because the case involves such competing extremes.  This case is the deadliest U.S. mass shooting to ever reach trial, involves no question about guilt and the 17 victims were mostly students with many as young as 14.  And yet Nikolas Cruz's defense team has presented a considerable mitigation case highlighting his damaged upbringing and considerable mental health issues.

The Cruz defense team rested its case in mitigation last week sooner than had been expected, and that led to a reaction by the presiding trial judge which has now produced a defense motion to remove the judge.   Here are some headlines and ledes from a few stories covering these latest developments:

"Parkland school shooter's defense team demands judge be removed after heated exchange"

The attorneys representing the Parkland school shooter filed a motion Friday asking for the judge overseeing his sentencing trial to be replaced.  The motion comes after the judge and the defense attorneys had an unusually heated exchange on Wednesday, in which the judge accused the attorneys of a lack of professionalism.

The motion alleges that Circuit Judge Elizabeth Scherer's conduct during the Wednesday exchange revealed "long-held" animosity toward the defense counsel that has "infected" the proceedings and will prevent their client from getting a fair trial.

"Parkland defense has convinced some that killer deserves mercy"

The sudden end of the defense case in the Parkland mass shooting trial this week drew criticism of and from the presiding judge, temporarily overshadowing the biggest question at issue — was enough evidence presented to convince a jury to spare the defendant’s life?

It’s impossible to say for sure — juries are notoriously unpredictable.  But at least one expert, and some trial observers, say they would not be surprised if the jury in the Marjory Stoneman Douglas mass shooting case were to show mercy toward confessed gunman Nikolas Cruz.

Some prior related posts:

September 18, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 17, 2022

"The Prison Pleading Trap"

The title of this post is the title of this new paper on SSRN authored by Tiffany Yang.  Here is its abstract:

The prison is an epicenter of dominance — it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls.  But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act to obstruct their pathways to judicial relief.  A centerpiece of this effort is the Act’s exhaustion provision, which mandates proper completion of the prison grievance process before challenging any condition of prison life in federal court.

Prisons design demanding grievance pleading standards to make exhaustion more difficult for the people they confine. When a federal court disagrees with the prison’s interpretation of a pleading rule and permits an incarcerated plaintiff’s claim to move forward, the decision is seen as a victory that safeguards incarcerated people’s right to judicial redress.  It is tempting to perceive the plaintiff’s success as the prison’s defeat.  But when we peer behind the curtain and interrogate what follows, a dangerous manipulation of power emerges.  Prisons have responded to litigation “defeats” by amending their grievance rules to impose a more onerous pleading standard that forecloses the short-lived victory.  What appears at first glance to be a welcome exercise of judicial intervention functionally becomes an invitation — indeed, a blueprint — for the prison to raise its grievance pleading bar and immunize itself from liability.

This reactive process — what I call the “prison pleading trap” — creates an untenable and perilous regime.  And its harms are heightened for people of color, who are disproportionately incarcerated and, while confined, disproportionately subject to prison abuses requiring redress.  This article investigates the trap’s operations and impacts, and upon considering a range of potential solutions, it ends by recognizing the merits of transformative change.  Congress created PLRA exhaustion to reduce the quantity of prison litigation, but this reform addressed a symptom (the volume of litigation) while ignoring the disease (growing prison populations and persisting abuses). Discrete procedural solutions to prison grievance pleading will have meaningful impacts, but they are ultimately incomplete without a concurrent commitment to decarceration.

September 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, September 16, 2022

Federal judge orders Philly prosecutors to send written apologies to victim family members for poor behavior in capital habeas case

This ABA Journal article, headlined "Federal judge orders district attorney to write apology letters to families of murder victims," reports on a notable federal court order from earlier this week. Here are the highlights:

A federal judge has ordered Philadelphia District Attorney Larry Krasner to write apology letters to the families of the victims of a double murder after concluding that supervisors in his office made misleading statements to the court.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania scolded prosecutors for being “vague” and “unclear” about whether they consulted with victims’ families before supporting efforts to overturn the death penalty in the case against Robert Wharton.  In reality, prosecutors communicated with just one person — the family member who survived the attack, Lisa Hart-Newman.  The district attorney’s office had written in a court notice that it decided to concede an ineffective counsel claim following a review by its capital case review committee and “communication with the victims’ family,” wrote Goldberg in a Sept. 12 opinion.

Wharton was convicted for killing Bradley and Ferne Hart in 1984 in retaliation for failure to pay for construction work.  Working with an accomplice, he then shut off the heat to the couple’s home, leaving their 7-month-old daughter, Lisa, “to fend for herself,” according to a 2018 opinion by the 3rd U.S. Circuit Court of Appeals at Philadelphia.  A relative found the baby still alive three days later.

The 3rd Circuit ordered the death penalty review to determine whether Wharton’s trial lawyer was ineffective by failing to present evidence about the defendant’s positive adjustment to prison.  The district attorney’s office agreed that Wharton’s Sixth Amendment rights had been violated and asserted that a full review by the judge was unnecessary, according to Goldberg’s opinion.  But precedent “plainly holds that a jury’s death sentence verdict cannot be undone until all facts are placed on the table so that a fully informed judge, not the district attorney, can make the decision as to whether a decades-old verdict should be set aside,” Goldberg said.

Although the 3rd Circuit required a review of evidence in favor and in opposition to the death penalty, the district attorney’s office failed to advise the court about Wharton’s “violent escape from a city hall courtroom” and subsequent escape conviction, Goldberg said.  That’s “possibly the worst type of prison adjustment,” he observed.

Department supervisors on the capital case review committee said they recommended conceding Wharton’s habeas petition without knowing about the escape attempt. But that admission “was curiously contrary” to an assistant supervisor’s assertion in court that the office was aware of Wharton’s escape conviction, Goldberg said.... Goldberg said the district attorney’s office “continues to misunderstand its role” in collateral review proceedings in death penalty cases.  “If the district attorney’s office files its concession on a misleading presentation of the facts, it attempts to misuse the court’s power,” Goldberg said.

Goldberg directed Krasner to send separate written apologies to Hart-Newman and three family members for representing that the office had communicated with the victims’ family.

The full and interesting 28-page ruling in Wharton v. Vaughn is available at this link.

September 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, September 15, 2022

"Lemonade: A Racial Justice Reframing of The Roberts Court’s Criminal Jurisprudence"

The title of this post is the title of this recent article authored by Daniel Harawa available via SSRN. Here is its abstract:

The saying goes, when life gives you lemons, make lemonade.  When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and Ramos v. Louisiana.  On their face, the cases teach that history matters. Government actors who discriminate must be held to account.  Accepted institutional practices can no longer perpetuate racism. And courts must assume an active role in addressing the racism endemic to the criminal legal system.  At least tonally, these cases are a marked shift for the notoriously post-racial Roberts Court

But if you dig a little deeper, it is clear that the cases have severe shortcomings.  The cases reflect that the Court acknowledges only the most egregious examples of racism, and it fails to see the invidious ways race taints the criminal legal system.  The cases also demonstrate the Court’s failure to connect past racial practices with present racial disparities, a failure that in turn paints a false picture of discontinuity of the past from the present.  When viewed critically, these seemingly race-aware cases fall neatly in line with the post-racial critiques of the Roberts Court. From a racial justice perspective, the cases could be viewed as lemons.

Even so, this Article attempts to make lemonade. The Article shifts the narrative about the Court’s criminal jurisprudence by arguing that these recent cases can be helpful tools in the fight for racial justice.  This Article asserts that the cases can be deployed not only to make specific antiracist legal arguments, but also to push for policy changes and to encourage more open discussions about racism in the criminal legal system.  In the end, the Article urges a reclaiming of the case law to help unwind the corrosive relationship between race, crime, and punishment in America.  This intervention is necessary now, for the millions of Black and Brown people shuffled through the system each year. 

September 15, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, September 14, 2022

Ninth Circuit panel holds non-retroactive sentencing changes can be considered in compassionate release motions

Weighing in on an issue that has split circuits, a Ninth Circuit panel today in US v. Chen, No. 20-50333 (9th Cir. Sept. 14, 2022) (available here), held that "a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  The Chen opinion explains how "other circuits are split concerning this issue," but ultimately decides to "join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A)."  Here is a portion of the panel's explanation for its ruling:

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that “[r]ehabilitation . . . alone” is not extraordinary and compelling.... To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98225, 55–56, 121 (1983)....

The Supreme Court’s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.” 142 S. Ct. at 2396.  Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now....

Through § 3582(c)(1)(A) and § 994(t), Congress has demonstrated that it can, and will, directly limit what constitutes extraordinary and compelling reasons.  It is therefore hard to reconcile the argument that we should infer a categorical bar on extraordinary and compelling reasons with Congress’s prior decisions not to create such stark limitations on a district court’s discretion.

September 14, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentences in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

Excitingly, Michael Pepson and Jeremiah Mosteller have this new Bloomberg Law commentary, headlined "US Supreme Court Should Tackle Acquitted Conduct Sentencing," which focuses on the McClinton cert petition and makes this notable assertion: "Taking up the issue of acquitted conduct sentencing this next term will give the court another opportunity to tackle a criminal justice issue that unites people from across the spectrum."  Here is more from the piece that I recommend in full (with links from the original):

This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime.  This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion.

At least three current justices have questioned or called for an end to this unjust practice. And they do not stand alone, as other recent members of the court have also noted this issue demands action, including former justices Antonin ScaliaRuth Bader Ginsburg, and Anthony Kennedy.

There is reason to hope other members of the court would also agree acquitted conduct sentencing is unconstitutional given their professional backgrounds and experience on the front lines working in the criminal justice system.

The justices are not alone.  For years, many lower federal court judges have also forcefully argued that acquitted conduct sentencing is unconstitutional.  And a growing number of state courts have also broken ranks with the federal courts, calling this sentencing practice what it is: unconstitutional.

This broad criticism underscores the appalling nature of this practice.  It is not only unjust to defendants but also undermines the legitimacy of our criminal justice system and eviscerates the role of juries as a check on government abuse and overreach.

We both frequently have conversations with friends, advocates, and partners who have no idea this practice occurs.  The response is always shock and confusion about how such a practice can exist in America.  This horrified reaction mirrors our own, which is why we continue to advocate for the end of this practice.

The Supreme Court has a perfect opportunity to reconsider this practice by accepting a case called McClinton v. United States

A few recent of many, many prior related posts:

September 14, 2022 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 13, 2022

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

September 13, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, September 12, 2022

Noting opaque SCOTUS rulings, split Ninth Circuit panel rejects habeas Eighth Amendment claim against 292-year prison term

Being sentenced to serve in 292 years in prison for a bunch of non-violent offenses certainly seems pretty "cruel."  And such an extreme prison term is still somewhat "unusual" in modern times, and surely would have been entirely unknown to the Founders. (Remarkably, were someone sentenced to 292 years in prison in 1790, he would still have 60 years left to serve circa 2022.)  But, despite textualist and originalist turns in other areas, modern Eighth Amendment jurisprudence does not (yet?) focus on the text and original understanding of this provision.  Indeed, because there have been so few modern cases about application of the Eighth Amendment to extreme adult prison sentences, it remains unclear just whether and how the Eighth Amendment still serves to limit extreme adult prison terms at all.

I flag these issues in the wake of a notable recent split Ninth Circuit panel decision in Patsalis v. Shinn, No. 20-16800 (9th Cir. Sept. 6, 2022) (available here), in which the very opaqueness of Eighth Amendment jurisprudence provided the basis for rejecting a habeas challenge to a 292-year state prison term. Here is the start of the majority opinion in Patsalis providing context as well as passages from the discussion:

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis’s constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis’s individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm....

There is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.... Lockyer is instructive....  The Court noted that its sentence-proportionality precedents “have not been a model of clarity.” Id. at 72. It further recognized that it has “not established a clear or consistent path for courts to follow” in analyzing proportionality of a sentence to a term of years. Id. Nor has it been clear about “what factors may indicate gross disproportionality” or provided “clear objective standards to distinguish between sentences for different terms of years.” Id. (cleaned up). Other than the basic principle of proportionality, the only thing that the Court has established is that the rule against grossly disproportionate sentences is violated “only in the exceedingly rare and extreme case.” Id. at 73 (cleaned up)....

To grant Patsalis’s habeas petition, we must conclude that “there is no possibility fairminded jurists could disagree” that the Arizona Court of Appeals’ decision conflicts with the Supreme Court’s clearly established precedents. Harrington, 562 U.S. at 102.  This we cannot do given the limited Supreme Court precedent regarding the prohibition against disproportionality of a sentence to a term of years.

Judge Christen penned a lengthy dissent, and here are parts of its opening and analysis:

Atdom Patsalis was convicted of various non-violent theft-related crimes committed over a three-month period when he was twenty-one years old. The total value of the property was about $5,000. Pre-trial, the State of Arizona made two plea offers of twenty years or less. Patsalis rejected both offers and was convicted of the charged offenses after a jury trial. The longest sentence imposed for any of his crimes was 15 years, but the court specified that his multiple sentences would run consecutively. The net result was a cumulative sentence of 292 years....

On appeal, my colleagues agree that AEDPA deference applies and they affirm on that basis. The majority acknowledges that the state court did not address Patsalis’s cumulative sentence — yet it asserts that the state court rejected Patsalis’s federal claim on the merits. The state court’s opinion is clear: it affirmed Patsalis’s individual sentences while expressly declining to consider whether his 292-year sentence was grossly disproportionate. Because the state court did not reach the merits of the claim Patsalis actually presented, there is no state-court decision to which we can defer and de novo review is the proper standard. Reviewing Patsalis’s claim de novo, I conclude that his cumulative sentence violates the Eighth Amendment. Accordingly, I respectfully dissent....

The facts and circumstances in the Supreme Court’s Solem and Graham opinions inescapably point to the conclusion that Patsalis’s 292-year sentence is one of the extremely rare cases that gives rise to an inference of disproportionality at the first step of the Eighth Amendment analysis. Patsalis was just 21 years old when he committed his offenses so he did not have a track record that had accumulated over the course of even the eleven years at issue in Solem. (Indeed, he had only been an adult for three years.) His offenses were non-violent and theft-related, and he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000. While four of his offenses involved entering private residences — admittedly serious conduct — eighteen of the twenty-two burglaries for which Patsalis received consecutive sentences did not involve entry into a home, but into a garage, a vehicle, and a detached shed. All of them were deemed “non-dangerous” by the trial court. As was the case in Graham, the sentence Patsalis received was multiples of the sentences imposed for murderers or rapists, yet Patsalis did not injure anyone and there is no indication that any violence or weapons were involved in any of his offenses.

Remarkably, in an era in which life sentences and lengthy term-of-years sentences keep reaching historic new levels (see reports discussed here and here), it has now been nearly two full decades since the Supreme Court has addressed an Eighth Amendment challenge to an adult term of years sentences.  Lockyer and Andrade were decided way back in 2003, and Justice Thomas is now the only member of SCOTUS who remains on the Court since those rulings were handed down. 

With SCOTUS transitions and the recent textualist and originalist turns in other jurisprudence, I would like to imagine Patsalis as the kind of case in which certorari might be granted and the Justices might look to finally clean up precedents that have not been a "model of clarity" and that seem quite inconsistent with the text and original understanding of the Eighth Amendment.  But, I should probably know better than to hope and expect that people sentenced to live in a cage for nearly three centuries will garner the kind of constitutional attention as praying football coaches and college admissions officers.

September 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Sunday, September 11, 2022

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

September 11, 2022 in Clemency and Pardons, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Making the case for jury nullification in response to criminalization of abortion

LawProfs Peter Sali and Guha Krishnamurthi have this notable new Inquest piece talking up jury nullification as having "a role to play in securing reproductive rights" in the wake of the Supreme Court reversal of Roe.  The piece is fully titled "Nullifying Dobbs: Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands." (The Inquest piece is a shorter exposition of this essay on SSRN titled "Nullification in Abortion Prosecutions: An Equilibrium Theory.")  Here is an excerpt:

[W]e expect the effect of nullification on abortion prosecutions to be twofold.  First, it will reduce the range of cases that will be brought.  Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges.  Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases.  This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification.  Marijuana prosecutions are a relevant precedent.  In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half.  Today, only about a third of Americans approve of such laws.  Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%.  We think that this was not a coincidence.  As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular.  Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself....

Nullification cannot and will not fix everything.  Nullification itself comes at the end of the criminal process.  The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating.  Nullification cannot directly alleviate those harms.  Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process.  But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment....

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment.  The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans.  Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

I have flagged the passage here discussing declining federal marijuana prosecutions in part because I co-wrote an article last year on this topic, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."   As explained in that article, a sharp decline in marijuana seizures at the southern US border (as states have legalized local grows) likely most directly explains the sharp decline of federal marijuana prosecutions.  Still, the disinclination of federal prosecutors to go after state-legalized marijuana activities — especially during the Trump Administration when many DOJ officials were clearly not so keen on marijuana reform — likely has reflected the reality that more and more citizens may be less and less likely to support using criminal laws to punish "responsible" marijuana activity.

A few prior related posts:

September 11, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, September 08, 2022

New Sentencing Project report addresses "How Many People Are Spending Over a Decade in Prison?"

The Sentencing Project has long done a lot of great work on long sentences, especially through various reports on life sentences (examples here and here).  Today, The Sentencing Project has a notable new publication looking at persons serving sentences of a decade or longer.  This new report is titled with a question: "How Many People Are Spending Over a Decade in Prison?".  But the subtitle of the report provides this answer: "In 2019, over half of the people in U.S. prisons — amounting to more than 770,000 people — were serving sentences of 10 years or longer — a huge jump from 2000."  Here are other "key findings" from the start of the report:

September 8, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, September 07, 2022

"Policing Mass Incarceration"

The title of this post is the title of this recent article available via SSRN authored by Fred O. Smith, Jr.  Here is its abstract:

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality.  The Supreme Court has produced these consequences by offering needlessly narrow remedies for constitutional wrongs and by issuing crabbed constructions of criminal procedural rights.  Chemerinsky’s indictment is written with clarity, comprehensiveness, and humanity.

This Book Review argues that mass incarceration presents an immense barrier to the author’s goals of producing less violent, more accurate, less invasive, and less racist policing.  First, many of Chemerinsky’s proposals for police reform assume a system of criminal trials.  In our system of mass incarceration, the overwhelming majority of incarcerated persons never receive a trial.  If the criminal legal system did attempt to rely on trials instead of coerced guilty pleas, the system would collapse under the weight of the sheer number of people we prosecute.  Second, Chemerinsky argues that we should revisit and raise the requisite standard for police to search a suspect from reasonable suspicion to probable cause.  But in a system of mass incarceration, probable cause is not hard to come by. The more things we label “crime,” the more reasonable it is to believe that someone is likely committing one.  Third, mass incarceration feeds on legal reforms that are not aimed at decarceration.  A “criminal caste” is more tolerable if the government gives the caste members “rights” before stripping them of humanity and core dimensions of citizenship.

It is imperative to reverse and control mass incarceration to achieve lasting transformation of the police.  There is no equitable way to police in a world of mass incarceration. 

September 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6)

Monday, September 05, 2022

"Condemning Those with Multiple Disabilities to Die: Dual Diagnosis of Substance Abuse and Intellectual Disability in Capital Sentencing Proceedings"

The title of this post is the title of this new article authored by Aliya Sternstein and John R. Mills now available via SSRN.  Here is its abstract:

While the execution of defendants who score significantly low on intelligence tests, struggle to adapt their behavior to their environment, and experience these deficits during the developmental years is unconstitutional -- some courts have imposed or upheld death sentences because they find the defendant also has a drug addiction.

These courts misread the no longer used technical phrase “related to” in the above medical criteria for an intellectual disability (ID) diagnosis.  The criteria stated that shortfalls in adaptive behavior must be “related to” low intellectual functioning.  The long-settled medical community consensus is that there is no requirement to identify the psychological causes of these adaptive deficits.  But the misinformed courts have improperly held that related to means “caused by” instead of “co-existing with,” requiring proof of a negative: that the accused’s deficits in behavior are not caused by a substance use disorder.  This legal and medical error is common in some jurisdictions.  That is so, even in light of U.S. Supreme Court instructions to be informed by the medical consensus when assessing ID.

Although a great deal has been written about the exemption of those with ID from execution, little legal scholarship has addressed the intersection of substance abuse, Supreme Court reliance on the medical consensus in death eligibility decisions, and a misunderstanding or disregard of the consensus that addiction may and often do co-exist with ID.  Limited social skills and a self-perception of being different from others can foster loneliness and an urge to fit in that defendants with ID overcome by abusing drugs and alcohol.  The high Court has explicitly recognized the same: because people with ID often have other psychological impairments, the “existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”

Judges and jurors perhaps deny protection to defendants with addictions and ID because of a misperception that those with substance use disorders are more blameworthy for their plight than defendants with additional psychological disorders or those with only ID.  But neither the medical consensus nor the Supreme Court has ever suggested that addiction changes the level of culpability of an offender with ID.  Quite the opposite: ID may heighten the risk of developing a substance use disorder.

This paper makes the straightforward case that a defendant, who otherwise meets the ID criteria, cannot be excluded from the constitutional prohibition on executing those with ID simply because of a dual diagnosis of substance abuse. Accordingly, courts must not require a defendant asserting ineligibility for execution to show that their deficits in adaptive behavior are “related to” an intellectual impairment and not related to substance abuse or some other psychological impairment.

September 5, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Thursday, September 01, 2022

First Circuit panel reiterates district courts' "broad discretion" and "holistic review" when resolving compassionate release motions

Today seems to be my day for catching up with circuit rulings regarding federal compassionate release decision-making.  My prior post today here about the Second Circuit's panel rulings limiting the consideration of certain arguments prompted a helpful reader to make sure I saw the recent First Circuit panel ruling running the other way.  In US v. Trenkler,  No. 21-1441 (1st Cir. Aug. 29, 2022) (available here), the panel stressed and reiterated a prior ruling setting out compassionate release rules:

Ruvalcaba convincingly set the standard for a district court reviewing a prisoner's proposed reasons for compassionate release, making it clear that district courts have the discretion to review prisoner-initiated motions by taking the holistic, any complex-of-circumstances approach we discussed earlier.  Indeed, this approach makes sense.  After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.  This is not to say that a district court must find a certain number of extraordinary and compelling reasons.  Rather, in conducting their reviews, district courts should be mindful of the holistic context of a defendant's individual case when deciding whether the defendant's circumstances satisfy the "extraordinary and compelling" standard -- "any complex of circumstances" contemplates that any number of reasons may suffice on a case-by-case basis, whether it's one, two, or ten.

I noted here the remarkable district court opinion last year in Trexler, and this case and so many others serve as a remarkable reminder of just how many different federal prisoners can cite to so many different circumstances when seeking a sentence modification.  A huge federal prison system necessarily creates a huge number of questions in the wake of the First Step Act's change to the compassionate release rules. 

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

Second Circuit panel rules evidence attacking underlying conviction "cannot be raised in a § 3582 motion" for compassionate release ... and reiterates point after Concepcion

UPDATE/Clarification:  A helpful reader flagged for me that on Aug 31, the Second Circuit actually reissued its Orena opinion after having issued its original opinion on June 15.  I have now corrected/amended this post accordingly.

---- 

Just today I saw a second version of a panel opinion from the Second Circuit issued which expressly invents another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.  The per curiam opinion in US v. Orena, No. 21-2747 (2d Cir. June 15, amended Aug. 31, 2022) (original available here), get started this way:

As part of the First Step Act of 2018, Congress authorized courts to reduce a term of imprisonment upon motion by a defendant. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A)).  Section 3582(c)(1), colloquially known as the “compassionate release” provision, permits a district court to reduce a previously imposed sentence “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”  Appellant Victor Orena contends primarily that the district court erred in denying his motion pursuant to § 3582 by refusing to consider new evidence that he says calls into question the validity of his conviction.

We conclude that when considering a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 U.S.C. § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 U.S.C. § 2255 or § 2241. Because the district court properly refused to consider such evidence here as to the § 3553(a) factors and otherwise did not abuse its discretion in denying Orena’s motion for compassionate release, we affirm.

Here is a key paragraph from the opinion:

Orena primarily contends that the district court erred by assuming the PSR’s accuracy and refusing to weigh his new evidence as part of the § 3553(a) factors.  We disagree. Section 3582(c)(1)(A) directs courts to “consider[] the factors set forth in section 3553(a).”  Section 3553 in turn provides “[f]actors to be considered in imposing a sentence.” 18 U.S.C. § 3553(a) (emphasis added).  To impose a sentence, there must necessarily be a valid conviction.  If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to 28 U.S.C. § 2255, which imposes particular procedural limitations.  A defendant cannot evade this collateral review structure by attacking the validity of his conviction through § 3582.  Accordingly, we conclude, arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the § 3553(a) sentencing factors.  Rather, such arguments are properly raised on direct appeal or collateral review pursuant to 28 U.S.C. § 2255.  Other courts have reached the same conclusion. See e.g., United States v. Bard, No. 21-3265, 2022 WL 843485, at *2 (3d Cir. March 22, 2022) (unpublished per curiam); United States v. Miller, 855 F. App’x 949, 950 (5th Cir. 2021) (unpublished per curiam)

I get the logic of courts wanting to channel efforts to invalidate a conviction into 2255 or 2241 motions. But in some cases prisoners may be eager to highlight problems with the validity of an underlying conviction to bolster their arguments under § 3553(a) that a sentence reduction would produce a sentence that better "promote[s} respect for the law" or would help "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Because there is no express text in § 3582(c)(1)(A) that would seem clearly to bar this kind of evidence and argument, and because there is text in § 3553(a) that would seem potentially to invite this kind of evidence and argument, I think it problematic — at least for those of us concerned about textualist limits of judicial policy-making — to see another circuit court inventing another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.

As I blogged here back in June, the Supreme Court's ruling in Concepcion seem to clearly indicated that circuit courts should not be creating extra-textual limits on the discretion that Congress has given to sentencing judges.  And the defendant in this Second Circuit cases sought reconsideration based on Concepcion, which led to the reissued opinion linked below.  Here is a key added footnote in the amended opinion:

The Supreme Court’s decision in Concepcion does not conflict with our decision in this case.  In Concepcion, the Court emphasized a “longstanding tradition” of discretion afforded to courts consider changes in law or fact when sentencing or resentencing a defendant. 142 S. Ct. at 2395.  However, the Court acknowledged that that discretion is subject to constraints imposed by Congress and the Constitution. Id. at 2400–01.  One such constraint is 28 U.S.C. § 2255, which provides the procedural mechanism for Orena’s arguments regarding actual innocence and the legality of his conviction.

Download Orena Aug 31 2022

This footnote makes my head hurt, because there is absolutely no language in 28 U.S.C. § 2255 which can be fairly read as a "constraint" on what may be valid considerations in the exercise of § 3582/3553(a) discretion.  There is language in § 2255 which limits when and how § 2255 motions are to be resolved, but nothing in that provision places any express or implicit "constraint" on what should be part of compassionate release considerations.  Sigh... Cf. Lewis Carroll, Through the Looking-Glass (1871) ("'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less'.")

September 1, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, August 30, 2022

New Sentencing Project report highlights court diversion as a means to reduce juvenile justice disparities

The Sentencing Project today released a big new report authored by Richard Mendel titled "Diversion: A Hidden Key to Combating Racial and Ethnic Disparities in Juvenile Justice."  Here are parts of the report's executive summary:

Diverting youth from juvenile court involvement should be a central focus in efforts to reduce racial and ethnic disparities and improve outcomes in our nation’s youth justice systems.

Clear evidence shows that getting arrested in adolescence or having a delinquency case filed in juvenile court damages young people’s futures and increases their subsequent involvement in the justice system.  Compared with youth who are diverted, youth who are arrested and formally petitioned in court have far higher likelihood of subsequent arrests and school failure.  Pre-arrest and pre-court diversion can avert these bad outcomes.

Research shows that Black youth are far more likely to be arrested than their white peers and far less likely to be diverted from court following arrest.  Other youth of color — including Latinx youth, Tribal youth, and Asian/Pacific Islander youth — are also less likely than their white peers to be diverted.  The lack of diversion opportunities for youth of color is pivotal, because greater likelihood of formal processing in court means that youth of color accumulate longer court histories, leading to harsher consequences for any subsequent arrest.

Expanding diversion opportunities for youth of color therefore represents a crucial, untapped opportunity to address continuing disproportionality in juvenile justice....

For most youth, diversion is more effective and developmentally appropriate than court.  Compelling research finds that formal involvement in the justice system tends to undermine rather than enhance public safety and to reduce young people’s future success....

Diversion is vastly underutilized in the United States.  Of the youth referred to juvenile or family courts for delinquency each year, just 7% are accused of serious violent offenses.  Therefore, a large majority of youth accused of delinquency should be diverted rather than arrested and formally processed in a juvenile court.  Yet the use of diversion remains limited....

The diversion stage of the juvenile court process should be a top priority for youth justice reform.  Advocates should push for and system leaders must take aggressive action to address racial and ethnic disparities in diversion.  Combined, reforms to expand and improve the use of diversion offer perhaps the most important and promising avenue currently available to reduce disparities and to improve youth justice systems nationwide.

August 30, 2022 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Monday, August 29, 2022

DC sniper Lee Boyd Malvo makes still more law as top Maryland court says he must be resentenced in light of Miller

Though Lee Boyd Malvo is now 37 years old and serving a life prison term in Virginia, he was only 17 years old when he (with John Allen Muhammad) killed multiple people in Virginia, Maryland and Washington over a few weeks in 2002.  Malvo's juvenile status at the time of his awful crimes means that the Supreme Court's Eighth Amendment jurisprudence limiting juvenile LWOP sentencing has been applicable to him.

The Supreme Court had granted cert to considering Malvo's Virginia sentencing, until Virginia changed its sentencing law and mooted that case.  And late last week, as reported in this AP article, Malvo's Maryland sentencing generated a notable ruling:

Maryland’s highest court has ruled that Washington, D.C.-area sniper Lee Boyd Malvo must be resentenced, because of U.S. Supreme Court decisions relating to constitutional protections for juveniles made after Malvo was sentenced to six life sentences without the possibility of parole

In its 4-3 ruling, however, the Maryland Court of Appeals said it’s very unlikely Malvo would ever be released from custody, because he is also serving separate life sentences for murders in Virginia.

“As a practical matter, this may be an academic question in Mr. Malvo’s case, as he would first have to be granted parole in Virginia before his consecutive life sentences in Maryland even begin,” Judge Robert McDonald wrote in the majority opinion released Friday.

McDonald wrote that it’s ultimately not up to the Court of Appeals to decide the appropriate sentence for Malvo, or whether he should ever be released from his Maryland sentences.

“We hold only that the Eighth Amendment requires that he receive a new sentencing hearing at which the sentencing court, now cognizant of the principles elucidated by the Supreme Court, is able to consider whether or not he is constitutionally eligible for life without parole under those decisions,” McDonald wrote....

Judges Jonathan Biran, Brynja Booth and Joseph Getty joined McDonald in the majority. Judges Shirley Watts, Michele Hotten and Steven Gould dissented.  Watts wrote that the sentencing court took Malvo’s status as a juvenile into account.

“The record demonstrates that Mr. Malvo received a personalized sentencing procedure at which his youth and its attendant characteristics were considered, and the circuit court was aware that it had the discretion to impose a lesser sentence,” Watts wrote.

The full 108-page opinion in Malvo v. Maryland is available at this link.

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

Saturday, August 27, 2022

"The Injustice of Under-Policing in America"

The title of this post is the title of this new paper authored by Christopher Lewis and Adaner Usmani and published in the American Journal of Law and Equality. Here is part of its introduction:

Since 2014, viral images of Black people being killed at the hands of the police — Michael Brown, Eric Garner, Breonna Taylor, and many, many others  — have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.  Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. And others have called for abolishing the police altogether.  It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans — especially poor, Black people.  This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.

The American criminal legal system is unjust and inefficient.  But, as we argue in this essay, over-policing is not the problem.  In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations . In this country, roughly three people are incarcerated per police officer employed.  The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate.  We argue that the United States has it backward.  Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world.  We call this the “First World Balance.”

We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration.  This essay offers a preliminary sketch of some of the arguments in the book.  In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor.  One of us is a social scientist, and the other is a philosopher and legal scholar.  Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct — but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.  Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound.  In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.

August 27, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 22, 2022

Another encouraging report on those released under federal CARES Act

NPR has this notable new piece, headlined "Released during COVID, some people are sent back to prison with little or no warning," with a kind of good news/bad news reporting on persons released from federal prison during the pandemic under the CARES Act.  Here are extended excerpts: 

More than 11,000 people [under the bipartisan pandemic legislation called the CARES Act] have been released from federal prison in the last couple of years, to ride out the pandemic at home, often with their families and loved ones.  But that situation can be precarious.

In June 2021, [Eric] Alvarez and [his finance Eva] Cardoza took a 90-minute cab ride into the Bronx, so she could meet with staffers in charge of her supervision.  Cardoza, who had tested positive for marijuana, never came out of the building....  Cardoza's return to prison turned the family upside down.  She's now been back at Danbury for 14 months. Alvarez said she never got the chance to explain herself or challenge that single positive drug test.  "That's just mind boggling to me," Alvarez said.  "Where is the judicial system? Where is the fairness? Where is the 50-50? I don't see it."

Less than 0.2% of the people released committed new crimes while they were out

This week, the Bureau of Prisons told NPR that 442 people who were released during the pandemic have now returned to prison.  Only 17 people out of more than 11,000 who were released committed new crimes, mostly drug related ones, while they were out.  More than half, some 230 people including Eva Cardoza, got sent back for alleged alcohol or drug use.  Other cases involved technical violations.

Sakira Cook of the racial justice group Color of Change explained what that means.  "It could be as simple as failing to answer the phone when your probation officer calls you. It could be as simple as the ankle monitor giving an incorrect signal about your location," Cook said....

Most of the monitoring of people on home confinement is being done by private contractors, said Quinnipiac University School of Law professor Sarah Russell.  "There can be a lot of room for miscommunications and misunderstandings," Russell said.  Russell said that's all the more reason to ensure due process rights for people at risk of being sent back: the opportunity to see the evidence against them and to have a hearing before a neutral arbiter.

Last week, one of Russell's clients won those rights in court.  The decision by Judge Omar Williams is the first in the nation to hold that the current process for returning people to federal prison after home confinement is unconstitutional.

Russell said her other clients — moms with young children — are still nervous about having to leave their lives behind unexpectedly.  "My real hope is that this gets addressed at the national level through the Bureau of Prisons and through the Department of Justice," Russell said.  "They have a real opportunity to set clear procedures and criteria."

More lawsuits from people returned to prison are under way. The Bureau of Prisons said it can't talk about that pending litigation. But it is considering a new federal rule to make the process more clear.

Though I understand why the focus of this piece is on the opaque and seemingly unfair processes often adopted by BOP when returning people to custody, I am eager to highlight and stress the extraordinarily low recidivism rate being reported for those released under federal CARES Act.   FBI arrest data suggest (very very, roughly) that up to 1 in every 50 adults get arrested for a crime in the US each year.  That just over 1 in every 1000 persons released under federal CARES Act have been found to commit new crimes over the last 2+ years is truly remarkable.  (Or course, persons released under the CARES Act have been screened for riskiness and have very strong incentives to stay crime-free with a prison return looming.  Still, the same can arguably said for a large portion of persons released from prison, and yet usual recidivism rates are depressingly high for many other cohorts of former prisoners.)

I sense a lot of different groups and researchers are busy trying to better understand what factors contribute to desistance from crime these days.  The CARES Act data suggest this is a cohort that ought to be examined closely as we seek to engineer improved prison release mechanism.

UPDATE: I wrote to Professor Sarah Russell about the ruling from Judge Williams, which she was able to provide his 35-page opinion for posting here.  Folks will want to read the full 35-page opinion if working in this area, but this one line provides the main part of the holding: "this court finds that Respondents violated Petitioner’s due process rights in revoking her home confinement without a proper revocation hearing as described in Morrissey."

Download Tompkins Order on CARES Act return procedures

August 22, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Defense beginning mitigation case in the capital trial of Parkland shooter Nikolas Cruz

Apart from this post last month, I have not been following closely or blogging at all about the ongoing the state capital trial in Florida of Parkland mass murderer Nikolas Cruz.  But this AP article, headlined "Defense in school shooter’s trial set to present its case," suggests it is now a sensible time to check in.  Here are excerpts from the AP report:

The prosecution spent three weeks telling jurors how Nikolas Cruz murdered 14 students and three staff members at a Florida high school four years ago. Now his attorneys will get their chance to present why they believe he did it, hoping to get him sentenced to life without parole instead of death. Melisa McNeill, Cruz’s lead public defender, is expected to give her opening statement Monday, having deferred its presentation from the start of the trial a month ago.

She and her team will then begin laying out their 23-year-old client’s life history: his birth mother’s abuse of alcohol and cocaine during her pregnancy, leading to possible fetal alcohol syndrome; his severe mental and emotional problems; his alleged sexual abuse by a “trusted peer;” the bullying he endured; and his adoptive father’s death when he was 5 and his adoptive mother’s four months before his Feb. 14, 2018, attack at Parkland’s Marjory Stoneman Douglas High School.

McNeill’s decision to delay her opening statement appeared part of a broader strategy to not deny or lessen anything prosecutors told jurors about Cruz’s massacre — he pleaded guilty in October to 17 counts of first-degree murder. This trial is only to decide his sentence; the seven-man, five woman jury will consider whether the prosecution’s aggravating circumstances “outweigh” the defense’s mitigating factors....

This is the deadliest U.S. mass shooting to ever reach trial. Nine other gunmen who killed at least 17 people died during or immediately after their shootings, either by suicide or police gunfire. The suspect in the 2019 slaying of 23 people at a Walmart in El Paso, Texas, is awaiting trial. During the prosecution’s case, McNeill’s team never cross-examined any teacher or student who witnessed the slayings and only had brief, mild exchanges with a few other witnesses....

To get Cruz a life sentence, the defense will only have to persuade one of the 12 jurors, but they will have to do it on all 17 counts, one for each victim. It is possible, for example, a reluctant juror might be pushed to vote for death on victims who surveillance video showed Cruz shot multiple times as they lay wounded and helpless.

The defense will be trying to overcome the horrendous evidence that was laid out by the prosecution, capped by the jurors’ Aug. 4 visit to the fenced-off building that Cruz stalked for seven minutes, firing about 150 shots down halls and into classrooms. The jurors saw dried blood on floors and walls, bullet holes in doors and windows and remnants of Valentine’s Day balloons, flowers and cards.

Some prior related posts:

August 22, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, August 19, 2022

"The Myth of the All-Powerful Federal Prosecutor at Sentencing"

The title of this post is the title of this new article authored by Adam M. Gershowitz in the Summer 2022 issue of the Saint John's Law Review.  Here is its abstract:

Prosecutors are widely considered to be the most powerful actors in the criminal justice system.  And federal prosecutors are particularly feared.  While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing.  There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences.  For example, prosecutors have considerable power to bring a slew of charges that will increase the prospects of a large sentence.  Prosecutors also hold the cards in determining whether defendants should receive the benefit of substantial assistance motions for their cooperation.  The wide swath of aggravating factors in criminal statutes and the Federal Sentencing Guidelines also gives prosecutors considerable bargaining power over sentencing in plea bargaining.  Moreover, prosecutors have a strong lobbying presence to push legislatures to enact tougher sentencing regimes.  All told, there are considerable structural advantages that prosecutors hold in influencing the ultimate sentence a defendant will face.  This Article therefore does not question that prosecutors hold a lot of power with respect to sentencing.

What this Article does question however is the supposedly significant persuasive power that federal prosecutors have to influence judges at sentencing hearings.  After criminal charges have been filed, after the plea bargains ⎯ or trials ⎯ have concluded, and after the guidelines ranges have been calculated, we eventually reach the final moment in the courtroom.  Prosecutors stand in front of the judge and argue for a specific sentence that should be imposed on a defendant.  Often the sentence recommended by the prosecution varies considerably from the position advocated by the defense attorney; prosecutors sometimes base their arguments on drug quantities that are higher than were computed in the guidelines calculations, or they argue for other sentencing enhancements to apply.  Prosecutors sometimes argue strenuously against mitigating factors raised by the defense, such as poor health, family problems, or advanced age.  In short, the final event in a criminal case is a good old-fashioned, silver-tongued lawyering battle between the prosecutor and the defense attorney. 

August 19, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, August 18, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, August 13, 2022

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

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

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

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

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

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

Friday, August 12, 2022

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

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

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

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

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

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

Tuesday, August 09, 2022

"Is the Principle of Desert Unprincipled in Practice?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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