Tuesday, May 18, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior recent related posts:

May 18, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 17, 2021

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

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

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

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

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

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

May 17, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

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

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

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

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

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

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

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

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

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

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

May 17, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

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

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

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

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

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

May 17, 2021 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, May 16, 2021

"Drug Supervision"

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

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

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

May 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Friday, May 14, 2021

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

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

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

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

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

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

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

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

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

One of the dissents begins this way:

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

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

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

May 14, 2021 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, May 13, 2021

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

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

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

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

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

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

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

Download Trenkler CR opinion

May 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

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

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

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

May 13, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 12, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

May 12, 2021 in Blakely in the States, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

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

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

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

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

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

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

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

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

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

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

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

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

May 12, 2021 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 11, 2021

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

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

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

The dissenting opinion concluded this way:

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

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

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

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

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

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

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

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

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

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

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

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

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

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

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

May 11, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, May 10, 2021

"Constraining Criminal Laws"

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

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

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

May 10, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, May 09, 2021

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

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

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

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

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

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

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

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

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

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

Judge Martin's dissent gets started this way:

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

A few of many, many prior related posts:

May 9, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, May 07, 2021

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

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

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

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

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

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

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

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

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

A few of many, many prior related posts:

May 7, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, May 06, 2021

Covering some interesting developments in some Capitol riot prosecutions

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

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

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

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

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

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

Prior related posts:

May 6, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, May 05, 2021

New Urban Institute resources on FIRST STEP Act prison particulars

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

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

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

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

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

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

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

May 5, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Monday, May 03, 2021

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

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

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

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

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

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

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

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

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

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

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

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another round of early (mostly critical) commentary on Jones

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

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

May 3, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, May 01, 2021

"Obstruction of Justice: Redesigning the Shortcut"

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

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

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

May 1, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, April 30, 2021

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

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

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

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

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

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

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

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

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

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

Defendant's Memorandum of Law Opposing Upward Durational Departure

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

April 30, 2021 in Blakely in the States, Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Tuesday, April 27, 2021

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

April 27, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, April 26, 2021

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

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

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

April 26, 2021 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, April 25, 2021

"A Primer on Risk Assessment for Legal Decisionmakers"

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

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

April 25, 2021 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (1)

Saturday, April 24, 2021

Third Circuit panel explores curious loss calculations in federal fraud guidelines

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

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

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

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

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

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

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

April 24, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Friday, April 23, 2021

A few first thoughts on Jones and juve LWOP

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

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

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

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

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

April 23, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 22, 2021

"Race-Based Remedies in Criminal Law"

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

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

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

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

April 22, 2021 in Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, April 21, 2021

Notable new US Sentencing Commission primers on federal crime victim rights

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

Crime Victims' Rights

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

Economic Crime Victims

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

April 21, 2021 in Advisory Sentencing Guidelines, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

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

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

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

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

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

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

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

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

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

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

April 19, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Qualifying Prosecutorial Immunity Through Brady Claims"

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

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

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

April 19, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

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

The Supreme Court is back in action this morning after a short hiatus, getting started with this new order list that has most of its limited action in criminal law cases.  Specifically, the Justices granted certiorari in a single case, Hemphill v. New York20-637, which presents this criminal procedure issue:

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

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

April 19, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, April 18, 2021

Interrogating recent research indicating nonprosecution of certain misdemeanors lowers reoffense

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

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

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

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

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

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

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

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

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

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

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

Prior recent related post:

April 18, 2021 in Criminal Sentences Alternatives, Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, April 17, 2021

"Applying Procedural Justice in Community Supervision"

The title of this post is the title of this interesting report released last month by folks at the Urban Institute.  This page has this abstract for the report:

Procedural justice, a framework for authority figures to treat people with fairness and respect, can improve probation supervision and core supervision outcomes.  This report summarizes the approach and provision outcomes of an effort to develop and pilot a new procedural justice training curriculum outlining new tools and practices for probation officers.  Analyses of interactions between supervising officers and people under supervision, survey responses regarding perceptions of supervision, and analyses of administrative data provided mixed findings, with some preliminary indications that participating in the procedural justice training may make probation officers’ treatment of people under supervision fairer and more respectful and improve supervision outcomes.  However, the conclusions that can be drawn from even those results supportive of intervention impact are subject to significant limitations, given the nonexperimental nature of the design and the small number of observations in some of the data collected.

April 17, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, April 16, 2021

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

April 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

One year (and 185 pages) later, divided Eleventh Circuit (now en banc) again rules Jeffrey Epstein's victims had no pre-charge rights under federal CVRA

Almost exactly one year ago, as blogged here, a divided Eleventh Circuit panel handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant.  The opinions in the original panel decisions In re Courtney Wild, No. 19-13843 (11th Cir. April 14, 2020) (available here), ran a total of 120 pages.  Yesterday, exactly a year and a dat later, the Eleventh Circuit handed down this new en banc ruling in this case ruling 185 pages.  Judge Newsom, who authored the original panel's majority opinion for the court also authored the lead en banc opinion, which starts this way:

This petition for writ of mandamus arises under the Crime Victims’ Rights Act, 18 U.S.C. § 3771.  Petitioner Courtney Wild is one of more than 30 women who, according to allegations that we have no reason to doubt and therefore accept as true in deciding this case, were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her mandamus petition, Ms. Wild asserts that when federal prosecutors secretly negotiated and executed a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with and to be treated fairly by the government’s lawyers.

We have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government attorneys.  Even so, we find ourselves constrained to deny Ms. Wild’s petition.  While the CVRA permits a crime victim like Ms. Wild to “mov[e]” for relief within the context of a preexisting proceeding — and, more generally, to pursue administrative remedies — it does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.  Because the government never filed charges against Epstein, there was no preexisting proceeding in which Ms. Wild could have moved for relief under the CVRA, and the Act does not sanction her stand-alone suit.

Judge Tjoflat has a notable concurrence (joined by a number of judges) that starts this way:

I concur wholeheartedly in the majority’s opinion.  I write separately to elaborate on the untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers. My concurrence proceeds in three parts.  First, I will outline the litigation models Judge Branch’s dissent and the majority propose: one conferring judicially enforceable rights to crime victims pre-charge, and one conferring such rights to crime victims post-charge.  Then, I will identify two fairness concerns the dissent’s pre-charge model would raise.  Finally, to bring us home, I will expand on the majority’s discussion of the separation of powers doctrine and elaborate on why a pre-charge CVRA model would impermissibly drag federal courts into the business of prosecution.  By laying these problems out in simple terms, my hope is that readers of today’s decision will understand precisely why we are compelled to deny Ms. Wild’s petition.

Judge Branch's dissent, which runs more than 50 pages, includes this road map of its coverage in its introduction:

My dissent proceeds in five parts.  First, I review the facts surrounding the plea deal with Epstein.  Second, I review the procedural history.  Third, I turn to how Congress granted expressly to crime victims in § 3771(a)(5) and (a)(8) a “reasonable” right to confer and a right to be treated fairly and those rights attach pre-charge.  Fourth, I review (A) how the Majority has misapplied and misinterpreted the Supreme Court’s Sandoval decision; (B) how the CVRA text in § 3771(d) expressly provides victims who believe their CVRA rights were violated pre-charge with a statutory remedy — a private right to seek judicial enforcement of their statutory rights in § 3771(a) — when no prosecution is underway; (C) how the statutory interpretation errors in the Majority’s reading of § 3771(d) and (f) leads it to the opposite conclusion; and (D) how even under the Majority’s analysis, the existence of the administrative remedy in § 3771(f) does not make the express judicial remedy in § 3771(d) unavailable to the victims, much less show that Congress did not intend a judicial remedy for crime victims in the “pre-charge” period.  Fifth, I discuss why the CVRA plainly precludes any interference with prosecutorial discretion.

I presume Ms. Wild will now seek Supreme Court review.  I do not believe the Supreme Court has ever taken up a case involving the interpretation of the CVRA, which was enacted by Congress almost two decades ago now.  For a host of reasons, I am disinclined to predict whether this high-profile case might garner the Justices' attention.

Prior related post:

UPDATE: I just saw Paul Cassell, who helps represent Ms. Wild, has this post about this ruling at The Volokh Conspiracy under this full headline: "The Eleventh Circuit Rules Against Jeffrey Epstein's Sex Abuse Victims' Efforts to Rescind His Secret Plea Deal.  The en banc ruling calls the sordid deal a 'national disgrace' but concludes the courts are powerless to enforce crime victims' rights in pre-charging situations -- a disturbing ruling that I hope will be quickly overturned."  Here is a key paragraph from this post about what may come next:

The Circuit's decision is wrong at so many levels that it is hard to see the precedent lasting long.  We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications.  And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims' Rights Reform Act of 2019, which would directly overrule the Circuit's conclusion.

April 16, 2021 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, April 14, 2021

Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast

A few weeks ago, as blogged here, Politico spotlighted some case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  That lengthy piece highlighted reasons why it could turn out, in the words of the headline, that "Many Capitol rioters [are] unlikely to serve jail time."  Politico now has this additional interesting piece on the same beat headlined "Leniency for defendants in Portland clashes could affect Capitol riot cases."  I also recommend this piece in full, in part because the piece showcases how differing charging policies and practices — both at the national level and in individual districts — can lead to differing case outcomes:

Federal prosecutors’ show of leniency for some defendants charged in the long-running unrest in the streets of Portland could have an impact on similar criminal cases stemming from the Capitol riot, lawyers say.

In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer.  The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.

Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.  Those moves seemed to step away from the highly public, throw-the-book-at-them stance that President Donald Trump and then-Attorney General William Barr adopted toward lawbreakers involved in racial justice protests that swept across the country last year following the death of George Floyd during an encounter with Minneapolis police.

“Obviously there was a change in direction from Washington, and once they changed the U.S. attorney, that seemed to change the tone,” said John Kolego, a defense attorney based in Eugene, Ore., who handled one of the Portland cases. “They had their marching orders from Barr before, but the tone is definitely changed,” Kolego said.

Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder.  Some defendants are accused of punching or jumping on police officers during the street battles.  One individual was charged after being accused of shining a high-powered green laser into the eyes of officers seeking to disperse a riot outside a police union building.

The civil disorder cases are notable because the charge of police interference is also being wielded by prosecutors in dozens of the criminal cases brought over the storming of the Capitol on Jan. 6 by pro-Trump protesters.  In the Washington cases, prosecutors have filed the felony anti-riot charge in tandem with others, like obstructing an official proceeding or assaulting police officers.

Some of the assaults described in the Portland cases bear similarities to the Capitol violence.  Prosecutors said one of the civil disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest.  Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob....

While Justice Department headquarters in Washington loudly touted the arrests and indictments related to last summer’s unrest, a spokesperson for the U.S. Attorney’s Office in Portland said the resolutions it is reaching in those cases were not being approved by officials in Washington.  “There is no across-the-board standard being used to rule our protest cases in or out of consideration for a deferred prosecution agreement, and our office does not consult with Main Justice on when to use them,” said Kevin Sonoff, the spokesperson.

However, Sonoff said the Portland prosecutors were acting under the authority that then-Attorney General Eric Holder granted to assistant U.S. attorneys a decade ago to craft resolutions they considered appropriate in criminal cases.  Trump’s first attorney general, Jeff Sessions, revoked that policy in 2017, but days after Biden’s inauguration in January, the Justice Department returned to the Holder standards that Portland prosecutors are now citing.  “Under the 2010 Holder memo on charging and sentencing, AUSAs have broad discretion on how cases are resolved,” the spokesperson said, referring to assistant U.S. attorneys.

Laurie Levenson, a former federal prosecutor who is now a law professor at Loyola Marymount University in Los Angeles, said: “Undoubtedly, defense lawyers will point to everything they can to get the most favorable resolution for their clients. Now, one thing they can point to will be the deferred prosecutions in Portland.”  Still, prosecutors in D.C. can argue that what happened there is more serious even if the physical actions of the defendants were comparable. “Attacking the Capitol is sui generis — it’s in a category of its own,” Levenson said. “One is the seat of government and the other is not.”

One defense attorney in Washington representing Capitol riot defendants said he planned to raise the Portland cases as negotiations begin between the government and defendants over those arising from the Capitol “I think they’re very relevant,” said the defense lawyer, who spoke on the condition of anonymity.  “The individual conduct is actually not all that different: You’re at a protest that turns into a riot. … The core conduct is the same, so if people out there are getting deferred prosecution for that conduct, then my guy should be.”

Nancy Gertner, a former federal judge, said she expected Portland comparisons as defense lawyers and the government jockey over the terms of potential plea deals. “Sure, it would be relevant … but that feels very different than entering into the Capitol,” said Gertner, now a lecturer at Harvard Law School.  Gertner said many of the Capitol cases were headed for what she called a “no-time resolution,” meaning no prison time. But she emphasized that offering a deferred prosecution with no criminal record — like the Portland deals — was really up to prosecutors, who may be reluctant to agree to them amid lingering outrage over the Jan. 6 takeover. “I can see prosecutors not wanting to give them — and a judge can’t,” she said....

The ad hoc resolutions in the Portland cases — some of which involve postponing action on the charges for as long as a year — are similar to more formal pretrial diversion programs in place at federal courts in Los Angeles, Seattle and Boston.  “Federal courts have programs to allow people to show they have been rehabilitated,” Lisa Hay, the chief federal defender in Oregon, told POLITICO.  “I think the government should always look at the facts of the case and the individual charges.  We are encouraged that the government is doing that in the cases here.”

The federal District Court in D.C. where the Capitol riot defendants are charged does not have such a program, chiefly because less-serious cases in the nation’s capital are typically routed to D.C. Superior Court, which does have a diversion program of its own....  Deferred prosecution or resolution agreements are often used in state and local courts, but are more rare in federal courts.  The Justice Department has generated controversy in recent years by using such deals to resolve investigations into corporations accused of being involved in criminal activity.  That led to calls by some criminal justice reformers to offer such arrangements to individuals more frequently in federal criminal cases, although they have not become widespread. 

Prior related post:

April 14, 2021 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"What Is An Excessive Fine? Seven Questions to Ask After Timbs"

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

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.

April 14, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 11, 2021

"Against Criminal Law Localism"

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

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing.  A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies.  But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.”  Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state — their option is only to add more offenses to the existing state code.  Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups.  Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance.  Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

April 11, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, April 09, 2021

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 08, 2021

Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority

When it rains it pours, at least wih respect to compasionate release rulings these days.  In this last post, I called a Fifth CIrcuit decision handed down yesterday the latest such ruling.  But, thanks to people on Twitter smarter than me, I learned that the Ninth Circuit issues a ruling on this topic today in US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021) (available here). Here is the start and a key paragrph of the ruling:

Patricia Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an “applicable policy statement[] issued by the Sentencing Commission” for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard....

We agree with the persuasive decisions of our sister circuits and also hold that the current version of U.S.S.G. § 1B1.13 is not an “applicable policy statement[]” for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant.  The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding. See Gunn, 980 F.3d at 1180.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act

Last week brought a number of notable Tenth Circuit opinions regarding compassionate release authority after the FIRST STEP Act, as discussed in posts here and here.  A helpful reader made sure I did not miss the latest circuit ruling of note in this arena, this one coming from the Fifth Circuit in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021) (available here).  Here is the start and some key parts of the ruling (with some cites removed):

The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand....

The district court nevertheless thought itself bound by the old preFSA policy statement that appears in § 1B1.13.  That was error for three reasons.

First, the text of § 1B1.13 says it only applies to “motion[s] of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates.  So the policy statement continues to govern where it says it governs — on the “motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13.  But it does not govern here — on the newly authorized motion of a prisoner.

Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a “reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.”  U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added).  That note expressly limits the policy statement’s applicability to motions filed by the BOP.

Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement.  See United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (refusing to “do some quick judicial surgery on § 1B1.13 . . . [and] assume that what remains . . . applies to defendant-filed as well as BOP filed motions”).  It’s true that application note 1 defines “extraordinary and  compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018)....  And the context of the policy statement shows that it applies only to motions filed by the BOP.  Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

For these reasons, we conclude that neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582.  The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.  See United States v. McGee, --- F.3d ---, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); McCoy, 981 F.3d at 284; Jones, 980 F.3d at 1111; Brooker, 976 F.3d at 234.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 06, 2021

"Low-Ball Rural Defense"

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

Focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole has increased on both the scholarship and policymaking fronts.  Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors.  As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender — especially those in rural America, with about 90% of the country’s landmass and more than 20% of its population — gets lost in the shuffle.  T

his Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding.  It opens with a comparison of two comparable criminal cases with very different results of the accused to spotlight what happens when public defense is privatized.  The Article then discusses the specific perverse incentives that rural public defenders face and burden under when their services are procured by way of competitive bid — not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so.  The Article then introduces, for the first time, the concept of “noble cause corruption,” previously used to explain and to some extent excuse police malfeasance, in a new context to explain the consequences of some of the choices rural public defenders make while burdening under contract systems, presumably for the good of their clients.

April 6, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, April 05, 2021

SCOTUS grants cert to address circuit split over "harmlessness" in federal habeas review

The US Supreme Court's order list this morning includes one cert grant, and it is a habeas case out of the Sixth Circuit: Brown v. Davenport, No. 20-826.  Here is how Michigan's cert petition frames the issue to be considered in this case (which will likely get argued in the fall during the next SCOTUS term):

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.”  Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test.  The question presented is:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

April 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, April 03, 2021

"Science and the Eighth Amendment"

The title of this post is the title of this book chapter by Meghan Ryan just made available via SSRN.  Here is its abstract:

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment.  In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence.  From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. 

There are a number of limits to how the Court can weave science into its decisions, though.  For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena.  Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited.  This chapter examines the relevance and limitations of science — both physical and social — in Eighth Amendment analyses.

April 3, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 31, 2021

"Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing"

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

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

March 31, 2021 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, March 30, 2021

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

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

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

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

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

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions

The quoted title of this post is the lead headline of this lengthy and detailed Politico discussion of some of the case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  I recommend the piece in full, and here are excerpts:

Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.  While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day. In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.

There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing.  And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects. “My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown....

The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.  There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law....

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others. “I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away....

Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants. “The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”

A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison.  But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.  “Nobody goes to jail for a first or second misdemeanor,” Butler said flatly....

In virtually all the non-felony cases, the charges are likely to be grouped together as trespassing under federal sentencing guidelines.  While those guidelines contain a small enhancement for entering a “restricted” building or grounds, defendants with no significant criminal history are looking at the lowest possible range: zero to six months. “Zero” months means no jail at all....

Another factor prosecutors and judges may weigh is that the treatment of misdemeanors by the justice system is currently the subject of intense attention in criminal justice reform circles. Reformers say such minor charges often cause major complications in the lives of the minority defendants who typically face them. “A lot of Black or brown people, they don’t get the benefit of individual judgment or breaks,” said Butler.  “I think this will be a record number of white people who appear in federal criminal court in D.C….If they’re receiving mercy, the prosecutor’s office should make sure that same mercy will be applied to all the other people who they prosecute, who are mainly people of color and low-income people.”

The former prosecutor said he hopes the high-profile Capitol prosecutions call attention to the underlying equity issues and to the fact that the vast majority of federal cases are resolved not through trials but the plea negotiations that are about to begin. “This could be a teachable moment here for the public,” Butler said.

I have highlighted lots of quotes by Prof Butler here because I share he view that these cases present an important "teachable moment," and because I hope persons who support criminal justice reform and who are troubled by modern mass incarceration will not be unduly critical of non-carceral outcomes for lower-level offenders even in this high-profile crime.  In addition to this "mass crime" helping to teach that prison time is not essential for any and every offender, these cases may be able to spotlight how disruptive a prosecution and non-carceral punishment can prove to be for defendants.  I surmise many of the lower-level defendants here have already endured a lot of formal and informal punitive consequences from their indictment, and they will continue to face all sorts of formal and informal consequences after any convictions.  Even defendants who get probation, I would guess, will not be eager to brag that they only suffered a "slap on the wrist" and perhaps some will even be usefully vocal about how much punishment the criminal justice process itself produces even if no jail time is imposed.

March 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)