Sentencing Law and Policy

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Previewing how SCOTUS will sort through Rehaif reverberations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New statement from prosecutors and law enforcement urging review of extreme prison sentences

The Fair and Just Prosecution folks this past week released this joint statement from "64 elected prosecutors and law enforcement leaders ... urging policymakers to create mechanisms to reduce the number of people serving lengthy sentences who pose little or no risk to public safety, including by creating second chances for many in our nation currently behind bars."  (This quoted language comes from this extended press release about the joint statement.)  Here is the start and key section of the statement:

As current and former elected prosecutors and law enforcement leaders from across the country, we know that we will not end mass incarceration until we address the substantial number of individuals serving lengthy sentences who pose little or no risk to public safety.  We call on all other leaders, lawmakers, and policymakers to take action and address our nation’s bloated prison populations.  And we urge our state legislatures and the federal government to adopt measures permitting prosecutors and judges to review and reduce extreme prison sentences imposed decades ago and in cases where returning the individual to the community is consistent with public safety and the interests of justice. Finally, we call on our colleagues to join us in adopting more humane and evidence-based sentencing and release policies and practices.  Sentencing review and compassionate release mechanisms allow us to put into practice forty years of empirical research underscoring the wisdom of a second look, acknowledge that all individuals are capable of growth and change, and are sound fiscal policies....

Therefore, we are committing to supporting, promoting and implementing the changes noted below, and calling on others to join us in this critical moment in time in advancing the following reforms:

1. Vehicles for Sentencing Review: We call on lawmakers to create vehicles for sentencing review (in those states where no mechanisms exist) that recognize people can grow and change.  These processes should enable the many middle aged and elderly individuals who have served a significant period of time behind bars (perhaps 15 years or more) to be considered for sentence modification.... We do not ask that all such persons be automatically released from custody. We ask only that there be an opportunity, where justice requires it, to modify sentences that no longer promote justice or public safety.

2. Creating Sentencing Review Units and Processes: We also urge our prosecutor colleagues to add their voices to this call for change and to create sentencing review units or other processes within their offices whereby cases can be identified for reconsideration and modification of past decades-long sentences.

3. Expanded Use of Compassionate Release: We urge elected officials, criminal justice leaders (including judges, prosecutors and corrections leaders), and others to pursue and promote pathways to compassionate release for incarcerated individuals who are eligible for such relief, including people who are elderly or terminally ill, have a disability, or who have qualifying family circumstances....

4. High Level Approval Before Prosecutors Recommend Decades-Long Sentences: Finally, we urge our prosecutor colleagues to create policies in their offices whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor. 

Might new "Commission on the Supreme Court" perhaps consider recommending creating a sentencing supreme court?

The question in the title of this post is my sentencing-addled reaction to this news today from the White House: "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States."

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

Long-time readers know I spend a good bit of time in this space complaining about the fact that SCOTUS does not take up enough sentencing issues (see one recent example here).  Though I seriously doubt that this new Commission will focus on the need I see for a supreme court that takes more sentencing cases, I am always serious in my view that there are many, many important sentencing issues that need more attention.

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

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

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

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

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

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

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

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

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

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

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

• How about some clemency grants from Prez Biden to go with Second Chance Month, 2021 proclamation? 
• How about some clemency grants from Prez Biden while his team works on grander clemency plans?
• What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?  
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

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

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

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

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

A few of many, many prior related posts:

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

Recommendations for needed reform to Massachusetts clemency process

Via this new Boston Globe editorial, fully headlined "State parole board, clemency process need reform: The Massachusetts Bar Association makes the case for more ‘justice’ at the end of the criminal justice pipeline," I saw that the Bay State's bar association issues an interesting new report on clemency last month. Here are some of the basics via the start of the editorial:

A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?

For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending. The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.

Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.

“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.

The full 16-page report of the MBA Clemency Task Force is available at this link.

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

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

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

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

"Science and the Eighth Amendment"

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

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

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

Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act

I flagged here earlier this week the notable Tenth Circuit opinion regarding compassionate release authority after the FIRST STEP Act in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  A helpful reader made sure I did not miss a similar ruling also from the Tenth Circuit today in US v. Maumau, No. 20-4056 (10th Cir. April 1, 2021) (available here).  The Maumau name may sound familiar because, as noted here, the district court ruled "that the changes in how § 924(c) sentences are calculated" after the FIRST STEP Act could help serve as a "compelling and extraordinary reason" to justify resentencing.  The Tenth Circuit today affirms that ruling today in an extended opinion that makes these points at the end of the opinion:

In its third and final issue, the government argues that, “[i]n addition to the controlling [statutory] texts, the relevant legislative history and the structure of the sentencing system also show that a court cannot use the compassionate release statute to override a mandatory sentence based on the court’s disagreement with the required length” of such a sentence.  Aplt. Br. at 39-40.  The underlying premise of this argument is that the district court in the case at hand granted relief to Maumau based upon its disagreement with the length of his statutory sentence.

We reject the government’s argument because its underlying premise is incorrect.  Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions.  Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular.  Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today, . . . would not be subject to such a long term of imprisonment.”

A few of many, many prior related posts:

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

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

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

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

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

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

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

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

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

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

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

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

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

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

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Not long thereafter, the Fourth, Sixth, and Seventh Circuits issued somewhat similar opinions generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Yesterday, the Tenth Circuit joined the fun with its extended panel opinion in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  Here is how this opinion gets started:

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b); and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b).  Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress’s enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling reasons.”  The district court denied that motion.  McGee now appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee’s motion.

Though there are various elements to the McGee ruling, I was especially glad to see the panel explain effectively why it was improper for the district court to decide it could not grant a sentence reduction simply because Congress has not (yet) decided to make the sentencing changes in the FIRST STEP Act fully retroactive.  Here is part of the court's discussion on this point (emphasis in the original):

The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).  But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.  Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting § 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a [sentence] reduction.” Id. at 287 (emphasis in original).  Thus, the possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.

A few of many, many prior related posts:

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

Still considering cert, SCOTUS orders additional letter briefing in method-of-execution case out of Missouri

As noted here, the US Supreme Court had fully briefed last November a set of notable questions about how modern Eighth Amendment method-of-execution claims are to be properly resolved.  The Justices considered Johnson v. Precythe, No. 20-287, a case emerging from Missouri, at numerous conferences before today finally having this interesting direction on its order list:

JOHNSON, ERNEST V. PRECYTHE, ANNE L., ET AL.

The parties are directed to file supplemental letter briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?  Petitioner’s brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 12, 2021.

Respondents’ brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 26, 2021.

Sounds like the Court may be looking for an easy way to boot this case, but perhaps folks with more experience with this intricate universe of litigation may be able to read more (or less) into this order than just that.

SCOTUS summarily reverses Sixth Circuit's reversal of state conviction based on ineffective assistance

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).  We now reverse....

The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion.  We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals.

Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

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

As detailed in this press release, on Friday "U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act (FSA), introduced the bipartisan First Step Implementation Act, legislation that aims to further implement the FSA and advance its goals." Here is more from the release:

“In 2018, Congress came together to pass the most important criminal justice reform laws in a generation.  The First Step Act passed by overwhelming bipartisan majorities and was supported by a broad coalition of conservative and progressive groups alike,” Durbin said.  “I was proud to champion this landmark legislation with my friend and colleague, Senator Grassley.  Now we are committed to working together on a bipartisan basis to ensure that the First Step Act and its goals are successfully implemented.”

“Our 2018 criminal justice reforms were the most significant in a generation.  We ought to be doing all we can to ensure their proper implementation.  This new bill now also ensures we make good on the intent of the First Step Act, and further builds on the ideas that led to its passage,” Grassley said.

The First Step Implementation Act of 2021 would further the goals of the FSA by:

• Allowing courts to apply the FSA sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
• Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
• Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
• Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
• Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

"Focusing Presidential Clemency Decision-Making"

The title of this post is the title of this new paper now available via SSRN authored by Paul J. Larkin, Jr. Here is its abstract:

The Article II Pardon Clause grants the President authority to grant clemency to any offender.  The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary.  The clause authorizes the President to grant clemency as he sees fit, but does not tell him when he should feel that way.

As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven.  Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s clemency process, has recommended a rigorous standard for Presidents to use when making clemency decisions.  The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship.  The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

This Article offers a way to make clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and Presidential decision-making.  Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately.  In the case of pardons, Presidents should answer a series of questions — an algorithm, if you will — that would guide them when deciding whether to forgive an offender.  In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender.  Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system.  The hope is that, in so doing, Presidents will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or people he knows.  The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in clemency decision-making.

Notable SCOTUS partners urging (unavailable) USSC to clarify a guideline point

As noted before, the big SCOTUS news today for sentencing fans was the Justices' decision to grant cert to reconsider the reversal of the federal death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  (How Appealing collects some of the major media coverage here).  But for federal guideline gurus, the SCOTUS order list also included a fascinating little statement by Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Longoria v. United States, No. 20–5715. 

For starters, though seeing Justices Sotomayor and Gorsuch together might surprise some, folks who follow non-capital sentencing jurisprudence likely know that these two often speak in harmony on these kinds of issues.  More notable is what these Justices had to say within a three-paragraph statement focused on the application of one of the few downward adjustments in the US Sentencing Guidelines.  Here are highlights:

This petition implicates an important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b).  Most Circuits have determined that a suppression hearing is not a valid basis for denying the [extra one-point acceptance of responsibility] reduction....  A minority of Circuits have concluded otherwise.  In this case, for example, the Fifth Circuit accepted the Government’s refusal to move for a reduction after it had to prepare for a 1-day suppression hearing....

The Sentencing Commission should have the opportunity to address this issue in the first instance, once it regains a quorum of voting members. [FN*]  Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  I write separately to emphasize the need for clarification from the Commission.  The effect of a one-level reduction can be substantial.  For the most serious offenses, the reduction can shift the Guidelines range by years, and even make the difference between a fixed-term and a life sentence.  The present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced. When the Commission is able, it should take steps to ensure that § 3E1.1(b) is applied fairly and uniformly.

[FN*] Currently, six of the seven voting members’ seats are vacant.  The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.  See U.S. Sentencing Commission, Organization (Mar. 18, 2021), https://www.ussc.gov/about/who-weare/organization.

I am very pleased to see a couple Justices flag this issue, and I especially like the emphasis that the "effect of a one-level reduction can be substantial."  In other words, kudos to these Justices for making the point that even a single guideline point can be a big deal. (And I suspect that this sentence alone may end up in a lot of future briefs.)  I also like a high-profile shout out to a (non-functional) Sentencing Commission to take up this matter. 

But the split noted here has been kicking around for decades, meaning that the Commission has already long been able to, and long failed to, address this issue.  Moreover, because the Sentencing Commission currently lacks a quorum, practically speaking, it will not be able to address this issue until at least 2022 even if future members are eager to do so.

For the entire history of the federal sentencing guidelines, and as explained in the 1991 SCOTUS Braxton ruling, the Supreme Court has generally left it to the Commission to resolve conflicts over guideline interpretation.  I understand the thinking behind this kind of deflection (although I flagged some concerns in a long-ago article, The Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Fed. Sent. Rep. 142 (1994)).  Now that the guidelines are "effectively advisory," there is arguably even stronger reasons for SCOTUS not to spend its limited time on the resolution of circuit conflicts over guideline interpretation.

Still, this kind of case leaves me wondering if, at some point, the Justices can and should be prepared to actually adjudicate guideline matters that have long festered and allows "similarly situated defendants [to possibly] receive substantially different sentences depending on the jurisdiction in which they are sentenced."  Moreover, here we have a guideline provision being applied to functionally punish defendants seeking to vindicate constitutional rights through a court motion, a type of guideline issue which might be especially appropriate for the Supreme Court's intervention.

Another deep look into the deep connections that eased the path to a clemency grant by Prez Trump

I sincerely wish the press would start focusing a lot more on compelling cases of persons who have not received clemency in our (pandemic-scarred) nation defined by mass incarceration and mass punishment.  But I suppose I understand why there is still interest and concern about how Prez Trump made clemency decisions and about who won the most recent round of the federal clemency lottery. 

Today this story is front-page news in the New York Times under this full headline: "Access, Influence and Pardons: How a Set of Allies Shaped Trump’s Choices: A loose collection of well-connected groups and individuals led by a pair of Orthodox Jewish organizations had striking success in winning clemency for white-collar criminals during the Trump presidency."  Here are excerpts from this lengthy piece:

The efforts to seek clemency for [various] wealthy or well-connected people benefited from their social, political, or financial ties to a loose collection of lawyers, lobbyists, activists and Orthodox Jewish leaders who had worked with Trump administration officials on criminal justice legislation championed by Jared Kushner.

That network revolved around a pair of influential Jewish organizations that focus on criminal justice issues — the Aleph Institute and Tzedek Association — and well-wired people working with them, including the lawyer Alan M. Dershowitz, Brett Tolman, a former U.S. attorney for Utah, and Nick Muzin, a Republican operative....

Of the 238 total pardons and commutations granted by Mr. Trump during his term, 27 went to people supported by Aleph, Tzedek and the lawyers and lobbyists who worked with them. At least six of those 27 went to people who had been denied clemency through the official Justice Department process during the Obama administration.

Over the years, at least four of those who received clemency or their families had donated to Aleph. Others or their allies and families had retained people like Mr. Dershowitz, who represented Mr. Trump in his first impeachment trial, Mr. Tolman and Mr. Muzin to press their cases before the Trump administration, often working in parallel with Aleph and Tzedek, according to public records and interviews.

The groups were not the only ones who had success with Mr. Trump. Alice Marie Johnson, an advocate for fairer sentencing who had her own drug conviction pardoned by Mr. Trump, was credited by the White House for championing 13 clemency grants, many of which went to drug offenders and African-American defendants given disproportionately long prison terms.

While Aleph worked with Ms. Johnson on some clemency cases — including for people convicted of nonviolent drug crimes — Aleph, Tzedek and their allies stood out for their success at winning clemency for white-collar offenders who had left a damaging trail of fraud in their wake. The majority of those who won clemency with their help had been convicted of financial crimes.

It was a new chapter especially for Aleph, which has long worked on behalf of people facing dire situations in the criminal justice system. Aleph has for years appealed for more lenient sentencing rules and pressed judges to reduce jail time in individual cases, while providing social and religious services to prisoners and their families. It only began seeking presidential clemencies during the Obama administration — and failed to secure any such grants until Mr. Trump took office.

The leaders of Aleph, Tzedek and their allies played a role in helping build support for a sweeping rewrite of federal sentencing laws in 2018, winning bipartisan praise and bolstering their clout in the administration.....

In the world of criminal defense lawyers and clemency seekers, Aleph, Tzedek and the people working alongside them came to be seen as among the most effective avenues to clemency, including for financial crimes of the sort that are usually less likely to garner support from criminal justice activists.

A spokesman for Aleph said the group selected candidates based on factors including humanitarian concerns, clear demonstrations of remorse and its commitment to addressing what it often sees as excessively long sentences. He acknowledged that Aleph had accepted donations from people whose clemencies its officials later supported to one degree or another, but said the group did its clemency work at no cost, and would not accept donations from people while working on their clemencies.

I am eager to note here that I have worked with a variety of folks connected to the Aleph Institute in a variety of settings for more than a decade.  I have sometimes helped in various ways in specific cases in which Aleph is advocating for a particular defendant to serve less prison time, and I have often been eager to participate in various ways in the great criminal justice reform conferences that Aleph has helped put on.

A few of many recent related posts:

• Two different takes on Prez Trump's clemency record as his term nears conclusion 
• Rounding up some notable recent criminal justice commentary
• Noticing the many regular forgotten folk so far left behind in Prez Trump's clemency capers 
• Lots of (surprising and unsurprising) clemency chatter ... and great advocacy for clemency change 
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing some notable data after a notably final clemency flourish by Prez Trump 
• Reviewing Prez Trump's clemency work from a number of perspectives
• Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

• SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences
• Federal defendant in Terry with many notable friends urging broad application of crack retroactivity provision of FIRST STEP Act
• Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing 
• Acting SG tells SCOTUS that new administration now supports broad application of crack retroactivity provision of FIRST STEP Act in Terry 

Notable new review and accounting of COVID and federal compassionate release results

Vice News has this effective and thorough new piece bringing together a lot of notable data on federal compassionate release in the COVID era under the full headline "Prisoners Keep Dying of COVID While ‘Compassionate Releases’ Stall in Court: At least 54 federal prisoners have died from COVID-19 after having a compassionate release request denied or left pending."  Though the headline is focused on prisoner deaths, the lengthy article covers a lot of ground is worth reading in full.  Here are excerpts (with links from the original):

Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.

Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction....

But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air. “You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”

Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News.  The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom. 

Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. 

From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.

In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.

The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.

The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.

A few of many prior related posts:

• "How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19" 
• Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act 
• Spotlighting remarkable (but still cursory) data on "compassionate release" after FIRST STEP Act 
• Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) (from July 2020 with lots of links to lots of prior rulings)

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

"From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing"

The title of this post is the title of this new article on SSRN authored by Andrea Roth and Jane Bambauer.  Here is its abstract:

The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards.  Such awards — even if furthering legitimate state interests in retribution and deterrence — must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs.  More concretely, the “multiplier” — the ratio of punitive to compensatory damages — cannot be too high, with anything exceeding a 10:1 ratio deemed presumptively excessive.  This Article is the first to argue that a similar test should guard against grossly excessive criminal punishments; indeed, it seems odd that large corporations committing civil wrongs enjoy greater protection against overpunishment than criminal defendants, given the devastating effects of mass incarceration, particularly on communities of color.

As we show, there are compelling constitutional, logical, and policy reasons to ensure that criminal punishments are not grossly disproportionate to the harm caused.  In turn, although criminal courts might find the task of estimating the harm caused by a crime unfamiliar, we show how this could be done through surveys measuring the prison time a would-be victim would be willing to endure to avoid the crime.  Scholars have used such error-preference surveys in other legal contexts, but not yet in determining proportionality of punishment.  We offer a survey example as proof of concept and fodder for future research, and we report initial results corroborating the intuition that some crimes routinely trigger sentences grossly disproportionate to harm caused.  Whether or not criminal courts impose due process limits on punishment, our arguments and findings can be wielded by litigants, judges, and policy advocates to argue for lower sentences in individual cases, as well as to push for critically overdue sentencing reform.

Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court's Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington's state constitutional prohibition of "cruel punishment").  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing....

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.

"How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19"

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

This paper seeks to examine how judges are deciding compassionate-release motions in the wake of the COVID-19 pandemic, which has proven particularly deadly inside the nation’s prisons.  I explore how judges appointed by Republicans and Democrats have ruled in more than 4,000 federal compassionate-release cases since March 2020, finding that judges appointed by Democrats are granting compassionate release at far higher rates than their Republican counterparts, with Trump judges granting among the fewest requests. 

The First Step Act of 2018 gave incarcerated individuals the right to file a motion for early release in court in light of “extraordinary and compelling” circumstances, and requests for release have skyrocketed since the outbreak of the virus.  The unique conditions of the pandemic, high levels of virus transmission in prisons, and the highly discretionary nature of the compassionate-release statute together offer a natural experiment for considering how judicial ideology impacts real lives.  The results of this analysis underscore the importance of the fight over control of the judiciary going forward.

Second Circuit panel finds all sorts of constitutional problems with Connecticut's conditions of confinement for former death row inmate

A helpful reader altered me to a notable quirky Second Circuit panel ruling today on prison conditions in Reynolds v. Quiros, No. 19-2858-pr (2d Cir. Mar. 11, 2021) (available here). The case is quirky because it arises from Connecticut's decision to create special statutory conditions of imprisonment when it repealed its death penalty.  The ruling is notable because the defendant, a former member of death row, has succeeded on a number of challenges to these conditions in his federal litigation, and now the Second Circuit panel comes to "hold as follows:

(1) The District Court erred by deciding disputed issues of material fact in granting summary judgment in favor of Reynolds on his claims under the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment;

(2) The District Court correctly concluded that, with respect to Reynolds, Conn. Gen. Stat. § 18-10b is an unconstitutional bill of attainder; and

(3) Reynolds’ unreviewable classification score of Risk Level 5 violates his rights under the Equal Protection Clause of the Fourteenth Amendment because the difference in his treatment compared to that of other similarly-situated inmates lacks a rational basis."

"The Burdens of the Excessive Fines Clause"

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

A key component is missing from the Eighth Amendment’s excessive fines clause doctrine: who has the burden of proof?  This question — which has been essentially ignored by both federal and state courts — is not just a second order problem.  Rather, the assignment of burdens of proof is essential to the clause’s enforcement, making it harder — or easier — for the government to abuse the revenue generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily-policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof.  After offering a framework that reconciles the doctrine, it applies that frame to the excessive fines context by breaking the “burden of proof” into four component parts: the burden to raise the excessive fines claim, the burden of producing evidence relevant to that claim, the burden of persuading the decisionmaker as to the result, and the standard of proof to be employed in that determination.  While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry into the risk of an erroneous imposition of excessive fines.  In particular, it allows examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of collateral consequences attached to both non-payment and conviction — that make it more likely that abuses of power will occur absent the check on authority burdens of proof can help provide.

Curious spitting over COVID prison data as Sixth Circuit panel ultimately affirms rejection of compasionate release motion

I sometimes feel social media tends to encourage some folks (myself included) to pick relatively silly fights over relatively silly matters.  That tendency seems to have bled over to a Sixth Circuit panel: today it released an opinion on a compassionate release appeal with two judges picking a relatively silly fight over relatively serious matter. Specifically, in US v. Mathews, No. 20-1635 (6th Cir. Mar. 8, 2021) (available here), the panel unanimously concluded that the district jusge did not abuse his discretion in denying
compassionate release based on his consideration of the § 3553(a) factors.  But while harmonious on the result, two judges decided to pick at each other over COVID prison data.

Judge Moore wrote the main opinion, and she begns by setting a serious tone concerning the matters at issue in the case (footnotes with cites to data omitted): 

By the end of 2020, one in every five persons incarcerated in the United States had tested positive for COVID-19. At least 275,000 imprisoned persons across the country have been infected; more than 1,700 have died.  A court’s refusal to reduce an incarcerated person’s sentence could result in death.

Judge Readler was apparently put off by this discussion and other parts of the opinion by Judge Moore, as he authors a one-page concurrence that includes complaints like this:

In reaching that conclusion, however, the lead opinion covers ground that is neither necessary to the outcome nor joined by another member of the panel, making it dicta, and seemingly misplaced dicta at that.  One example is the opinion’s introductory paragraph, which frames the appeal by invoking prison-related data collected by the Marshall Project.  As neither that data nor the means for collecting it are part of the record in this case, and thus unmeasured by federal evidentiary standards, the data’s value is difficult to assess.

Undaunted, Judge Moore has a lengthy footnote pushing back at Judge Readler which starts this way:

In what can only be described as dicta about dicta, Judge Readler diminishes COVID-19’s rampage in our federal prisons and assails The Marshall Project’s integrity.  We should not treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus; nor should we demean those who advocate for imprisoned persons.  Many compassionate-release motions implicate complex issues of law and policy that merit our attention.  Contemplation of these issues aids our future reviews of compassionate-release motions.

This not-quite-judicious sparring by these jurists ultimately makes no difference to the outcome of the case, and I cannot help but wonder what the imprisoned appellant thinks of it all.  But I think that this particular outcome should not eclipse the official BOP data showing that more than 3000 compassionate-release motions motions having been granted since the passage of the FIRST STEP Act.  Throughout the COVID pandemic, an average of roughtly 50 sentencing reductions have been granted each week, which reveals that a good number of judges have, fortunately, refused to "treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus."

Making the case for repealing AEDPA ... and a reminder that "Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions"

I have lately been giving thought to the need for Congress to give more attention to the need to reform the ever-ugly and ever-litigated Armed Career Criminal Act (ACCA). But Radley Balko has this new Washington Post piece, headlined "It’s time to repeal the worst criminal justice law of the past 30 years," effectively reminding us that another lousy and clumsy piece of federal legislation (also starting with an A)  should be getting a lot more attention.  Here are excerpts, ending with a useful reminder of an important bit of history:

Under our system, when a state violates the constitutional protections of a fair trial, the federal courts are required to intervene.  The right to judicial review of an unlawful detention, also known as the writ of habeas corpus, is enshrined in the Constitution and dates back to 13th-century England.

But in 1996 Congress took a chisel to habeas corpus with the Antiterrorism and Effective Death Penalty Act (AEDPA).  Attorneys who represent people challenging their convictions, such as Mississippi’s Humphreys McGee, say the AEDPA and the Supreme Court rulings that followed have suffocated federal review. “It’s been a 25-year thicket of real through-the-looking-glass s---," McGee says. And the law’s repeal or reform is long overdue.

The AEDPA came several years after a spike in crime that began in the early 1980s and peaked around 1991.  By the time the AEDPA became law, crime rates were in the first few years of a 20-year free fall.  But the two major parties were in a frenzied competition over who could look toughest on suspected criminals.  The bill also came shortly after the Newt Gingrich-led “Republican Revolution,” a movement built on law-and-order rhetoric and promises to devolve more power to the states.

At the same time, though, early DNA testing had begun to show the criminal justice system was far more fallible than commonly thought.  The technology was young — by the end of 1995, DNA had exonerated just 37 people.  But even then, those cases raised questions about the reliability of forensic evidence and eyewitness testimony, and the behavior of police and prosecutors . Innocence Projects sprang up around the country, and law schools established clinics to seek out other bad cases.  According to the National Registry of Exonerations, in the 213 years before the first DNA exoneration in 1989, the United States saw a total of 418 exonerations.  In the 32 years since, there have been 2,733.  Yet at the same time DNA should have forced us to confront the shortcomings of the criminal justice system, the AEDPA all but slammed the federal courthouse door closed on the wrongly convicted.

The AEDPA’s most destructive provision is arguably its deference to state courts.  Previously, a federal court could review constitutional claims without considering state courts’ previous rulings.  The AEDPA requires federal judges to defer to state courts even when they believe those courts are wrong. In fact, the Supreme Court has essentially ruled that, to be overturned, a state court ruling must be so unreasonable that its judges are unfit to sit on the bench.

Even on the rare occasion a federal court might make that finding, the AEDPA also imposes a gantlet of deadlines and procedural barriers.  The law is so complicated, even seasoned post-conviction attorneys say they’re often flummoxed by it.  This, they say, is by design. “The goal of AEDPA is to avoid adjudicating these cases on their merits,” says McGee. “The law is loaded with tripwires that let federal judges throw out claims without bothering to consider them.”...

“AEDPA abdicated constitutional rights to the states just as states were requiring more deference to their lower courts,” says Richard Bourke, a post-conviction attorney in New Orleans.  “So you get this quantum of deference that grows exponentially at each level, to the point where constitutional rights are now mostly in the hands of elected, low-level circuit court judges.”

And there’s one additional layer of iniquity: Except in death penalty cases, indigent defendants lose their right to an attorney once in post-conviction.  So just when the wrongly convicted are most likely to discover evidence that could free them, they not only face a procedural minefield even a seasoned lawyer would struggle to navigate, nearly all of them also face it alone.  Consequently, for every AEDPA injustice exposed by post-conviction lawyers, countless others may never be known.

In a series of columns over the next several months, I’ll look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it.  The good news is that much of this can be fixed.  Congress could repeal or reform the AEDPA tomorrow.  And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions.  The then-senator warned of dire consequences if those provisions passed. History has proved him right.

What kind of "behind the scenes" clemency moves might Prez Biden's staff be working on?

The question in the title of this post is prompted by a sentence in this Vox piece by German Lopez (strangely) headlined "Biden’s secret weapon for criminal justice reform."  The article is about the power of the President to grant clemency, and I think it a bit strange to call that power a "secret weapon" given all the attention that clemency has received in recent years and given that there has already been a number of prominent calls for Prez Biden to use this power in prominent ways (examples blogged here and here and here and here).  I guess the headline speak to the tendency of some to look past the clemency power as a means to address systemic issues like mass incarceration, and the piece is still a worthwhile read.  Here is an excerpt that includes the sentence that prompts the question in the title of this post:

[S]ome advocates have argued for a ground-up rethinking of clemency: The president could reform the whole process to systematically cut sentences for federal inmates caught in the frenzy of America’s drug war and mass incarceration....

[T]he president or his advisory board could set standards, targeting inmates with long sentences (especially for nonviolent crimes), those under mandatory minimums, or people who have been rehabilitated in prison.

Biden, at least, supports using clemency powers for some of these ends — saying in his criminal justice reform plan that he’d use his clemency powers “to secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes.”

But since taking office, Biden hasn’t made any public moves in this area — although his staff is reportedly working on it behind the scenes.

Biden could be waiting for his attorney general nominee to get Senate approval. Or he could be concerned about the political risks: If an inmate he releases goes on to commit a crime, it could fuel a backlash. (The White House didn’t respond to a request for comment.)

Prez Biden should have his Attorney General nominee approved next week, so perhaps reported "behind the scenes" work will become public in short order. I remain hopeful that significant use of the clemency power will be part of a multi-prong criminal justice reform push by the Biden Administration, but I will only believe it when I see it.

A few of many prior related posts:

• How about some clemency grants from Prez Biden while his team works on grander clemency plans? 
• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

"Revocation and Retribution"

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

Revocation of community supervision is a defining feature of American criminal law.  Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year.  While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release.  Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.”  Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation.  Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing

I have not been able to keep up with all of the jurisprudential ups and downs that have followed the FIRST STEP Act finally making retroactive key parts of the Fair Sentencing Act for federal crack offenders.  Thus, I am quite grateful that a recent email discussion with various lawyers led to Assistant Federal Defenders Johanes Maliza and Thomas Drysdale drafting this extended guest post to catch us all up on some critical cases and issues in this arena:

The sentencing excesses that Congress addressed with the Fair Sentencing Act, and then the First Step Act, should stay in the past.  The pending cert petition in Bates v. United States, No. 20-535, has the potential to keep them there for everyone.  Bates asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules.

The Court recently granted cert in another First Step Act case, Terry v. United States, No. 20-5904.  But Terry gets at a different, more limited question.  In Terry, the Court is answering only whether certain low-level cocaine base offenders are eligible for a resentencing.  The Terry question is important, and needs to be resolved to bring uniformity across the circuits, but the government made one good point as it opposed the petition: Terry concerns a limited group of defendants.

A Terry defendant would have to be a person with a small (often very small) amount of cocaine base, who is still serving her sentence 10 years after the Fair Sentencing Act.  Most 841(b)(1)(C) defendants from 2010 are out of prison by now, though many are still on Supervised Release.  The vast majority of cocaine base offenders still serving prison terms for pre-August 2010 conduct are mid- and high-quantity defendants, who were charged under 21 U.S.C. § 841(b)(1)(A) or (B).  Terry only concerns people charged under § 841(b)(1)(C).

Even if Terry comes out for the petitioner, every single person who would benefit from Terry needs the answer to Bates: Which guidelines do courts use for resentencing? Indeed, the few Terry defendants still in prison are those who need a positive result in Bates the most because resentencing based on the guidelines from 2010 could still be sky high, even while the statutory scheme has shifted dramatically in the last 10 years.  Guidelines still anchor federal sentences; as the government says in Bates they remain the “lodestar.”

Consider a real, but anonymized, defendant in Central Illinois to show the need for modern guidelines in § 404 resentencings.  Mr. Jones [not client's real name, though he has given permission to speak about his case] was convicted of violating 21 U.S.C. § 841(b)(1)(A), for 50 grams or more of cocaine base in 2010.  The charge began with a 10-year mandatory minimum; but with four drug priors, his statutory minimum was Life.  His guidelines were Life.  His minimum term of Supervised Release was 10 years.

Because he cooperated, (the only way to get out from under life), Mr. jones got a 324- month sentence, plus 10 years of Supervised Release.  Even if he got out of prison before he died, he was going to die on Supervised Release.  Terry, which only concerns persons sentenced under § 841(b)(1)(C), has nothing to do with him because was charged under § 841(b)(1)(A).  With an 841(b)(1)(A) conviction, Mr. Jones is clearly eligible for resentencing under § 404 of the First Step Act, but the terms of that resentencing was not defined by the Act.  Since Mr. Jones was convicted of having 50 grams of cocaine base, his charges would come under 21 U.S.C. § 841(b)(1)(B) in 2019. But how much does that really matter if his guidelines didn’t change?

One might assume the statutory changes transform everything now that a Mandatory Life is either 5-40 or 10-Life after First Step.  Which one, and why do we care?  Well, his prior convictions still set up his stat max, and his stat max still sets up his new guidelines.  Considering all four of his prior drug crimes still worked to raise his statutory max to Life and made his guidelines range 262-327 months and his 324-month sentence was still within that range.  But while one provision of the First Step Act gave Mr. Jones the right to seek resentencing, another provision made two of his priors ineligible to trigger § 851 enhancements because the statutory maximum sentences on those priors was below 10 years.  And while Mr. Jones’ resentencing worked its way through the docket, the Seventh Circuit issued a string of opinions that culminated in a ruling that Illinois cocaine convictions cannot serve as § 851 enhancements. Mr. Jones’ remaining two statutory enhancements, both for cocaine, were now out. Well, they were still there, since this Seventh Circuit ruling wasn’t necessarily retroactive, but this was a shockwave for Mr. Jones’ guidelines.  Under the law in 2010, Jones had statutory Life, and guidelines range of Life.  Now, under statutory changes and modern guideline interpretation, he had a statutory range of 5-40, and guidelines range of 188-235.

While his case was pending for First Step Act resentencing, the law had shifted for everybody else.  Mr. Jones’ 324-month sentence, after cooperation, had transformed from “Harsh-but-at-least-not-Life,” into, “That’s 11-plus years over the low end of the guidelines?!?”  Thankfully for Mr. Jones, he is in the Seventh Circuit, so the district court recalculated his guidelines as part of First Step resentencing, and gave him a 188-month (bottom-of-the-range) sentence.  Still harsh. But he’ll be out in a few years, not a decade.  But in the Tenth Circuit, which is where the Bates case comes from, this entire analysis would have amounted to passionate argument from his attorney, soaring rhetoric about finality from the government, and a “Whaddya gonna do?” from the district judge because the circuit does not permit a defendant's current guideline range to be considered at a First Step resentencing.

It is hard to imagine that that the First Step Act intended to leave people like Mr. Jones behind.  A broad bipartisan coalition passed the First Step Act, trying to reduce the draconian sentences imposed on nonviolent drug offenders.  Because the Supreme Court in Terry will only resolve the few people with § 841(b)(1)(C) convictions who are still in prison, the difference in treatment between what happened with Mr. Jones and what happened in a case like Bates will not be addressed.  The Supreme Court should take up and render a decision in a case like Bates as soon as possible in order to resolve a resentencing wait and uncertainty for hundreds, if not thousands, of defendants. No matter what happens in Terry, the issue in Bates is going to need a resolution. That resolution should come earlier, so that nobody has to overserve a minute of their sentences.

Notable reviews of extreme sentences in Pennsylvania

The tail end of this week brought a number of notable stories about notably extreme sentences (and a few releases therefrom) in Pennsylvania.  I will use headlines and links to cover a lot of ground involving a number of intersecting and overlapping stories:

"Report raises questions with second-degree murder sentencing in Pennsylvania"

"Pa.’s second-degree murder charge is outdated, unfair, Fetterman says"

"‘They don’t deserve to die in prison’: Gov. Wolf grants clemency to 13 lifers"

"The nation’s oldest juvenile lifer, Joe Ligon, left a Pa. prison after 68 years"

The first pair of stories relate to this notable new report by the Philadelphia Lawyers for Social Equity titled "Life Without Parole for Second-Degree Murder in Pennsylvania: An Objective Assessment of Sentencing."

"Direct Collateral Review"

The title of this post is the title of this notable new Columbia Law Review piece authored by Z. Payvand Ahdout (hat tip: How Appealing). Here is is abstract:

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings.  But critics have long lamented the difficulty of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal.  Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts.  And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.

This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which prisoners challenge their convictions or sentences after the convictions have become final.  This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of the presumption.  This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

How about some clemency grants from Prez Biden while his team works on grander clemency plans?

I am very pleased to see this lengthy new Politico piece shining a light on federal clemency under this full headline: "Trump left behind a clemency mess.  The clock’s ticking for Biden to solve it. Lawyers and criminal justice advocates are pushing Biden to act swiftly.  But Covid and the economy are pushing action back."  I recommend the whole piece, and here are excerpts:

Biden’s White House counsel’s office has started to reach out to attorneys and advocates for suggestions on reforms, what could be done about the backlog, and mistakes they believe were made in previous administrations, according to the people familiar with the conversations.  Roy Austin, an Obama administration veteran who served on the Biden transition team on Justice Department issues, has spoken to advocates as well.  Biden’s new adviser on criminal justice issues at the Domestic Policy Council, Chiraag Bains, is expected to play a role too, according to two people familiar with the situation.

But the White House has revealed little about its own plans. And attorneys and advocates still worry that Biden’s team lacks a comprehensive plan for dealing with the enormous backlog.  Perhaps for good reason: A former Obama aide said that while Biden’s team is familiar with the clemency problems it faces, it has been too busy with nominations, executive orders and proposed legislation, including those designed to tackle the coronavirus pandemic and cratered economy.  “They couldn’t have had time to formulate a plan,” the person said.

More than 100 progressive groups working on criminal justice issues are urging Biden to overhaul the arduous clemency process and start resolving cases right away.  One of them, the ACLU, launched an ad campaign to push him to grant clemency to 25,000 people and make good on his pledge to tackle criminal justice issues amid a national reckoning on racial injustice.  Among those who have met with Biden’s team are Cynthia Roseberry, deputy director of policy at the American Civil Liberties Union's Justice Division, and Nkechi Taifa, convener of the Justice Roundtable, an umbrella organization on criminal justice issues....

“The time to figure out how to do this should’ve been during the transition,” said Mark Osler, a former federal prosecutor who serves as a law professor at the University of St. Thomas in Minneapolis who is pushing for a change. “The danger is that they’ll replicate the mistake the past several administrations have done of never focusing on it until it’s too late and it’s a mess.”

The White House did not respond to questions but released a statement. “President Biden has laid out an ambitious agenda to address problems in our criminal justice system that have resulted in overincarceration and miscarriages of justice, and he has a talented team of attorneys working to examine appeals for clemency to ensure sentences are consistent with the values he’s articulated,” White House spokesman Michael Gwin said.

In modern history, presidents have treated clemency as an afterthought, granting it in their waning days, often as a gift to friends and associates. Trump was no exception and took that a step further. In most cases, Trump bypassed the lengthy, multilevel process for clemency that has been conducted for more than a century. Instead, he made decisions through an ad hoc system where politically connected allies and well-paid lobbyists tried to persuade him in person and on TV to use pardons to help friends and hurt enemies.

In total, Trump granted 237 pardons or commutations and denied 180 cases. Many of those he acted on were headline-grabbing: former members of Congress, numerous people convicted in Robert Mueller’s probe into Russia’s 2016 election interference, and security contractors convicted for massacring Iraqi civilians in 2008. He failed to act on thousands of other cases, leaving 13,750 behind for Biden. But the current backlog — the largest on record, according to the Justice Department and experts — can’t be blamed on Trump alone.

Barack Obama waited well into his second term to act. When he urged federal prisoners to apply for leniency under his clemency initiative, which allowed certain inmates to make their case for getting their sentences commuted, petitions soared. He received more than 36,000 requests, the largest total of any president on record. And he acted on an historic amount — more than 22,000 cases — granting clemency 1,927 times, including 212 pardons and 1,715 commutations.

But Obama didn’t take care of all the pending cases, leaving behind 13,000 of them when he left office. And when his final pardon attorney, Deborah Leff, resigned in January of Obama’s final year in office, she lamented that the clemency initiative didn’t have enough resources. “In his clemency initiative, President Obama focused significant resources on identifying inmates, most of them people of color, who had been sentenced to excessive and draconian sentences,” said Neil Eggleston, who served as White House counsel for Obama. “The president would have liked to clear the backlog in pending petitions, but resources spent in achieving that goal would have resulted in fewer inmates who were serving those excessive sentences for relatively minor drug crimes being released.”...

Obama’s aides say they began talking about the pardon process during the transition but they didn’t take Bush’s advice because they had other priorities, including health care. Advocates and lawyers hope Biden learns the lessons of history and makes clemency a first term priority.

“We hope he’ll break from what folks have done in the past and do things at the last minute or as a gift,” Roseberry said. “Our position is it should be used now and as much as necessary to correct all of the wrongs that we now acknowledge from our past criminal legal system. ... It takes courage to do it this year.  We are ready for this.  It’s time. It’s past time.”

Biden didn’t campaign aggressively on the issue of clemency. But supporters of his and Sen. Bernie Sanders (I-Vt.) did address the topic in its 110-page list of recommendations designed to try to unite the two camps ahead of the November election. One of the main proposals that the task force put forward also is one of priorities of criminal justice reform advocates: the creation of an independent clemency board.

The Biden-Sanders task force proposed a 60-person agency composed of people with diverse backgrounds to review cases.  The Democratic Party’s 2020 platform, likewise, called for an independent clemency commission, taking the process out of the Justice Department, which, some activists argue, is ill-suited to submit clemency recommendations to the White House since it also prosecutes the cases.

Rep. Steve Cohen (D-Tenn.), who chairs the House Judiciary subcommittee with jurisdiction over pardons, lobbied Obama and Trump to issue more pardons. He said he plans to do the same for Biden. “There are ... more and more people in jail, and a lot of those people have been there forever and they have been there for long draconian sentences,” Cohen said. “They’re basically wasting their lives, wasting the federal government’s finances ... and destroying lives and families. It’s a total loser, but we do it.”

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that "It’s time. It’s past time."  I also share Mark Osler's view that this could have and should have been a transition priority for the Biden team.  Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a "comprehensive plan" for effective clemency reform.  But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

I am certain that there must be many dozens, and probably many hundreds, of cases that ought to be federal clemency "no-brainers."  (For example, women and men on the CAN-DO site or the lifer marijuana offenders assembled at Life for Pot or person highlighted by NACDL’s Trial Penalty Clemency Project.)  I am pretty confident that only a relatively little amount of time would be needed for members of the Biden team to identify at least a handful of compelling cases that could and should allow clemency grants to be part of Prez Biden's 100-day agenda and legacy.  As Senator Cohen highlights, every day of delay is another day "wasting their lives, wasting the federal government’s finances, and destroying lives and families."

A few of many recent related posts:

• ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons 
• Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?
• A challenge for those troubled by Trump's final month clemencies: identify dozens, hundreds of comparable cases for Biden's first month
• Reviewing CJUTF Recommendations: when and how might Biden Administration create an independent clemency board? 

"Evading the Eighth Amendment: Prison Conditions and the Courts"

The title of this post is the title of this book chapter authored by Sharon Dolovich now available va SSRN.  Here is its abstract:

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly.  This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody.  It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values.  The effect was to leave the people in prison without judicial protection from needless pain and suffering.  And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
2.  Require that short prison sentences be served in county jails. 
3.  End mandatory minimum sentences for nonviolent offenses.
4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
5.  Provide guidance for judges considering sentence enhancements.
6.  Limit gang enhancements to the most dangerous offenses.
7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
10.  Establish judicial process for “second look” resentencing.

Coalition of civil rights groups calls on Prez Biden to commute all federal death sentences and halt capital activity

As reported in this AP piece, "civil rights and advocacy organizations are calling on the Biden administration to immediately halt federal executions after an unprecedented run of capital punishment under President Donald Trump and to commute the sentences of inmates on federal death row."  Here is more (with links from the original):

The organizations, including the American Civil Liberties Union, The Leadership Conference on Civil and Human Rights and 80 others, sent a letter to President Joe Biden on Tuesday morning, urging that he act immediately “on your promise of ensuring equality, equity, and justice in our criminal legal system.”

Biden has been systematically undoing many Trump administration policies on climate, immigration and ethics rules. Although he is against the death penalty and has said he will work to end its use, Biden has not commented on what he will do with Trump’s unprecedented push for the federal death penalty.  The Bureau of Prisons carried out more executions under Trump, 13, than any previous president....  The groups say Biden should step in immediately and take action, as his administration works to establish priorities, address systemic racism and overhaul parts of the criminal justice system.

In the letter, the civil rights groups said the use of the death penalty “continues to perpetuate patterns of racial and economic oppression endemic to the American criminal legal system.”...  “Any criminal legal system truly dedicated to the pursuit of justice should recognize the humanity of all those who come into contact with it, not sanction the use of a discriminatory practice that denies individuals their rights, fails to respect their dignity, and stands in stark contrast to the fundamental values of our democratic system of governance,” the letter said....

The groups told Biden he has the power to dismantle the death chamber building at the Federal Correctional Complex in Terre Haute, Indiana — the small building where the 13 executions were carried out in six months — in addition to rescinding the Justice Department’s execution protocols and a regulation that no longer required federal death sentences to be carried out by lethal injection and cleared the way to use other methods like firing squads and poison gas.

They also said Biden could prohibit prosecutors from seeking death sentences and commute the sentences of the several dozen inmates on federal death row.  Far-reaching steps by Biden, the letter said, would also preclude any future president from restarting federal executions.  Trump’s predecessor, Barack Obama, halted federal executions but never cleared death row or sought to strike the death penalty from U.S. statutes.  That left the door open for Trump to resume them.  “We … recognize that if there is one thing that the waning months of the Trump presidency also made clear, it is the horrendous implications of simply having an informal federal death penalty moratorium in place,” it said.

Cynthia Roseberry, the ACLU’s deputy director of policy for the justice division, said she knows that Biden has a lot on his plate and that he should be given some time to act on the death penalty.  But she said the groups wanted to assure Biden “that there is broad based support to be bold” on the issue and that some don’t require complicated policy initiatives or new legislation.  “These things,” Roseberry said, “can be accomplished with the stroke of the pen.”

The full ACLU press release about this letter is available at this link, and the full letter from the coaltion is available at this link.   

I noted here in response to last month's similar letter by 37 Democratic members of Congress that the call for commuting all of federal death row came with a request to "ensur[e] that each person is provided with an adequate and unique re-sentencing process."  This new call here to "immediately commuting the sentences of all individuals under federal sentence of death" does not alternative sentencing with any specificity, but it obviously avoids advocating that Prez Biden converting death sentences into life without parole sentences.  This is yet another reminder that modern adocacy against LWOP sentences, which often calls LWOP just a death sentence by another name, serves to complicate a bit advocacy against capital punishment.

Lots of great coverage at CCRC of lots of great 2020 criminal record reform activity

I blogged here last month about this big report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel which reviewed all the criminal record reforms enacted by states in 2020.   I know see that CCRC has been highlighting particular reforms on particular issues in this recent series of posts:

• Momentum grows to restore voting rights to people with a felony

• Surge in reforms to ease driving penalties

• Marijuana expungement accelerates in 2020

Regular readers likely realize that marijuana expungements are a topic of particular interest to me.  Back in 2018 I wrote an article focused just on this topic, "Leveraging Marijuana Reform to Enhance Expungement Practices," and this past year I co-wrote another piece focused on Arizona reforms that made much of this issue, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."

Eighth Circuit panel affirms (within-guideline) sentence of 2.5 years for illegal possession of a single bullet

Decade of study can make one nearly numb to the variety of remarkable stories involving our criminal justice systems ordering people to live long periods in cages for what seems like relatively minor crimnal activity.  But I was still struck by an Eighth Circuit ruling this week in US v. Brown, No. 20-1377 (8th Cir. Feb 2, 2021) (available here), highlighting how minor convicted conduct can lead to major federal prison time.  Here are the basics fron a unanimous per curiam unpublished opinion (with cites removed):

The district court1 sentenced Deaviea David Brown to 30 months of imprisonment after Brown pled guilty to being a felon in possession of ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Brown contends that sentence is substantively unreasonable and violates the Eighth Amendment. We affirm....

Because Brown’s sentence is at the bottom of the Guidelines range, we presume the sentence is reasonable. Brown did not rebut that presumption.  We also note that during the sentencing hearing, the district court specifically addressed the § 3553(a) factors.  We see no basis to conclude either that the district court improperly weighed the § 3553(a) factors or that the sentence it imposed was substantively unreasonable....

[T]he proportionality principle in Eighth Amendment law is quite limited. Under this standard, the proportionality argument presented simply lacks sufficient basis for this court to conclude that Brown’s sentence — which was at the bottom of the recommended Guidelines range — is one of those “exceedingly rare” cases that raises the gross-disproportionality inference.  While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount. The sentence does not violate the Eighth Amendment.

I have not yet found any more information about the district court sentencing online, but I would guess there is a significant backstory as to why Mr. Brown was federal prosecuted and sentenced to 2.5 years in federal prison for possession of a single bullet. (There was a significant backstory when the Sixth Circuit affirmed a 15-year ACCA sentence for possession of seven shotgun shells some years ago.)  But I am always troubled when a serious sentence is based on some unclear backstory rather than on the seriousness of the actual offense conduct that produced the conviction.

Notably and annoyingly, the panel keeps stressing that the 30-month sentence here was at the bottom of the applicable guideline range.  For me, that fact serves to condemn the federal sentencing guidelines, not justify this extreme sentence.  It is also an important reminder that, even 15+ years after Booker made the guidelines advisory, they still have an adverse impact on justice and still need a thorough rewrite.

I am especially troubled by the facile rejection of the Eighth Amendment claim by the panel in these terms: "While 30 months of imprisonment for possession of a single bullet may seem, on its surface, disproportionate, the penalty relates to the prohibition on convicted felons possessing ammunition of any amount."  This strike me as tantamount to a statement that there could never be a constitutionally disproportionate sentence for shoplifting a candybar because a severe penalty is critical to keep people from stealing any amount of goods.  Put simply, 30 months of imprisonment for possession of a single bullet does seem disproportionate, and the Eighth Circuit panel should have at least conducted a full Eighth Amendment proportionality analysis (which would show, I think, that this this behavior is not even criminal in many states and not a felony in most).

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

Another round of coverage of Prez Trump's clemency grants (and some folks left behind)

It is now nearly two full week since former Prez Trump issued his large batch of clemencies in his final hours in office.  As I mentioned in this post last week, Trump's entire clemency record is full of fascinating and frustrating stories with respect to individual cases and the body of clemency work.  I did a round-up of recent pieces assessing Trump's clemency activities law week, but another week of press coverage reveals another set of interesting stories about both clemencies granted and not granted:

From CBS News, "Man serving life sentence for non-violent crime reunites with family after Trump pardon: 'A piece of me is back'"

From CNN, "This former prisoner had an unlikely supporter: the judge who sentenced him"

From Forbes, "The Inside Story Of A Trump Pardon Gone Wrong"

From Newsday, "How the plan to grant clemency to Sheldon Silver was scuttled"

From Politico, "The Real Scandal Is the Pardon Trump Didn’t Give: Rufus Rochell checked all the right boxes for clemency: an exemplary record in prison, advocacy out of it, and a friendship with a famous Trump booster. So why didn’t he get it?"

From SF Weekly, "Meet the Cannabis Offenders Pardoned by Trump"

I hope it will not be too long before we have some clemency action by Prez Biden to talk about, but I am not really all that optimistic on that front.