Tuesday, November 13, 2018

Usual Justices make their usual death penalty points in statements accompanying Florida capital case cert denials

In this post last week, I noted that the Supreme Court had relisted a slew of older Florida death penalty cases in which a death sentence had been imposed using procedures that the Supreme Court in the 2016 Hurst decision said violated the Sixth Amendment's requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  This morning, via this new order list, the Supreme Court appears to have denied cert in all of these Florida cases, and three Justices with well-earned reputations for having a lot to say in capital cases all had something to say about this decision through statements in the case of Reynolds v. Florida.

Justice Breyer authored a four-page statement regarding the denial of cert that sets the tone starting this way:

This case, along with 83 others in which the Court has denied certiorari in recent weeks, asks us to decide whether the Florida Supreme Court erred in its application of this Court’s decision in Hurst v. Florida, 577 U. S. ___ (2016).  In Hurst, this Court concluded that Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court now applies Hurst retroactively to capital defendants whose sentences became final after this Court’s earlier decision in Ring v. Arizona, 536 U. S. 584 (2002), which similarly held that the death penalty scheme of a different State, Arizona, violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court has declined, however, to apply Hurst retroactively to capital defendants whose sentences became final before Ring.  Hitchcock v. State, 226 So. 3d 216, 217 (2017).  As a result, capital defendants whose sentences became final before 2002 cannot prevail on a “Hurst-is-retroactive” claim.

Many of the Florida death penalty cases in which we have denied certiorari in recent weeks involve — directly or indirectly — three important issues regarding the death penalty as it is currently administered.

Folks who follow the Supreme Court's modern capital punishment discussions can probably guess what Justice Breyer considers the "three important issues" raised by these Florida cases. Similarly, SCOTUS followers likely can also imagine what Justice Thomas had to say when concurring in the denial of cert in Reynolds.  His opinion runs five pages and here are two key paragraphs:

JUSTICE BREYER worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. Ante, at 4 (statement respecting denial of certiorari). In light of petitioner’s actions, I have no such worry, and I write separately to alleviate JUSTICE BREYER’s concerns....

JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Last but certainly not least, Justice Sotomayor needs seven pages to explain why she dissents from the denial of certiorari, and here opinion starts this way:

Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless.  Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory.  I have dissented before from this Court’s failure to intervene on this issue.  Petitioners’ constitutional claim is substantial and affects numerous capital defendants.  The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

November 13, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 12, 2018

More encouraging clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  A helpful reader alerted me to notable additional news on this front reported in this two local articles:

"Board recommends clemency for 22 drug possession offenders." Excerpts:

Nearly two dozen offenders were recommended for clemency Wednesday, the first wave of hopefuls for early release from lengthy felony prison sentences for simple drug possession two years after voters approved turning that crime into a misdemeanor. State Question 780 isn’t retroactive, so Project Commutation sought deserving prisoners who were considered ideal candidates to have their sentences drastically shortened in line with the sentencing reform measure.

Kris Steele, chairman of Oklahomans for Criminal Justice Reform, is spearheading the movement and a member of the board voting on the commutation requests. Steele said a governor’s staff member was present for Wednesday’s all-day proceedings and expressed to him that Gov. Mary Fallin is committed to signing off on the cases before the new year.

The commutations modify sentences but don’t erase convictions. Fallin has final authority to approve, deny or modify the Oklahoma Pardon and Parole Board’s recommendations within 90 days. “Gov. Fallin has been monitoring these cases closely and has taken an interest in trying to expedite the process of the governor’s approval, with the intent, as I understand it, to get these individuals home together with their families by the end of the year,” Steele said.

Twenty-three offenders had their cases for commutations heard Wednesday by the five-member pardon and parole board. Only one offender failed to garner a simple majority vote, with concerns about misconduct in prison perhaps influencing decisions. Oklahomans for Criminal Justice Reform launched Project Commutation in partnership with the Tulsa County Public Defender’s Office. Another eight applicants — the final ones in this commutation campaign — will be on the docket in December.

Starting July 1, 2017, State Question 780 made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies. The maximum sentence for simple drug possession now is one year in jail.  Sentences considered Wednesday were for between 10 years and 40 years long, with time served from five months to nearly three years.  “Twenty-two of 23 of the people that we helped with applications were mothers in prison serving decades had they not gone through this process,” said Corbin Brewster, Tulsa County chief public defender.  “The impact beyond the incarceration on their families is just enormous.”...

University of Tulsa law students helped to interview and whittle down a field of 700 applicants to 49 for the first stage of the commutation process. There are 31 who made it through to the second and final stage before the governor’s desk.

"Oklahoma group wants to build on success of commutation project for prisoners with drug possession charges." Excerpts:

During commutation hearings last week, offenders offered numerous reasons for why they were unable to succeed in alternative drug courts. Failing stuck them with lengthy prison sentences for possessing drugs.

Project Commutation has been an opportunity for a handful of convicts to earn another shot at a new life, advocating for clemency after State Question 780 turned simple drug possession into a misdemeanor rather than a felony.  But Oklahomans for Criminal Justice Reform wants more — the advocacy group intends to encourage lawmakers in the upcoming legislative session to apply the law retroactively.

“The Legislature will kick off in early February, and we are urging them to look at these sentences,” said Danielle Ezell, an OCJR board member, as she stood outside the correctional center where the commutation hearings took place Wednesday. “There’s over 1,000 folks in for simple drug possession that, if charged today, would not be incarcerated. And we would like to see those charges (retroactively addressed).”

Prior related posts:

November 12, 2018 in Clemency and Pardons, Drug Offense Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, November 11, 2018

How about a few clemency grants, Prez Trump, to really honor vets in need on Veterans Day?

Five years ago in this post, I noted that on Veterans Day I often find myself thinking about veterans who, after serving our country in the military and thereby supporting of our nation's commitment to liberty and freedom, return home and discover the hard way that these constitutional values are not always paramount in our modern criminal justice systems.  This 2015 report on "Veterans in Prison and Jail, 2011–12" found that 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."

In my Veterans Day 2013 post, I asked "How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?".  Five years later, especially after Prez Trump talked up possibly granting thousands of clemencies earlier this year, it seems fitting to pose the same question to Prez Obama's successor.  It also seems worthwhile to link to posts from the summer and thereafter highlights reports and comments by Prez Trump which generated lots of clemency optimism on which he has yet to deliver.

A few of many recent related posts: 

November 11, 2018 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, November 09, 2018

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

November 9, 2018 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, November 08, 2018

SCOTUS relisting packet of cases dealing with application of Hurst v. Florida to past cases

It has been (too?) many months since I have had occasion to talk about what I have long called the "post-Hurst hydra."  As regular readers may be pained to recall, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation that developed in various ways in various courts as state and federal judges tried to make sense of just what the Supreme Court's January 2016 decision in Hurst v. Florida, which declared Florida's death penalty procedures violative of the Sixth Amendment, must mean for past, present and future capital cases.  But the "post-Hurst hydra" is on my mind this morning because of the latest "Rewatch List" from John Elwood at SCOTUSblog, which includes these two paragraphs (with links from the original):

Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent.  Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty.  The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme — under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death — violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty.  But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida17-9284Philmore v. Florida17-9556Tanzi v. Florida18-5160Reynolds v. Florida18-5181Franklin v. Florida18-5228Grim v. Florida18-5518, and Johnston v. Florida18-5793.  The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant — or whether Sotomayor will be filing yet another dissent from denial on this issue.  And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

November 8, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 07, 2018

Based on oral argument in lethal injection case, is there reason to think Justice Kavanaugh could end up a swing voter in some capital cases?

The question in the title of this post is a product of my inclination to make too much of this New York Times report and this SCOTUSblog review of Justice Brett Kavanaugh's oral argument performance in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  The Times piece is headlined "Kavanaugh May Hold Key Vote in His First Death Penalty Case," and here are excerpts:

The Supreme Court heard arguments on Tuesday in an appeal from a death row inmate in Missouri with a rare medical condition that he says will cause excruciating pain if he is put to death by lethal injection. Lawyers for the inmate, Russell Bucklew, said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.

It was Justice Brett M. Kavanaugh’s first death penalty case, and there is good reason to think that he holds the crucial vote. In March, five justices voted to stay Mr. Bucklew’s execution. Justice Anthony M. Kennedy, whom Justice Kavanaugh replaced, joined the court’s four more liberal members to form a majority; the court’s four more conservative justices were in dissent.

Much of Tuesday’s argument concerned earlier Supreme Court decisions that required inmates challenging lethal injection protocols to identify available and preferable methods of execution. Mr. Bucklew said lethal gas was preferable to the state’s current method of an injection of a lethal dose of pentobarbital. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that Mr. Bucklew had not shown that his alternative would be less painful.

Justice Kavanaugh seemed to express doubts about the requirement of identifying an alternative, at least where the usual method of execution coupled with an inmate’s unusual medical condition could produce excruciating pain. “Are you saying,” he asked a lawyer for the state, “even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?”

The lawyer, D. John Sauer, did not immediately give a direct response, and Justice Kavanaugh pressed him. “Is that a yes?” Justice Kavanaugh asked. “Yes, it is, Your Honor,” Mr. Sauer said....

“What the Eighth Amendment prohibits is the unnecessary infliction of pain,” Chief Justice Roberts said. “If the death penalty is constitutional, as it now is, there must be a way to administer it. But if you can show that there’s another way that is less painful, then the theory is, again, that it’s an Eighth Amendment claim because it’s unnecessary pain.”

The chief justice questioned Mr. Bucklew’s proposed alternative of nitrogen gas. “How can it be a reasonable alternative if it’s never been used before?” he asked. Robert Hochman, a lawyer for Mr. Bucklew, said that “there are details to be worked out.”

The SCOTUSblg argument review includes these observations:

The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew....

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state.  He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.”  When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

I am still inclined to predict that the defendant is going to lose here, but these reports still lead me to wonder whether Justice Kavanaugh could prove to be more open generally to claims of capital defendants than other conservative justices.

Prior related post:

November 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 05, 2018

Reviewing some previews of Bucklew v. Precythe

The Supreme Court on Tuesday, Nov 6 will hear oral argument in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  Amy Howe at SCOTUSBlog has this argument preview titled "Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history."  It starts and ends this way:

[T]he Supreme Court will hear oral argument in the case of Russell Bucklew, a Missouri death-row inmate who argues that the state’s plan to execute him by lethal injection violates the Constitution’s ban on cruel and unusual punishment because he suffers from a rare medical condition that could lead to his gagging on his own blood....

Normally, a death-row inmate whose execution has been put on hold can be cautiously optimistic about his chances for success, because a stay of execution requires at least five votes — enough for the inmate to win on the merits.  But Bucklew also knows that four justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed his execution to go forward.  This means that one of the five votes to put Bucklew’s execution on hold presumably came from Justice Anthony Kennedy, who retired from the court on July 31.  Although not much is known about the views of Justice Brett Kavanaugh, who replaced Kennedy earlier this month, on capital punishment, Kavanaugh is generally regarded as significantly more conservative than Kennedy, which could bode poorly for Bucklew.

Paul Cassell at The Volokh Conspiracy has this discussion of Bucklew under the heading "Dilatory Tactics in a Death Penalty Case?".  It starts this way:

In 1996, Russell Bucklew murdered Michael Sanders as his two young sons — only four and six years old — watched their father bleed to death in front of them.  Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture.  Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection).  Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri.  We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims.  Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

November 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 02, 2018

SCOTUS grants cert on another supervised release issue (and a Batson issue in a capital case)

The Supreme Court last week, as noted here, granted cert in United States v. Haymond, No. 17-1672, an interesting case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional.  Today, as reflected in this order, the Court granted cert on another issue related to supervised release through a grant in Mont v. United States, No. 17-8995.  The petitioner's cert petition posed this "Question Presented":

Whether a statute directed to the administration of imprisoned individuals serves as authority to alter or suspend the running of a criminal sentence of supervised release, when such “tolling” is without judicial action, and requires the term “imprisonment” as used in the administrative statute, to include pretrial detention prior to an adjudication of guilt. Is a district court required to exercise its jurisdiction in order to suspend the running of a supervised release sentence as directed under 18 U.S.C. §3583(i) prior to expiration of the term of supervised release, when a supervised releasee is in pretrial detention, or does 18 U.S.C. §3624(e) toll the running of supervised release while in pretrial detention?

Seeking (unsuccessfully) to avoid a cert grant, the government's brief in opposition to cert framed the issue of the case this way:

Whether a period of supervised release for one offense is tolled under 18 U.S.C. 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

In addition to some civil grants, the Court also granted cert on a capital case, Flowers v. Mississippi, No. 17-9572, but limited the grant in this way:

The petition for a writ of certiorari is granted limited to the following question: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986), in this case.

November 2, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 31, 2018

Guest post series on Chicago "stash-house sting" litigation: Part 3 on "A Path for Future Litigation"

6a00d83451574769e2022ad3762ba2200c-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic (FCJC), sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided it into three posts to cover all she has to report.  The first post covered "Sentencing Victories," the second covered "Legal Victories" and this final one set out "A Path for Future Litigation":

A Path for Future Litigation

The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

Lawyers in other jurisdictions can use the litigation and precedents discussed above and in Parts 1 and 2 of this guest post series to fight race discrimination by law enforcement in their own cases.  Here are a few ideas:

  • Hire experts and gather data about racial disparities created by law enforcement in fake stash house robbery cases, gun cases, and others.
  • Litigate motions to obtain discovery regarding selective law enforcement in stash house cases and others, and ask district court judges to apply the lower evidentiary standard set by the Seventh, Third, and Ninth Circuits.
    • Appeal denials of selective enforcement discovery motions and advocate for other courts of appeals to adopt the lower discovery standard.
  • Litigate motions to dismiss for selective law enforcement in stash house cases and others, and ask district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.
    • Appeal denials of such motions to dismiss and advocate for other courts of appeals to adopt a preponderance of the evidence standard on the merits.
  • Use the plea agreements in the Chicago cases to advocate to U.S. Attorney’s Offices to dismiss mandatory minimum charges in fake stash house robbery cases.
  • Use the example of the Chicago U.S. Attorney’s Office to convince other USAOs to cease bringing fake stash house robbery cases altogether.
  • Use the time served sentences imposed in the Chicago cases to advocate for lower sentences in stash house cases elsewhere. Sentencing memoranda prepared by the Federal Criminal Justice Clinic in several of the Chicago cases can be found at these links:

Prior related posts:

October 31, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

I am a big fan of clemency and democracy, but....

I am still not sure I can get behind the proposal discussed in this article under the headline "Vermont Candidate Promises Weekly 'Governor's Pardon TV Show'."  Here are the details:

A Vermont gubernatorial candidate has proposed a nationally televised show in which a booing or cheering crowd would decide the fate of state prisoners.

Independent candidate Cris Ericson, a marijuana advocate who regularly runs for statewide office, outlined her vision in a commentary for Vermont PBS.  “If you elect me, I will host a governor’s pardon TV show every Saturday night and pardon a few of the people who violate the new, unconstitutional anti-gun laws, and some of the nonviolent offenders of other laws, to save Vermonters money,” Ericson said in the commentary.  She was referring, presumably, to new restrictions on gun ownership signed into law in April by her Republican opponent, Gov. Phil Scott.

Ericson said the show would be hosted from the auditorium in Montpelier's Pavilion State Office Building, a few floors below the governor’s office.  “We will have a full audience in the auditorium … and invite 100 Vermonters each week to boo or cheer,” she said. “We will invite family and friends of the prisoners to speak on their behalf.  Then the audience will vote on whether I should grant a pardon as governor with the legal authority to grant pardons.”

Ericson said the state could even generate revenue from the idea, by selling the show and investing the profits in the General Fund.

Though she doesn’t reference the film, the scene Ericson describes bears a striking resemblance to the fictional depiction of America’s justice system in the movie Idiocracy....

A recent poll by Vermont Public Radio and Vermont PBS showed that Ericson had support from about 1 percent of Vermont voters.

October 31, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 30, 2018

Plea waivers and ineffectiveness of counsel for failing to appeal come to SCOTUS in Garza v. Idaho

The Supreme Court will hear argument today in Garza v. Idaho, which presents this criminal procedure question about the application of ineffective assistance of counsel: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."  Over at SCOTUSblog, Even Lee has this extended preview under the heading "Can a criminal defense lawyer refuse to file an appeal from a guilty plea because of an appeal waiver?" and here is how it starts and a bit of its noting of some broader implications:

The last few decades have seen a sharp rise in the number of plea bargains.  The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains.  This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas.  In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.

This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30.  When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel?  Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client.  But Flores-Ortega, now almost two decades old, did not involve an appeal waiver.  Garza gives the court an opportunity to address this situation....

The big policy question that underlies this case is to what degree the courts will enforce appeal waivers. A pronouncement in favor of the broad, if not absolute, enforceability of such waivers would promote the smooth functioning of plea bargaining as the principal method of keeping criminal caseloads under control. On the other hand, every Supreme Court decision allowing a defendant to appeal despite an apparent waiver throws an element of doubt into the plea bargaining “market,” as it were. Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences.

Not everybody wants the plea-bargaining market to function smoothly, though.  In its amicus brief, the libertarian Cato Institute warns that the mushrooming institution of plea bargaining threatens defendants’ effective rights to trial under the Sixth Amendment.  It argues that allowing attorneys to ignore client instructions to appeal undermines client autonomy as enshrined in the criminal procedure portions of the Bill of Rights.

October 30, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 29, 2018

Second Circuit, on third pass of child porn sentence, affirms 25-year prison term it calls "barbaric without being all that unusual"

Back in June I noted here a Second Circuit panel opinion in US v. Sawyer, No. 15-2276, in which a split Second Circuit reversed a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography because the district court, even at a second sentencing, insufficiently addressed statutory sentencing factors and failed "to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  The third time around, the district judge gave a different rationale for imposing a 25-year sentence, and this new split Second Circuit opinion now affirms in an opinion by Judge Jacobs that starts and ends this way:

Jesse Sawyer, having pled guilty to sexual exploitation of children and receipt of child pornography, was originally sentenced primarily to 30 years in prison and a lifetime of supervised release. We ruled that that sentence was shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community, and remanded to the district court for resentencing. The district court disagreed with our analysis but found that Sawyer’s exemplary record as an inmate justified a reduction to 25 years. Sawyer returned the matter to our docket, challenging his new sentence on both reasonableness and law‐of‐ the‐case grounds. By order of July 30, 2018, we affirmed Sawyer’s new sentence. We now explain that we did so because the district court effectively complied with our instruction to significantly reduce Sawyer’s sentence and because that sentence is now within the realm of reasonableness....

On this second appeal, Sawyer continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses.... The sentence is barbaric without being all that unusual.

The dissent by Judge Crawford includes these paragraphs at its start:

On resentencing, the district court declined to give any additional weight to either of the factors we identified. The majority accurately describes the district court’s rejection of the appeals court ruling. I intend no criticism of the trial judge.  She was candid about the reasons for her decision and recommended that the case be referred to another judge if we were to conclude that she erred in rejecting our first ruling.  That was an appropriate course of action, and we can ask no more of a judge who cannot in good conscience follow an appellate ruling.

What we cannot do — and where I part company with the majority — is to fail to enforce our original ruling.  Had the district court resentenced the defendant to the same 30‐year sentence, I have no doubt that the other panel members would have joined me in reversing and referring the case to another district judge for a second resentencing. It is not necessary to agree with an appellate ruling, but under any system of the rule of law it is necessary to follow it.

On resentencing in this case, the district court merely changed the subject.  After rejecting our decision, the court found another, previously unavailable reason to impose a reduced sentence. In the district court’s view, the defendant’s two years of model conduct within the prison system after his original sentencing justified a five‐year reduction of sentence.  This new factor led the court to impose a 25‐year sentence in place of the original 30 years.

The majority is prepared to accept the new sentence as reasonable in length and, in effect, call it a day.  I am not. The new sentence still fails to take into proper consideration the two § 3553(a) factors we singled out as the basis for reversal.  That the defendant has since demonstrated other reasons for a reduced sentence is an entirely separate development that fails to justify the district court’s refusal to follow the original mandate.  At this time, we still do not know how a district court which followed the mandate — by giving significant downward weight to the two § 3553(a) factors we identified — would sentence this defendant.  What all three members of this panel unanimously identified as significant substantive errors in the original sentencing decision remain uncorrected.  These errors continue to form the primary basis for the new sentence.

October 29, 2018 in Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Justice Sotomayor issues another lengthy statement in another capital case in which cert is denied

Justice Sotomayor is starting to make a regular habit of adding some interest to otherwise ho-hum order lists with lots and lots of certiorari denials. Today's SCOTUS order list, for example, gets some intrigue from her statement "respecting the denial of certiorari" in Townes v. Alabama, No. 17–7894. Her five-page statement starts and ends this way:

Today the Court denies review of Tawuan Townes’ capital murder conviction, the constitutionality of which hinges on whether the trial court instructed jurors that they “may” infer his intent to kill a victim or that they “must” do so. The former instruction is constitutional; the latter is not.  There is no way to know for sure which instruction the trial court gave. Two court reporters certified two conflicting transcripts, and the trial court no longer has the original recording.  Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari.  I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern....

The Constitution guarantees certain procedural protections when the government seeks to prove that a person should pay irreparably for a crime.  A reliable, credible record is essential to ensure that a reviewing court — not to mention the defendant and the public at large — can say with confidence whether those fundamental rights have been respected. Parker v. Dugger, 498 U. S. 308, 321 (1991) (“It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant’s actual record”).  By fostering uncertainty about the result here, the trial court’s actions in this case erode that confidence.  That gives me — and should give us all — great pause. 

October 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 28, 2018

Guest post series on Chicago "stash-house sting" litigation: Part 2 on "Legal Victories"

6a00d83451574769e201b7c9134b4d970b-320wiIn this prior post, I explained that Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, sent me an extraordinary update on the extraordinary litigation her clinic has done in response to so-called "stash house stings" in which federal agents lure defendants into seeking to rob a (non-existent) drug stash-house.  (In this post last year, I highlighted this lengthy Chicago Tribune article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," providing an overview on this topic.)  As explained in the prior post, Alison's update is so detailed and interesting, I have divided into three posts all she has to report.  The first post covered "Sentencing Victories," and this one covers "Legal Victories":

Legal Victories

The FCJC’s stash house litigation has also changed the law in a way that makes racially selective enforcement challenges easier to litigate going forward, which in turn will result in better outcomes and lower sentences for clients around the country.  Last week, the Ninth Circuit built on the framework created in a stash house case litigated by the FCJC and became the third federal court of appeals to institute a lower standard for defendants seeking discovery regarding racially selective law enforcement.

In United States v. Davis, 793 F.3d 712 (7th Cir. 2015), a stash house case that was litigated and argued by the FCJC on appeal, the en banc Seventh Circuit became the first court of appeals in the country to relax the legal standard for defendants seeking discovery to support a race discrimination claim against law enforcement officers.  Davis eroded the onerous standard for obtaining discovery regarding racially discriminatory practices set by the Supreme Court in United States v. Armstrong, 527 U.S. 456 (1996).  Davis went to great lengths to distinguish racially selective law enforcement claims from the racially selective prosecution claim in Armstrong, holding, “[T]he sorts of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations.” Davis, 793 F.3d at 721.  Davis represented a sea change in the law — for the previous 20 years, courts had routinely denied the claims of defendants seeking discovery in support of selective prosecution and selective law enforcement claims alike.

Last year, the Third Circuit joined the Seventh Circuit in drawing a distinction between the two types of claims.  See United States v. Washington, 869 F.3d 193, 216 (3d Cir. 2017). But the Third Circuit took this distinction even further, definitively eliminating two requirements that had made it virtually impossible for defendants to obtain discovery in the twenty years since Armstrong.  Specifically, Washington jettisoned both (1) the requirement under the discriminatory effect prong that defendants provide some evidence that “similarly situated persons of a different race or equal protection classification were not arrested or investigated by law enforcement,” and (2) the requirement that defendants “provide ‘some evidence’ of discriminatory intent. Id. at 221.  The Third Circuit’s elimination of these onerous standards represented an enormous development in the law of discovery for selective enforcement cases.

In United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), the Ninth Circuit built on the framework created in Davis and extended in Washington.  Interestingly, the Ninth Circuit joined the Third Circuit’s holdings without emphasizing or even mentioning that those holdings had dramatically lowered the legal standard.  First, the Ninth Circuit joined the Third in eliminating the biggest barrier to proving the first prong — discriminatory effect — by holding that a defendant could obtain discovery in support of a selective enforcement claim without providing “evidence that similarly-situated individuals of a different race were not investigated or arrested.” Id. at *6.  Second, the Ninth Circuit held that a defendant need not present evidence of both discriminatory effect and discriminatory intent to obtain discovery, but may simply present “some evidence” supporting one prong or the other. Id.  Sellers thus significantly expanded district court discretion to grant discovery.  Judge Nguyen’s concurrence went still further, explaining that evidence that law enforcement was targeting neighborhoods of color is itself proof of discriminatory effect. Id. at *11 (Nguyen, J., concurring).

Prior related post:

October 28, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 25, 2018

Notable relists and "petitions of the week" from SCOTUSblog

Thanks to cases engaging the Double Jeopardy and Excessive Fines Clauses, the current Supreme Court Term is already rich and interesting for criminal justice fans.  But over at SCOTUSblog, recent posts about relists and petitions to watch add to the potential excitement concerning the Court's criminal docket.  It is very unlikely that the Justice will grant cert on all or even most of these cases, but even one or two grants from this bunch would make an already exciting Term that much more intriguing: 

Relists:

United States v. Haymond17-1672 (and Sperling v. United States, 17-8390)

Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Wood v. Oklahoma17-6891 (and Jones v. Oklahoma, 17-6943)

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

Shoop v. Hill18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

New petitions to watch:

Prison Legal News v. Jones, 18-355

Issue: Whether the Florida Department of Corrections’ blanket ban of Prison Legal News violates a petitioner’s First Amendment right to free speech and a free press.

Castillo v. United States, 18-374

Issue: Whether a criminal defendant convicted of violating the Maritime Drug Law Enforcement Act, 46 U.S.C. § 70501, et seq., and subject to a mandatory minimum sentence under 21 U.S.C. § 960, is eligible for relief from that mandatory minimum under the statutory “safety valve” of 18 U.S.C. § 3553(f).

Haight v. United States, 18-370

Issue: Whether a criminal offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

October 25, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 24, 2018

"Undue Influence: A Prosecutor's Role in Parole Proceedings"

The title of this post is the title of this short paper recently posted to SSRN authored by R. Michael Cassidy.  Here is its abstract:

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings.  He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. 

Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information pertaining to an inmate’s post-conviction behavior that would assist the board in making an accurate legal and factual determination.  Cassidy surveys the approaches taken by parole board statutes and regulations in fifty states and discusses which of those approaches properly calibrate the scope and limits of a prosecutor’s input in release decisions.

October 24, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Thursday, October 18, 2018

Washington Supreme Court declares all juve LWOP cruel punishment and unconstitutional under state constitution

Last week, as noted here, the Washington Supreme Court struck down the state's death penalty based on its arbitrary administration in Washington v. Gregory. Today the same court brings us another big state constitutional opinion in Washington v. Bassett, No. 94556-0 (Wash. Oct. 18, 2018) (available here). The death penalty abolition, interestingly, was unanimous, while this latest opinion divided 5-4. Here is how the majority opinion starts:

At issue here is the constitutionality of sentencing juvenile offenders to life in prison without the possibility of parole or early release.  The State appeals a Court of Appeals, Division Two decision holding that the provision of our state's Miller-fix statute that allows 16- and 17-year-olds to be sentenced to life without parole violates the Washington Constitution's ban on cruel punishment.  Brian Bassett, recently resentenced to life without parole under the Miller-fix statute, argued at the Court of Appeals that juvenile life without parole is categorically unconstitutional.  The court adopted the categorical approach, rather than our traditional Fain proportionality test, and found that sentencing juvenile offenders to life without parole or early release constituted cruel punishment.  State v. Bassett, 198 Wn. App. 714, 744, 394 P.3d 430 (2017) (puhlished in part); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).  We affirm the Court of Appeals' decision and hold that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment and therefore is unconstitutional under article I, section 14 of the Washington Constitution.

Here is how the dissent gets started:

The majority's decision to invalidate a provision of our Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar the imposition of a juvenile life without parole (LWOP) sentence purports to rest on article I, section 14 of the Washington State Constitution.  However, it offers no basis in state law but is simply a reinterpretation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  More precisely, the majority takes Miller's federal constitutional requirement — that a sentencing court consider youth and its attendant characteristics as mitigating factors in exercising sentencing discretion to impose LWOP — and uses it to categorically bar the exercise of such discretion under the state constitution.  Not only is this contrary to the holding in Miller itself, which does not categorically bar LWOP sentences for juvenile homicide offenders, it also departs from state precedent rejecting similar constitutional challenges and upholding judicial sentencing discretion.

October 18, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 15, 2018

Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham

As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:

A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles.  State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.

The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18.  Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.

In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.

The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote.  Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”

Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...

Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.

The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.

October 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Over dissent, SCOTUS refuses to take up Johnson challenge to then-mandatory career-offender guidelines

The Supreme Court had recently relisted a set of cases concerning whether and how the Court's vagueness ruling in Johnson applied to a key provision of the career-offender sentencing guideline when that guideline was still mandatory before the Booker ruling. (Sentencing gurus know that the Justices in Beckles decided that Booker melted away any constitutional vagueness problems when it make the guidelines advisory.) Today, via this new order list, the Court denied cert on all these cases.

I am a bit surprised and a lot disappointed by these cert denials, largely for reasons expressed by Justice Sotomayor in this dissent joined by Justice Ginsburg in Brown v. US, No. 17–9276.  Here is how the four-page dissent from the denial of certiorari starts and ends:

Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences.  They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision.  These petitioners argue that their sentences, too, are unconstitutional.  This important question, which has generated divergence among the lower courts, calls out for an answer.  Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent....

The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no.  See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018).  One Court of Appeals has said yes.  See Cross v. United States, 892 F.3d 288 (CA7 2018).  Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly.  See Moore v. United States, 871 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F. Supp. 3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17–2169 (CA1).  One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness.  See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).

Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people.  That sounds like the kind of case we ought to hear. See this Court’s Rules 10(a), (c).  Because the Court nevertheless declines to do so, I respectfully dissent.

October 15, 2018 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

"How Statistics Doomed Washington State’s Death Penalty"

The title of this post is the title of this new commentary at The Atlantic by Garrett Epps.  Here is an excerpt (with links from the original):

Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning.  And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.

The court’s decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state’s response, and file a detailed evaluation.  The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, “black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.” Thus, the state court concluded, “Washington’s death penalty is administered in an arbitrary and racially biased manner” — and violated the Washington State Constitution’s prohibition on “cruel punishment.”

The court’s opinion is painstaking — almost sarcastic — on one point: “Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles.”  “Adequate and independent” are magic words in U.S. constitutional law; they mean that the state court’s opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment.  Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.  

 Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law,  a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles.  That’s an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde.  It was a good idea then and it’s a good idea now.  State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution.  There’s something bracing about this kind of judicial declaration of independence, when it is done properly.

Prior related posts:

October 15, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 14, 2018

Alice Marie Johnson urges Prez Trump to free "thousands more" federal prisoners like her

Trump-just-granted-clemency-to-alice-johnson-afte-2-758-1528302960-6_dblbigThe now-famous, drug-dealer-serving-LWOP grandmother Alice Marie Johnson, who was granted clemency three months ago by Prez Donald Trump, has authored this lengthy new Fox News opinion piece headlined "President Trump freed me from prison – I’m glad he wants to give other nonviolent offenders their freedom."  Here are excerpts:

On June 6, I walked out of prison as a free woman after serving almost 22 years of my life sentence on a first-time nonviolent drug conviction, thanks to a decision by President Trump to commute my sentence to time served.  I was thrilled to hear the president say this week that he is looking to give early release to additional nonviolent prisoners like me....

I can never thank the president enough.  He heard my voice, gave life to my hope and promise to my future.  I am a 63-year-old grandmother who just wants to live in peace and enjoy my family.  There is zero chance I will ever break the law again....

Many other nonviolent offenders in federal prisons today are — like me — no danger to society, and I look forward to having President Trump and members of his administration examine their cases.  Many of these men and women have spent long years in prison and deserve to receive clemency or a commutation of their sentences from the president.

Freeing these offenders early would be an act of justice and mercy, as granting me my freedom was.  And early release would save taxpayers the cost of feeding and housing these people for years after they have paid their debt to society.

When President Obama began granting clemency to nonviolent offenders near the end of his presidency, he gave hope to thousands of people like me.  By 2016, I was 20 years into my life sentence.

My path to prison began at a time in my life when I faced some desperate choices.  I made a terrible decision to participate in a drug conspiracy — a decision I very much regret.

But during my two decades in prison, I accomplished an extraordinary rehabilitation — writing plays, volunteering in the prison hospice, becoming an ordained minister and mentoring to young women in prison.  By 2016 I was a new woman living a new life, even if it was a life I thought was destined to be lived only behind bars.

President Obama’s clemency initiative gave me hope.  I had been told not to hope, not to dream, because I would never be set free. As his presidency came to a close, President Obama began releasing hundreds of other nonviolent offenders, and I became sure I would be released as well.  My prison warden, captain, case manager and vocational training instructor all recommended I be granted clemency.

Unfortunately, I was left behind.  President Obama left office without giving me the chance to start a new life.  And I learned that putting your hope in one man is a mistake, because when that hope dies, you think all your hope has to die. When I received the denial letter from the Office of the Pardon Attorney, I was devastated.  I don’t know why my request was denied, because no explanation was given.  But that decision left me so disappointed.

My petition met all the criteria for clemency.  I had reformed my life in prison and I felt it should have been clear to anyone that I would contribute to society if I was released.  But President Obama left, President Trump arrived and I was told again to give up hope.  I didn’t.

I kept fighting for myself because I know that hearts can change, and no matter what administration is in power, you have to be willing to come to the table, sit down and talk about whether you can find common ground.

Thankfully, Jared Kushner and others working for President Trump have worked to keep clemency and criminal justice reform alive.  They can see that not every person who makes a mistake deserves for that mistake to define the rest of their life. They know that hope is important, but it must also be turned into meaningful change....

I did not leave prison bitter.  I love America and believe in the inherent goodness of the American people and the possibility of redemption.  Now it is President Trump who can make history if he takes the opportunity to go further than any president before him by giving second chances to thousands of people who just need someone to hear them.

The president has a power that the Constitution grants to him alone to both show mercy and deliver justice for people who were given excessively long sentences for crimes involving no violence.  The people who deserve to be freed are those who have long since recognized their mistakes and who have rehabilitated themselves during their time in prison.

I will never forget what President Trump did for me. He changed my life and gave me the opportunity to fulfill my potential, and now he has the chance to do the same for thousands more.

I find it interesting and encouraging that Ms. Johnson says there are "thousands more" federal prisoners like her and that she calls upon Prez Trump to "make history" by going "further than any president before" in the use of his clemency powers. To surpass Prez Obama here, Prez Trump would have to grant more than 1700 clemencies, and I know Ms. Johnson is not the only one who would like to see this happen.

October 14, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not.  In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record.  But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement.  The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. 

Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record.  This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts. 

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement.  Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well.  But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase.  As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.

Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information.  In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

October 14, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 11, 2018

Tennessee Gov grants last-minute reprieve so state can fulfill condemned's request to be executed by electric chair

As reported in this Tennessean article, "three hours before Edmund Zagorski was scheduled to die, Gov. Bill Haslam delayed the inmate's execution so the state could prepare to use the electric chair to kill him."  Here is more:

Haslam said a short delay would give the state time to accommodate Zagorski's preference for the electric chair over a controversial lethal injection cocktail.  Late Thursday night, the U.S. Supreme Court eliminated two other legal hurdles that might have derailed the execution, making it more likely to move forward soon.

Haslam's temporary reprieve and the high court's decisions came after several days of rapid-fire developments put the state on the defensive and put the timing of Zagorski's execution in question. Haslam's reprieve was for 10 days, but it could take longer for a new execution date to be set by the Tennessee Supreme Court.

The U.S. Supreme Court struck down two stays Thursday night, essentially ending his remaining legal options to avoid execution:

The high court vacated a stay from the 6th Circuit Court of Appeals. The appeals court had planned to weigh whether Zagorski may pursue claims his trial attorneys made errors in representing him.

A majority of justices rejected a request from Zagorski’s attorneys for another stay so the high court could review a constitutional challenge to Tennessee’s lethal injection protocol.

Justices Sonia Sotomayor and Stephen Breyer dissented, saying they would have reviewed the lethal injection protocol. In her dissent, Sotomayor said Tennessee's lethal injection method, which experts say leads to torture, should be scrutinized....

Zagorski sued this week to force the state to use the electric chair for his execution, saying the pain of electrocution would be preferable to the controversial lethal injection. A federal judge issued an order temporarily barring the state from executing him by lethal injection while that suit is pending. The suit could be moot if the state agrees to move forward with the electric chair.

Haslam specifically cited the electric chair suit in his reprieve, suggesting that a delay would give the state time to prepare to execute Zagorski using the electric chair. “I take seriously the responsibility imposed upon the Tennessee Department of Correction and me by law, and given the federal court’s decision to honor Zagorski’s last-minute decision to choose electrocution as the method of execution, this brief reprieve will give all involved the time necessary to carry out the sentence in an orderly and careful manner,” Haslam said in a statement....

The state initially refused Zagorski's request to be executed by the electric chair, saying he was too late and hadn't given two weeks' notice. But District Judge Aleta Trauger at noon Thursday said the state could not use lethal injection until she had considered Zagorski's claim.

Zagorski, 63, faces death for the April 1983 murders of John Dale Dotson and Jimmy Porter. He shot them, slit their throats and stole their money and a truck, prosecutors say. The two men had expected to buy 100 pounds of marijuana from Zagorski.

Verna Wyatt, an advocate with Tennessee Voices for Victims, has been in contact with Dotson’s family as the challenges and uncertainty piled up. “What this process does to the victims’ families is barbaric,” Wyatt said. “Thirty-four years, they don’t get justice and it’s an ongoing reliving of their grief and what happened to their loved one. If they won’t fix this system, it should be abolished. This is not justice on any level. It’s outrageous.”

Justice Sotomayor's dissent on the lethal injection claim is available at this link and it ends this way:

I accordingly would grant Zagorski’s request for a stay and grant certiorari to address what renders a method of execution “available” under Glossip. Capital prisoners are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths. The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality. I dissent.

October 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Washington Supreme Court strikes down state's death penalty based on its arbitrary administration

I am on road and so unable to read or comment on this big unanimous opinion. I hope to be able to do so before too long.

UPDATE:  Here is how the opinion for the court in Washington v. Gregory starts and ends:

Washington's death penalty laws have been declared unconstitutional not once, not twice, but three times.  State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).  And today, we do so again.  None of these prior decisions held that the death penalty is per se unconstitutional, nor do we.  The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.  As noted by appellant, the use of the death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant.  The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution....

Under article I, section 14, we hold that Washington's death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner.  Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.  Pursuant to RCW 10.95.090, "if the death penalty established by this chapter is held to be invalid by a final judgment of a court which is binding on all courts in the state, the sentence for aggravated first degree murder ... shall be life imprisonment."  All death sentences are hereby converted to life imprisonment.

October 11, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, October 10, 2018

Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward

This short piece from The Hill, headlined "McConnell looking at criminal justice reform after midterms," provides an encouraging update on the prospects for federal criminal justice reform after next month's  election:

Senate Majority Leader Mitch McConnell (R-Ky.) says he will move a criminal justice reform compromise after the Nov. 6 election if it has 60 votes.

The Senate GOP conference is divided on the package, which merged a House-passed prison-reform bill with bipartisan sentencing reform provisions crafted by the Senate....

“Criminal justice has been much discussed,” McConnell told reporters Wednesday. “What we’ll do after the election is take a whip count and if there are more than 60 senators who want to move forward on that bill, we’ll find time to address it.”

It’s a significant commitment from McConnell who has resisted bringing criminal justice reform legislation up for a vote because it divides his conference.

I blogged here a prior Hill article from a couple of months ago during Senate negotiations over the FIRST STEP Act which indicated that the White House back then had secured "30 to 32 ... 'yes' votes among Republican senators [and hoped] that the number of GOP supporters could eventually grow as many as 40 to 46."  That article led me to speculate in August that a version of the FIRST STEP Act could perhaps garner up to 90 votes in the Senate, and I do not think this head-counting is likely to change all that dramatically after the election (though one never knows).  Even if "only" 30 GOP Senators favor moving forward on the FIRST STEP Act, that will be more than enough for Senator McConnell to move ahead unless a whole lot of Democratic Senators decide they want to hold out for a more ambitious bill (which I think is unlikely). 

In other words, I am starting to think that the prospect of the FIRST STEP Act becoming law before the end of the year might be pretty darn good.  I am never inclined to count on Congress on get anything done, but on this front it does seem we are getting closer and closer.

Some of many prior recent related posts:

October 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row"

The title of this post is the title of a new report from the Center for Death Penalty Litigation. Here is a summary of the report from this page at the CDPL website:

The death penalty is all but extinct in North Carolina.  Juries have recommended only a single new death sentence in the past four years.  The state hasn’t carried out an execution since 2006.  Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women.  It is a relic of another era.

More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws.  During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.

Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape.  New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases.  A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.

Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case.  Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era.  The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.

CDPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:

92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country.  The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.

84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.

73% (104) were sentenced before laws barring the execution of people with intellectual disabilities.  Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.

73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder.  Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.

October 10, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, October 09, 2018

Justice Sotomayor issues cert statement discussing "deeply troubling concern" with solitary confinement

The Supreme Court's order list this morning includes no cert grants, but does have an interesting eight-page statement by Justice Sotomayor starting this way:

A punishment need not leave physical scars to be cruel and unusual. See Trop v. Dulles, 356 U.S. 86, 101 (1958).  As far back as 1890, this Court expressed concerns about the mental anguish caused by solitary confinement.  These petitions address one aspect of what a prisoner subjected to solitary confinement may experience: the denial of even a moment in daylight for months or years.  Although I agree with the Court’s decision not to grant certiorari in these cases because of arguments unmade and facts underdeveloped below, I write because the issue raises deeply troubling concern.

UPDATE:  Amy Howe provides this helpful context and summary of this case via this post at SCOTUSblog:

The justices announced today that they will not hear the cases of three Colorado inmates who argue that holding them in solitary confinement, without any access to the outdoors or concerns about security, violates the Constitution’s ban on cruel and unusual punishment.  Two of the inmates, Jonathan Apodaca and Joshua Vigil, didn’t go outdoors for more than 11 months, while the third inmate, Donnie Lowe, didn’t have outdoor recreation for several years.  Prison officials argued that they could not be sued because it was not clearly established -- the standard to overcome the general presumption that government officials are immune from lawsuits -- that their solitary-confinement policy was unconstitutional.  The U.S. Court of Appeals for the 10th Circuit agreed, and the inmates asked the Supreme Court to weigh in.  Justice Stephen Breyer has expressed concern about holding inmates in solitary confinement before: Last year he dissented from the Supreme Court’s announcement that it would not block the execution of a Texas death-row inmate who had been held in solitary confinement for 20 years.  And now-retired Justice Anthony Kennedy suggested in 2015 that extended periods of solitary confinement might violate the Eighth Amendment’s bar on cruel and unusual punishment.  But there were apparently not four votes to take up the issue now.

In an eight-page opinion regarding the court’s decision to deny review, Justice Sonia Sotomayor suggested that the justices might have rejected these cases because the lower courts had not focused on whether Colorado had valid security reasons for its solitary-confinement policy.  But Sotomayor then went on to express “grave misgivings” about solitary confinement, noting that as many as 100,000 inmates (including many who are not on death row) are held in cells alone.  And she pointed out that Donnie Lowe -- who was held in solitary confinement for 11 years while serving time for second-degree burglary and smuggling contraband into prison -- died earlier this year: “While we do not know what caused his death,” she concluded, “we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars.”  She ended her opinion with a plea to courts and prison officials to “remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

October 9, 2018 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol

As reported in this legal news story, "Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state’s next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative." Here is more on the ruling and a link to the full opinion:

Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.

But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”

That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.

The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.

But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.

Tennessee is scheduled to execute Edmund Zagorski on Thursday, October 11.

October 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 08, 2018

Highlighting efforts by some prosecutors to help with expungements

Today's New York Times has this notable new article under the headline "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." Here are excerpts:

[A]lthough law enforcement officials have traditionally opposed [broadened expungement and sealing laws] for an array of reasons — including accountability, a belief that records are vital to public safety, and unstinting support for crime victims — a growing number of them have begun to recognize that criminal records can be enduring obstacles to self-sufficiency and even help trap people in cycles of crime.  Increasingly, they are overtly endorsing mercy through record suppression.

“It’s just a matter of trying to remove obstacles that would make it more difficult for someone to become a productive member of the community,” said Terry Curry, the elected prosecutor in Marion County, which includes Indianapolis and has a population approaching 1 million residents.  “If an individual has stayed out of the criminal justice system, then why should they continue to have that stain forever?”

Though in most places the paperwork burden for expungements has fallen on private lawyers and nonprofit legal clinics, South Florida prosecutors now routinely hold events intended to help people wipe away records of arrests but not convictions.  A district attorney in rural Louisiana leads information sessions about expungements for some felony convictions after a 10-year waiting period; a Vermont prosecutor recently held a record-clearing clinic; and the authorities near Fort Bragg, N.C., attracted about 500 people to an expungement event last year.  Last month, the Brooklyn district attorney promoted “Begin Again” events, where, one advertisement said, people were invited to “clear your record of a misdemeanor marijuana conviction or warrant.”

But there is still a national patchwork of policies and terminologies, from destroying records to sealing them to simply noting that a conviction is effectively vacated. States have imposed various waiting periods, conditions and fees.  Some places have made their processes deliberately simple, while others have complicated approaches that may require legal assistance or court hearings.

The proliferation of new laws, and newfound enthusiasm on the part of some prosecutors, has hardly erased all doubts about the wisdom of suppressing records.  Many prosecutors, especially in rural areas, remain skeptical of any action to show mercy for a person’s past, and some judges engage in measured resistance, holding hearings more to complain about an expungement law than to weigh an application’s merits.  “You have prosecutors and judges who just think it’s wrong: ‘You’ve caused trouble in this county, you’re a wrongdoer and you shouldn’t get a blank slate,’” said Bernice Corley, the executive director of the Indiana Public Defender Council.

But Margaret Love, the executive director of the Collateral Consequences Resource Center and a former United States pardon attorney, said that clemency and expungements are part of the criminal justice process for a reason.  “It ought to be something that prosecutors welcome and use to their advantage to create criminal justice success stories, to advertise criminal justice success stories,” she said.

The nuanced approach in Indiana, where officials hoped that expungements would improve people’s job prospects, is increasingly seen as a model.  Under its so-called Second Chance law, the state has a tiered system in which the offense, and the outcome of the case, determines the waiting period and the exact relief.  Indiana does not destroy records, but can limit access to them and mark them as expunged, and crime victims are permitted to express their views before any decision is made.  “Indiana should be the worst place in America to commit a serious crime and the best place, once you’ve done your time, to get a second chance,” Gov. Mike Pence, now the vice president, said when he signed the records measure into law in 2013.

I am glad to see this topic garner the attention of the Times, though I am a bit disappointed not to see any mention of the particularly notable marijuana-reform developments on this front. Specifically, as I discussed briefly in this recent paper for the Federal Sentencing Reporter, a number of prosecutors in California began taking proactive steps to clear prior marijuana convictions after the state enacted marijuana legalization in 2016.  

October 8, 2018 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history

A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act.  The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. StittHere are the basics on these cases via SCOTUSblog coverage:

Stokeling Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Argument preview: Do "slight force" robberies count for enhancing Armed Career Criminal Act sentences? by Rory Little

Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Argument preview: What vehicle burglaries, if any, count for enhancing Armed Career Criminal Act sentences? by Rory Little

October 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, October 04, 2018

En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge

If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here).  Here is part of the start of the majority opinion:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague.  As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).  The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds.  In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed....  In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague.  Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).

On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague.  As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....

The obvious (and decisive) question, then: Which is it here — categorical or conduct-based?  Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.”  Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”  Hooper v. California, 155 U.S. 648, 657 (1895)....

Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be.  Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. 

The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury.  The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.  Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes.  Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.

October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence

In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences.  The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:

A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED.  The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019.  The opinion and judgment entered April 9, 2018 are hereby vacated.

In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old.  After Graham and Miller, he was resentenced to a 65-year federal prison term.  The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.

October 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 03, 2018

"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"

The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute.  Here is how it gets started and part of its conclusion:

Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years.  Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor.  Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.

The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances.  This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....

Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.

The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country.  Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma.  State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.

But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options.  Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.

October 3, 2018 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, October 02, 2018

Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always

On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center.  Here is SCOTUSblog's overview via this round-up post:

Today the eight-justice court will tackle two more cases.  The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine.  Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review.  Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime.  This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here.  Tucker Higgins reports on the case for CNBC.

As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence.  The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons.  But I cannot help but note what seems to me to be relatively small stakes in Madison. 

I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state.  In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."

Prior related preview posts:

UPDATE via SCOTUSblog:  The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?" 

October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Monday, October 01, 2018

Previewing SCOTUS consideration of capital competency (and making a case for abolition)

The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases."  Her post starts this way:

It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.

Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”

 Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial.  After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.

Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty."  Here are excerpts:

The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols.  As the mills have ground on, life has ground Madison, 68, down to wreckage.  After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....

The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.”  For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry.  Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment.  Deterrence is another.  But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial.  Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....

Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.”  That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.

Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.

UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."

October 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)

A bunch of Dimaya GVRs and a hundreds of criminal case cert denials in first SCOTUS order list of October Term 2018

As noted in this post a few weeks ago, law professor Rory Little had this great lengthy post at SCOTUSblog previewing the criminal side of the Supreme Court's docket under the heading "Criminal cases in the October 2018 term: A law professor’s dream."  But as the Court's term officially gets started today, this first SCOTUS order list may seem a bit like a criminal defense lawyer's nightmare because of the extraordinary number of criminal cases in which cert is denied.  Of course, every first order list to start every new Term includes a huge number of denials of cert in all the criminal cases that stack up over the summer break.  But it still is a bit startling to scroll through page after page after page after page of what all appear to be criminal cases in which cert has been denied this morning.

That all said, the SCOTUS order list does include a bunch of GVRs based on the vagueness ruling in Sessions v. Dimaya, most of which appear to involve criminal cases.  I have not been able to follow all the Dimaya fall-out as closely as some true experts, but I suspect that these GVRs are noteworthy not only because they come amidst a sea of cert denials.  Also, there might well be some significant criminal case relists hiding in the certiorari carnage that today's order list reflects.  So criminal justice fans and sentencing fans may still be able to find a SCOTUS silver lining in today's order list.  And, of course, on so many fronts, SCOTUS activity is just getting heated up.

October 1, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly

In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws.  This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:

Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.  The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.

For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.

The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society.  State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.

Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1.  But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....

Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide.  The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....

On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules.  “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday.  “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”

October 1, 2018 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, September 26, 2018

Another effective preview of coming SCOTUS review of SORNA delegation in Gundy

I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA).  I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement. 

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....

How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.

Prior related post:

September 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, September 19, 2018

An impressive overview of the SCOTUS criminal docket on the eve of a new Term

Rory Little has this terrific lengthy post over at SCOTUSblog under the heading "Criminal cases in the October 2018 term: A law professor’s dream." The post provides a detailed review of a handful of the criminal cases on tap for the start for the coming Supreme Court Term as well as a brief review of all the other. Here is how the post begins:

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues.  (A few more will be granted in the “long conference” order list to be released September 27.)  This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream.

September 19, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"A Way Out: Abolishing Death By Incarceration in Pennsylvania"

AlcThe title of this post is the title of this lengthy new report released this week by the Abolitionist Law Center.  Here are excerpts from its executive summary:

Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.

With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.

In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania.  As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....

Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color.  Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.

Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.

Among other interesting aspects of this big report is this introductory note about terminology:

Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences.  We do this for several reasons.  First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with.  Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death.  Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status.  Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.

September 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, September 18, 2018

Previewing the two capital punishment administration cases before SCOTUS this fall

Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:

Madison v. Alabamato be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...

[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.” 

Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.

In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.

He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....

Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation.  The Eighth Circuit said that he did not prove the gas chamber would be better.  The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly.  A trial court could compare the two descriptions and reach its own conclusion about relative agony.  Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....

The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.

The court seems likely to be hostile to prisoners’ claims, however.  In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”

September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 17, 2018

SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

Guest-postsI am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.  

September 17, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, September 15, 2018

"A Reparative Approach to Parole-Release Decisions"

The title of this post is the title of this paper authored by Kristen Bell recently posted to SSRN. Here is its abstract:

Scholars have argued for enhanced procedural protections at parole hearings, but for the most part without a focus on what substantive criteria ought to guide parole-release decisions.  I undertake this normative project, first describing the approach to parole-release decision criteria from the perspective of four standard theories of punishment: retributive theory, deterrence theory, rehabilitation theory, and communicative theory.  I argue that each of the respective criteria flowing from these theories of punishment is morally objectionable on two grounds: failure to respect the agency of prisoners, and failure to take seriously the limits of our knowledge.  After setting forth these theories and the objections to which they are subject, I turn to draw lessons from how California’s parole-release system functions in practice.

Drawing on both the theoretical and practical perspectives on parole-release criteria, I argue in favor of a fundamental change.  I propose a “reparative approach” that builds on aspects of restorative justice and takes seriously respect for the moral agency of prisoners, victims, and the broader political community.  On this approach, people directly affected by the crime join with others at the outset of a prisoner’s sentence to deliberate and decide upon reasonably achievable criteria that the prisoner would need to meet in order to be released.  At the end of the prisoner’s judicially prescribed period of incarceration, the release decision would then be a ministerial determination of whether the prisoner has in fact met the criteria that were decided upon at the outset.  I leave for future work the question of whether and how such a policy could be implemented in the context of the contemporary American criminal justice system.

September 15, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, September 12, 2018

Florida felony disenfranchisement ugliness getting a lot more scrutiny thanks to John Oliver

John-oliver-discusses-felony-disThis local article, headlined "This HBO comedian ridiculed Florida’s clemency process. Rick Scott takes it seriously," reports on notable developments in Florida thanks in part to a low-profile issue getting some high-profile attention.  Here are excerpts:

For only the third time this year — but this time under a withering national media glare — Florida’s highest elected officials sat in judgment Tuesday of people whose mistakes cost them the right to vote.

During a five-hour hearing, 90 felons made their case to Florida Gov. Rick Scott and three members of the Cabinet, asking to have their rights restored. It was a packed house in the Cabinet room of the state Capitol, as Tuesday’s hearing drew reporters and cameras from, among other outlets, NPR, The Huffington Post and The Guardian. The hearings typically attract one or two members of the Tallahassee press corps.

Only two days before, Florida’s restoration of rights process was skewered on national TV by John Oliver of HBO’s “Last Week Tonight.” He devoted a 13-minute segment to the Florida clemency system, calling it “absolutely insane” and mocking Scott for creating “the disenfranchisement capital of America.”

Under a policy struck down by a federal judge that remains in effect while Scott and the state appeal, anyone with a felony conviction in Florida must wait five years before petitioning the state to regain the right to vote, serve on a jury or possess a firearm.

Florida has an estimated 1.5 million felons who have been permanently stripped of the right to vote, far more than any other state. To get their rights restored, they must formally apply to make an appeal before Scott and the Cabinet, which is now composed of Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam and Chief Financial Officer Jimmy Patronis....

Voters will have a chance to overhaul the restoration system before Scott and the three Cabinet members are scheduled to hold their next clemency hearing on Dec. 5. A month before then, on Nov. 6, voters will decide on Amendment 4 that would restore the right to vote to most felons after they complete their sentences, if 60 percent of voters approve....

The five-year waiting period was implemented by Scott, Bondi, Putnam and another Cabinet member after their election in 2010. A statewide petition drive collected nearly 1 million signatures to get Amendment 4 before voters this fall.

Scott, the Republican nominee for U.S. Senate against Democrat Bill Nelson, supports the existing system. With his approval, the state is now appealing U.S. District Court Judge Mark Walker’s decision to strike down the rights restoration system as arbitrary and unconstitutional.

Amendment 4 does not distinguish between violent and non-violent felons, but people convicted of murder and sex crimes would not be eligible to regain their rights if it passes. A political committee that supports the amendment, Floridians for a Fair Democracy based in Clearwater, spent $3.579 million in the week ending Aug. 31, with nearly all of the money spent on a “media buy,” which likely means TV advertising. The group has raised $14.4 million so far with large contributions from a number of wealthy out-of-state individuals and from the American Civil Liberties Union.

The permanent elimination of civil rights to felons has been in effect in the state for more than a century, under Republican and Democratic governors, and was lifted only during the four-year term of Charlie Crist, from 2007 to 2011, when 155,315 offenders who were released had their rights restored. Under Scott, only about 4,350 offenders have had their rights restored.

The full John Oliver segment, which is gets especially interested toward the end, is available at this link.

Some (of many) prior related posts:

September 12, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 11, 2018

A terrific partial unpacking of "Johnson v. United States: Three years out"

I noted in posts here and here last month, Attorney General Jeff Sessions and Senators Orrin Hatch and Tom Cotton are talking up the need for reform to the Armed Career Criminal Act in response to the Supreme Court's 2015 ruling in Johnson v. US.   I just now noticed that Andrew Hamm has this lengthy follow-up post at SCOTUSblog under the title "Johnson v. United States: Three years out."  I recommend that post in full, and here is a flavor:

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences.  Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.  For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes?  If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?  This post looks at some of the different factors at play....

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.  According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause.  They disagree on how broadly the law would sweep.  Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.  People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee.  Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress. 

This post provides a clear and balanced review of data and the state of the debate over one proposed ACCA fix in the wake of Johnson.  But I call the post only a "partial unpacking" of the post-Johnson landscape because it does not address whether and how federal ACCA charging practices have changed after Johnson and/or whether it might be especially sound to just give judges more sentencing discretion in response to an array of ACCA problems.

The reason Johnson in particular, and ACCA in general, is so consequential and the subject of so much litigation is because ACCA's intricate and vague rules about predicate offenses turn a regulatory crime (possessing a firearm as a felon) with normally only a 10-year maximum sentence into a mega-crime with a 15-year mandatory minimum sentence.  Rather than dicker excessively over the particulars of the rules for qualifying predicates in future ACCA debates, it might make a lot more sentence to just raise the normal maximum to, say, 15 years and also lower the ACCA minimum to, say, 5 years.  By so doing, persons with priors that might or might not qualify for ACCA treatment still could be sentenced under (advisory) guidelines in the 5-to-15-year range without a need to litigate all the particulars of all the priors.  Just a thought for would-be staffers looking forward to "six to eight months" of ACCA debates.

Prior related posts:

September 11, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Monday, September 10, 2018

Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1

Depc_testA few months ago, I flagged here the interesting and intricate drug sentencing and prison reform initiative headed for the November 2018 ballot here in Ohio.  Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1.   With early voting in Ohio now just a month away and Election Day 2018 not much more than 50 days away, the new Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law has a lot of Issue 1 programming about to begin and has a lot of resources already assembled on its website.

This Thursday, September 13 at 12noon, starts a series five public panels under the title Ballot Insights.  Registration for these panels is available at this link, where you can also find more details on scheduled speakers and on which aspects of the Issue 1 will be the focus for particular panels (e.g., a first panel in October is focused on the Issue 1 provisions expanding "earned time credit" for Ohio prisoners to reduce their sentences through rehabilitative programming; a second panel in October looks at how to ensure any increased funding for drug treatment is utilized effectively). 

I have the pleasure of moderating the first Issue 1 panel this coming Thursday, which is titled simply "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment: Step in the Right Direction."  This panel will include a leading proponent of Issue 1 (Steven JohnsonGrove of the Ohio Justice & Policy Center), a leading opponent of Issue 1 (Louis Tobin of the Ohio Prosecuting Attorneys Association), and a leading Ohio criminal justice reform expert (Daniel Dew of The Buckeye Institute).  The bios of the presenters are detailed at this link.

In addition to all the panels, DEPC has also created a Resources Page for Issue 1, which includes links to the ballot language, position statements from various groups and select media coverage.  DEPC is also building out a Commentary Page on Issue 1 for publishing original commentary that the Center has solicited. (A pair of public health scholars submitted this first commentary for publication on the DEPC site.)

 Prior related posts:

September 10, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Another effective examination of ups and down of federal clemency (and the persistence of hope) in modern times

Against the backdrop of almost complete disuse of the federal clemency power (especially the power to commute prison sentences) which had become a modern norm, the clemency activity over the last few years of the Obama Administration and at the start of the Trump Administration have been encouraging.  But this effective extended review of recent developments, with a focus on the case of "Life for Pot" defendant John Knock, highlights that for many downs rather than ups define the reality of all the buzz around clemency.  The article's full headline highlights its themes: "The Prisoners Left Behind: How Barack Obama’s clemency operation failed thousands of drug offenders, some serving long sentences for cannabis crimes, and left them at the mercy of Donald Trump’s whims."  Here is an excerpt:

Knock is one of more than 1,500 drug offenders set to die in federal prison under 1980s-era drug sentencing laws, despite a critical shift in drug punishments since then. Dozens of those lifers are marijuana offenders like him. With no other recourse, Knock had turned to clemency as his best chance at freedom.  Obama’s program was well intentioned but hobbled by poor planning.  Trump has commuted the sentence of just one drug offender so far, but that’s enough to give some inmates a shred of hope.

But those hopes were misplaced. Although President Obama’s program did grant more than 1,700 commutations — more than any other president — clemency experts say bureaucracy and poor planning stifled the program’s ability to free many more. Out of the 13,000 people denied between 2014 and 2017, thousands appeared to be worthy candidates—at least on paper, according to a 2017 analysis by the U.S. Sentencing Commission.... 

But in fact, the commission found that only 3 percent of drug offenders who appeared to meet all of the DOJ’s criteria actually received clemency. Conversely, only 5 percent of the people who did receive clemency appeared to meet all of the criteria. Without much transparency in the review process, several critics now compare it to a “lottery system.” 

“It felt like a lottery, in the sense that if you say you need six criteria to be considered, people are going to take you at your face value,” said Courtney Oliva, executive director of NYU’s Center on the Administration of Criminal Law.  Thousands of other petitions got no response at all. On Obama’s final day in office, 11,000 pending petitions rolled over into President Donald Trump’s administration, leaving thousands of cases still languishing in limbo as inmates looked to another president for mercy....

[I]n early June the president did commute the life sentence of Alice Johnson, who had served twenty years in prison for her role in a large cocaine distribution ring. Before Trump, President Obama had denied Johnson’s requests for clemency three times. 

Trump’s move came at the request of a celebrity, Kim Kardashian West, who visited the White House again this week to discuss criminal justice reform.  Kardashian also said this week she has a second candidate for clemency in mind, a man named Chris Young who is serving a life sentence for cannabis and cocaine convictions.  He was thirty years old when he was sent to prison almost a decade ago. Two days after granting Johnson’s clemency, Trump said he was considering other pardons from a list of 3,000 names. But despite his decision for Alice Johnson, some still doubt the possibility of a wholesale initiative like Obama’s. 

“I think there’s a lot of uncertainty as to what it means because I don’t trust this administration,” said Courtney Oliva. “Assuming we have a normal president again someday, you’re going to want a system that’s not path-dependent on Kim Kardashian.”  But to John Knock and his family, the latest clemency approval has ushered in a surge of optimism.  “How do I feel? Hopeful,” Knock wrote in a letter, days after Johnson’s release. “Obama had seven layers of bureaucracy one had to pass through.  Trump has one.” 

“It’s disruptive to the way the system has always worked,” Knock’s sister Beth Curtis said. “If it is done directly through the White House, and the White House considers petitions that had been carefully vetted by people in the criminal justice community, that’s a very positive thing.”... 

“I still have hope,” Knock said.  Knock’s name is among the several that have been sent directly to senior advisor Jared Kushner, according to Curtis, and Knock’s was sent by “a man who knew John in high school who is a friend of Mike Pence.”

September 10, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable review of Japan's modern administration of its death penalty

This new press piece under the headline "Cruel yet popular punishment: Japan's death penalty" provides an accounting of capital punishment's operation and reception in the only major modern democracy other than the US using it. Here are excerpts:

Years waiting on death row, inmates told their fate just hours before their execution, and guards paid extra to do an "unbearable" job –- Japan's capital punishment system is criticized as cruel and secretive yet remains popular. Unusually for an major industrialised power, capital punishment in Japan enjoys broad public support with few calls for its abolishment.

Inmates are executed not by professionals but by ordinary prison staff who may have been guarding the condemned for months or even years, and who receive extra pay of 20,000 yen each. "It's awful, the body bounces like a 70-kilogram object on a nylon rope," said Toshio Sakamoto, who witnessed noosed inmates plunge to their deaths, and described the process as "unbearable."

Blindfolded convicts, usually those who have killed more than one person, are led to a spot with their feet bound and hands cuffed. Then, a trapdoor opens below. The mechanism is triggered by a button in an adjacent room, pressed simultaneously by several officers, although none is told which button is the "live one" that will cause the prisoner's fall....

Japan is the only major industrialised democracy other than the United States to carry out capital punishment. The system was thrust into the international spotlight in July when the country hanged 13 doomsday cultists but the secretive methods have come under fire for being cruel for criminals, families and guards.

Under law, the death sentence should be carried out six months after confirmed by the top court. In reality however, prisoners languish on death row for many years -- Japan has a total of 110 awaiting execution. "Prisoners are typically only given a few hours' notice before execution, but some may be given no warning at all," said Amnesty International in a recent statement.

"Inmates are kept in isolation suffering the anguish of never knowing when they are going to be put to death -– sometimes for decades," added the pressure group. Families are only informed after the execution, noted Amnesty.

The government cites broad public support as a reason to maintain capital punishment but there is little public debate as the whole process is veiled in secrecy. The authorities have just once allowed a 30-minute media visit inside the glass-walled execution room in the Tokyo Detention House, arguably the best-kept among Japan's seven facilities with gallows.

A 2014 government survey of around 1,800 people showed 80 percent thought capital punishment was "unavoidable", with only one in 10 in favor of abolishing it. But 38 percent thought it should be abolished if Japan introduces life imprisonment without parole -- something the penal code does not currently allow.

One 62-year-old businessman in Tokyo said it would be "insane" to think of scrapping capital punishment. And Mika Koike, a 29-year-old IT engineer, said: "Taking the victims and their families into consideration, I think there is no other clear, absolute way to punish the offenders." Kotaro Yamakami, a 25-year-old politics student, said murderers should pay in kind....

For now, there is no sign that Japan's leaders are pondering any changes. On July 5, the eve of executions of seven Aum cultists, a smiling Prime Minister Shinzo Abe was photographed in a drinking party with fellow politicians, giving the thumbs-up for a collective snapshot with his justice minister who had signed off on the hanging orders.

September 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Sunday, September 09, 2018

"Sex Offenders, Custody and Habeas"

The title of this post is the title of this new paper by Wendy Calaway now available via SSRN.  Here is the abstract:

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Wednesday, September 05, 2018

Can Kimme bring "REAL systemic change" to the clemency process? She is with all the right folks at the White House.

After Kim Kardashian West talked Prez Donald Trump to commute the life sentence of a drug offenders (basics here), I am inclined to call her a leading force in modern criminal justice reform. And now, as detailed in this CNN piece, headlined "Kim Kardashian at White House for clemency review session," she is back at the White House preaching the need for systemic reform:

Kim Kardashian West arrived at the White House on Wednesday to discuss sentencing reform and clemency issues with White House officials, two White House officials told CNN. The reality TV star and entrepreneur was not expected to meet with President Donald Trump, one White House official said, though the plans could change.

Kardashian West, who successfully lobbied Trump earlier this summer to commute the sentence of Alice Marie Johnson, a nonviolent drug offender serving a life sentence, returned to the White House on Wednesday for a listening session on clemency issues with White House officials, including the President's son-in-law Jared Kushner.

"Today at the White House, members of the administration are hosting a listening session about the clemency process. The discussion is mainly focused on ways to improve that process to ensure deserving cases receive a fair review," deputy White House press secretary Hogan Gidley said in a statement.

Kardashian West was just one of several prison reform advocates and legal activists at the White House for the listening session on Wednesday, including Van Jones, a CNN political commentator and former adviser to President Barack Obama; Leonard Leo of the Federalist Society; Mark Holden, the general counsel of Koch Industries and Jessica Jackson Sloan, a human rights attorney and prison reform advocate.

Other attendees include Rachel Barkow, Brittany Barnett, Alex Gudich, Shon Hopwood, Paul Larkin, Mark Osler and Kevin Sharp, a former federal judge....

Trump's exercise of that clemency power has so far been on a case-by-case basis and frequently animated by personal loyalty or personal advocacy efforts. The White House is now seeking to create a regular review process for clemency review.

Kardashian West has signaled in recent days that she is taking up another case, appearing on the podcast "Wrongful Conviction" to say that she is now working on the case of Chris Young, who is serving a life sentence related to a drug case due to a mandatory minimum prison sentence.

This report is very encouraging, as is this tweet from Ms. West:

A few of many recent related posts about recent Trumpian clemency activity:

September 5, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)