Thursday, December 03, 2020

"Cruel & Unusual Non-Capital Punishments"

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

The Supreme Court has rendered the Eighth Amendment a dead letter with respect to non-capital, non-juvenile life-without-parole sentences.  Its cases have erected a gross disproportionality standard that seems insurmountable in most cases, even for draconian and excessive sentences.  State courts have adopted a similar approach in interpreting state constitutional Eighth Amendment analogues, often finding that they are no broader than the Court’s narrow interpretation of the Eighth Amendment, despite linguistic variations in many cases.

Nonetheless, in a handful of state cases, state courts have found that state punishments violate the Eighth Amendment or its state constitutional analogue.  This article examines those cases to identify what non-capital punishments have caused courts to limit state punishment practices even in the shadow of an overwhelming, albeit unfortunate, trend of according constitutional deference to state punishment practices.  In light of these decisions, this Article advances a series of possible arguments by which to attack state and federal punishment practices in an effort to create more exceptions to the draconian status quo constitutional rule.

In Part I, the Article begins by providing an overview of Eighth Amendment gross disproportionality doctrine and its use in state constitutional analogues to the Eighth Amendment.  Part II examines the handful of state court cases that have found punishments unconstitutionally disproportionate.  In Part III, the Article advances one set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under state constitutions.  Part IV, the Article advances a second set of arguments — both systemic and case-based — for use in attacking non-capital state punishments under the Eighth Amendment.

December 3, 2020 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 02, 2020

Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

Lions-and-tigers-and-bears-oh-my

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already become final on direct review.  This Bloomberg Law account of the argument, headlined "Justices Divided on Making Jury Unanimity Decision Retroactive," provides a great summary, and here are excerpts:

Supreme Court justices were divided during oral argument over whether their decision barring nonunanimous jury convictions last term applies retroactively.

Questions on Wednesday from Justices Neil Gorsuch, Sonia Sotomayor, and Stephen Breyer suggested all three may favor retroactivity, but the defendant, Thedrick Edwards, could have trouble attracting two more justices to join them. 

Chief Justice John Roberts and Justice Elena Kagan, both of whom could hold crucial votes, asked tough questions of both sides....  It’s unclear how the newest justice, Amy Coney Barrett, will vote.  She replaced the late Justice Ruth Bader Ginsburg, who voted with the majority in last term’s Ramos v. Louisiana.

Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh are likely votes against retroactivity.  Kavanaugh voted with the majority in Ramos, but said in a concurrence that he didn’t think the decision should apply retroactively....

Edwards, a Black man, was convicted in 2007 of armed robbery, kidnapping, and rape by a nonunanimous Louisiana jury and sentenced to life in prison.  The lone Black juror voted to acquit on all counts.  The states most recently to allow split verdicts were Louisiana and Oregon, which were found to have enacted their systems for discriminatory purposes.  Nonetheless, those states, Puerto Rico — which also had them — and the Justice Department are pressing the high court to keep intact the nonunanimous convictions that have already been upheld.  That would bar relief for Edwards and potentially over a thousand people like him who want to take advantage of Ramos even though they already exhausted their initial round of appeals.... 

Bélanger downplayed the notion that a ruling for Edwards would overload the system with new trials.  Prompted by questioning from Breyer, he said “we’re really looking at our estimates of maybe two to three cases per prosecutor.” He said “the system is more than capable of accommodating this type of caseload.”  Louisiana Solicitor General Elizabeth Murrill deemed that assessment unrealistic.  “You can’t just hand out cases to anybody who happens to be an assistant district attorney,” she said.  “I mean, some of those people actually enforce laws in city court and — or do — you know, they collect money from — they do civil cases.”

One way for decisions to apply retroactively is if they reaffirmed an old rule.  Gorsuch, the author of Ramos, expressed support for that idea, while Kagan called it a “steep climb” at the argument.  Another way the court could view the Sixth Amendment unanimity right from Ramos is as a newly-recognized criminal procedure rule, which generally wouldn’t apply retroactively.  But under the court’s 1989 ruling in Teague v. Lane, it can if it’s a “watershed” right implicating fundamental fairness and accuracy.

Yet the court has never expressly identified such a watershed right — it has indicated the right to counsel that predated Teague could be one — leading Gorsuch to wonder if the watershed test is a “false promise.”  Alito said it reminds him “of something you see on some TV shows about the — the quest for an animal that was thought to have become extinct, like the Tasmanian tiger, which was thought to have died out in a zoo in 1936, but every once in a while, deep in the forests of Tasmania, somebody sees a footprint in the mud or a howl in the night or some fleeting thing running by, and they say, a-ha, there still is one that exists.”

Both Kagan and Barrett pressed lawyers about what exactly accuracy means in the Teague analysis.  “I’m having trouble understanding what we’re measuring,” Barrett said. “Are we trying to ask whether juries wrongfully convicted someone because the majority saw the case in the wrong way and the — and the one dissenter in the jury or the two dissenters in the jury were right?”...

[T]hough she dissented in Ramos, Kagan seemed to struggle with whether defendants should benefit from it retroactively.  “I mean, Ramos says that if you haven’t been convicted by a unanimous jury, you really haven’t been convicted at all,” she told assistant to the U.S. solicitor general Christopher Michel, who supported Louisiana’s Murrill at the argument. “And so how could it be that a rule like that does not have retroactive effect?” she asked....

The court could also avoid the retroactivity issue entirely.  Some justices — at least Thomas, Alito, and Kavanaugh — expressed during the argument that habeas corpus restrictions could bar Edwards from relitigating the issue at all.

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

Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I am very pleased to see today yet another important circuit rulings on the reach and application of the compassionate release 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 consider 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. 

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).  Then, on the same day last month, the Sixth Circuit in Jones and the Seventh Circuit in Gunn issued similar opinions recognizing that district court 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.  Now, today, the Fourth Circuit has become the fourth circuit to get into this act with a great panel opinion in US v. McCoy, No. 20-6821 (4th Cir. Dec. 2, 2020) (available here).  Here is how this opinion gets started:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

Like the other circuit opinions and many comparable district court opinions, this Fourth Circuit ruling is the real McCoy, and its closing paragraph provides a fitting summary of the sound work that district courts are doing in accord with the congressional guidance in the FIRST STEP Act:

We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.  Zullo, 976 F.3d at 230.  The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of § 3582(c)(1)(A).  We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served.  Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c).

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change

The lame-duck end of a presidential (or gubernatorial) term is often a time for lots of discussion of clemency possibilities.  And who follows this space surely sensibly expected that the Term of Prez Trump would wind down with plenty of clemency chatter.  But, as detailed via these recent headlines and links, the array of stories afoot are remarkable:

From Business Insider, "Joe Exotic's lawyer thinks he's 'very, very close' to getting a presidential pardon from Trump"

From the New York Times, "Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani"

From NPR, "Justice Department Investigating Possible Bribery-For-Pardon Scheme"

Though I might have "hot takes" about the latest clemency news, the recent piece most worth considering in this space comes from Emily Galvin-Almanza via The Appeal under the headline "Biden Must Fix The Broken Executive Clemency Process.  This Is Who He Should Select To Lead That Effort."  Here are excerpts:

[W]e must work at all levels to transform our criminal legal system.  But we can’t neglect powerful, fast tools like clemency.  We shouldn’t box clemency away as merely some form of mercy, when in fact it is something much more akin to a high-speed mechanism for undoing the worst impacts of bad, outdated policy and enforcement choices.  And yet, we have done exactly that: As [Rachel] Barkow has pointed out, we’ve taken this powerful tool and abandoned it in a dusty closet somewhere in the basement of the Department of Justice.  That’s where a brave new Administration must begin....

As you might expect, this choking process has left clemency in a state of crisis.  It is dysfunctional, available primarily to the powerful, and raises only false hopes for marginalized people. But we are standing, post-election, on the verge of tremendous change.  Looking to a Biden Administration that, at its core, has indicated a commitment to righting the wrongs of the past and looking for smarter, more human (and humane) solutions.  Clemency is a fantastic opportunity for such an administration: fixing clemency in a way that would spur transformative change doesn’t require congress, doesn’t require massive bureaucracy, and doesn’t require anything other than strong executive action–and an executive ready to leverage the unique depths of his own empathy.

The process is simple: first, the new President Joe Biden must move the clemency process out of DOJ and into the White House, and appoint someone with deep grounding in the topic–and bipartisan credibility–to lead a committee on clemency that would not only build a system to process individual applications faster, but create proactive tactics for finding ways to use the clemency power to undo the worst impacts of bad, carceral law–even for people who hadn’t been able to file for relief on their own.  Best of all, this idea isn’t particularly controversial: it was supported during the primary by everyone from Senators Amy Klobuchar to Bernie Sanders, it made it through the Biden-Sanders Unity Taskforce, and it was integrated into the 2020 Democratic Party platform.  For context, this makes it significantly less controversial than, say, legalizing marijuana — a policy many, many states are already enacting.

Rachel Barkow, of course, would be a very smart choice, as someone whose primary body of work has focused on building a better clemency system, and who has also been celebrated by advocates from across the political spectrum.  She’s not only a respected scholar and former clerk to the iconic Justice Scalia, she’s a national policy player who has been through Senate confirmation once already, joining the U.S. Sentencing Commission in 2013.  But importantly, her views aren’t limited to the ivory tower — she’s done the actual work of helping people apply for clemency: she and co-author Mark Osler started a “pop up” clemency clinic to help people apply for clemency in 2014....

Leading a team that would not just include but center the experiences of people who had lived through incarceration, and also reserve space for public defenders, civil rights lawyers, and progressive prosecutors who carry a more modern understanding of second chances than their old-school peers, Barkow could hand the President a mechanism for fostering liberty, opportunity and restoration out of the wreckage of our bloated system.  She could change the game by building a faster, smarter process.  For people who love comparisons, Barkow’s role in the clemency conversation is not dissimilar from the robust academic-yet-tactical power Senator Elizabeth Warren has brought to the conversation around the Consumer Financial Protection Bureau.  Tasking Barkow with bringing clemency into the White House would be a little like letting Sen. Warren supercharge the CFPB.

Instead of placing endless barriers between deserving, promising people and their chance to be heard, or allowing prosecutorial dinosaurs at DOJ to stand between ordinary people and opportunity, she and her committee could fast-track applications and give President Biden an opportunity to be a groundbreaking leader in this area.  They could seek out specific areas where we know sentences are too long and out of step with current enforcement priorities and find people who may not have had the capacity to file a petition, but whose sentence is wildly out of step with modern views. It would be especially beautiful to break down the legacy of 1994 — and 1990s punitive measures more generally — with this unique and deceptively simple action.

December 2, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act

Last night in this post, I noted the big compassionate release ruling from the Sixth Circuit in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), which ruled that "the passage of the First Step Act rendered § 1B1.13 'inapplicable' to cases where an imprisoned person files a motion for compassionate release."  In other words, the Sixth Circuit held that district courts now have broad authority to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) despite the fact that a pre-FIRST STEP provision of the guidelines, § 1B1.13, might seem to limit that authority. 

Helpfully, a couple of readers made sure I did not miss another ruling from another circuit on the same topic that happened to be handed down the same day as Jones.  Specifically, a Seventh Circuit panel in US v. Gunn, No. 20-1959 (7th Cir. Nov. 20, 2020) (available here), had this (and more) to say on this topic:

Like the Second Circuit, see United States v. Brooker, 976 F.3d 228 (2d Cir. 2020), we disagree with this reading of the statute’s trailing paragraph.  It says that a reduction must be “consistent with” all “applicable” policy statements.  Section 1B1.13 addresses motions and determinations of the Director, not motions by prisoners.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to Gunn’s request.  And because the Guidelines Manual lacks an applicable policy statement, the trailing paragraph of §3582(c)(1)(A) does not curtail a district judge’s discretion.  Any decision is “consistent with” a nonexistent policy statement.  “Consistent with” differs from “authorized by”.

The statute itself sets the standard: only “extraordinary and compelling reasons” justify the release of a prisoner who is outside the scope of §3582(c)(1)(A)(ii).  The substantive aspects of the Sentencing Commission’s analysis in §1B1.13 and its Application Notes provide a working definition of “extraordinary and compelling reasons”; a judge who strikes off on a different path risks an appellate holding that judicial discretion has been abused.  In this way the Commission’s analysis can guide discretion without being conclusive....

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members.  Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release.  District judges must operate under the statutory criteria — “extraordinary and compelling reasons” — subject to deferential appellate review.

A few of many, many prior related posts:

December 2, 2020 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, December 01, 2020

Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions

I only today saw a big notable Sixth Circuit ruling from a few weeks ago discussing the reach and application of the compassionate release 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.  The SIxth Circuit's recent ruling in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), constitutes the second big circuit decision ruling that district courts have broad discretion to determine what now qualifies as "extraordinary and compelling reasons" for a sentence reduction.

The first significant circuit ruling on the reach and application of § 3582(c)(1)(A) came from the Second Circuit in US v. Zullo/Brooker, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here; discussed here).  This latest circuit ruling from the Sixth Circuit in Jones folllows the same path by providing a thoughtful and thorough accounting of the history of applicable law on the way to these important statements: 

We now join the majority of district courts and the Second Circuit in holding that the passage of the First Step Act rendered § 1B1.13 “inapplicable” to cases where an imprisoned person files a motion for compassionate release.  See United States v. Brooker, 976 F.3d 228, 234 (2d Cir. 2020).  Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an “extraordinary and compelling” reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion....

By following the Second Circuit’s lead, we weave together three compatible aspirations: preserving as much of § 1B1.13 that can be saved, adhering to Congress’s intent, and respecting the Sentencing Commission’s thoughtful authorship of § 1B1.13’s commentary.  In cases where incarcerated persons file motions for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry and have full discretion to define “extraordinary and compelling” without consulting the policy statement § 1B1.13.  Thus, the district judge in Jones’s case permissibly assumed for the sake of argument that extraordinary and compelling circumstances existed without reference to the policy statement § 1B1.13.

There is a lot more in the Sixth Circuit ruling in Jones worth checking out, but most consequential is this clear statement that district courts are not limited by the (now-dated, pre-FIRST-STEP-Act) language of § 1B1.13 when assessing what may qualifies as "extraordinary and compelling reasons" for a sentence reduction.  I believe a few other circuits are considering this issue now, and it will be interesting to see if any more rule of this matter before we get tho the two-year anniversary of the FIRST STEP Act later this month.

A few of many, many prior related posts:

December 1, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Seventh Circuit panel upholds 140-year with parole state sentence for 15-year-old offender

Via How Appealing, I just saw an interesting new opinion from the Seventh Circuit in Sanders v. Eckstein, No. 2:11‐cv‐868 (7th Cir. Nov. 30, 2020) (available here).  The start of the opinion explains why I describe the matter as interesting:

Rico Sanders received a 140‐year sentence for raping four women.  He was 15 at the time of the sexual assaults, and his offense conduct was heinous and cruel in the extreme.  Now 40 years old, Sanders will first be‐ come eligible for parole under Wisconsin law in 2030.  He sought post‐conviction relief in state court, arguing that Wisconsin’s precluding him from any meaningful opportunity of parole before 2030 offends the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48 (2010).  Sanders later added a claim that the sentencing court’s failure to meaningfully con‐ sider his youth and prospect of rehabilitation when imposing the 140‐year sentence runs afoul Miller v. Alabama, 567 U.S. 460 (2012). After the Wisconsin courts rejected these claims, Sanders invoked 28 U.S.C. § 2254 and sought relief in federal court.  The district court denied the application, and we now affirm.

Here is a part of the unanimous panel's substantive analysis:

The Wisconsin Court of Appeals determined Sanders’s chance of parole at age 51 — twelve years before his expected end of life at 63 — respects Graham’s requirement of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at 75.  Nothing about that conclusion reflects an unreasonable application of Graham.  In time the Supreme Court may give more definition to what constitutes a “meaningful opportunity” for early release.  For now, however, the Wisconsin court’s conclusion that Sanders will have his first chance at parole at the age of 51 is by no means unreasonable.

December 1, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Can Kim Kardashian help stop next week's scheduled federal execution?

The question in the title of this post is prompted by this Los Angeles Times piece headlined "Kim Kardashian West flexes her prison-reform muscle, taking on death-penalty case." Here are excerpts:

Kim Kardashian West is flexing her criminal justice reform muscles for perhaps the last time before President Trump leaves office, asking that the sentence of federal death-row inmate Brandon Bernard be commuted to life in prison without parole before Bernard’s Dec. 10 execution date.

Bernard was sentenced to death in 2000 for the murder of Stacie Bagley, who was killed with her husband after a carjacking and robbery in June 1999 left them locked in the trunk of their car, which was set on fire after both victims were shot. Todd Bagley died from the gunshot, but Stacie died in the fire, which was set by Bernard. The murders took place on Ft. Hood military land in Texas, making it a federal case.

“First, I want to say that a terrible crime was committed and me fighting for a stay of execution does not take away from the sympathy I have for the victim’s Todd and Stacie Bagley, and their families. My heart breaks for everyone involved,” the reality TV star and beauty mogul wrote Sunday in a series of tweets.

Kardashian West first revealed her interest in criminal-justice reform in 2018, when she and others successfully lobbied President Trump to pardon Alice Marie Johnson, who had served 22 years of a life sentence for a nonviolent drug offense. Since then, she has started studying law and has stepped up on behalf of numerous other convicts. In April, she released “Kim Kardashian West: The Justice Project,” a documentary on Oxygen.

“While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now,” Kardashian West continued Sunday on Twitter.

The fourth man involved in the crimes, Christopher Andre Vialva, was executed Sept. 24 after being sentenced to death on three of the four charges he faced and life in prison on the other. Bernard also received life sentences on three of the four counts, which included committing or aiding and abetting carjacking and conspiracy to commit murder.

Kardashian West tweeted that Bernard wasn’t involved in the initial carjacking and was “stunned” when the Iowa youth ministers were shot. He feared for his own life, she said, when he sprayed lighter fluid into the car and set it on fire to destroy the evidence.

The 40-year-old mother of four cited a recent article written by the prosecutor who defended Bernard’s death sentence on appeal but now believes that sentence should be tossed. She also posted videos from two of the five jurors who — out of the nine jurors still alive — now regret their vote for the death sentence two decades ago. None of those people, however, doubts Bernard’s guilt.

“At trial Brandon’s attorney fell short by not hiring any experts who could have explained to the jury why Brandon decided to leave the video game store that night or how he had grown up in an abusive home, or how his homeless father had left him searching for protection in the streets,” Kardashian West tweeted. “His trial attorney also failed to tell the jury how remorseful he was or anything about his background. We now know this testimony would have spared his life.”...

Bernard, who was convicted of the same four charges Vialva was, got the death sentence for Stacie Bagley’s killing. He was 18 at the time of the murders and, like Vialva, a gang member, according to court documents.

It might seem silly to think a reality TV star like Kim Kardashian West would have sway with the President of the United States.  But, of course, the current President is himself a reality TV star, and he has been greatly influenced by Kimme in the past to reduce the severity of some federal sentences.  I would be quite surprised if she can convince Prez Trump to halt an execution, but I supposed I have learned the last four years to put nothing past this President.

A few prior related posts:

December 1, 2020 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 25, 2020

Prez Trump grants pardon to Michael Flynn ... are a lot more to come?

As reported here by NPR, "President Trump has pardoned his first national security adviser, Michael Flynn, who spent years enmeshed in an often bizarre legal war with the government that sprang from the Russia investigation."  Here is more about an unsuprising act of clemency:

Trump announced the news on Twitter as Americans prepared to observe the Thanksgiving holiday this week.

The pardon brings an end to a long-running legal odyssey for Flynn, who was the only member of the Trump administration to be charged as part of special counsel Robert Mueller's Russia investigation.

Flynn pleaded guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and then cooperated extensively with prosecutors. But he ultimately reversed course and accused the government of trying to frame him. Flynn went to so far as to withdraw his first plea of guilty and substitute a second plea of not guilty, even though he'd acknowledged the underlying conduct that was against the law and been close to receiving a sentence.

The pardon drew condemnations from critics who've said Trump's actions to help his friends interfere with the justice system. House Intelligence Committee Chairman Adam Schiff, D-Calif., for example, who helped prosecute Trump at his impeachment, called the president's actions obviously corrupt.

Flynn, meanwhile, reacted on Twitter with a Bible verse alluding to a holy rescue.

Trump's action on Wednesday may open the door to possible clemency for other former Trump advisers who were indicted as part of the Russia investigation, including former campaign chairman Paul Manafort.

Meanwhile, this New York Times article, headlined "White House Weighs Pardon Blitz Before Trump’s Exit," highlights that I might have a lot of Trumpian clemency action to blog about in the coming weeks.  Here is how the piece gets started and some additional excerpts:

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

Alan Dershowitz, the law professor who represented Mr. Trump during his impeachment trial, is considering seeking clemency for two of his clients — a New Jersey man serving more than 20 years for defrauding investors, and a billionaire businessman convicted in what’s been called “one of North Carolina’s worst government corruption scandals.” Mr. Dershowitz said he recently discussed the pardon process with the White House.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said. Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

“Lists of people are being circulated,” said Brandon Sample, a Vermont lawyer who specializes in presidential pardons and has submitted several names of people to be considered. Among them is Russell Bradley Marks, 57, who has been imprisoned after pleading guilty in 1992 on a cocaine-related conviction for which he was given a mandatory life sentence....

Lawyers say the White House is also focused on ways to use presidential clemency powers to further burnish Mr. Trump’s role in what is considered the most consequential criminal justice legislation in a generation, which reduced sentences for nonviolent offenders. A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue....

The planned clemency initiative, and the lobbying that has unfolded around it, has been hindered in some ways in recent weeks by Mr. Trump’s refusal to formally concede his loss to President-elect Joseph R. Biden Jr.

Potential pardon seekers and their representatives said in interviews that they were waiting to escalate their appeals until Mr. Trump conceded, or at least signaled that he had started to come to grips with the looming end of his presidency. Appealing for clemency before then, people involved warn, risks backfiring, because it could be seen as acknowledging a defeat that Mr. Trump has thus far refused to accept....

The effort to create a White House commutation program separate from the formal Justice Department office started last year after the 2018 passage of the First Step Act, which expanded an early release program and modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. There are at least 13,700 people who have formally applied to the Justice Department for pardons that are listed as “pending.”

Representatives of inmates seeking sentence reductions have separately been sending the White House lists of names, typically focusing on people who received unusually long sentences for nonviolent crimes after declining to accept a plea agreement and others serving long sentences because of mandatory guidelines. “Each of these are sad, sad situations,” said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers. “They show massive injustice and over- sentencing, and we hope he will act on them.”

November 25, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 24, 2020

Second Circuit panel affirms 55-year federalsentence for 15-year-old while lamenting the "unavailability of parole"

A helpful reader made sure I did not miss the interesting opinion by the Second Circtuit today in US v Portillo, No. 19-2158 (2d Cir. Nov. 24, 2020) (available here).  Here is how the opinion gets started:

This appeal, challenging as unreasonably severe a sentence of fifty-five years imposed on a defendant who was fifteen years old at the time of the offense, presents the legal issue of the lawfulness of the sentence and also serves as a classic illustration of the unfortunate consequences of the congressional decision to eliminate parole in the Sentencing Reform Act of 1984.  Defendant-Appellant Josue Portillo appeals from the July 12, 2019, judgment entered in the United States District Court for the Eastern District of New York (Joseph F. Bianco, then-District Judge).  Pursuant to a guilty plea, Portillo was convicted of participating in a pattern of racketeering activity evidenced by his role in the murder of four teenagers, in violation of 18 U.S.C. § 1962(c).

On appeal, Portillo makes two arguments.  First, he urges an extension of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that would require the District Court at sentencing in this case to consider the factors that Miller ruled must be considered in sentencing a juvenile to life imprisonment without the possibility of parole.  Second, he contends that his sentence was substantively “unreasonable,” the standard the Supreme Court instructed federal appellate courts to use on review of sentences, see United States v. Booker, 543 U.S. 220, 260-64 (2005), after the Court determined in 2005 that the federal Sentencing Guidelines, which had become effective in 1987, were no longer mandatory, see id. at 245, 259-60.

We conclude that the challenged sentence was lawfully imposed and therefore affirm the judgment.  We also add some observations on the relationship between this sentence and the unavailability of parole.

November 24, 2020 in Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (1)

Two different takes on Prez Trump's clemency record as his term nears conclusion

The silly Presidential turkey pardon tradition has prompted two new pieces about Prez Donald Trump's clemency record that strike markedly different tones.  Here are the headlines, links, and excerpts:

By John Gramlich and Kristen Bialik at Pew Research Center, "So far, Trump has granted clemency less frequently than any president in modern history":

As he enters the home stretch of his White House tenure, Donald Trump has used his clemency power less often than any president in modern history, according to data from the U.S. Department of Justice.  Trump’s sparse use of pardons, commutations and other forms of official leniency stands in sharp contrast to his predecessor, Barack Obama, who used the clemency power more frequently than any chief executive since Harry Truman.

As of Nov. 23, Trump had granted clemency 44 times, including 28 pardons and 16 commutations.  That’s the lowest total of any president since at least William McKinley, who served at the turn of the 20th century.  Obama, by comparison, granted clemency 1,927 times during his eight-year tenure, including 212 pardons and 1,715 commutations.  The only modern president who granted clemency almost as infrequently as Trump is George H.W. Bush, who granted 77 pardons and commutations in his single term.

By Steven Nelson at the New York Post, "Turkeys, Corn and Cob, expected to be first in slew of final Trump pardons":

People close to the White House believe President Trump may pardon humans in addition to turkeys this holiday season — with one advocate saying they expect Trump to close out his term with a bang as the “most merciful” president in history.  Trump will “pardon” gobblers named Corn and Cob in an annual tradition at the White House on Tuesday, but in a potential twist, allies and reform advocates are anticipating more serious reprieves in the coming weeks.

“President Trump has moved mountains since taking office and I’m certain he’s not done yet,” said Amy Povah, a clemency advocate and founder of the CAN-DO Foundation.  “I would not be surprised if he goes down in history as the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era of the late ’80s and ’90s that is responsible for sending many good people to prison for life, including life for pot.”

Presidents generally are more generous with clemency — including pardons and prison commutations — toward the end of their terms, contributing to the anticipation.

Though I am always eager to complain about Presidents failing to use their clemency powers more, I think the Pew piece is a bit unfair because it compares Prez Trump's record in his first term to mostly two-term Presidents.  In fact, Prez Trump has already granted more clemencies his his first term than did Prez Obama or Prez George W. Bush at this point in their first terms.  Moreover, as the NY Post article suggests, there are reasons to expect Prez Trump will grant some more clemencies — perhaps a lot more clemencies — over his last few months in office.

I sincerely hope Amy Povah and others are effective in encouraging Prez Trump to become "the most merciful president when it comes to correcting injustices carried over from the horrifying tough-on-crime era."  But I cannot help but wonder how Prez Trump's own vision of his political future and legacy might impact his clemency work in the months ahead.  Any attempt at a self-pardon or granting clemencies to lots of family members or close advisors could be viewed as a tacit admission of serious wrong-doing and thus could, perhaps, hurt the Trump political brand.  But since I have never been quite able to figure out the Trump political brand, I will close here by highlighting some notable cases mentioned in the lengthy NY Post piece:

Some clemency aspirants were jailed-for-life for marijuana dealing or importing crimes under President-elect Joe Biden’s 1994 crime law, giving Trump an opportunity to thumb his nose at his 2020 rival....  Allies see the final two-month stretch of Trump’s term as an opportunity to cement his first-term legacy before handing over the reins to Biden, who authored some of the most punitive drug laws.

Paraplegic Michael Pelletier, 64, has a life sentence for smuggling marijuana from Canada into Maine in the early 2000s. Both jurisdictions later legalized the drug and he ruefully notes that pot shops have been deemed “essential” during COVID-19 lockdowns....  Another clemency seeker, Corvain Cooper, 41, has a life sentence for his role transporting marijuana from California to North Carolina, also under the three-strike provision of Biden’s law....

Many prisoners pushed by clemency advocates aren’t public figures and were sentenced for drugs.  David Barren, 55, whose drug-dealing life sentence was reduced to 30 years by former President Barack Obama, told The Post he hopes to be free while his parents, in their 80s, are still alive.  Rufus Rochell, 69, who is under home arrest as he completes a 40-year drug sentence, said his family is grateful that his brother Richard Williams, convicted in the same drug conspiracy, was released from prison this year under Trump’s reform law, but that he would be grateful to have his record cleared.

Physical lists of convicts seeking commutations and pardons have swirled in the West Wing since June 2018 when Trump freed Alice Johnson from a life sentence at the request of Kim Kardashian.  Johnson spoke at this year’s Republican National Convention and traveled with Trump to the first presidential debate in Cleveland.  Trump often speaks proudly of freeing Johnson and turned to her for recommendations.  During this year’s campaign, Trump pledged minority voters a new clemency commission if he won re-election.

The White House did not respond to a request for comment.

November 24, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 23, 2020

Highlighting the need for second-chance sentencing reforms

This new Law360 piece, headlined "2nd Look Law Needed To Fix Broken Criminal Justice System," gives attention to a recent ABA panel discussing second-look sentencing reforms.  Here are excerpts:

To address the mass incarceration that has resulted from older policing practices, which has disproportionately impacted Black men, federal and local governments should adopt so-called second look laws that allow incarcerated individuals to petition judges to reevaluate their sentences after a certain period of time, experts said Thursday at the American Bar Association's annual fall criminal justice conference.

Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, a nonprofit advocacy organization seeking to end mandatory sentencing, said that our criminal justice system has been addicted to putting people in prison to manage problems leading to mass incarceration, and this needs to stop.  "I don't think we are going to be able to achieve justice in the system until we not only reform the police and practices, but we also ensure that the legacy of older policing — in the form of people serving sentences that are way out of proportion with their conduct, and also people who are thrown away because the nature of the offense or the addiction — is also addressed," Price said.

Last year, Sen. Cory Booker, D-N.J., along with Rep. Karen Bass, D-Calif., introduced the Second Look Act of 2019 that proposes allowing any incarcerated individual who has served at least 10 years to request that their sentence be reevaluated to determine if they are eligible for early release or a sentence reduction, but the bill hasn't passed in the U.S. Senate or House of Representatives yet.

David Singleton, the executive director of the Ohio Justice and Policy Center, said during a panel titled Second Look & Incarceration with Price at the ABA conference that a challenge to getting a federal second look law passed is that lawmakers want carveouts that would exempt certain crimes, such as murder or sex offenses, from the law. Singleton said carveouts defeat the purpose of the law because they leave people behind. "We have to move away from these carveouts," Singleton said.  "If we accept carveouts, the advocates of change, we are throwing people under the bus."...

Booker reinforced the panelists' words during his keynote speech at the conference on Friday, saying that criminal justice reform needs to be throughout the country's entire justice system.  "We must commit ourselves to continuing the work of reforming a savagely broken system and that means everything — our policing to what happens with sentencing to what happens inside our prisons to what happens upon release," Booker said.

November 23, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 22, 2020

Notable review of New York's recent parole realities

This Times Union has this notable new article on New York's notable parole realities under the full headline "A 'broken' parole process: Data shows widened racial bias: Four years after racial disparities exposed, a state report has yet to be released." Here is how the piece gets started:

A white inmate in a New York prison is significantly more likely on average to be released on parole than a Black or Hispanic person — and that gap has widened in 2020, according to a Times Union analysis of the nearly 19,000 parole board decisions over the last two years.

The disparities continue despite steps by the Department of Corrections and Community Supervision to make the parole board more diverse.  That initiative began about four years ago, after Gov. Andrew M. Cuomo ordered an investigation by the inspector general's office into revelations in a New York Times series that exposed the racial imbalances in parole and prison disciplinary proceedings.  The investigation has languished and no public report has been released.

The inspector general’s office, in an email response to questions, asserted without providing any data that racial disparities have gone down in recent years.  They offered a list of policy changes that have been made, including changes to sentencing guidelines, appeals processes and implicit bias training.

DOCCS, which oversees New York’s 53 state prisons, said the Times Union's analysis was too limited.  Spokesman Thomas Mailey wrote that the analysis was inadequate because detailed factors like disciplinary and program records, positions of the district attorney, sentencing courts and victim impact statements were not considered.

But officials contacted for this story did not provide any evidence countering the Times Union's core findings.  And those findings were averages based on each parole initial hearing and reappearance over the last two years, showing that the racial disparities were prevalent in the outcomes.

In discretionary parole hearings from October 2018 through October 2020, where commissioners from the Board of Parole decided whether incarcerated people should be released from prison, the Times Union’s analysis showed that 41 percent of white people were granted parole, compared to 34 percent of Blacks and 33 percent of Hispanics.  These numbers include initial parole appearances once people meet their minimum sentences, as well as subsequently scheduled reappearances, which are usually every two years.  It excludes more specialized categories such as medical hearings or those relating to deportations.

If Black and Hispanic people were paroled at the same rates as whites over the last two years alone, there would be 675 fewer people behind bars.

November 22, 2020 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 20, 2020

NACDL continuing great work spotlighting the ugly trial penalty now through compelling clemency petitions

This news release, titled "NACDL Trial Penalty Clemency Project Submits Second Set of Petitions to White House," reports effectively on work by the National Association of Criminal Defense Lawyers to shine light on, and seek needed remedies for, criminal defendants unfairly subject to the "trial penalty."  Here are some details on NACDL's latest efforts and prior work:

As of this week, NACDL’s Trial Penalty Clemency Project submitted four more federal clemency petitions to the Office of the Pardon Attorney and the White House, adding to the first set of six petitions submitted on October 2, 2020.  Of the four petitions, three concern individuals serving life or lengthy sentences for non-violent drug charges, and one concerns an individual serving over 35 years for a non-violent white-collar conviction.

As of late, increased attention to the criminal legal system has led to public outrage and calls to reform myriad facets of the American legal system.  The trial penalty, though, which refers to coercive prosecutorial practices that induce accused persons to waive fundamental rights under threat of a vastly increased sentence when fundamental rights are asserted, persists in undermining the American criminal legal system.  The most obvious examples of its impact are seen in those who assert their rights and receive a geometrically enhanced sentence.  Though reform is badly needed to end the trial penalty, the only immediate remedy for those individuals living this injustice is executive clemency.  NACDL’s Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition.

“The trial penalty makes a mockery of the Constitution’s Sixth Amendment right to trial and is a large and ever-growing cancer on the American criminal legal system,” said NACDL President Chris Adams.  “Every time a defendant opts to hold the government to its burden and go to trial, and receives a substantially more draconian sentence than was previously offered in a plea deal, the American legal system moves further away from justice.  NACDL’s Trial Penalty Clemency Project is a vital step in beginning to remedy this great injustice.”

Thus far, through affiliates, members, and the assistance of organizations in this space like the CAN-DO Foundation, the Last Prisoner Project, and Life For Pot, the Project has identified, reviewed, and assigned more than 20 cases with attorneys.  The attorneys are crafting petitions or supplements to existing petitions focusing on the impact of the trial penalty. In addition to filing the petitions with the Office of the Pardon Attorney, the Project brought the four cases described below, in addition to six previous cases, to the attention of the White House panel on clemency.  NACDL’s Trial Penalty Clemency Project is a component of NACDL’s Return to Freedom Project...

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

And in 2020, NACDL and FAMM released a documentary on the trial penalty, The Vanishing Trial. The trailer for that film is available here.

November 20, 2020 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, November 19, 2020

"How Governors Can Use Categorical Clemency as a Corrective Tool: Lessons from the States"

The title of this post is the title of this interesting new report from the Urban Institue.  Here is its executive summary:

Governors in most states have executive clemency authority that allows them to change the terms of someone’s criminal justice system involvement, including by issuing pardons or by granting commutations to adjust the sentences of people in prison.  Though many clemency deliberations are independent case-by-case assessments, in some cases, governors can also extend clemency eligibility categorically to groups of people in prison to mitigate structural issues or accomplish larger reform goals.  In this report, we provide a high-level overview of state executive categorical clemency and offer examples of how state governors have used this strategy as a corrective tool to address problems in the criminal justice system.

November 19, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 18, 2020

Seventh Circuit panel reverses below-guideline 16-year prison sentence as substantively unreasonable in terrorism case

Regular readers know I do not blog much about federal sentence reasonableness review these days because there is usually not that much worth blogging about.  Out of many thousands of appeals brought by federal defendants each year, typically only a few hundred are successful, and these are usually involve miscalculation of the guideline range.  The government rarely appeals, though it does often have a better success rate in the few dozen appeals it brings each year. 

In one particular (and rare) categories of cases, namely terrorism cases, the government has a particularly notable history of appellate success when arguing a sentence in unreasonably lenient (see posts linked below for some historical examples).  A helpful reader made sure I did not miss a new Seventh Circuit panel ruling handed down yesterday in this category: US v. Daoud, No. 19-2174 (7th Cir. Nov. 17, 2020) (available here).  Federal sentencing fans will want to review this 26-page opinion in detail, but the start and few passages from the body of the opinion provides the basics:

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam.  Fortunately, the bomb was fake, and the FBI arrested him on the spot.  Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb.  Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad.  Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing.  The district court sentenced Daoud to a combined total of 16 years’ imprisonment for the crimes.  The government appeals that sentence on the ground that it was substantively unreasonable.  We agree.  We vacate the sentence and remand for resentencing....

[W]hile the district court paid lip service to the seriousness of the offenses, it undercut its own statements by unreasonably downplaying Daoud’s role in each offense.  District courts have broad discretion as to how to weigh the § 3553(a) factors, but a district court’s sentence must reflect a reasonable view of the facts and a reasonable weighing of the § 3553(a) factors....  Here, the district court sterilized Daoud’s offense conduct in ways that cannot be reconciled with the objective facts of these violent offenses.  That unreasonable view of the facts prevented the district court from properly weighing the seriousness of the offenses when selecting its sentence....

In the district court’s telling, Daoud’s age, mental health, and general awkwardness and impressionability converged to render him uniquely susceptible to criminal influence. A sentencing court is well within its rights to consider a defendant’s mental limitations in mitigation.... But that factor only goes so far in this case.  Daoud committed the attempted bombing around his 19th birthday.  He was 19 when he solicited the FBI agent’s murder and 21 when he tried to stab a fellow inmate to death.  In other words, he was college aged at all relevant times.  He may have been immature, but, as the court recognized, he was old enough to know what he was doing.

Prior posts on similar reasonableness ruling:

November 18, 2020 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 16, 2020

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 15, 2020

Granting of compassionate release reduces ridiculous federal sentence by hundreds of years

This CNN piece, headlined "Grandfather serving 505-year sentence ordered to be released 'without delay'," reports on a recent grant of compasionate release to reduce a sentence that would seem like a joke if it had not been real.  Here are some of the details:

In a stunning reprieve for a man sentenced to more than five centuries behind bars for a nonviolent offense, a judge in Los Angeles on Thursday summarily slashed his sentence to time served and ordered his immediate release.

Juan Carlos Seresi, a convicted money launderer whose projected release date from the federal Bureau of Prisons had been July 8, 2419, was suddenly ordered to be freed "without delay" by U.S. District Court Judge Stephen V. Wilson.  Once out, Seresi will be subject to a three-year term of supervised release, according to Wilson's order.

"It's a miracle," Seresi said after hearing the news from his daughter, Patti Mawer, she told CNN.  Mawer, 46, said her father has been behind bars since she was a teenager, but has remained an integral part of her family's life.  "After all this praying and all this hoping, he can't believe it," Mawer added.

Seresi, 73, was one of four defendants sentenced to 505 years behind bars in 1991 for laundering cocaine cartel cash who were featured in a CNN report published in August.  The article noted how the sentences were considered harsh even back then and represent the sort of draconian punishment that has since been widely condemned amid a national conversation around justice reform.

When the case was before Wilson in August, he denied a request by prosecutors to overturn the men's convictions "in the interests of justice" due to special treatment given to a government witness by FBI agents that was not disclosed to the defense.  Wilson conducted a months-long review into the matter and concluded that the men's convictions were sufficiently supported by evidence and testimony unrelated to that particular witness.  All four defendants filed an appeal with the 9th Circuit Court of Appeals, which is pending.

But Seresi's attorneys also filed a motion seeking his release on compassionate grounds, due in part to his advanced age and a diagnosis of high blood pressure making him susceptible to serious complications from Covid-19.  Prosecutors in the US Attorney's Office in Los Angeles did not oppose the motion.

While Wilson found that those factors alone did not entitle Seresi to early release, he noted other factors that — taken together — amounted to "extraordinary and compelling reasons" for granting his freedom.  Seresi was convicted of a nonviolent offense, had already served more than 30 years behind bars, earned three associate degrees while incarcerated and had a near spotless disciplinary record, the judge noted.

November 15, 2020 in FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (5)

Friday, November 13, 2020

"Redeeming Justice"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Lopez, Terrell Carter and Kempis Songster.  Here is its abstract:

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison.  According to the United States Supreme Court, this sentence represented a determination that they were irredeemable.  This article will interrogate the legal determination that there are some human beings who are incapable of redemption.  In doing so, the article grapples with a basic, yet weighty question.  Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity.  Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.

Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system.  One that elevates humanity, not deprives it.  One that creates opportunities for healing and human development, not denies it.  As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption.  Rather, the law should restore hope that change is always possible.

November 13, 2020 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, November 11, 2020

Eager to honor our veterans caught up in our nation's massive criminal justice systems

5fa97d96f3264.imageEvery year when Veterans Day rolls around, I find myself giving a lot more thought to all the veterans who get caught up in our criminal justice systems.  I often see exhortations to honor "all who served" on this important day, and that necessarily means we need to be sure to honor the disconcerting large number of veterans who spend this day behind bars, or under active criminal justice supervision, or struggling with the enduring burdens of a criminal record.

According to these latest (but dated) BJS statistics, "in 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  Even if the present-day percentage had shrunk considerably, we can still state without any question that there are tens of thousands of veterans spending Veterans Day behind bars today.

And though I cannot find any detailed data on veteran status and probation/parole rate, even if veterans were only 5% of all persons on probation/parole in the US, that would still means that there are hundreds of thousands of veterans currently spending Veteran's Day subject to active community supervision today.

And though I cannot find any detailed data on veteran status and criminal convictions, even if veterans were only 5% of all persons with a criminal record in the US, that would still means that there are millions of veterans currently burdened with a criminal record on Veterans Day 202.

As highlighted in some posts below, I have often used this day to urge the President of the United States to use his clemency pen to honor this day with some grants to veterans.  But, of course, the vast majority of veterans involved in our nation's criminal justice systems are caught up in a state system.  So, those of us eager to really honor all who served ought to be advocating that all chief executives play their part in doing something meaningful for a population that has done something meaningful for all of us.

Some older (some very older) prior related posts: 

November 11, 2020 in Data on sentencing, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Harvard Law Review SCOTUS issue covers the handful of notable criminal justice rulings from last Term

As hard-core law nerds know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as long-time readers know, in years past I have sometimes been disappointed when the November HLR SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, as noted in this post from last year, the 2019 HLR SCOTUS issue provided a sign of the modern criminal justice times with its Foreword and a lead commentary focused on criminal justice issues.  The November 2020 issue of the Harvard Law Review, which is available at this link, has its lead pieces understandably focused on other topics this year, but it remains heartening to see that seemingly all the noteworthy criminal cases of OT 2019 SCOTUS are covered in case comments in this issue: 

November 11, 2020 in Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 10, 2020

Should we want Congress to try to limit the President's pardon power?

The question in the title of this post is prompted by this notable new New York Times op-ed By Jack Goldsmith.  The full title of this piece highlight its main points: "Trump Loves to Use the Pardon Power. Is He Next? There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses." Here are excerpts:

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

But for federal crimes, the president can — with the stroke of a pen — erase a criminal conviction or criminal exposure for basically whomever he wants and for almost any reason. Unsurprisingly, Mr. Trump’s pardons and commutations have largely served his personal interests.

Notorious examples include the pardon for Joe Arpaio, the former Arizona sheriff who was convicted of defying a federal court order against profiling Hispanics; the pardons for the president’s political supporters Conrad Black and Pat Nolan; and the sentence commutation for Mr. Trump’s friend Roger Stone, who was convicted of obstruction of justice and related crimes and who many believe refused to implicate Mr. Trump in the hope of presidential relief from punishment.

Such self-serving pardons are not without precedent. Bill Clinton pardoned his half brother, a friend who refused to cooperate with the independent counsel investigating the president and two notorious fugitives from justice who were suspected of obtaining favorable consideration through an aggressive lobbying campaign and the support of politically influential allies. George H.W. Bush pardoned the former defense secretary Caspar Weinberger and several national security officials who had been convicted or indicted on a charge of perjury and obstruction of justice in connection with the Iran-contra scandal, in which Mr. Bush himself was suspected of criminal involvement....

Mr. Trump has proclaimed “the absolute right to pardon myself.” While neither the Constitution nor judicial precedents overtly speak to the issue, the Justice Department declared in 1974 a self-pardon would “seem” to be disallowed “under the fundamental rule that no one may be a judge in his own case.” Scholars are torn on the matter. The issue, which would arise if after Mr. Trump leaves office the new administration indicts him for a crime for which he pardoned himself, can be settled only by the Supreme Court.

There is little that can be done at this point to stave off a probable wave of opportunistic pardons.  But in light of what we already know about his pardon practices, Congress should enact two reforms to prevent future abuses.

First, it should check the most extreme abuses of the pardon power by expressly making it a crime for a president to issue a pardon as part of a bribe or as an inducement to obstruct justice.  Current law does not explicitly cover the president and should be reformed to leave no doubt. Second, Congress should declare that presidential self-pardons are invalid. Such a declaration would not resolve the constitutional question, but it could inform the answer when a court addresses it.

It might be that Mr. Trump’s pardons prove so abusive that a constitutional amendment to the pardon power will be warranted.  The challenge in that case will be to draft an amendment that checks presidential abuses without curtailing a vitally important mechanism, when properly deployed, for mercy and reconciliation. This is one of many ways that Mr. Trump’s abuses of presidential power will have long-lasting consequences for American justice.

Regular readers surely know that I am MUCH more troubled by the modern disuse of the pardon power than by its misuse.  And Goldsmith's first suggestion to make it a crime to "issue a pardon ... as an inducement to obstruct justice" might arguably make a crime of at least one act of clemency by many of our presidents in the last half-century.  Because the pardon power is already chilled enough, I think we should be trying to enhance and politically motivate its proper use, rather than worrying so much about its occasional misuse.

November 10, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, November 03, 2020

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 02, 2020

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010)Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

No new cert grants from SCOTUS, but order lists includes interesting per curiam reversals including one on prison conditions and qualified immunity

This morning's Supreme Court order list starts by noting that "Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List." That fact may in part explain why the Court did not grant certiorari in any cases. But the order list is still an interesting read because it included two per curiam opinions, in McKesson v. Doe and Taylor v. Riojas, summarily reversing lower court opinion to order further proceedings in the Fifth Circuit. 

The fed courts nerd in me really likes Mckesson decision because it orders the Fifth Circuit to certify a fascinating questions of Louisiana tort law to the Louisiana Supreme Court in an effort to potentially avoid having to resolve a challenging First Amendment question.  But the Taylor decision gets to the issue of prison conditions and qualified immunity because "Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice [who alleged] that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells."  Here is how SCOTUS kept his lawsuit going:

The Fifth Circuit erred in granting the officers qualified immunity on this basis.  “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).  But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.  See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment).  The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency.  Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.  And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Notably, only Justice Thomas dissented from the Taylor ruling in favor of the prisoner in Taylor, although Justice Alito wrote an extended "concurring in the judgment" statement to explain why he thoughts the "petition [was] ill-suited for review."

November 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, October 31, 2020

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Friday, October 30, 2020

How might the Prez clemency power be wielded next month and next year?

Mark Osler usefully ruminates on the question that serves at the title of this post in this extended new CNN opinion piece headlined "Get ready for a flood of Trump pardons."  I recommend the piece in full (which is much better than the headline likely picked by CNN just to be click bait).  Here is an extended excerpt:

Trump and Biden present very different issues relating to clemency (which includes the power to shorten sentences through a commutation or forgive convictions through pardons).  Trump already has shown his cards: Even taking into consideration the commutations granted last Wednesday to five worthy petitioners, his use of the pardon power has mostly favored friends and Fox News celebrities.  Even his much-celebrated commutation and pardon of Alice Marie Johnson came about only after another reality television star, Kim Kardashian West, intervened.  Biden, meanwhile, is a blank slate.  The concern some may have with him is that he will do too little, at a time when over-incarceration is being critiqued by experts and a broad array of citizens on both the left and right.

While interviewers continually (and appropriately) pepper Trump with questions about whether he will relinquish power if he loses, it is rare that anyone asks him who he might pardon after the election, despite the long and positively bizarre track record he has established.

Similarly, Joe Biden hasn't been pressed on the issue, and he certainly doesn't seem to have thought much about it: In response to a general question about criminal justice by NBC's Lester Holt at a town hall, Biden claimed that the Obama administration granted clemency to "18,000 people."  He was off by about 16,000 (he did better in the last debate, citing the number as "over 1,000").  It could be that Biden overestimates the effectiveness of the Obama clemency initiative, which offered too little, too late.  That well-intentioned project began only after years of inaction, as Obama granted just one commutation of sentence in his first five years.  It also failed to reach so many good cases that when Trump's First Step Act enabled 2,387 crack offenders to be released early, it amounted to far more than the Obama clemency program did, even though both projects targeted the same group.  Clearly, Obama left too many people behind.

Failing to focus on clemency when it matters also lets candidates off the hook for any specific plan for reform. And reform of every part of a system that has enabled systemic racism and unduly long sentences is important.  Right now, the clemency review process has seven steps, is controlled by the Department of Justice (conflicted because it sought the over-long sentences in the first place), and simply doesn't work.  There is broad support for the formation of a clemency review board to advise the president, and that idea even made it into the Biden-Sanders unity plan and the Democratic platform.  Biden, though, hasn't mentioned it (at least in the forums I have reviewed)— in large part because no one has asked.

Even if other criminal justice reforms are enacted, clemency must be reformed as well.  For one thing, other reforms don't do what one form of clemency, pardons, can do: free people from the restrictions of a conviction after they have completed a sentence.  For another, reforms that send cases back to the sentencing judges for review too often exacerbate disparities.  After all, judges who are tough at sentencing are less likely to give a break later, meaning that those who come before them could be disadvantaged. Clemency can be a way to reach those twice-victimized.

October 30, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 25, 2020

Final looks at Judge Amy Coney Barrett's criminal justice record before she starts to build a criminal justice record as a Justice

As I understand matters, the US Senate is poised to confirm Amy Coney Barrett as the next US Supreme Court Justice and the only confirmation question seems to be how many Senate votes she will get on Monday.  But, of course, the big jurisprudential question for sentencing fans is how might a Justice Barrett approach a range of criminal justice issues as an avowed originalist jurist.  The late Justice Scalia and current Justices Alito, Gorsuch, Kavanaugh and Thomas, and even Chief Justice Roberts, lay claim at least some times to being originalists, and yet their votes on a range of constitutional criminal justice issues can and do vary.  And, of course, the Supreme Court considers a host of non-constitutional criminal justice concerns as well.

I have covered some prior analyses of Judge Barrett's criminal justice record in prior posts that can be found linked below.  This week I saw a couple more, and the subheadlines of these pieces highlight that they are developing distinct accounts of what we might expect from a Justice Barrett:

From The Appeal, "Amy Coney Barrett’s Record On Criminal Justice Is ‘Deeply Troubling,’ Reform Advocates Say: In the midst of a national debate about changing the criminal legal system, Barrett is set to take a lifetime seat on the U.S. Supreme Court. Advocates see her addition as a potential setback to creating a more fair system."

From Washington Monthly, "The Criminal Justice of Amy Coney Barrett: The soon-to-be Supreme Court Justice has a more interesting record on prisons, prosecutors and a slew of justice issues than you might think."

The closing paragraph of this second piece provides a fitting final question as we anticipate a new era for SCOTUS with a new Justice:

Barrett has such a well-schooled intellect that all her opinions are intricately woven out of existing case law and statutory text, so — in the criminal justice arena, at least — she has not departed wildly from the web of precedent that confines her. She said more than once at her hearing that a judge is obliged to rule where the law takes her, which may violate her personal views.  But once she’s on the Supreme Court and freer to chart her course, then what?

Notably, we may not have to wait too long to get a glimpse of how a Justice Barrett might approach sentencing and broader criminal justice issues.  Assuming she is confirmed to the Court this week, she will be on the bench in time to hear, on November 3, oral argument in Borden v. US, No. 19-5410 (concerning ACCA application and mens rea matters), and Jones v. Mississippi, No. 18-1259 (concerning application of Miller's Eighth Amendment rules for juvenile LWOP).  And just weeks later, the Court will also hear oral argument, on November 30,  in Van Buren v. USNo. 19-783 (concerning reach of Computer Fraud and Abuse Act), and Edwards v. VannoyNo. 19-5410 (concerning whether the SCOTUS unanimous jury Ramos ruling applies retroactively). 

These criminal cases that a Justice Barrett will be considering in just her first few weeks on the Supreme Court present an array of challenging issues for committed textualists and originalists, especially because these cases implicate in various ways an array of past precedents that a committed textualist and originalist might not be so eager to follow.  Interesting times.

Prior related posts:

October 25, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 23, 2020

"Framing Individualized Sentencing for Politics and the Constitution"

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

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment.  In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders.  With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come.  With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative.  Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations.  When making Eighth Amendment arguments to the Court, framing is important.

This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing.  While the Court has historically reserved this requirement for capital cases, its more recent cases have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment.  Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some extent.  While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play.  If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. 

First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences.  It could also work to effect more humane prison conditions.  Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing.  On the other hand, individualized sentencing may also have appeal across the political aisle with religious conservatives — at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs.  Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means.  Finally, the increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines.  A heightened constitutional focus on individualized sentencing would be consistent with such expectations.  Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation.  This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.

October 23, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 21, 2020

Prez Trump grants commutations to five persons given long federal prisons terms (though two were already out of prison)

I was a bit surprised and a lot pleased to see a release today from the White House titled "Statement from the Press Secretary Regarding Executive Grants of Clemency" providing news an details surrounding the decision by Prez Donald Trump to commute five federal sentences.  Here is the full statement:

Today, President Donald J. Trump signed Executive Grants of Clemency to commute the sentences of the following individuals: Lenora Logan, Rashella Reed, Charles Tanner, John Bolen, and Curtis McDonald.

Lenora Logan turned her life around after she was sentenced to 27 years in prison for her role in a cocaine conspiracy.  During her time in prison, she heroically came to the aid of a Bureau of Prisons nurse who was under vicious assault by an unstable inmate.  Without regard for her own safety, Ms. Logan immediately intervened and protected the life of the nurse.  This heroic act is but one example of Ms. Logan’s selfless acts since forging a better path for her life.  While incarcerated, Ms. Logan served as a suicide watch companion, a nursing assistant for those in hospice care, and a leader of the praise and worship team.  After serving approximately 20 years in prison, Ms. Logan, a mother and grandmother, was awarded compassionate release from the Bureau of Prisons.  Ms. Logan expresses regret for her past actions, exemplifies successful rehabilitation, and embodies the spirit of second chances.

Rashella Reed was a former Atlanta Public School teacher before her involvement in a public benefits fraud scheme.  She was sentenced to 14 years in prison after her convictions for wire fraud and money laundering.  While in prison, Ms. Reed used her teaching background to tutor inmates and facilitate children’s programs at the prison.  Ms. Reed is a model inmate, and many attest to her innate ability to encourage and uplift others despite her circumstances.  Ms. Reed accepts full responsibility for her actions and seeks to continue to make a difference in the lives of others.  After serving more than 6 years in prison, Ms. Reed was released on home confinement where she enjoys strong community and family support.

Charles Tanner was a young professional boxer with a promising career who sadly became involved in a drug conspiracy.  At the age of 24, he was arrested, tried, and initially sentenced to life in prison, which was later reduced to 30 years.  It was his first conviction of any kind.  He has served 16 years in prison.  Although Mr. Tanner began incarceration under a life sentence, he immediately worked to better himself by enrolling in educational courses.  To date, Mr. Tanner has completed hundreds of hours of educational programming, including an 18-month re-entry program that requires recommendation from staff and approval from the Warden for participation.  Mr. Tanner accepts responsibility and expresses remorse for his past actions.  Letters from his friends and family describe him as a respectful man of faith who exhibits positivity and works hard.

John Bolen was a small business owner who used his boat to transport cocaine from the Bahamas to Florida.  After a jury trial, he was sentenced to life imprisonment.  It was his first conviction of any kind, and Mr. Bolen has no documented history of violence.  He has served more than 13 years in prison without incident.  He has completed more than 1,300 hours of educational programming and vocational training, multiple re-entry programs, and has served as both a suicide companion and a mental health companion.  Mr. Bolen expresses “deep regret and shame” for his mistakes.  Several Bureau of Prison officials who have supervised Mr. Bolen describe him as a “model inmate,” a “regular hard working blue collar guy who simply stumbled along life’s path and made a mistake,” and someone who “displays dedication” in assisting others.

Curtis McDonald was convicted in 1996 for drug trafficking and money laundering and is now 70 years old.  After a jury trial, he was sentenced to life in prison.  He was a first-time offender who has now served nearly 24 years in prison and has an excellent record of good conduct.  Mr. McDonald has made productive use of his time in prison, maintaining employment with good job evaluations, and has completed numerous education courses.  Mr. McDonald has also served as a mentor in the Mentors for Life program.  He acknowledges that “the law is the law and I broke it” and attests that he is “not the same man I was walking through these doors” decades ago.  Mr. McDonald vows that despite his life sentence, he has been determined to “take advantage of every opportunity to help myself grow . . . so that I may be of use to those who want and need it.”

In light of the decisions these individuals have made following their convictions to improve their lives and the lives of others while incarcerated, the President has determined that each is deserving of an Executive Grant of Clemency.

I am always pleased to see any chief executive use his or her power of clemency wisely, though this handful of grants will not keep me from criticizing Prez Trump for still using his powers too sparingly in general and especially in the times of a pandemic.  I do not know any of the back stories of these cases, but I find it interesting that two of these five recipient were apparently already out of prison.  It is also somewhat notable that four of the five persons here receiving commutations were convicted of drug offenses.

A few of many prior related posts:

October 21, 2020 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment

I am grateful to a reader for making sure I did not miss the ruling yesterday of the Supreme Court of Louisiana in Louisiana v. Hill, No. 2020-KA-00323 (La. Oct. 20, 2020) (available here). The start of the majority opinion captures its essence:

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana.  Other states (and the federal government) have enacted similar collections of laws.  However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country.  Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis.  Thus, we uphold the trial court’s ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the “SEX OFFENDER” designation.

The lone dissenting vote was by Justice Crain, who wrote a short dissenting opinion that starts this way:

The majority finds it unconstitutional to require a convicted sex offender to be identified as such on a government-issued identification card.  Louisiana Revised Statutes 40:1321J requires a registered sex offender to procure a special identification card that includes the words “sex offender” in all capital, orange letters.  That phrase is the speech at issue. It is not First Amendment protected speech.  The speaker is the government: the words are stamped by a governmental agency on a government-issued identification card in accordance with a government-enacted statute.  This is the embodiment of government speech.

October 21, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Tuesday, October 20, 2020

Notable ideas and efforts to take on the trial penalty

A helpful reader made sure I did not miss these two recent interesting items related to the pernicious realities of the trial penalty:

Commentary from Shon Hopwood and Brett Tolman, "Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System."  An excerpt (links from original):

The Constitution matters.  Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon.  When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.

The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.”  Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

News Release from the National Association of Criminal Defense Lawyers, "NACDL Trial Penalty Clemency Project Submits First Set of Petitions to White House."  An excerpt (links from original): 

On October 2, 2020, NACDL’s Trial Penalty Clemency Project submitted its first set of federal clemency petitions to the Office of the Pardon Attorney and to the White House.  Of the six petitions, three concern individuals serving life sentences and a fourth concerns an individual serving an 835-year sentence.  Taken together, the sentences of these six individuals, as compared to the sentences of their co-defendants or to the plea deals offered to them, represent over 100 years of punishment solely due to the fact that these individuals exercised their Sixth Amendment right to go to trial — a defining feature of the modern American criminal legal system known as the trial penalty.

While society is awakening to the number of wrongs embodied in the trial penalty, there are a number of individuals enduring the trial penalty as they serve excessively long prison sentences as a result of electing to go to trial and holding the government to its burden.  The only remedy for these individuals is executive clemency. The Trial Penalty Clemency Project aims to assist those individuals by pairing applicants with volunteer attorneys who will assist them in preparing a clemency petition. Reform is needed to end the trial penalty.  In the interim, this Project provides an opportunity for a second chance to those individuals who are living it....

In 2018, NACDL released a groundbreaking report – The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. Information and a PDF of NACDL’s 2018 Trial Penalty report, as well as video of the entire 90-minute launch event at the National Press Club in Washington, DC, and other trial penalty-related videos and materials are available at www.nacdl.org/trialpenaltyreport.

In 2019, The Federal Sentencing Reporter, published by University of California Press, released a double issue covering April and June 2019, edited by NACDL Executive Director Norman L. Reimer and NACDL President-Elect Martín Antonio Sabelli, entitled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."

A few prior related posts:

October 20, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 19, 2020

US Sentencing Commission releases its latest updated "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report"

I just noticed that the US Sentencing Commission today released this updated new version of its data report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report." The introduction to the report provides this context and overview:

On December 21, 2018, the President signed into law the First Step Act of 2018.  Section 404 of that act provides that any defendant sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act is eligible for a sentence reduction as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the offender was sentenced.  The First Step Act authorizes the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court to make a motion to reduce an offender’s sentence.

The data in this report represents information concerning motions for a reduced sentence pursuant to Section 404 of the First Step Act which the courts have granted. The data in this report reflects all motions granted through June 30, 2020 and for which court documentation was received, coded, and edited at the Commission by October 15, 2020.

These new updated data from the USSC show that 3,363 prisoners have been granted sentence reductions.  The average sentence reduction was 71 months of imprisonment (roughly a quarter of the original sentence) among those cases in which the the resulting term of imprisonment could be determined.  Though this data is not exact and may not be complete, it still seems sound to now assert that this part of the FIRST STEP Act alone, by shortening nearly 3361 sentences by nearly 6 years, has resulted in nearly 20,000 federal prison years saved! (That is an eliminations of two hundred centuries of scheduled human time in federal cages, if you want to think of it another way.)

Of course, as I have noted before, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation. But these latest data show yet again how this small piece has had big impact in lots of years of lots of lives. And, of critical importance and note to be overlooked, people of color have been distinctly impacted: the USSC data document that nearly 92% of persons receiving these FSA sentence reductions were Black and more than another 4% were Latinx.

October 19, 2020 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, FIRST STEP Act and its implementation, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Notable SCOTUS Fourth Amendment activity, but nothing for sentencing fans

I flagged in this post from June my sense that the Supreme Court has become particularly (and problematically) quiet on sentencing matters.  This feeling continues with this morning's new SCOTUS order list in which the Court granted cert on three new cases, but denied cert without comment in the Demma reasonableness review case flagged here.  I suppose the coming oral arguments in Borden v. US, No. 19-5410 (another ACCA application case), and especially Jones v. Mississippi, No. 18-1259 (application of Miller), provide plenty to keep sentencing fans engaged for now.  But I remain disappointed that SCOTUS has now been quiesced on a range of (non-ACCA) federal sentencing issues for quite some time.

But, perhaps unsurprisingly in light of other 2020 events, it does seem like the Justices are getting ever more engaged on Fourth Amendment issues.  Specifically, one of the new cert grants comes in Lange v. California, which SCOTUSblog describes this way: "Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant."

In addition, Justice Gorsuch, joined by Justices Sotomayor and Kagan, issued a notable five-page statement respecting the denial of certiorari in another Fourth Amendment case, Bovat v. Vermont.  This statement includes a picture so that readers can better visualize the police activity which gets verbally described this way:

Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a “deer jacking”), game wardens decided to pay him a visit to — in their words — “investigate further.”  But the wardens admit that “pretty soon after arriving” they focused on a window in Mr. Bovat’s detached garage.  Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck.

I am never troubled when all sort of police activity, even concerning deer hair and deer jacking, gets subject to appropriate scrutiny.  But I still see so many federal (and state) sentencing activities that could merit so much more SCOTUS scrutiny.

October 19, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, October 18, 2020

Heartening stories of problematic sentences ameliorated by parole grants

A few years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  My basic thinking is that parole can and sometimes will usefully serve as a kind of second-look sentencing mechanism to indirectly fix the most problematic of sentences. This article and thinking came to mind when I recently saw these two heartening press stories about ugly sentences partially ameliorated by parole grants:

From Alabama, "Disabled Iraqi War vet imprisoned for medical marijuana possession granted parole."  An excerpt:

Disabled Iraqi War veteran Sean Worsley, who was arrested while driving through in Pickens County in 2016 and charged with felony possession of medical marijuana legally prescribed in his home state of Arizona, was granted parole on Wednesday by the Alabama Board of Pardons and Parole after being incarcerated more than eight months.

With marijuana illegal in Alabama, Worsley, a Purple Heart recipient, was sentenced to five years in prison.  On September 23, he was transferred from the Pickens County Jail to the Draper Correctional Facility. Parole was granted with special conditions — that Worsley undergoes a drug test upon release.

From Louisiana, "Black man serving life sentence for stealing hedge clippers granted parole." An excerpt:

A Black man in Louisiana serving life in prison for stealing hedge clippers more than two decades ago was granted parole — months after the state's Supreme Court declined to review his sentence.  The Board of Pardons and Committee on Parole voted Thursday to release Fair Wayne Bryant, 63, records show.  He walked out of prison later that day after serving more than 20 years at the state penitentiary in Angola, his attorney said....

Bryant was 38 when he was arrested in January 1997 for taking a pair of clippers from a carport storeroom at a home in Shreveport. The homeowner was alerted to the theft and chased Bryant off.  That same year, a jury convicted him of attempted simple burglary of an inhabited dwelling, and Bryant, who had previous convictions, was sentenced to life in prison because he was considered a "habitual" offender under state law.

Bryant in previous appeals argued that his sentence was "unconstitutionally harsh."  But in July, the state's Supreme Court declined to review his sentence.

October 18, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, October 17, 2020

Understanding Proposition 20, the latest chapter of California's experiments with sentencing reform via initiative

I have noticed more than a few recent media pieces about the notable sentencing reform measure on the ballot in California this year, Proposition 20, and here is a sample:

The start of the LA Times piece seems to provide a pretty clear account of the range of complicated state reform realities connected to Prop 20:

As much of the country weighs changes to the criminal justice system, California has had a head start, adopting a series of laws in the last decade that, among other things, helped reduce the state’s prison population by more than one-third, or 50,000 people.

Now a group of prosecutors and law enforcement leaders has placed Proposition 20 on the November statewide ballot, which would expand the list of felonies for which the convicted are ineligible for early parole; increase penalties for repeat shoplifters; and collect DNA samples from adults convicted of some misdemeanors.

Proponents argue that it is needed to fix flaws in past measures that they say are putting the public’s safety at risk, including the early release of potentially violent criminals. But opponents of the measure, who include civil rights leaders, Gov. Gavin Newsom and former Gov. Jerry Brown, say it wrongly rolls back necessary criminal justice reforms as crime has declined in recent years. “California is ahead of the game — we’ve done so many great reforms,” said Assemblyman Jim Cooper (D-Elk Grove), a retired sheriff’s captain and proponent of Proposition 20. “But there have been unintended consequences with these reforms.”

Brown, who led past reform efforts, called the initiative “very inhuman.” He said it takes away hope and incentives for prison inmates to pursue educational opportunities and demonstrate good behavior to improve their chances of getting out early. “Proposition 20 is supported by a very narrow group of people who don’t accept even the modest prison reforms that I was able to achieve,” Brown said. “It’s driven by ideology and, in some cases, by a total lack of understanding of human nature and no sense of redemption or allowing people to put their lives on track. It’s vindictive.”

Brown was governor when the U.S. Supreme Court ruled in 2011 that California’s prisons were overcrowded in violation of constitutional protections.  That year, he signed Assembly Bill 109 into law to reduce the state prison population by requiring that many people convicted of felonies not involving violence or sex offenses serve their sentences in county jails instead of state prison.

In 2014, California voters approved Proposition 47, which reclassified many lower-level drug and property crimes from felonies to misdemeanors.  Before then, thefts could be considered a felony if stolen merchandise was valued at $450 or more, but Proposition 47 raised the threshold to $950.

Proposition 57, which Brown developed and was approved by California voters in 2016, increased parole and good behavior opportunities for those convicted of nonviolent felonies.

The new initiative to be voted on Nov. 3 makes key changes in the previous three laws.

The measure would broaden the list of crimes that make inmates ineligible for early release from state prison through the parole program in Proposition 57, adding 22 offenses, including trafficking a child for sex and felony domestic violence.

The measure also would increase penalties for people who commit multiple thefts, including serial shoplifting, to address a spate of such crimes, and would mandate the collection of DNA samples from adults convicted of crimes newly classified as misdemeanors under AB 109, including forging checks and certain domestic violence crimes.

In addition, Proposition 20 would require the state Board of Parole Hearings to weigh an inmate’s entire criminal history when deciding parole, not just the most recent offense, which was the standard set by AB 109.

The nonprofit, nonpartisan group CalMatters has this helpful page about Prop 20 which includes a two-minute video seeking to summarize the initiative.  This Ballotpedia page on Prop 20 reveals a lot of money has been donated to both the proponents and opponents of this reform, but it does not report on any polling on the topic.  I have seen other reports on polling calling this ballot issue a "coin toss" because of so many undecideds.  In other words, as always seems to be the case, California in Nov 2020 is yet again a state to watch for those interested in the state of criminal justice reform efforts.

October 17, 2020 in Campaign 2020 and sentencing issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, October 15, 2020

Another notable cert petition providing the new Justices (and older ones) another chance to look at reasonableness review of federal sentences

In this post a few years ago, I flagged an interesting cert petition while asking in my post title "Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?".  That post from April 2018 stemmed from my frustration with the US Supreme Court's seeming disinterest in examining how reasonableness review of federal sentences was functioning in the circuits.  For years and years, judges, scholars and commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review. 

As long-time readers likely know, I have long been particularly troubled by the so-called "presumption" of reasonableness permitted by Rita v. US, 551 U.S. 338 (2007), which has largely functioned as a problematic, un-rebuttable, safe-harbor for within-guideline sentences even in settings where the US Sentencing Commission's data and analysis demonstrate the obvious unreasonableness of certain guideline provisions.  But, over these oh-so-many-years of excessive federal sentences, my grumpiness over the failure of SCOTUS to take up reasonableness review anew has largely turned to resignation and acceptance of the fact that the Justices were just not that into the issue.

But perhaps hope should spring eternal, especially with Carissa Hessick flagging a new cert petition in this extended PrawfsBlawg post titled "Supreme Court Weighs Whether to Hear Possible Sentencing Law Blockbuster."  Here are excerpts (and links) from Carissa's post:

This Friday, the Supreme Court will decide whether to grant certiorari in Demma v. United States.  Demma raises two questions under the Supreme Court’s Sixth Amendment sentencing doctrine: (1) the extent to which judges can sentence outside of the Federal Sentencing Guidelines based only on a policy disagreement with the Guidelines, and (2) how much appellate courts must defer to the substantive sentencing decisions of district court judges....

Both of the legal questions raised by the Demma petition are important.  And frankly, I am surprised that the Supreme Court has yet to resolve them in favor of district court discretion to sentence outside of the Guidelines.  I suspect that the Court hasn’t clarified these issues because it wants judges to impose Guidelines sentences in most cases.  And while the Court’s Sixth Amendment sentencing doctrine doesn’t allow the Court to accomplish that directly, it has tried to do so indirectly through allowing the courts of appeals to take different approaches on these questions.

But I find that decision — the decision to allow different legal standards for sentencing — troubling.  The Supreme Court ordinarily prides itself on resolving legal disagreements between the circuits.  And it seems especially ironic to allow different courts of appeals to have different legal standards when it comes to sentencing.  After all, the remedial majority in Booker said that it was creating an advisory Guidelines system because it wanted to promote uniformity in sentencing.  Different legal standards in different circuits is hardly likely to lead to uniformity.

And we don’t have sentencing uniformity right now.  Instead we have sentencing practices that vary wildly depending on the circuit.  Because different circuits have different sentencing case law, judges in some circuits are far more likely to sentence outside of the Guidelines than judges in other circuits.... 

The chances that the Court will grant cert in Demma look pretty good.  The Court called for a response from the Solicitor General (who had initially waived response).  The Court also relisted the petition after an earlier conference.

I really hope that the Justice vote to grant cert in this case.  And I hope that they resolve these questions in a way that vindicates the Sixth Amendment right that they first acknowledged in Apprendi.

Give the Supreme Court's long history of dodging many reasonableness review issues for now more than a dozen years, I am a bit fearful of the statement that the "chances that the Court will grant cert in Demma look pretty good."  But as the title of this post hints, I am hopeful that the newer members of the Court, Justices Gorsuch and Kavanaugh, who had to grapple with reasonableness review issues during long tenures as circuit judges, might now be eager to help further define the contours of reasonableness review. 

In the end, though, I suspect Justice Breyer is always a critical Justice on this front, as he both created reasonableness review with his remedial opinion in Booker and defined its essential form in Rita.  If Justice Breyer's voice and vote on these matters carry some extra weight, those of us eager to see the full Court take up reasonableness review might need to root for him to be eager to tackle these issues yet again. 

Some (of many, many) older related posts about reasonableness review:

October 15, 2020 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 11, 2020

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, October 08, 2020

Additional accountings of Judge Barrett's Seventh Circuit criminal justice work

Lauren-Brooke Eisen and Alia Nahra have this review of some of Judge Barrett's rulings in criminal cases over at the Brennan Center.  The piece's full title highlights its overall themes: "Amy Coney Barrett’s Judicial Record in Criminal Justice Cases: Although the Supreme Court nominee has often written opinions that don’t advance the claims of some criminal defendants and incarcerated people, she may be more receptive to supporting privacy rights and gun rights."  And here is how the discussion gets started:

If Amy Coney Barrett joins the Supreme Court, she could tip the balance on a host of major issues. And at a time of renewed reckoning across the nation to address America’s long history of racial injustice, the Court will likely soon consider issues related to criminal justice, such as claims against excessive police force and the ability to sue law enforcement officials.

Although it can be difficult to predict how a nominee may rule on future issues given the individualized nature of each case, Barrett has publicly aligned herself with her mentor, the late Justice Antonin Scalia. Like him, Barrett is an originalist, meaning she seeks to apply the Constitution according to her understanding of what the Framers intended it to mean. When accepting her nomination she said, “His judicial philosophy is mine, too — a judge must apply the law as written.”

Scalia, in his time on the bench, held tightly to his originalist beliefs. He ardently defended the death penalty (even in the cases of juveniles), and he penned the Court’s majority opinion on the Sixth Amendment's Confrontation Clause in Crawford v. Washington, which provided additional protection to criminal defendants. In that case, the Court ruled that prior statements to law enforcement by witnesses who are not available to testify in court cannot be presented as evidence unless the defendant's lawyer has an opportunity to cross-examine that person.

In Barrett’s short time on the bench, she has written several opinions that shed light on where she may fall on criminal justice issues if elevated to the high court. As a recent addition to the Seventh Circuit Court of Appeals, confirmed in October 2017, some of her views become clear through her dissents, and less so in cases where she joined her colleagues in three-judge opinions.

And over at Empirical SCOTUS, Adam Feldman has this empirical look at Judge Barrett's judicial record under the title "A Comprehensive Look at Judge Amy Coney Barrett."  Here is an excerpt:

Like all court of appeals judge, the majority of panels Barrett participated in while on the circuit that lead to written opinions ended up in orders.  Most of the orders judges release are in criminal cases and as tends to be par for the course, Barrett ended up deciding more criminal sentencing cases than any other case type.  Civil rights cases were the second most common and many of these had to do with prisoners’ treatment while in jails.  Interestingly though, when summed up, civil liberties decisions were as common as criminal decisions at 141 apiece.

Prior related posts:

October 8, 2020 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 07, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

October 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 06, 2020

Feds officially seek SCOTUS certiorari to review First Circuit's reversal of Boston Marathon bombers death sentence

As reported in this Boston Globe piece, "Federal prosecutors on Tuesday formally filed their request for the US Supreme Court to review an appeals court ruling in July that threw out the death penalty in the case against Boston Marathon bomber Dzhokhar Tsarnaev." Here is more (links from the original):

The 424-page request, known as a writ of certiorari, raises two questions for the high court to consider.

First, it asks whether the District Court should have allowed “evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.”

Second, the document asks whether the federal appeals court that overturned Tsarnaev’s death sentence made a mistake in concluding that the District Court should have asked “each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.”...

The move by prosecutors comes after the US Court of Appeals for the First Circuit on July 31 issued a 182-page ruling that infuriated some survivors, finding that George A. O’Toole Jr., who presided over Tsarnaev’s high-profile 2015 trial in US District Court in Boston, “did not meet the standard” of fairness while presiding over jury selection....

With their filing Tuesday, prosecutors formally asked the Supreme Court to take up the matter. If the high court, which agrees to hear only a fraction of the cases submitted to the panel for review each year, does review the case, it could affirm the appellate decision or reverse it, reinstating Tsarnaev’s death sentence.  Tsarnaev, now 27, remains incarcerated at a federal supermax prison in Colorado. 

Prior recent related posts:

October 6, 2020 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Collateral Consequences Resource Center releases "The Reintegration Report Card"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this detailed report's introduction:

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 05, 2020

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

October 5, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, September 28, 2020

Fifth Circuit panel rejects claims of unconstitutional or unreasonable trial penalty at sentencing

A Fifth Circuit panel ruling today addresses, but ultimately rejects, a white-collar defendant's claim that "her sentence should be vacated because it was the result of an unconstitutional 'trial penalty' — a punishment for choosing to exercise her right to stand trial instead of pleading guilty." US v. Gozes-Wagner, No. 19-20157 (5th Cir. Sept. 28, 2020) (available here).  Because I helped with an amicus brief in the case, I will not comment extensively beyond recommending the opinion be read in full and highlighting these passages (with footnotes and cites removed):

Here, however, Gozes-Wagner and Voronov were ultimately charged with different crimes that carried different statutory maximum sentences.  Although they may have participated similarly in the conspiracy, our job is not to look at their two sentences and decide whether we think Voronov and Gozes-Wagner should have been punished more equally based on their conduct.  Instead, our duty is to determine whether the district court sentenced Gozes-Wagner more harshly than it otherwise would have because she went to trial instead of pleading guilty.  And on this record, we cannot say that it did...

For example, if the district court plainly stated that it was punishing the defendant more severely than it otherwise would because she went to trial, that would clearly amount to a constitutional violation even absent a comparison to others similarly situated to the defendant. But that did not happen here.

We recognize that most — if not all — cases will not be so cut-and-dried, and that a defendant’s constitutional rights may be violated even absent such an explicit statement.  In those cases, it is the comparison to others that necessarily sheds light on whether a constitutional violation occurred.  If the only meaningful difference between defendants was that one went to trial and the others did not, and the trial-standing defendant received a much more severe sentence than the pleading defendants, it could very well be the case that vacatur of the sentence will be required on trial penalty grounds.  But a defendant who cooperates with the Government is not similarly situated to one who refuses to do so.  Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences.  If the case were otherwise, we would be holding that the Constitution mandates that defendants convicted of committing different crimes be sentenced similarly if the conduct underling those convictions is similar.  We see no such mandate in the Constitution or in the Due Process caselaw addressing claims like Gozes-Wagner’s.

I cannot help noting that, though nothing "in the Constitution or in the Due Process caselaw" may speak to sentencing disparities, Congress expressly instructed sentencing judges, in 18 USC 3553(a)(6), to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  And the sentencing judge in this case knew that defendant Voronov (who "participated similarly in the conspiracy") faced a 5-year maximum sentence after pleading guilty, but he still gave Gozes-Wagner a sentence of 20 years.  That served as one basis for arguing that this sentence was unreasonable even if not unconstitutional, but the Fifth Circuit panel was ultimately unmoved on reasonableness arguments:

Nothing in the record suggests that the court went out of its way to punish Gozes-Wagner for going to trial. To the contrary, when presented with arguments that she was similarly situated to her co-defendants, the district court correctly pointed out that for various reasons, including the fact that her co-conspirators pleaded guilty to charges carrying lower maximum sentences, she was not similarly situated to them at sentencing. The record does not reflect a clear error of judgment in the district court’s balancing of the § 3553(a) factors.

September 28, 2020 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Split First Circuit panel recognizes, in 2255 proceeding, Johnson vagueness claim as to old mandatory career-offender guideline

The very title of this post is likely inscrutable to persons not intimately familiar with the ins and outs of federal sentencing law and practice.  But those who are intimately familiar with the ins and outs of federal sentencing law and practice will want to check out Shea v. US, No. 17-1899 (1st Cir. Sept 28, 2020) (available here), to see the debate over whether an armed bank robber originally sentenced in 1995 to over 47 years in federal prison might now have a chance to be resentenced.  The majority (per Judge Thompson) says yes in a lengthy opinion that starts this way:

In Johnson v. United States, 576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of words in a federal law could not be used to fix a defendant's sentence, a rule that applies retroactively.  See Welch v. United States, 136 S. Ct. 1257, 1264 (2016).  Years ago, judges used the same wording in another binding rule with "the force and effect of law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) — § 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix defendants' sentences.  Because Johnson made that unconstitutional, we reverse the district court's decision denying the motion to vacate and remand for further proceedings.

Judge Selya has a short dissent that starts this way:

Time-and-number limitations, generally applicable to certain collateral review proceedings, may sometimes be relaxed when a petitioner seeks to avail himself of a new rule of constitutional law announced by the Supreme Court and expressly made retroactive to cases previously decided.  See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced . . . [u]nless they fall within an exception to the general rule."); see also Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (discussing exceptions to general bar on retroactivity).  But this principle does not provide free rein to the lower federal courts — the courts of appeals and the district courts — either to extend a rule into uncharted waters or to speculate about where a Supreme Court decision might eventually lead.  My colleagues' decision crosses this line, staking out a position that the Court has yet to articulate.  Because I cannot join this excursion into forbidden terrain, I write separately.

September 28, 2020 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

Friday, September 25, 2020

Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise"

I am very pleased to see the first of what may soon be many circuit rulings on the reach and application of the compassionate release 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 consider 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.  COVID realities, of course, raised the need for and stakes of this important provision of federal sentencing law.

The first significant circuit ruling on the reach and application of this statute is a great one, coming from a Second Circuit panel in US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here).  Though I may be a bit biased because this opinion was penned by a former boss of mine (Judge Guido Calabresi), I suspect others will share my view that this ruling is a great accounting of applicable law and a great outcome.  Here are just a few excerpts from the 21-page opinion (some analysis may follow in future posts):

The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), was simultaneously monumental and incremental.  Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated.  Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency.

This case reflects that dichotomy.  The First Step Act provision we analyze overturned over 30 years of history, but at the same time it often did no more than shift discretion from the Bureau of Prisons (“BOP”) to the courts.  We must today decide whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D) (“Application Note 1(D)”), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.  Because we hold that Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....

For all of these reasons, the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion....

Nor can we say, as a matter of law, that a court would abuse its discretion by granting someone compassionate release on this record.  It bears remembering that compassionate release is a misnomer.  18 U.S.C. § 3582(c)(1)(A) in fact speaks of sentence reductions.  A district court could, for instance, reduce but not eliminate a defendant’s prison sentence, or end the term of imprisonment but impose a significant term of probation or supervised release in its place. Id.  Beyond this, a district court’s discretion in this area — as in all sentencing matters — is broad.  See United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc) (noting a district court’s “very wide latitude” in sentencing). The only statutory limit on what a court may consider to be extraordinary and compelling is that “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason.”  28 U.S.C. § 994(t) (emphasis added).

In the instant case, Zullo does not rely solely on his (apparently extensive) rehabilitation.  Zullo’s age at the time of his crime and the sentencing court’s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction.  Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984.  See S. Rep. No. 98-225, at 55-56 (1984) (noting that reduction may be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence” (emphasis added)); see also United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *6-*7 (D. Utah Feb. 18, 2020) (further discussing this history and collecting cases where district courts have reduced sentences in part because they were overly long).

September 25, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, September 22, 2020

Pending federal executions to be first SCOTUS matters to be resolved without the late Justice Ginsburg

As reported in this CBS News piece, a "former U.S. soldier who said an obsession with witchcraft led him to slay a Georgia nurse in a bid to lift a spell he believed she put on him is the first of two more inmates the federal government is preparing to put to death this week."  Here is more about this and another federal execution scheduled for the coming days:

William Emmett LeCroy, 50, on Tuesday would be the sixth federal inmate executed by lethal injection this year at the U.S. prison in Terre Haute, Indiana.

Another is scheduled for Thursday of Christopher Vialva, who would be the first African-American on federal death row to be executed this year. LeCroy is white, as were four of the five inmates executed earlier. The fifth was a Navajo.

Critics say President Donald Trump's resumption of federal executions this year after a 17-year hiatus is a cynical bid to help him claim the mantel of law-and-order candidate leading up to Election Day. Supporters say Mr. Trump is bringing long-overdue justice to victims and their families....

LeCroy broke into the Cherrylog, Georgia, mountain home of 30-year-old Joann Lee Tiesler on Oct. 7, 2001, and waited for her to return from a shopping trip. When she walked through the door, LeCroy struck her with a shotgun, bound and raped her. He then slashed her throat and repeatedly stabbed her in the back....

LeCroy's lawyers have sought to halt the execution on appeal on multiple grounds, including that his trial lawyers didn't properly emphasize evidence about his upbringing and mental health that could have persuaded jurors not to impose a death sentence.  None of those appeals have succeeded, though lawyers could continue to ask for court intervention up to the hour of his scheduled execution. Last-minute legal appeals by the previous five death-row inmates all failed.

This lengthy Intercept article, headlined "Trump Prepares To Execute Christopher Vialva For A Crime He Committed As A Teenager," reports on the particulars of the person and crime leading to the federal execution scheduled for Thursday.

As these press reports and the headline of the post indicate, various "last-minute legal appeals" are being brought on behalf of these defendants and these appeals all are likely to come before the Supreme Court in the coming days and hours.  As is common in capital cases, many of these appeals may ultimately come before the US Supreme Court.  But, for the first time in nearly three decades, Justice Ruth Bader Ginsburg will not be one of the Justices considering these appeals.

September 22, 2020 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, September 20, 2020

Spotlighting notable series of substantive reasonableness reversals by the Sixth Circuit

A helpful reader sent me this thoughtful review of some notable recent reasonableness rulings by the Sixth Circuit:

The review of sentences for substantive reasonableness is often thought of as toothless, or as a “one-way ratchet” toward more severe sentences.  Of the countless appeals challenging sentences as overly harsh, only a couple of dozen have prevailed.  (Government appeals challenging sentences as too lenient seem to have found more success).  Appellate courts have been far more willing, on a defendant’s appeal, to say the sentencing court failed to follow proper procedures than to say the sentence was just too long.  In a trio of recent 2-1 decisions, however, the Sixth Circuit has done just that, reversing above-Guidelines sentences where there was an insufficient justification for the upward variance and putting some substance into substantive reasonableness review.

This line of cases started with United States v. Perez-Rodriguez, where the Sixth Circuit reversed an above-Guidelines sentence of 24 months in an illegal re-entry case where the Guidelines range was 8 to 14 months. 960 F.3d 748 (6th Cir. 2020).  Over a dissent, the Court held that the upward variance was substantively unreasonable because this was a “mine-run” case where the upward variance was unjustified and “created unwarranted sentencing disparities.” (Interestingly, in doing so, Judge Stranch drew on her opinion in United States v. Boucher, 937 F.3d 702 (6th Cir. 2019), where the court had held that a sentence of just 30 days for Rand Paul’s attacker, when the Guidelines range was 21 to 27 months, was substantively unreasonable because it was a “mine-run case.” Thus, at least in this instance, the ratchet went both ways.)

In the less than four months since Perez-Rodriguez, the Sixth Circuit has twice struck down above-Guidelines sentences as substantively unreasonable, each time over a vigorous dissent.  In United States v. Lee, the court held that a sentence of 60 months for possession of a stolen firearm, when the Guidelines range was 30 to 37 months’ imprisonment, was “far too long for his offense of conviction” and that the sentencing court “placed too much weight on Lee's criminal history, and not enough weight on the need to treat like defendants alike.”  __ F.3d __, 2020 WL 5269820 (6th Cir. Sept. 4, 2020). Then, in United States v. Brown, relying on Perez-Rodriguez and the unpublished 2-1 decision in United States v. Warren, 771 F. App’x 637 (6th Cir. 2019), the Sixth Circuit again held that an above-Guidelines sentence of 60 months for distributing heroin was substantively unreasonable because this was a “mine-run case” and the upward variance from the Guidelines range of 24 to 30 months would create “unwarranted sentencing disparities.” __ F. App’x __, 2020 WL 5569677 (6th Cir. Sept. 17, 2020).         

It’s hard to say whether this recent spate of substantive reasonableness reversals reflects an increasing recognition by (some) federal appellate judges of the realities of mass incarceration and overly harsh sentences, or simply a lucky streak by defendants.  Cutting in favor of the latter interpretation is that both Brown and Perez-Rodriguez are sentencing appeals from the same district judge — as was Warren — and that in each instance the sentencing judge upwardly varied even though the Government sought a Guidelines sentence.  These reversals may, then, simply reflect an attempt by appellate judges to rein in a particularly punitive district judge.  But I tend to think that this string of cases reflects an attempt to give some substance to substantive reasonableness review, and to use it as a tool to curb at least the most egregiously punitive sentences.  

Though the Sixth Circuit’s newfound willingness to find upward variances unreasonable in cases that fall within the heartland of the Guidelines is encouraging, it nonetheless is worth considering the limitations of this approach.  To begin with, it implicitly accepts that the Guidelines are the starting point for reasonableness review.  This is perhaps a natural outgrowth of the appellate presumption of reasonableness that the Sixth Circuit (and some but not all other circuits) afford to within-Guidelines sentences.  But it risks blunting the impact of Booker and Gall, which held that district courts must start by calculating the Guidelines range but then must proceed to give the sentence required by the factors enumerated in 18 U.S.C. § 3553(a), regardless of what the Guidelines may advise.  Accordingly, in certain districts such as the Southern and Eastern Districts of New York, only a quarter of sentences have been within-Guidelines in recent years.  In the view of many district judges, it seems, the proper sentence for a “mine-run case” is a below-Guidelines one. 

Indeed, anyone with a working knowledge of the Sentencing Guidelines — or any regular reader of this blog — is likely familiar with just how harsh the Guidelines can be.  Yet the approach of Perez-Rodriguez requires only that above-Guidelines sentences provide sufficient justification; it offers no path to challenging harsh but below- or within-Guidelines sentences.  A more robust appellate review of the reasonableness of above-Guidelines sentences is certainly welcome, but it is not by itself a panacea for the ills of mass incarceration. 

I am always grateful for (and eager to post) any and all caselaw reviews, so I thank this author and encourage others to help me track and report on lower court sentencing developments like this one.

September 20, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, September 19, 2020

Noting encouraging new federal compassionate release realities

I am pleased to see this CBS News new article headlined "Compassionate release, once seldom used, offers some federal inmates hope."  Here are excerpts:

[C]ompassionate release [was] a once seldom used remedy that allows inmates to receive a reduction in their sentence. The process, which is only used in extraordinary circumstances, has seen an uptick during the coronavirus pandemic....

Petitions for compassionate release were rarely approved prior to the passing of the First Step Act in December 2018, which created a procedural change, making it easier for offenders and their families to bring their request to the court.

There were 145 offenders released in 2019 — about five times more than the year before, when 24 people were granted release, according to a report by the U.S. Sentencing Commission.  On average, the sentences were reduced by 84 months last year, compared to 68 months the year before.  Two-thirds of those who successfully obtained release did so by filing requests through the court, rather than going through the Bureau of Prisons, the report found.

The bureau, in a statement, said it has no direct authority to reduce an inmate's sentence, but rather, a director determines if an inmate is eligible and submits a request to the prosecuting U.S. Attorney's Office to file a motion on behalf of the director.  "Inmates who are found to be ineligible under agency criteria, or who are determined to be inappropriate for agency approval of a reduction in (a) sentence may file a motion themselves directly to the sentencing court per the First Step Act," the statement said.

So far, nearly 1,600 cases have been approved, the bureau said, meaning that in the year of the pandemic, the numbers of those being released have increased tenfold since the year before.

The virus has killed 120 federal inmates, the bureau said.  Saferia Johnson, a 36-year-old with pre-existing health conditions, died from the virus in August after her petitions for release were reportedly denied by a prison warden in Sumterville, Florida.  Johnson was serving a 46-month sentence at the Coleman Federal Correctional Complex for conspiracy to steal public money and for aggravated identity theft.  The bureau declined to comment on her case.

Compassionate release differs from home confinement, a program that Attorney General William Barr directed the Bureau of Prisons to enforce in March, just as the pandemic began to root itself inside the federal prison system.  Home confinement allows current inmates to serve out the remainder of their sentence from the comfort of their home while still remaining under correctional supervision.  The Justice Department prioritized the elderly, those at high-risk, and non-violent offenders for home confinement.  As time went on, the qualifying factors set by the bureau included those who had already served at least half of their sentence.

Since Barr issued the directive, over 7,600 inmates have been placed into home confinement.  Notable recipients include President Trump's former campaign manager, Paul Manafort, and his former personal lawyer, Michael Cohen.  However, in light of the pandemic, judges have been approving more petitions for compassionate release, and organizations like FAMM are helping spearhead the effort.

FAMM, in conjunction with other civil rights groups, created the "Compassionate Release Clearinghouse" in 2019, and has advocated for inmates who qualify for the sentence reduction under the First Step Act.  "We didn't think it was smart to keep sick and elderly people in prison before COVID-19 hit — and it seemed downright immoral to trap them there once it did," said Kevin Ring, the organization's president.

"We don't usually do direct services, but this was a humanitarian emergency.  We are grateful to the hundreds of federal defenders and volunteer attorneys — both in and outside of the Clearinghouse — who helped families get their loved ones out of harm's way."

A few prior recent posts:

September 19, 2020 in Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)