Sentencing Law and Policy

Robina Institute completes huge project on states' prison-release frameworks

I was pleased this morning to receive an email titled "The Robina Institute Has Completed a Three-Year Effort to Produce Individual Reports on the Prison-Release Frameworks of All 50 States and D.C." This news is worthy of celebration as the text of the email explains (with links from the original):

We're excited to share that the Robina Institute has completed a monumental three-year research project on prison-release mechanisms across all 50 states and the District of Columbia, providing unprecedented insights into the determinants of actual-time-served in prison. This effort was led by Kevin Reitz as part of the Prison Release: Degrees of Indeterminacy Project.

What's in the Reports?

Each report delves into the intricacies of the respective state's prison release frameworks, including the decision-makers and varied mechanisms impacting prison populations.  These reports average 20 pages and are a comprehensive resource for those seeking to understand the causes of mass incarceration and its potential remedies.

Understanding Prison Release Mechanisms 

Each state has its unique blend of mechanisms, such as parole boards, sentence discounts for good or earned time, executive clemency, compassionate release, and emergency release protocols.  These reports provide models and measurements illustrating the distribution of release discretion power among officials, and the interactions between different forms of release discretion.

Insights Into Decision-Making Power 

The reports critically assess which official actors have the power to determine prison population size in each jurisdiction, whether through front-end sentencing discretion by judges and prosecutors or through back-end agencies, including parole boards and departments of corrections.

Why Is This Important? 

Understanding prison-release discretion is crucial in unraveling the complexities of mass incarceration in America. States exhibit substantial diversity in structuring the laws, policies, institutions, and practices of prison-release discretion.  Until now, there wasn't a resource that comprehensively compared the American state-level frameworks, making this series invaluable for those involved in policymaking and criminal justice reform.

We extend our thanks to Arnold Ventures for their support in this project.

Read the Reports

Notable new SCOTUS accounting of stays in capital cases over the last decade

The Supreme Court does not start hear oral arguments to officially start its new Term until next Monday, but it does have its "long conference" scheduled for today and Bloomberg Law has this interesting new piece for capital case watchers.   The piece is headlined "Death Row Inmates Find Fewer Paths to Supreme Court Reprieves," it is is worth a full read. Here are excerpts:

Richard Glossip has had his last meal three times. It may be four if the US Supreme Court doesn’t agree at its private conference Tuesday to hear the Oklahoma death row inmate’s latest appeal.

Glossip’s execution dates have been blocked nine times, most recently by the high court in May, since he was convicted in 1998 of hiring a man to kill the owner of the motel he managed.  But his case is unusual: only one other inmate has had an execution put on hold since Justice Ruth Bader Ginsburg died in September 2020, giving President Donald Trump his third appointment to cement a 6-3 conservative majority on the court.

In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.  “There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said.  “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”

Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.  The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting.  And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.

Those findings are almost certainly undercounted due to the variable nature of death penalty court filings.  The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases.  Groups like the Death Penalty Information Center track executions but they don’t track all appeals.

The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution.  Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber....

The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.  When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.  “Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”

Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes....

Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.  Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.

“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”  At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”

US Sentencing Commission releases latest detailed "Compassionate Release Data Report" (with first data since proposed guideline amendment)

I just noticed that the US Sentencing Commission yesterday published this updated compassionate release data report, and this latest  one provides data on sentence reduction motions through June 30, 2023.  As I have noted with a prior data report, there are lots and lots of notable data points about how and where these motions are brought and resolved throughout this data report.  Interestingly, though some cumulative data is provided at the start of this data report, the vast majority of the report just provides particulars for grants and denials of compassion release for the period from October 1, 2022, through June 30, 2023 (which comprises the first three quarters of Fiscal Year 2023 for the USSC).

Critically, near the middle of Fiscal Year 2023, the US Sentencing Commission officially voted to amend the so-called compassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprisonment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  I blogged here and here about the Commission's promulgation of its amendment of § 1B1.13 in early April 2023.  The amendment was formally submitted to Congress in late April 2023, but does not become law until November 1, 2023.  Nevertheless, this data run suggests there was a small spike in the filing and granting of sentence reduction motions in May and June 2023.  This may just be a bit of statistical noise, though I am inclined to guess that the Commission's official vote on its new guideline may have contributed somewhat to the small uptick in the number of sentence reduction motions filed and granted.

"Fixing Disparate Prosecution"

The title of this post is the title of this notable new article authored by Shima Baradaran Baughman and Jensen Lillquist now available via SSRN. Here is its abstract

America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some U.S. states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance and are told to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense.

Both normative and structural changes are needed.  But proposed normative changes — such as progressive prosecution or evidence-driven prosecution — rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States.

Notable debate among Sixth Circuit judges as court turns down en banc review of "resentencing retroactivity" after FIRST STEP Act

Hard-core sentencing fans may want to check out the opinions authored by a trio of Sixth Circuit judges concurring and dissenting from the denial of en banc review US v. Carpenter, in No. 22-1198 (6th Cir. Sept. 18, 2023) (available here) (en banc review denial).  In this case, the circuit panel held earlier this year that the defendant could not benefit at a resentencing from the FIRST STEP Act's reduction in the severity of stacked 924(c) gun mandatory minimums because he original sentencing pre-dated passage of the FSA.   

A petition for rehearing en banc followed (and I noticed SCOTUS advocate of great renown, Jeff Fisher, listed as one of the lawyers on the petiton).  The petition then was circulated to the full court, but less than a majority of the judges voted in favor of rehearing en banc.  Judge Kethledge (joined by a few judges) authored a concurrence in the denial of rehearing en banc.  In that opinion, he explains why he thinks the panel reached the right result under applicable law even though "Carpenter’s sentence was extreme by any measure" and even though "the sentence here would never have been imposed" absent the old pre-FSA mandatory minimums.

Judge Griffin (joined by a few judges) authored a substantive dissent which helps explain the particulars in this opening paragraph:

This appeal arises under the First Step Act, which amended several criminal statutes and reduced mandatory-minimum sentences for certain federal crimes.  For defendant Timothy Carpenter, the Act, if applied, “would reduce his mandatory-minimum sentence on his [18 U.S.C.] § 924(c) convictions by 80 years (from 105 years to 25).” United States v. Carpenter, 2023 WL 3200321, at *1 (6th Cir. May 2, 2023).  But despite the Act’s retroactivity provision extending its benefits to defendants awaiting sentencing, and despite the vacatur of Carpenter’s earlier, invalid, pre-Act sentence, the panel here — following circuit precedent — concluded Carpenter must now be resentenced under the old version of the statute with its outdated sentencing scheme. Id. at *2 (citing United States v. Jackson, 995 F.3d 522, 524–25 (6th Cir. 2021)).  In my view, Jackson was wrongly decided, and this case involves a question of exceptional importance.  Accordingly, I respectfully dissent from the denial of the petition for rehearing en banc.

Judge Bloomekatz (joined by a few judges) dissents to add even more context that, perhaps, is an effort to get at least one Justice's attention. Here is her closing substantive paragraph:

The real human costs that this esoteric legal issue presents also should not be overlooked.  Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states.  Carpenter proves this point.  His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7.   The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.  Indeed, the circuit split, the federal government’s position, the dissent from then-Judge Barrett in Uriate, and the dueling opinions on this en banc petition underscore that the scope of the retroactivity provision is far from clear.  See United States v. Uriate, 975 F.3d 596, 606–09 (7th Cir. 2020) (en banc) (Barrett, J., dissenting).

Couple of final notes of possible interest: (1) I am pretty sure the Timothy Carpenter of this case is the same guy who got the Supreme Court to review his Fourth Amendment claim back in 2018 in Carpenter v. US; (2) I am pretty sure this Timothy Carpenter has already served 10+ year in prisons, and so may soon be eligible for a reduction in sentence under the "unusually long sentences" criteria in the US Sentencing Commission's proposed new “Compassionate Release” policy statement.

US Pardon Attorney event: "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency"

I am pleased to see (and promote) a notable event scheduled for this Friday at 10am (September 22, 2023) by the Office of the US Pardon Attorney.  This event is called "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency," and it is described on this event page this way:

Join the Office of the Pardon Attorney for this special event addressing the collateral consequences of incarceration and the role of record-clearing and clemency. Associate Attorney General Vanita Gupta will provide opening remarks, followed by a panel discussion featuring the following justice-impacted advocates and experts:

• Ames Grawert, Brennan Center for Justice
• Sheena Meade, The Clean Slate Initiative
• Amy Ralston Povah, Can-Do Clemency
• Robert Richardson, Clemency Recipient & Author
• Tony Lewis, Jr. Activist & Author

This even will be livestreamed at this link.

"Forbidden Purposes"

The title of this post is the title of this new piece authored by Raff Donelson now available via SSRN.  Here is its abstract:

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons.  For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and to remove them from public space.  These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions.  But, supposing the extraordinary evidence could be adduced, what difference would it make in a court of law?

While most can agree that officials act wrongly if motivated by these concerns, it is less clear whether such officials act illegally.  Does constitutional law disclose any legal ground for opposing action taken for these nefarious purposes? This Essay outlines a strategy that courts might adopt for finding that some governmental purposes are, constitutionally speaking, forbidden purposes.  Purpose-based arguments for invalidating government action are not entirely new.  Rational basis review, familiar from the Equal Protection and Substantive Due Process contexts, sometimes requires courts to determine whether governmental action advances legitimate purposes.  However, such scrutiny lacks general elucidation, and few have endeavored to elaborate how this would work specifically in the criminal sphere.  This Article is a first attempt to develop a method for distinguishing the legitimate from the forbidden purposes in criminal law and beyond.

On the proposed framework, courts would consider the constitutive rules of liberal legal systems, that is, those rules that both define and govern liberal legal systems.  The set of constitutive rules will limit the state’s pursuit of certain aims, and those foreclosed options are, on the proposed framework, forbidden purposes under rationality review.

Eleventh Circuit panel deepens circuit split by holding fugitive status does not serve to toll term of supervised release

LawProf Jacob Schuman made sure via this tweet that I did not forget to blog about last week's notable panel ruling in US v. Talley, No. 22-13921 (11th Cir. Sept. 7, 2023) (available here).  Here is how the unanimous ruling begins:

This appeal requires us to decide whether absconding during a term of supervised release tolls the supervised release period. James Reginald Talley, a convicted felon, appeals the district court’s judgment revoking his supervised release and ordering him imprisoned based in part on a violation committed after his supervised release had lapsed but while he was, based on the district court’s findings, a fugitive from justice.  We hold that the district court erred in tolling Talley’s period of supervised release based on his fugitive status. In doing so, we join the First Circuit and part company with the Second, Third, Fourth, and Ninth Circuits.  Accordingly, we vacate the district court’s judgment and remand for resentencing.

And here are a few paragraphs from the opinion that help highlight why it is blogworthy:

The circuits are divided over the application of “fugitive tolling” to terms of supervised release.  A majority of courts to consider the question apply the doctrine, holding that absconding from supervision equitably tolls the offender’s supervised release period during his truancy.  See United States v. Island, 916 F.3d 249, 251 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99, 108–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 455–57 (4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d 951, 952 (9th Cir. 2005). But we are convinced that the minority view is the correct one.  Accordingly, we join the First Circuit in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010); see also Island, 916 F.3d at 256–59 (Rendell, J., dissenting).

We think the First Circuit has the better position for two reasons. First, the justifications for fugitive tolling in other contexts — such as prison escapes — do not apply to the context of supervised release.  Second, the doctrine is inconsistent with the text of the statute and our caselaw interpreting that statute.

It will be interesting to see if the federal government seeks SCOTUS review of this issue.  If they do, I suspect the Court might take it up but then might just rule against the feds.  With that possible outcome, the feds might just now decide not not seek further review.  

Split Louisiana Supreme Court finds Louisiana’s prosecutor-led review statute unconstitutional under state law

Thanks to a helpful reader, I saw that the Louisiana Supreme Court today issued a notable ruling that finds unconstitutional, as a matter of state constitutional law, a state statute that allowed prosecutors to petition for review of past convictions and sentences.  The majority opinion in Louisiana v. Lee, No. 2022-KK-01827 (La. Sept. 8, 2023) (available here), gets started this way:

We granted the writ application in this case to address an issue of constitutionality: whether Article 930.10 of the Code of Criminal Procedure, which governs post-conviction plea agreements, violates the state constitution’s separation of powers provision, La. Const. art. II, § 2.  More specifically, the question presented is whether Article 930.10 permits the judicial branch to exercise the governor’s power under La. Const. art. IV, § 5(E) to pardon a final conviction.  We hold that because Article 930.10 permits a court to overturn a final conviction without a finding of legal defect pursuant to La. C.Cr.P. art. 930.3, the article unconstitutionally allows the judicial branch to exercise the governor’s exclusive pardon power, and, therefore violates the doctrine of separation of powers as found in La. Const. art. II, § 2.

Though I am not an expert on Louisiana law, the close of the majority opinion seems to suggest that prosecutor-supported motions for resentencing would be possible in some cases if tethered to another provision of Louisiana procedure:

[O]ur decision does not mandate that collateral review of criminal convictions be unnecessarily adversarial, nor does it serve as a bar to cooperation between parties in post-conviction proceedings to achieve the ends of justice.  Such a mandate would be inconsistent with Article 2 of the Code of Criminal Procedure, which instructs that the Code is “intended to provide for the just determination of criminal proceedings,” and the provisions “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.” See also State v. Shallerhorn, 2022-1385, pp. 6–7 (La. 6/27/23), --- So.3d ---.  A court’s ruling on a collateral challenge to a final conviction may follow an adversarial hearing, an unopposed presentation by the defendant, or a joint effort by both parties to convince the court that the law and evidence support vacating the conviction.

Our decision does mandate that courts overturn a final conviction only after finding a ground for relief enumerated in La. C.Cr.P. art. 930.3.  Were a court to vacate a conviction without such a finding, as is permitted by Article 930.10, it would amount to an unconstitutional exercise of the governor’s exclusive pardon power in violation of the doctrine of separation of powers as provided in La. Const. art. II, §2.

A lengthy and short dissent followed the majority opinion, and the closing passages of the long dissent by Justice Weimer speaks to some of the broader issues implicated here:

Any concern over the court usurping the pardon power by reducing a sentence is relieved by the codal requirement that the district attorney and the defense jointly agree, and by the fact that the district court judge is given the authority thereafter to determine if the joint motion will be granted.  It goes without saying that the discretion afforded to the district court will only be exercised if the facts demonstrate that justice and the interests of the society warrant the court’s decision.

The importance of La. C.Cr.P. art. 930.10 cannot be overstated. Louisiana incarcerates more citizens per capita than any state in the Union and any nation in the world. Non-unanimous juries exacerbated the problem and increased these numbers.  It is well-documented that the poor and minorities have been disproportionally impacted by the ill-conceived practices of the past.  Perhaps as a direct consequence, Louisiana experiences a significant number of exonerations of incarcerated individuals.

The post-conviction legislation at issue here was unanimously enacted by the legislature, the people’s representatives, and signed into law by the governor.  Its obvious purpose is to insure justice is done and to act as a counter balance or check on the renegade practices and prejudices of the past.  It will only afford a postconviction remedy in those matters in which an individual is proven to be not guilty of the crime charged and is designed to right wrongs in certain specific cases.  The legislature was obviously concerned about past practices and the ineffectiveness of the poorly developed post-conviction relief procedures.  Carried to its logical conclusion, the attorney general’s effort could have the disastrous effect of undermining, and further limiting, the post-conviction relief procedure that has operated to correct the evils of the past.  Finality for finality’s sake is an important concept, but our system of justice and our sense of fairness recoil at the thought that an innocent person remains punished for a crime not committed.

The multi-step process established by Article 930.10 is replete with checks and balances, requiring opposing sides to agree.  Just as the governor is granted authority to commute sentences, the district attorney is charged with prosecuting cases and the courts are charged with deciding cases properly brought.  The attorney general is seeking to strip the district attorney and judiciary of authority to resolve injustice on a case-by-case basis.  The decision of the district attorney and defendant to bring this case to the court is not commutation from a constitutional standpoint, which is wholly within the authority of the governor, but the resolution of a case that was carefully reviewed by the district attorney.  After that careful review here, the district attorney obviously determined that it was not in society’s best interest to spend untold resources in trying this matter. Rather, exercising the prudence and discretion afforded to his office, the district attorney determined the additional facts presented by defendant here dictated the agreed-upon resolution, which the district court evaluated and granted, promoting judicial economy and saving other valuable public resources.  That is not a commutation by the governor but the resolution of a case.  Such an interpretation of Article 930.10 is reasonable and does not result in a violation of separation of powers. See LeCompte, 406 So.2d at 1311 (on reh’g).  Accordingly, I respectfully dissent from the majority’s reversal of the district court’s June 15, 2002 ruling, as I believe that La. C.Cr.P. art. 930.10 is not facially unconstitutional and is, in fact, constitutional, as applied in this case.

"Extraordinary Punishment: Conditions of Confinement and Compassionate Release"

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

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills.  But civil rights litigation under the Eighth Amendment — the most common vehicle through which people seek to redress these harms — presents significant practical and doctrinal barriers to incarcerated plaintiffs.  Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials.  Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering.  For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.

At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied.  However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.

In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment.  These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences.  Given the challenge of redressing harms under the Eighth Amendment, this Article argues that the expansion of compassionate release ECRs to encompass harmful conditions of confinement makes doctrinal sense and allows for a more appropriate remedy to harms done in prison than traditional civil remedies.

Spotlighting poor record of new Illinois medical release law

I have followed the stories of "compassionate release" a lot more closely since the passage of the federal First Step Act in 2018 dramatically increased the number of federal prisoners able to make a court motion, and prevail on a court motion, for a sentence reduction.  But it is very hard to keep up with the 50+ other jurisdictions that run prison systems in the US that have their own rules and practices for releasing prisoners on various grounds.  Consequently, it is very interesting and helpful to see local groups and media focus on these issues at the state level, and today brings this notable new report from from Injustice Watch and WBEZ about development in Illinois.  The piece is headlined "Dying and disabled Illinois prisoners kept behind bars, despite new medical release law," and it demands a read in full for anyone concerned about these issues.  Here is how the extended article gets started:

Phillip Merritt’s dementia is so advanced he’s lost the ability to speak. But with the help of his cellmates at Western Illinois Correctional Center, the 71-year-old still manages to get on the phone with his brother every few weeks. “He has to have someone call me, and then I don’t know what to say to him because he can’t understand anything, so I’ll just talk,” said Merritt’s brother, Michael Merritt, in an interview. “All he can say are two words. … I mean, he’s just gone.”

Merritt’s deteriorating condition makes him a prime candidate to get out of prison under the Joe Coleman Medical Release Act, a pivotal criminal justice reform bill touted by Gov. JB Pritzker and Illinois Democrats as an effective way to alleviate the state’s decrepit prison health care system, reduce the “staggering” costs of caring for ailing people in prison, and reunite families with frail loved ones.

Under the act — named after a decorated Army veteran who died of prostate cancer while incarcerated — Illinois prisoners can request early release if they’re terminally ill and expected to die within 18 months or if they’re medically incapacitated and need help with more than one activity of daily living, such as eating or using the bathroom.

But a year-and-a-half since the Coleman Act went into effect, an investigation by Injustice Watch and WBEZ found far fewer prisoners have been released under the law than expected, as the medical release process has become mired in the charged politics of criminal justice reform in the post-George Floyd era. Behind the lower-than-expected numbers is the Prisoner Review Board, a state body appointed by Pritzker and confirmed by the Illinois Senate with final say on medical release requests.

As of mid-August, the board had denied nearly two-thirds of medical release requests from dying and disabled prisoners who met the medical criteria to get out of prison under the Coleman Act — including Merritt. “I couldn’t believe it,” his brother said. “How could they deny him? He can’t even talk!”

More than half of the 94 denied applicants were older than age 60, and half had spent at least 15 years behind bars, according to an analysis of state prison data. At least two died in prison, including an 81-year-old who had been incarcerated for more than three decades and was scheduled to be released in 2025. Another man died five days before the board denied his request.

Meanwhile, the Prisoner Review Board has only granted 52 medical releases — a rate of fewer than three releases per month on average since board members began voting on those requests, records show. Advocates say the board is undermining the Coleman Act and forcing ill-equipped prison staff to care for dying and disabled prisoners, even those with families practically begging to take them off their hands.

Notable (and notably little) early coverage of USSC's decision to make new criminal history rules retroactive

As noted in this post, last week the US Sentencing Commission voted to make its new criminal history amendments retroactive.  According to the USSC's calculations, this decision will enable roughly 18,500 federal prisoners to obtain reduced sentence (and may lead to tens of thousands of additional federal prisoners to seek a reduction.  And yet, this big and impactful federal sentencing development has seemingly received almost no significant attention in the media or anywhere else that I have seen. 

Specifically, I have only seen two media pieces on the decision:

From Law360, "Sentencing Commission Backs Retroactive Cuts For 1st Timers"

From Forbes, "Sentencing Commission OKs Retroactive Reduction For Many Inmates"

Helpfully, Thomas Root over at LISA Foundation has a pair of posts providing some more coverage and context: 

• Criminal History Guidelines Going Retro By Narrowest of Margins
• Mr. Explainer’s “How-to” On Applying For Retroactivity

I suspect that there may be considerable additional public and private discussions of the USSC's consequential actions among various criminal justice insiders, but I am still somewhat surprised that major action by the leading federal sentencing agency has not generated broader discussion.  Of course, the USSC's actions do not allow reduced sentences and federal prisoner releases to become effective until February 2024, so maybe the absence of an immediate impact is a small part of this story.  (But, notably, there is news of a kind of delayed/uncertain action coming from another federal agency today (basics here) that seems certain to generate nearly endless attention.)

Notable concurrence laments that Eleventh Circuit's "sentencing precedent is a crazy quilt"

A helpful colleague made sure I did not miss a remarkable concurring opinion by Eleventh Circuit Judge Kevin Newsom in US v. Curtin, No. 22-10509 (11th Cir. Aug. 28, 2023) (available here).  Judge Newman authored the lengthy opinion for the Court, which affirms the conviction and above-guideline sentence for a defendant convicted of multiple changes stemming from a threat made against a federal magistrate judge.  But his lengthier concurring opinion is the real must-read for sentencing fans, and the start and end of that opinion highlights why:

Among the many issues that this case presents, one recurs with some frequency, and our treatment of it has always struck me as a little odd.  Our precedent has (albeit haphazardly) categorized a criminal defendant’s argument that the district court considered an impermissible factor in imposing a sentence as a challenge to the sentence’s “substantive” reasonableness, rather than an allegation of “procedural” error.  See Maj. Op. at 17.  That didn’t — and for reasons I’ll explain, still doesn’t — make much sense to me.  So I decided to look into it.

The deeper I dug, though, the more problems I uncovered. As it turns out, our sentencing precedent is pretty hopelessly conflicted — not only with respect to the categorization of particular sentencing-related challenges as “substantive” or “procedural,” but also with respect to the rules that govern the preservation of those challenges for appeal and, as a result, the standards by which we review alleged sentencing errors. In the pages that follow, I hope to (1) unmask the contradictions in our precedent and (2) briefly propose a better way of classifying and adjudicating sentencing-related challenges....

Clearly, I got more than I bargained for in this case — and, by extension, so did you.  What I found, though — and what I hope I’ve demonstrated — is that our sentencing precedent is a crazy quilt.  First, we’ve been freakishly inconsistent in our characterization of sentencing challenges as “substantive,” “procedural,” or (tellingly) both.  And in important respects, even where we have settled into something that might be called a pattern, we’ve chosen poorly.  Nowhere is that more true, in my view, than in our classification as substantive of what is to me the self-evidently procedural challenge to a district court’s consideration of an improper sentencing factor.  Second, we’ve been just as erratic in our pronouncements about what suffices to preserve sentencing-related challenges: One day, a boilerplate objection will suffice, the next day it won’t.

Enough is enough.  We should convene the full Court to restore some order. And when we do, we should take our cue from the Supreme Court’s own sentencing decisions.  To start, we should hold that all (as I’ve called them) “input”-related challenges are allegations of “procedural error” and should be assessed at the outset, before turning to evaluate, as a matter of “substantive reasonableness,” the district court’s “output” — i.e., the sentence itself.  And when determining whether a defendant has properly preserved his sentencing-related challenge — whether substantive or procedural — we should apply the usual rules and ask whether he specifically stated the grounds of his particular objection, in a manner that clearly put the district court on notice of its alleged error.

"Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw"

The title of this post is the title of this new article available via SSRN authored by Michael M. O'Hear.  Here is its abstract:

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans.  These legal financial obligations (“LFOs”) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities.  One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship.  The U.S. Supreme Court has decided a handful of Excessive Fines Clause cases but has left a great many questions about the Clause’s reach unanswered.  Lower courts are now regularly grappling with these open questions, giving rise to an ever-growing body of caselaw.

This Article offers the first systematic survey and evaluation of the caselaw on what counts as a “fine” for Eighth Amendment purposes, particularly in relation to the major categories of LFOs.  Based on an assessment of nearly 200 cases, important interjurisdictional variations are apparent.  In a few states, expansive understandings of the Clause’s reach are becoming established, which may create a foundation for robust constitutional regulation of LFOs.  In most states, though, the precedent is either less favorable or simply still too undeveloped to see a clear trajectory.  The Article further identifies seven key, open doctrinal questions that cut across the LFO categories and will likely determine the extent to which the full range of LFOs will be subject to the Clause.  The Article outlines the main arguments that have been made or might be made on both sides of these questions, providing a sort of roadmap for activist lawyers of the points that must be won for the EFC to have maximum reach.

Interesting Seventh Circuit discussion of rehabilitation considerations as part of imposition of prison term

A dozen years ago, the Supreme Court issued an important little opinion in Tapia v. US, 564 U.S. 319, 332 (2011), which held that federal sentencing statutes preclude "sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation."  As explained in this post from back in 2011, I helped prepare an amicus brief in Tapia making arguments that did not prevail, driven by a concern that a broad ruling in Tapia might in other cases dissuade sentencing judges from being candid about their interests in helping defendants get needed treatment or from giving appropriate thought to sentencing advocacy that sounded in rehabilitative terminology.  I give that backdrop to explain why I found interesting, encouraging and blog worthy a Seventh Circuit panel opinion from this past week in US v. Long, No. 22-2275 (7th Cir. Aug. 22, 2023) (available here), which starts this way:

This case presents another variation on the challenges posed for sentencing judges by instructions from Congress and the Supreme Court about the required, permissible, and prohibited roles of rehabilitation in sentencing.

Appellant Delvarez Long is serving an above-guideline prison term for possessing a firearm after being convicted of a felony. He argues on appeal that the district court plainly erred by imposing a prison term in part to rehabilitate him, contrary to 18 U.S.C. § 3582(a) as construed in Tapia v. United States, 564 U.S. 319 (2011).  We affirm.  Rehabilitation is an important consideration in most sentences.  Tapia permits a judge to discuss rehabilitation so long as she does not make rehabilitation a primary consideration in deciding whether to impose a prison sentence or how long it should be.  Our review of this record does not show a plain error under Tapia. 

The final two paragraphs of the thoughtful Long opinion highlights why I was worried about how Tapia might disrupt sound sentencing practices while seeking to make sure that it does not:

Section 3582(a) and Tapia put district courts in a difficult position.  Courts must ignore rehabilitation as a goal when imposing or lengthening a prison sentence, even though they must consider rehabilitation at the same hearing, when deciding about supervised release and appropriate conditions. See 18 U.S.C. § 3583(c).  As we said in Shaw, Tapia forces courts to demonstrate “their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.” 39 F.4th at 459.  We ordinarily want a judge to engage with a defendant’s individual history and challenges rather than to apply the Sentencing Guidelines mechanically.  In that engagement, though, Tapia can cast a shadow over thoughtful comments that address a defendant’s unique circumstances or encourage a defendant to take advantage of rehabilitative programs while incarcerated.

We therefore reaffirm the thrust of Shaw: to show a Tapia error, a defendant must show that the district court focused exclusively or disproportionately on rehabilitation in deciding whether to impose a prison term or how long a term should be.  References to rehabilitative programs in prison in passing or when describing opportunities available while serving a sentence selected for permissible reasons will not lead us to find error, let alone plain error.  At the same time, it might be helpful for a sentencing court to include a candid and explicit disclaimer to the effect that rehabilitation goals did not affect whether a prison term was imposed or how long it would be.

US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities

The US Sentencing Commission conducted an interesting and eventful public meeting earlier this afternoon (which can be watched here).   This new USSC press release provides the highlights in its first paragraph:

Today the Commission, by a majority vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text).  The Commission also adopted its next set of policy priorities that include, among other things, reviewing and potentially amending how the guidelines treat acquitted conduct for purposes of sentencing as well as assessing the degree to which certain Bureau of Prisons practices are effective in meeting the purposes of sentencing. 

Here are more of the details from the press release on what the criminal history retroactivity piece of the story means:

Equipped with a quorum of commissioners for the first time since 2018, the Commission voted in April to promulgate amendments to the federal sentencing guidelines — including Amendment 821 providing for targeted, evidence-based changes to certain criminal history rules.  Because two parts of that amendment reduce the sentencing range of future defendants, the Commission is required by law to consider whether judges can extend those reductions to previously sentenced individuals.

The Commission voted to delay implementation of any order granting such reduced sentences to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

U.S. District Judge Carlton W. Reeves, Chair of the Commission said, “Our decision today is one that brings hope to thousands of currently incarcerated people and their families.  We listened to a full spectrum of views and considered the full costs associated with incarceration balanced with the time needed to review petitions and prepare for successful reentry.”

Part A of Amendment 821 limits the overall criminal history impact of “Status Points” at §4A1.1. Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at §4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.

Judge Reeves added, “These prospective changes to the criminal history rules made by the Commission in April reflect evidence-based policy determinations that apply with equal force to previously sentenced individuals.  Applying these changes retroactively will increase fairness in sentencing.  At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.”

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
   
• 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

Today’s vote concludes two months of deliberations and the first amendment year of policy work for the commissioners, who were all confirmed last August.  As part of its deliberations, the Commission received expert testimony and public comment from a wide spectrum of stakeholders, including senators, judges, lawyers, religious leaders, doctors, professors, advocates, victims, families, and incarcerated individuals.

This year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

As for the new USSC policy priorities, here is more on that part of this dynamic story:

Today, the Commission also finalized policy priorities for the amendment year ending May 1, 2024.  In light of the 40th anniversary of the Sentencing Reform Act (SRA), the Commission anticipates undertaking a number of projects examining the degree to which current sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in the SRA.

Among these issues, the Commission will work to assess the degree to which certain practices of the Bureau of Prisons are effective in meeting the purposes of sentencing as set forth in 18 U.S.C. § 3553(a)(2).  The Commission will also compile and disseminate information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry.

The Commission will also review and potentially amend how the guidelines treat acquitted conduct for purposes of sentencing.  The Supreme Court recently denied several petitions for writs of certiorari related to the use of acquitted conduct.  In issuing the denials, three Justices supported the denial to allow the Commission more time to address the issue.  “Last year’s amendment cycle was busy and abbreviated.  The Commission appreciates the opportunity to give proper attention to acquitted conduct, and we will do so this year,” said Judge Reeves.

The Commission will continue to examine the career offender guidelines, including updating the data analyses and statutory recommendations made in the Commission’s 2016 report to Congress entitled Career Offender Sentencing Enhancements.  The Commission will also continue its consideration of alternative approaches to the “categorical approach” through workshops convened to discuss the scope and impact of the career offender penalty enhancements.

The Commission will further continue its research agenda through examination of various issues, including methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

WOWSA. That is a whole lot, and I hope to be able to cover some of the particulars of both the retroactivity decision and the policy priorities in more detail in the coming days and weeks.  For now, I will just say kudos to the US Sentencing Commission for doing all this hard and important work in a transparent and clear manner.

Intriguing Third Circuit panel ruling rejects drug quantity finding based on extrapolation

I have long been troubled by how much weight the US Sentencing Guidelines give to drug quantities in guideline calculations, in part because of how those quantities are sometimes calculated.  A recent Third Circuit panel decision provide a small window into these stories in the course of finding insufficient how federal prosecutors sought to prove up drug quantities in the sentencing of a hinky doctor.  Here is how the opinion in US v. Titus, No. 22-1516 (3d Cir. Aug 22, 2023) (available here):

Though the prosecution bears a heavy burden of proof, we will not let it cut corners.  Dr. Patrick Titus wrote thousands of prescriptions for controlled substances.  The government properly proved that many of these prescriptions were unlawful, so we will affirm Titus’s conviction.  But many other prescriptions were lawful.  And the severity of Titus’s sentence depended on how many were not.  Rather than review every patient’s file, the government urged the court to extrapolate from a small sample.  Yet the government failed to show that doing so would satisfy its burden to prove the drug quantity by a preponderance of the evidence.  Because the court sentenced Titus without enough proof, we will vacate his sentence and remand for resentencing.

Bolts provides guide to "Everything You Always Wanted to Know About State Supreme Courts"

At Bolts, Daniel Nichanian and Quinn Yeargain have put together a remarkable set of materials focused on state supreme courts which, as they explain in this overview accounting, serve as "battlefields for some of today’s most pressing issues, from abortion rights and climate to extreme sentencing and ballot access."  Here is more from the overview, with a snippet highlighting why criminal justice fans should care a lot about these matters:

Most obviously, these courts have become an urgent route for liberal litigants in light of conservatives’ durable majority on the U.S. Supreme Court.  State courts get to interpret state constitutions, which often protect rights and liberties more expansively than the U.S. Constitution, and they’ve proven friendly to arguments that wouldn’t succeed in federal court.  The right has also focused on them to expand its control over the judiciary.

But these courts have even more clout than you may realize.  They can shape virtually any policy area that state and local governments touch.  They’re likely to have the final word on all cases filed in state courts, and many play additional roles that extend far beyond deciding cases, from crafting the rules of criminal trials to taking part in redistricting and certifying elections.

And yet these courts’ exact powers and procedures often remain well under the radar.  What justices do and how they’re selected varies widely from state to state, and it always differs from the federal system.  Most states elect justices but have their own twist on electoral rules, while some courts are shaped by commissions largely out of public view — and nearly all serve some idiosyncratic function with little scrutiny.  These distinctions all influence how each court acts and what might be levers of change.

Today Bolts is publishing a new state-by-state resource that plunges into the weeds of these critical judicial powers. For each of 54 courts — accounting for the highest court in all 50 states, two of which have two separate high courts, plus Puerto Rico and D.C. — we cover every nook and cranny of how they are organized, what functions they serve, and rules for judicial selection.....

If you care about criminal justice: State courts shape the rights of people accused of crimes at every stage of a criminal case, and some courts have pushed back more than others against invasive police practices or extreme sentences.  Many supreme courts also write their state’s rules of criminal procedure — lengthy codes that govern how cases unfold, from the issuance of warrants to the calculation of sentences, and some courts even set bail schedules.  This is an often-overlooked but potent policymaking role.  In 2021, for instance, Arizona’s supreme court eliminated peremptory strikes — the practice by which attorneys can eliminate someone from the jury pool without stating a cause — throughout its state. 

In Jan 6 case, split DC Circuit rules sentence for petty offense cannot include imprisonment and probation

As reported in this CNN piece, a "federal appeals court in Washington issued a ruling Friday that jeopardizes the sentences of some January 6 rioters who were convicted of misdemeanors for trespassing at the Capitol and were sentenced to both jail time and probation."  Here is more:

The opinion by DC Circuit Judges Justin Walker and Judith Rogers determined that January 6 rioter James Little couldn’t receive a sentence of prison followed by probation – what is sometimes called a “split sentence” – for his petty offense.  “Probation and imprisonment are alternative sentences that cannot generally be combined,” the appeals court wrote.

Judges in DC’s federal trial-level courts had used these “split sentences” for low-level January 6 offenders to briefly jail them as punishment for their role in the historic attack on the Capitol and then to keep them on probation and under court supervision through the next election....

In his dissent Friday, [Judge] Wilkins wrote that the majority’s ruling robs judges of a tool Congress gave them.  “If petty offenders need a short prison sentence to punish them, to reflect the seriousness of the offense and to deter them from future criminal conduct, they need it regardless of whether they committed one petty offense or two,” Wilkins wrote. “If petty offenders need rehabilitation following imprisonment, they need it regardless of whether they committed one petty offense or two.”

The ruling in US v. Little, No. 22-3018 (DC Cir. Aug. 18, 2023), is available at this link.  Here is how the majority opinion starts:

James Little committed a petty offense.  The district court sentenced him to prison, followed by probation.  The only question on appeal is whether that sentence is authorized by statute.

It is not.  Probation and imprisonment are alternative sentences that cannot generally be combined. So the district court could not impose both for Little’s petty offense.

Here is how the dissent begin:

James Little pleaded guilty to a petty offense under 40 U.S.C. § 5104(e)(2)(G) related to his participation in the January 6, 2021 insurrection at the United States Capitol.  The District Court sentenced him to 60 days’ imprisonment, followed by three years of probation.  On appeal, Little offers several different reasons why his split sentence violates federal sentencing statutes.  The majority agrees.  Because I believe that the majority and Little are mistaken, I respectfully dissent.

Highlighting how even the "godfather of progressive prosecutors" has struggled to advance re-sentencing plans

The Los Angeles Times has this notable new article, headlined "Frustration and criticism as L.A.’s D.A. struggles to reform sentencing," which highlights how even progressive prosecutors face various challenging is advancing progressive resentencing plans.  Here are excerpts from the lengthy piece:

On his first day in office in 2020, Gascón unveiled a list of seismic policy shifts including the creation of a re-sentencing unit that he said could reduce the terms of up to 30,000 people sent to California prisons by L.A. prosecutors under what he called outdated sentencing models. But as of mid-July, only 95 people have actually been recommended for re-sentencing by the unit he formed, according to data provided to The Times in response to a public records request....

While critics say Gascón’s attempts to provide post-conviction relief are still a major improvement over the prior administration, the slow pace has drawn a mix of frustration and criticism from defense attorneys and reform advocates who expected more from the so-called “godfather of progressive prosecutors.”

Some have expressed concern that constant discord in the office, including two failed recall attempts, has made staff hesitant to take action. “They’re worried about having their names on briefs when someone is released,” Michael Romano, chair of Gov. Gavin Newsom’s committee on revising the penal code and a former adviser to Gascón, said of some prosecutors in Gascón’s re-sentencing unit. “They’re very concerned about recidivism.”

Despite Gascón’s comments about thousands of people needing to be re-sentenced, the unit is still working off an initial list of 400 cases it was asked to review. Of those cases, prosecutors have only sought re-sentencing in 162, according to the records provided to The Times. The unit declined to pursue an additional 122 cases, and roughly 100 are still awaiting a decision by the re-sentencing unit or a judge....

Tiffiny Blacknell, a spokesperson for Gascón’s office, defended the re-sentencing initiative and said the number of people who’ve benefited is “greatly multiplied” if expanded to include the work of other units in the office. She pointed to cases where defendants were released for medical reasons, death penalty cases that were reduced to life without parole, and others impacted by the office’s use of California’s prosecutor-initiated re-sentencing law, which took effect in 2019.

Blacknell said the office helped re-sentence 207 defendants under that law — a figure they say far outpaced other large counties in California — but did not provide exact figures for other forms of re-sentencing. Blacknell also said “it took a number of months” to get the unit up and running during Gascón’s tumultuous transition to power in the office, a period marked by lawsuits and public rancor from many of his own prosecutors.

Another factor is the broader staffing crunch in the L.A. County court system. The district attorney’s office had only 808 prosecutors as of mid-June, its smallest roster in decades. The re-sentencing unit has only three full-time deputy district attorneys at the moment, according to Blacknell.

While reform advocates and attorneys have lauded Gascón’s intent, they say his understaffed and slow-moving unit has failed to aid anywhere near the number of defendants that it could... In practice, lawyers who handle post-conviction cases say Gascón is only going after “low-hanging fruit” by focusing on nonviolent offenders, leaving others in need of relief out in the cold. Defense attorney Andy Stein remembers getting dozens of phone calls around the time of Gascón’s swearing in from people facing the kinds of lengthy sentences that the district attorney’s policies were meant to help. But he said he’s only been able to aid a few.

“I think the public has a total misconception of what’s going on,” Stein said. “He’s not letting tons of people out, he’s letting hardly anybody out … the road to hell is paved with good intentions. He’s under-equipped, under-funded.”

Split Fourth Circuit panel reverses denial of sentence reduction motion and orders 20-year reduction based on stacked § 924(c)

A helpful reader made sure that I did not miss a notable Fourth Circuit ruling today in US v. Brown, No. 21-7752 (4th Cir. Aug. 16, 2023) (available here). The majority opinion for the court begins this way:

On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At the time of Brown’s sentencing, his two § 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Brown to thirty years in prison for his § 924(c) convictions, and, together with his other five convictions, to fifty-seven years’ imprisonment total.

In July 2020, Brown moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Brown primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to § 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two § 924(c) convictions if sentenced today.  The district court twice denied Brown’s motion, each time without addressing the disparity between his § 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction.  We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

The majority opinion concludes with some explanation for why it orders a 20-year sentence reduction rather than another remand:

“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177.  So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance.  Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration.  Each time, the district court neglected to address Brown’s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy — and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release — “is relevant to this case.” Brown, 2021 WL 4461607, at *2 n.4.

The dissent, authored by Judge Quattlebaum, starts this way:

In an extraordinary and, in my view, regrettable decision, the majority reverses the district court’s order denying Brown’s motion for compassionate release.  It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.”).  But the majority does not stop there. It then usurps the district court’s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction.  The majority may well be troubled by the length of Brown’s original sentence.  But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges.  The majority today does neither.  I dissent.

Deep dive into stores of juvenile LWOP sentences and their review

The New York Times has this lengthy new feature on extreme sentencing of juvenile offenders, with a focus particularly on happenings in Philadelphia.  I recommend the full article, which is headlined "Sentenced to Life as Boys, They Made Their Case for Release."  Here are some excerpts that highlight some of the data reported within broader story-telling:

Philadelphia lawyer named Bradley Bridge ... began the enormous undertaking of compiling a list of all the prisoners in Pennsylvania who were sentenced to life as minors. No one in the state had ever kept track of this group, who came to be called “juvenile lifers” in the courts and “child lifers” by some of the inmates themselves.

He expected the list to be long. He didn’t expect it to eventually include more than 500 names, nearly one-fifth of the more than 2,800 child lifers in the country. More than 300 of them had come through Philadelphia’s system, making a city with less than 1 percent of the country’s population responsible for more than 10 percent of all children sentenced to life in prison without parole in the United States. No other city compared.  Even more glaring: More than 80 percent of Philadelphia’s child lifers were Black. Nationally, that figure was roughly 60 percent....

In 2008, the Equal Justice Initiative found 73 children who had been given sentences of life without parole when they were 13 and 14 years old.  And all of the people who received those sentences for crimes other than homicide were children of color. “It just said something about the way in which race was a proxy for a presumption of dangerousness, this presumption of irredeemability,”[Bryan] Stevenson said....

The Supreme Court’s rulings in Miller and Montgomery marked an important rethinking of culpability when it comes to children who commit the most serious crimes.  But the practical implications of the rulings were limited: the court hadn’t abolished all life without parole sentences for children — only ones where state laws made the sentences mandatory. And while child lifers now had a chance to make a case for their release, prosecutors could still seek new life sentences.  In other states with high numbers of child lifers, including Michigan and Louisiana, as well as some parts of Pennsylvania, that’s just what they did.

Of the more than 300 child lifers who became eligible for resentencing in Philadelphia in 2016, all but about a dozen have been resentenced, and more than 220 have been released, the majority of them on lifetime parole.  That’s nearly a quarter of the roughly 1,000 total child lifers who have been released across the country.  These numbers make Philadelphia, once an outlier in imprisoning minors for life, now an outlier in letting them go.  By 2020, the city had resentenced more child lifers than Michigan and Louisiana combined. What set the city apart, said Mr. Stevenson, of the Equal Justice Initiative, was not just the buy-in from local officials and public defenders, but also the community of child lifers who became their own best argument for release....

Since the Supreme Court decisions, more than half of all states have outlawed life without parole sentences for children altogether, reducing the number of child lifers left in the country to fewer than 600, according to the Campaign for the Fair Sentencing of Youth, a national nonprofit.  Mr. Stevenson’s organization is now working to raise the minimum age at which children can be tried as adults in 11 states, including Pennsylvania, where there is no age floor.  Other states are considering abolishing mandatory life without parole sentences for people under 21.

"The Capital Shadow Docket and The Death of Judicial Restraint"

The title of this post is the title of this new paper on SSRN authored by Jenny-Brooke Condon. Here is its abstract:

The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing.  The Court would prefer for us to think of its role differently — as a passive, mere agnostic participant in a process defined by judicial restraint.  The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences.  Even the oft-quoted refrain that “death is different” — the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment — advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues.  While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty.  This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

Notable pitch to expedite federal appeals of condemned Pittsburgh synagogue shooter

This editorial from the editorial board of the Pittsburgh Post-Gazette caught my eye this past week. The piece is headlined "Expedite synagogue shooter's death penalty appeals," and here are excerpts:

Now that Pittsburgh synagogue shooter Robert Bowers has been sentenced to death, there’s no reason to further delay the administration of justice. The Department of Justice and the federal courts should take every step possible to expedite the appeals.

Further, the convicted murderer and his legal team, having failed in their desperate attempt to convince a Western Pennsylvania jury to spare him, should decline to make unnecessary appeals.  There is no question of his guilt, and the jury convincingly rejected the proposed mitigating factors, while the defendant showed no remorse.  Finally, there is no sign whatsoever of the kind of prosecutorial misconduct that would throw the conviction and sentence into doubt.  Further litigation will only waste time and money, and will further prolong the healing process for the victims’ families and community....

The robust death penalty appeals process exists to minimize the possibility of a false conviction, but in this case there is no doubt as to the defendant’s guilt.  After an exhaustive process, including weeks of testimony, a jury of his peers found him culpable. Further, the defense already pursued every possible stratagem, including causing years of delays, to avoid the death sentence.  They all failed.  Spending years relitigating these matters will not enhance the administration of justice.

Due to the Department of Justice’s decision to pursue the death penalty, followed by innumerable delay tactics by the shooter’s defense team, it has taken nearly five years to complete merely the first step in the process — conviction and sentencing.  These excruciating years have denied victims’ families and the wider community a measure of closure.  Now, the system — including the shooter’s defense team — can do right by those who carry the wounds of October 27, 2018, by expediting the appeals.

Not mentioned in this article is the fact that Attorney General Merrick Garland ordered a nationwide moratorium on federal executions that has been in place for more than two years and seems unlikely to be rescinded as long as Joe Biden is the Oval Office.  So, even if appeals were expedited for the condemned Pittsburgh synagogue shooter, it is very unlikely that he would be executed on an expeditious schedule.  Nevertheless, I think this editorial sensibly suggests that an extra "measure of closure" would come whenever standard appeals are exhausted for this condemned mass murderer even if he were not to be executed anytime soon.  And yet, even if serious efforts were made to expedite the appeals in this case, I suspect that it would likely still take many years to exhaust them.

Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional

It has been quite an interesting month for interesting Fifth Circuit opinions, and I am still hoping to find some time to comment on the Circuit's split panel ruling last week in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here).  But I have already seen that folks involved with The State Law Research Initiative have shares some thoughts on the ruling having broader Eighth Amendment echoes.  This newsletter commentary highlights its themes in its full title: "How Other Cruel Punishments Could Fall After Court Strikes Down Lifetime Voting Ban: The Fifth Circuit’s Analysis Marks An Historic Moment In 8th Amendment Jurisprudence With Big Implications For Criminal Sentencing."  I recommend folks check out the full commentary (with many links), but here is how it concludes:

Just last year, the Colorado Court of Appeals considered a challenge to life without parole sentences (a particular punishment) as applied to people convicted of “felony murder” — that is, people who neither intended to nor actually killed anyone (an entire class of incarcerated people).  But the court refused to apply the categorical approach for one reason: “neither the Supreme Court nor, apparently, any other appellate court in the nation has applied the categorical analysis to cases not involving either the death penalty or juvenile offenders.”

Well, now one has.

In wresting free of “gross proportionality” in a voting rights case, the court echoed commentators who have urged courts to dump the test entirely. In the Iowa Law Review this year, Robert Smith, Emily Hughes, and Zoe Robinson argue that state supreme courts should always reject the gross proportionality test under state law, and “that the categorical ban framework is the approach that best fits with the power and responsibility of state courts interpreting their own constitution.”  Prof. William Berry has suggested that the “categorical” label is a limiting misnomer, and that similar heightened review can and should work in individual cases, even without a broader “category” of “offenders.”

But even extending the test to categorical claims beyond capital and youth cases has major implications.  In the Colorado case, for example, the reduced culpability of people who are serving life terms but did not intend to kill would be constitutionally relevant.  As would the effects of severe mental illness, intellectual disability, and past trauma — all characteristics that go to culpability and could define classes of people seeking relief from extreme punishments.  And in asking whether certain punishments serve a valid purpose, courts would have to consider the gaping racial and other disparities showing how harsh sentences are both discriminatory and arbitrary.  Any number of sentencing practices, from life without parole to “habitual offender” enhancements, once rubber stamped after cursory review, would look constitutionally suspect.

ABA resolution calls for adoption of prosecutor-initiated resentencing legislation

As reported in this article, the ABA House of Delegates on Monday passed Resolution 504, which "urges government bodies to adopt 'prosecutor-initiated resentencing' laws that permit courts to consider a prosecutor’s recommendation to recall and resentence an incarcerated person to a lesser sentence."  Here is more:

The Criminal Justice Section sponsored the resolution, which was overwhelmingly adopted.  Stephen Saltzburg, a section representative to the House of Delegates, reminded his colleagues that this measure follows another one that urges governments to authorize courts to hear petitions to allow de novo hearings that take a “second look” at the sentences of individuals who have been incarcerated for at least 10 years.  The House adopted that resolution at the 2022 ABA Annual Meeting.

“This says if prosecutors think 10 years is too long to wait, they ought to be able to come in and seek to reduce a sentence,” Saltzburg told the House. “That’s all this is about.”...

At last year’s annual meeting, the House also adopted the ABA Ten Principles on Reducing Mass Incarceration.  One of the principles is to implement second-look policies that require regular review and, if appropriate, reduce lengthy sentences.

The ABA's 15-page resolution and report on prosecutor-initiated resentencing is available at this link.

Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

This past Friday, a split panel of the Fifth Circuit handed down a remarkable ruling in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). Here are excerpts from the start and conclusion of the 50-page majority opinion:

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890....

For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.  In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society.  Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent.  Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.  And in our independent judgment — a judgment under the Eighth Amendment that the Supreme Court requires we make — Section 241’s permanent disenfranchisement serves no legitimate penological purpose.  By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society.  It is thus a cruel and unusual punishment....

“No right is more precious in a free country” than the right to vote.  Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.  This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship — that each person is an equal participant in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes.  In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.  Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.  Accordingly, we REVERSE the district court’s grant of summary judgment to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER judgment for Plaintiffs on that claim.

Judge Edith Jones authored a dissent, and here are excerpts from the start and conclusion of her 15-page majority opinion:

Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties [that stated roughly]: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change.

Today, the court turns that advice on its head.  No need to change the law through a laborious political process.  The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause.  With respect, this is not a road that the Constitution — or precedent — allows us to travel. I dissent....

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law. I respectfully dissent.

These opinions are certainly not the last words on this matter.  This Washington Post article about the ruling reports that Mississippi is sure to appeal this ruling: "Mississippi 'expects to seek further review,' wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch."

I suspect "further review" will first focus on seeking en banc consideration of this matter from the full Fifth Circuit.  But maybe Mississippi will seek to go directly to the Supreme Court for review.  For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling.

Rounding up a number of notable recent state parole stories

Because the federal sentencing system formally abolished parole four decades ago, the modern stories of parole come from the states.  But there never seems to be a shortage of interesting parole-related matters coming from the states, and here is a quick round up of just a few such stories from all around the country that caught my eye recently:

From AL.com, "Alabama has granted parole to less than 8% of eligible prisoners"

From Bolts, "Prisons Grow in Mississippi as State Officials Cut Parole"

From CBS News Chicago, "Meek Mill on hand as Gov. Pritzker signs parole system overhaul bill"

From CBS News New York, "Preppy Killer" Robert Chambers released from prison after 15-year sentence in drug, assault case"

From Fox KVVU-TV, "Las Vegas police: Former Nevada parole officer accused of having sex with detainee"

From NPR, "Attorneys debate whether teen who killed 4 should be sentenced to life without parole"

From SB Nation, "How Mavericks helped Dorian Finney-Smith get his father paroled after 28 years in prison"

From WBUR, "Class-action discrimination suit filed against Massachusetts parole board"

FIRST STEP Act sentence reduction used to address "FBI invented" conspiracy in which feds were "the real lead conspirator"

The FIRST STEP Act's procedural changes to sentencing reduction motions pursuant to 18 USC § 3582(c)(1)(A) continue to provide not only a critical mechanism to address excessive federal prison sentences, but also a fascinating window on a wide array of problematic aspects of the federal criminal justice system.  Many so-called "compassionate release" motions are often efforts to reduce injustices as much they are efforts to increase compassion in our federal sentencing system.  The latest example of this dynamic story comes from New York federal courts as reported in this AP piece headlined "Judge orders release of 3 of ‘Newburgh Four’ and assails FBI’s role in a post-9/11 terror sting."  Here are the basics:

Three men convicted in a post-9/11 terrorism sting have been ordered freed from prison by a judge who deemed their lengthy sentences “unduly harsh and unjust” and decried the FBI’s role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes.

Onta Williams, David Williams and Laguerre Payen — three of the men known as the “Newburgh Four” — were “hapless, easily manipulated and penurious petty criminals” caught up more than a decade ago in a scheme driven by overzealous FBI agents and a dodgy informant, U.S. District Judge Colleen McMahon said in her ruling Thursday.

“The real lead conspirator was the United States,” McMahon wrote in granting the men’s request for compassionate release, effective in three months. She said that it was “heinous” of the men to agree to participate in what she called the government’s “made for TV movie.” But, the judge added, “the sentence was the product of a fictitious plot to do things that these men had never remotely contemplated, and that were never going to happen.”

She excoriated the government for sending “a villain” of an informant “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.” The U.S. attorney’s office declined to comment on the judge’s decision. A message seeking comment was sent to the FBI.

Citing concerns for the men’s health and her own qualms about the case, McMahon cut the 25-year mandatory minimum sentences she imposed on them in 2011 to time served plus 90 days. She said that would allow time for probation officials to prepare and for Payen’s lawyer to line up supportive housing for the man, who has a severe mental illness.

Judge McMahon's full opinion in US v. Williams, N. 09 CR 558 (CM) (SDNY July 27, 2023), is available at this link.  Here is just one notable passage in an opinion filled with notable passages:

For our purposes, suffice it to say the following: non-moving defendant Cromitie, the lead defendant in this case, was the object of a lengthy sting operation conducted by the FBI with the aid of a most unsavory “confidential informant,” Shaheed Hussain....  Over the course of the next few weeks, at Hussain's direction, he recruited David and Onta Williams and Laguerre Payen, to serve as “lookouts” while Cromitie planted “bombs” manufactured by the FBI at a synagogue and community center in Riverdale.  None of these three defendants had any history as terrorists; like Cromitie, they were impoverished small time grifters and drug users/street level dealers who could use some money. Payen in particular was of questionable mental acuity.  The three men were recruited so that Cromitie could conspire with someone; the real lead conspirator was the United States, but Cromitie could not conspire with the Government.

Nothing about the crimes of conviction was defendants' own doing.  The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime (the Bronx “bomb” plot) by driving three of the four men (Onta Williams was not available) into Connecticut to view the “bombs” and “stinger missile launchers” that would be used in the operation; and picked the day for the “mission” (which was filmed in real time so it could be shown on television news the night the men were arrested). On May 20, Hussain drove the four men to Riverdale (they had no way to drive themselves); “armed” the “bomb” (because the hapless Cromitie, despite his “training,” could not figure out how to do it); and told Cromitie how to place the device while David Williams, Onta Williams and Payen performed lookout duty. As soon as the fake device was left by the community center door, law enforcement arrested the four men.

"Terror and Tenderness in Criminal Law"

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

The criminal legal system is at a crossroads.  Calls for abolition are met with calls for modest adjustments or maintenance of the status quo.  What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices.  Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care.  In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration — a promise of tenderness.

This Article argues that the current wave of reforms deploys discretionary relief in a manner that provokes unwarranted optimism while masking the state’s power to invoke terror through policing, prosecution, and punishment.  An emotional sleight of hand, discretionary relief — sometimes cast as leniency — entrenches the excessiveness of criminal legal systems in at least three ways.  First, discretionary leniency is merely a continuation of a pattern of strategic mercy documented in English law as early as the thirteenth century when pardons were issued to those sentenced to death in order to assuage public outcry over excessive punitiveness.  Second, reforms that rely on discretionary leniency reinforce well-worn beliefs about merit — who merits punishment and who merits mercy.  This liberal conceptualization of meritocracy shifts responsibility for the harshness of criminal legal practices onto the shoulders of defendants, a phenomenon that masks racial and other disparities in criminal systems.  Third, discretionary-based reforms do not change substantive law or procedure.  Instead, they rely on the leadership qualities of the discretionary decision-maker.  This further entrenches the neoliberal tenet that reforming unjust or inequitable institutions can be accomplished by simply finding the right person for the job.  This reliance on good people making good decisions truncates discussion of more sweeping changes that would place structural and legal limits on the state’s power to police, prosecute, and punish.

"The New Negative Habeas Equity"

The title of this post is the title of this new piece authored by Lee Kovarsky now available via SSRN.  Here is its abstract:

A federal statute restricts the habeas corpus remedy, but do federal judges also have equitable discretion to deny relief to unlawfully detained prisoners?  Over the last several terms, the Supreme Court has begun to embrace this novel, ambitious view of habeas law.  Although the Court has long cited what I call “negative” equity as a source of authority to devise its own limits on habeas relief, it had never — until recently — suggested that lower courts have free-floating discretion to deny relief to which prisoners are otherwise entitled.

This Essay, which consists of three parts, considers and refutes the “new negative equity.”  In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom.  In Part II, I explain why the new negative equity doesn’t follow from any text-centered approach to statutory interpretation — relying substantially on context and drawing heavily from a statutory history that decisional law and academic discourse have thus far neglected.  In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not “factually innocent.”

Equitable power to refuse relief might be consistent with “comity, finality, and federalism,” as it were, but orphaned policy preferences are not law.  Under the text-centered approach to law endorsed by most who favor habeas restrictions, such a practice is impossible to justify.  Although no interpreter can be perfectly certain of statutory meaning, the new negative equity is both inconsistent with habeas history and a least-plausible reading of the modern statute.

Another sound suggestion to look to state constitutional law to limit excessive punishments

Long-time readers know I have long advocated robust proportionality litigation centered not just around the Eighth Amendment but also focused on analogue provisions in state constitutions.  Indeed, over a decade  ago, I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this (now dated) 51 state resource in the form of a "collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

I flag this history to help highlight why I am pleased to see this new Brennan Center piece authored by Ben Finholt and Kevin Bendesky titled "The Neglected State Constitutional Protections Against Extreme Punishments." Here is an excerpt (with links from the original), and I recommend the piece in full:

State constitutions play an essential but often forgotten role as powerful sources of rights, including against extreme punishments.  At the time of the founding, states were the primary protectors of individual rights, and for the nation’s first 150 years, “most of the constitutional-rights litigation . . . took place in the States.” In our federalist system, state courts’ independent duty to enforce state-based rights remains.

These rights include state analogues to the Eighth Amendment, many of which are broader by their plain text and have their own unique histories and original understandings.  State constitutional convention debates, the writings of constitution framers, contemporaneous media accounts, and early court decisions can all point to far more robust protections of individual liberty and far greater constraints on criminal punishments.

Scholars have previously marshaled this evidence in states such as Arizona and Delaware — observing, for example, that Arizona’s “founding generation . . . held and acted on progressive views of punishment.”  We made similar findings after delving into the Eighth Amendment analogues in Pennsylvania and North Carolina, respectively. In both states, the plain text is broader than the Eighth Amendment.  Pennsylvania prohibits all “cruel” punishments, dispensing with the “unusual” prong, while North Carolina bars “cruel or unusual” punishment (emphasis added), replacing the Eighth Amendment’s conjunction with a more flexible disjunctive standard.

Each state can trace its antipunishment clause to colonial Declarations of Rights, which were heavily influenced by the penological philosophies of widely read Enlightenment thinkers.  As one of the state’s founders put it, Enlightenment theories “found a soil that was prepared to receive them” in Pennsylvania.  In this context, “cruelty” covered more than methods of punishment. A punishment was “cruel” if it was unnecessarily severe.  And the founding generation measured necessity by the most valued purposes of criminal punishment: reforming those who commit serious crimes and deterring crime in the first place. Any severity beyond that was cruel — no matter how it was inflicted.

Taking these ideas seriously would mark a substantial break from federal Eighth Amendment precedent, which permits retributive punishments and is typically uninterested in scrutinizing how prison sentences serve legitimate state interests.... The historical record should support, not suppress, a distinctly Pennsylvanian definition of cruelty.

In pamphlets, debates, and speeches, the framers of Pennsylvania’s 1790 constitution and first penal laws endorsed Enlightenment values and explained that only deterrence and reformation justified inflicting punishment. Many of those authors were familiar revolutionaries: James Wilson, Benjamin Rush, and George Clymer, all signers of the Declaration of Independence, along with Common Sense author Thomas Paine.  Others, like eventual state attorney general and state supreme court justice William Bradford, were more distinctly Pennsylvanian.

Bradford, for instance, echoed Enlightenment philosophers when he said that the constitutional mandate “that cruel punishments ought not to be inflicted implicitly prohibit[ed] every penalty which is not evidently necessary” for the prevention of crime.  And Wilson wrote that when the state establishes “excesses of . . . rigorous penalties,” then “one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law.”

Rush and others also wrote powerfully about limiting punishments to evolving standards of morality and assessing the utility of criminal punishments against the best science of the day.  In 1788, Rush wrote, “To you, . . . the unborn generations, you will enjoy in point of knowledge, the meridian of a day, of which we only perceive the twilight. You will often review with equal contempt and horror, the indolence, ignorance and cruelty of your ancestors . . . you will see many modern opinions in religion and government turned upside downwards, and many new connexions [sic] established between cause and effect.”

In addition to making the case for the development of robust state constitutional jurisprudence to limit extreme punishment, this commentary also serves as a useful reminder that an originalist turn in constitutional jurisprudence could (though likely won't) lead to giving lots of modern punishment practices a lot more judicial scrutiny.

Just some of many prior related posts:

• "Cruel State Punishments" 
• "New Originalism: Arizona's Founding Progressives on Extreme Punishment" 
• Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
• Montgomery wards: noticing the lack of originalism analysis of sentencing finality
• Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too) 
• Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists? 
• Modest musings on Eighth Amendment originalism two decades after Ewing v California

Some more critical examinations of the impact of SCOTUS decision in Jones v. Hendrix

It is now a month since the US Supreme Court's notable ruling regarding federal collateral review in Jones v. Hendrix (basics here), which served to block a pathway for federal prisoners to pursue claims that they are legally innocent or subject to excessive punishment under new statutory authority.  I have collected some (mostly critical) early commentary on the Court's work in Jones in prior posts (see links below), and I have now seen two more new pieces in this genre:

From The Appeal, "SCOTUS Conviction Ruling Already Harming Innocent People, Lawyers Say."  An excerpt:

In June, the U.S. Supreme Court ruled that, in some instances, incarcerated people can be barred from filing multiple claims of innocence, even if they did not commit the crime for which they're in prison. Federal defense attorneys told The Appeal the ruling is already causing harm.

From Law360, "How Habeas Corpus Ruling May Condemn Innocent Prisoners."  An excerpt:

Habeas corpus experts, some of whose work was referenced in Justice Jackson's dissent footnotes, told Law360 it's hard to estimate how many people will be adversely affected by the decision, but they warn of deeper, longer-lasting and potentially troubling impacts on the integrity of the justice system.

Prior related posts:

• By expected 6-3 vote, SCOTUS in Jones v. Hendrix limits reach of habeas corpus statute, § 2241, for federal prisoners 
• Early (mostly critical) commentary on Jones v. Hendrix
• How many legally innocent federal prisoners are stymied by Jones and do they have other pathways to relief?
• A little more critical commentary on Jones v. Hendrix
• Thorough and thoughtful account of Jones v. Hendrix and a pitch for a congressional response 

Interesting account of mass clemency efforts on behalf of those on Louisiana's death row

In this post last month, I noted the notable news that almost all "of the 57 people on Louisiana's death row have asked Gov. John Bel Edwards to spare their lives, a historic request made after Edwards broke his silence on how he views capital punishment and pushed lawmakers to outlaw the practice."  Writing here at Bolts, Piper French has an extended follow up reviewing the clemency effort. The piece is fully titled "The Death Penalty on Trial in Louisiana: Petitions filed on behalf of dozens of people on death row are asking the governor for mass clemency, and showcasing the injustices that undergird capital punishment."  I recommend this article in full, and here is an excerpt:

Clemency is often conceived of as a discrete and individual mercy — as an exception, the opposite of policy.  On death row, we picture it as an eleventh-hour decision to spare a person’s life following efforts by advocates to highlight the tragic or unjust circumstances of their case.  But here, the petitioners say that in highlighting people’s stories, they’re not trying to persuade public officials to handpick which of the 57 is most deserving of mercy.

Instead, they’re hoping to showcase the systemic disparities that undergird each of their cases.  What if clemency were a form of policy, they ask — not an individual act, but a collective response to the barrage of injustices that have made the state’s death row a cross-section of its poorest and most marginalized groups?

The U.S. Supreme Court has declared that executing someone with an intellectual disability is unconstitutional, a criterion that fits 40 percent of the people on Louisiana’s death row.  Thirty-nine of the 57 have been diagnosed with brain damage or serious mental illness.  Three quarters are people of color, the vast majority of them Black.  Many allege prosecutorial misconduct and sorely deficient legal support.  “We are executing the most vulnerable people in our population,” said Calvin Duncan, an exoneree who served as a jailhouse lawyer to many on death row for about 19 of the 28 years he spent wrongfully locked up.

Time is running out.  Edwards leaves office in early January, and the frontrunner to succeed him staunchly supports the death penalty.  The next few months will determine whether Edwards translates his philosophical opposition to capital punishment into action by trying to speed up the process and by commuting every death sentence he can before his term is up.

The petitioners must first convince the Louisiana Board of Pardons, which must recommend cases to the governor before he can grant clemency and has already signaled the process may be lengthy, though Edwards, who has appointed the board’s five current members, can ask the board to consider capital cases in a meeting.  His office did not respond to a direct question about whether he would do so.

Not only is this a last-ditch effort to forestall the state executions of these 57 people — it’s also a call for Louisiana to end the use of the death penalty once and for all, in keeping with the growing number of states that have abandoned the practice.  In the last six years, five state legislative attempts to repeal capital punishment have failed.

Debate over FIRST STEP Act safety value expansion — and whether "and" means "or" — now scheduled for first SCOTUS argument for OT23

I have noted in prior posts my excitement for the fascinating little sentencing case on the Supreme Court docket for next Term.  As flagged here, the Justices in February granted cert in Pulsifer v. United States, which raises the statutory issue of whether the word "and" as used in the FIRST STEP Act's expansion of the mandatory-minimum safety valve actually means "and" or might instead mean "or."  As I have noted before, federal criminal justice practitioners and sentencing fans should follow Pulsifer closely because its resolution will impact how thousands of drug defendants are sentenced in federal courts every year; statutory construction gurus should be interested in how Pulsifer addresses issues related to textualism, plain meaning and the rule of lenity.  

Now adding to my excitement is the recent release of the Supreme Court's first arguments calendar for October Term 2023.  The Justices have scheduled six arguments for the first two weeks of October, and Pulsifer is the very first of the bunch scheduled for Monday, October 2.  Being the first argument of a new SCOTUS Term seems likely to generate a little more attention for this little sentencing case, though surely there will still be a lot more focus on the case scheduled for argument on October 3 concerning the constitutionality of the Consumer Financial Protection Bureau.

A few prior related posts:

• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 
• Top-side SCOTUS briefs in Pulsifer address FIRST STEP Act's expansion of statutory safety valve

Dynamic comments submitted to US Sentencing Commission as it considers retroactivity of new criminal history guidelines

In this April post, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines.  The big ticket items in the proposed amendments concern "status points" and "zero-point offenders."  As detailed here, after proposing these criminal history amendments, the Commission sought comment on whether it should make the key parts "available for retroactive application." 

As detailed in this May post, the USSC thereafter published on its website this 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is how I roughly summarized this analysis: "it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality."

As flagged in this June post, the Commission has scheduled a public hearing for Wednesday, July 19, 2023, in order "to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment."  As the USSC explained in its hearing notice, "because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants."  

When announcing the public hearing, the Commission also here released a massive Compilation of Public Comment.  Running over 250 pages, these public comments are quite interesting with a wide range of persons making a wide range of arguments both in favor and against retroactivity of these criminal history amendments.  For a slightly more efficient overview of all the pros and cons, the Commission has now posted here the written testimony of the 15 witnesses scheduled to testify all the full-day USSC hearing starting at 9am on Wednesday, July 19.

I am inclined to guess that the US Sentencing Commission is inclined to make its new criminal history rules fully retroactive, but I do not think any outcome is a given.  Notably, the Justice Department's statement "opposes retroactive application of both Parts A and B of the criminal history amendment," and, in case of a retroactive vote, has requested "that the Commission delay implementation of retroactivity by at least nine months to allow the Bureau of Prisons and the U.S. Probation Office sufficient time to properly prepare and coordinate reentry services for eligible offenders."  Both the particulars and process for retroactivity may be widely debated during the hearing. 

DOJ says 18 is not enough as it appeals sentence of Stewart Rhodes and other Oath Keepers

As detailed in this new Politico article, the "Justice Department on Wednesday appealed the sentences handed down to seven members of the Oath Keepers — including founder Stewart Rhodes — for their roles in the Jan. 6 attack on the Capitol, a signal that prosecutors are not satisfied with the severity of the jail terms delivered by the federal judge overseeing the case."  Here is more:

U.S. District Court Judge Amit Mehta sentenced Rhodes to 18 years in prison — the harshest sentence for any Jan. 6 defendant — reflecting his leadership of what Mehta characterized as a dangerous criminal conspiracy aimed at violently derailing the transfer of presidential power.

Nevertheless, the sentence for the Yale Law School graduate and disbarred attorney was seven years shorter than the 25-year prison term prosecutors recommended and four years below an agreed-upon “guidelines range” based upon Rhodes’ conduct.

In a series of filings, prosecutors also signaled they were appealing the sentences — all delivered by Mehta, an appointee of President Barack Obama — of several other defendants convicted for their own role in Rhodes’ alleged conspiracy. Many of Rhodes’ coconspirators faced sentences that similarly fell below the guidelines ranges for their conduct — in some cases by several orders of magnitude. Among those who, like Rhodes, were convicted of seditious conspiracy:

• Florida Oath Keeper leader Kelly Meggs received a 12-year term; DOJ sought 21 years.
• Roberto Minuta of New York was sentenced to 4.5 years; DOJ sought 17 years.
• Joseph Hackett of Florida received a 3.5-year sentence; DOJ sought 12 years.
• Ed Vallejo of Arizona received a 3-year sentence; DOJ sought 17 years.
• David Moerschel of Florida was sentenced to three years: DOJ sought 10 years.

DOJ also appealed the conviction of two Oath Keepers acquitted of seditious conspiracy but convicted of conspiring to obstruct Congress:

• Jessica Watkins of Ohio, who was sentenced to 8.5 years in jail; DOJ sought 18 years.
• Kenneth Harrelson of Florida, who was sentenced to 4 years; DOJ sought 15.

The sentences reflected the fact that Mehta viewed Rhodes as the key driver of the conspiracies. During sentencing hearings, several of the defendants similarly pointed to Rhodes, claiming they were manipulated and ginned up by him to participate in the attack on the Capitol...

The government’s appeals will go to the D.C. Circuit Court of Appeals, located just blocks from the Capitol and in the same federal courthouse where the trials were held. They’re likely to be considered in tandem with appeals filed by the same defendants challenging both their convictions and their sentences.

I am tempted to suggest that DOJ is adopting the "best defense is a good offense" strategy here.  Since it seems all these sentences are being appealed as too high by the defense, prosecutors might reasonably think it strategically valuable to argue on appeal that these sentences are actually too low.

I suspect that DC Circuit judges will ultimately find most, if not all, of these sentences to be reasonable.  But perhaps the coming briefing will make a persuasive case for unreasonableness one way or the other.

After serving 53 years, Manson follower Leslie Van Houten released from in California prison

As reported in this New York Times article, "Leslie Van Houten, a former Charles Manson follower who played a role in the gruesome double murder of a Los Angeles couple in the summer of 1969, was released on parole on Tuesday after serving more than half a century in prison, according to her lawyer." Here is more:

Ms. Van Houten’s lawyer, Nancy Tetreault, said she was taken early Tuesday morning to transitional housing at an undisclosed location. “She’s going to have to learn to live in the world after 53 years in prison,” Ms. Tetreault said in an interview. “So that’s going to take some time.”

The California Department of Corrections and Rehabilitation confirmed her release.  Ms. Van Houten will have “three-year maximum parole term,” according to Mary Xjimenez, a department spokeswoman.

The office of California Gov. Gavin Newsom said this month that it would not challenge her release.  Mr. Newsom had reversed Ms. Van Houten’s parole grant three times since taking office, most recently in March 2022. “The Governor is disappointed by the Court of Appeal’s decision to release Ms. Van Houten but will not pursue further action as efforts to further appeal are unlikely to succeed,” a spokeswoman for the governor said.

Ms. Van Houten was 19 when she and other members of the so-called Manson family broke into the home of wealthy grocer Leno LaBianca and his wife, Rosemary, and stabbed them dozens of times on Aug. 10, 1969.

The LaBiancas were murdered one night after five people were killed at the home of movie director Roman Polanski — including his pregnant wife, the actress Sharon Tate. The murders were carried out at the direction of Charles Manson, one of the most notorious murderers of the 20th century, who died in 2017 at age 83.

In 1971, Ms. Van Houten was convicted on two counts of murder and one count of conspiracy to commit murder.  She was initially sentenced to death, but her sentence was reduced to life in prison when capital punishment was outlawed in California the next year.

Ms. Van Houten has not been shy about her role in the killings, saying in a parole board hearing in 2002 that she had pinned down Ms. LaBianca while another Manson family member, Patricia Krenwinkel, stabbed her in the collar bone. Charles D. Watson, another figure in the attack, stabbed Ms. LaBianca with a bayonet eight times before Ms. Van Houten then stabbed her in the abdomen 14 to 16 times....

Years later, Ms. Van Houten said that she regretted taking part in the murders and that she had been mentally ill, a condition aggravated by LSD use. “I believed that he was Jesus Christ,” Ms. Van Houten said of Mr. Manson. “I bought into it lock, stock and barrel.”

Inartful dodgers: do our constitutional values suggest there is "no relevant difference ... between acquitted conduct and uncharged conduct"?

In prior posts in my "inartful dodgers" series (which are linked below), I have mostly bemoaned the cert denial statements in the McClinton case from Justices suggesting the Sentencing Commission should first address acquitted-conduct sentencing issues.  Now I want to turn to Justice Alito's concurrence in the denial of certiorari, where he suggests that there are no  acquitted-conduct sentencing issues that need addressing.

To begin, I believe Justice Alito's statement merits praise for (a) making clear why he voted to deny cert in acquitted conduct cases, and (b) stating that, if cert were granted, "better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question."  Unlike his colleagues, Justice Alito does not dodge the acquitted-conduct sentencing issue, and he indicates he would be open to considering "better arguments" on the issue, even though he seems a proponent of "countervailing arguments" against any limits on acquitted-conduct sentencing.

But, though I respect Justice Alito's decision to address acquitted-conduct sentencing directly, I fear his vision and framing of the issue fails to respect the deep constitutional values associated with jury trials and their place in our justice systems.  Justice Alito tips his hand, as I see it, when he states in a footnote that "there is no relevant difference for these purposes between acquitted conduct and uncharged conduct."  This seems to me deeply misguided because, as Justice Scalia put it, "the right of jury trial ... is no mere procedural formality, but a fundamental reservation of power in our constitutional structure."

Uncharged conduct has not be formally examined and evaluated by any constitutional actors before its presentation at sentencing; acquitted conduct has been formally reviewed and rejected by a unanimous jury after an adversarial process.  In my view, there is a unique and uniquely important constitutional significance to jurors unanimously decide that a defendant is not to be convicted or punished on certain government allegations.  It is technically right, as Justice Alito notes, that an acquittal does not prove innocence and may just reflect reasonable doubt as to guilt.  But our constitutional values cannot and should not be marginalized via technicalities.  To again quote the Court's work in US v. Booker, interpretation of jury trial rights are not to be driven by "Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance."  That substance is inherently undermined if one regards acquitted conduct and uncharged conduct to be of constitutionally comparable significance at sentencing.

Justice Sotomayor's statement suggested the "woman on the street would be quite taken aback to learn about" acquitted-conduct sentencing.  Justice Alito responds by asserting that, "[i]f that is true, it shows only that many people do not understand" the legal technicalities of what jury acquittals actually prove and do not prove.  But I think it shows far more than that; it shows that the "woman on the street" understands and cares instinctively about constitutional values reflected by the jury trial right and about respecting more than technicalities in jury decision-making.  If only more Justices shared these instincts about juries our constitutional values.        

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
• Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? 
• Inartful dodgers: no constitutional substance in Justice Sotomayor's cert denial statement in acquitted conduct cases 

Inartful dodgers: no constitutional substance in Justice Sotomayor's cert denial statement in acquitted conduct cases

In prior posts in my "inartful dodgers" series (which are linked below), I have mostly bemoaned the cert denial statements authored or joined by four Justices that suggested they voted against cert in the McClinton case because the Sentencing Commission was now considering acquitted-conduct sentencing.  Now I want to turn to the substance of Justice Sotomayor's statement, though there really is not much actual constitutional substance to discuss.

As I have mentioned before, the Question Presented in the cert petition filed by Dayonta McClinton asked: "Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant."  Notably, though Justice Sotomayor spent five pages discussing policy concerns about acquitted-conduct sentencing — discussing, for example, "fairness" and "tension" with the jury's role and "accuracy" and "public perception" — she does not once mention either the Fifth or Sixth Amendment.  I surmise and fear this is why Justice Sotomayor's statement is only "respecting the denial of certiorari" rather than a dissent; her statement hints she only has policy concerns, and not constitutional complaints, about acquitted-conduct sentencing.  (In turn, Justice Alito's statement sensibly wonders about discussion of the Sentencing Commission and efforts by his colleagues to "lobby government entities to make preferred policy decisions.")

Because I filed amicus brief in support of cert in McClinton, I see much Fifth and Sixth Amendment substance worth discussing based on many precedents (especially those after SCOTUS somewhat blessed acquitted-conduct sentencing in US v. Watts).  Finding sentence increases based on judicial fact-finding to be constitutionally problematic, the Supreme Court in Blakely v. Washington stressed "the need to give intelligible content to the right of jury trial."  In US v. Booker, the Court emphasized that the reach and application of jury trial rights should not be driven by "Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance."  Justice Thomas, joined by Justice Scalia when concurring in Apprendi v. New Jersey, has explained why "the original meaning of the Fifth and Sixth Amendments" calls for "every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment) '... [to be] proved to the jury."  And many other substantive arguments can find a grounding in constitutional text, history, tradition and precedent for limiting acquitted-conduct sentencing.

It may be unfair for me to expect much more from Justice Sotomayor's statement in conjunction with a denial of cert, especially when a busy merits docket surely was keeping her (and other Justices) plenty busy.  Still, after a year-long wait for a resolution of McClinton and a bunch of other acquitted conduct cases, I was hoping for at least some dissents from the denial of cert and some lamenting of how acquitted-conduct sentencing can "eat out the[] substance" of our people's procedural rights that the Framers placed in the Constitution. Instead, we just got a review of policy concerns and no deep discussion of constitutional substance.  Sigh. 

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
• Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? 

Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi

In this post, I noted that the Supreme Court in its final order list granted cert review in US v. Rahimi to address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization.  Since that grant, I have seen some new comment on the case, and here is a smattering of those pieces:

From HuffPost, "This Man Is A Suspect In Multiple Shootings. His Case May Decide The Future Of Gun Rights."

From the Independent, "Should domestic abusers have the right to be armed? The Supreme Court could upend protections for survivors"

From Mother Jones, "A Federal Gun Law Has Protected Domestic Violence Survivors for 30 Years. Now SCOTUS Will Decide Its Fate."

From Slate, "The Supreme Court’s YOLO Approach to Guns Is About to Face a Major Test"

Some (of many) prior recent related posts:

• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
• How long until the Supreme Court takes up another Second Amendment case after Bruen? 
• With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by those subject to DV orders? 

Thorough and thoughtful account of Jones v. Hendrix and a pitch for a congressional response

Adam Unikowsky has this lengthy posting at his Substack site titled "Imprisoning innocent people is bad; Section 2255 should be fixed immediately." The full piece is worth a full read for anyone interested in federal habeas law and the Supreme Court's work in Jones v. Hendrix (basics here).  Here is a taste and a preview (emphasis from original): 

Jones’s holding seems pretty ghoulish.  But Justice Thomas’s majority opinion is well-written and persuasive.  He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge.

Justice Jackson’s dissent is also well-written and persuasive.  She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences.  In the end, Jones presents a tough, close issue.

The purpose of this post is not to defend one side or the other of Jones.  It’s to advocate a statutory fix that would allow federal prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence.

This is not a tough, close issue.  It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.

Prior related posts:

• By expected 6-3 vote, SCOTUS in Jones v. Hendrix limits reach of habeas corpus statute, § 2241, for federal prisoners 
• Early (mostly critical) commentary on Jones v. Hendrix
• How many legally innocent federal prisoners are stymied by Jones and do they have other pathways to relief?
• A little more critical commentary on Jones v. Hendrix

Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago?

In this prior post, I noted the substantive problems with the cert statements of Justice Sotomayor and of Justice Kavanaugh (joined by Justices Gorsuch and Barrett) suggesting these Justices voted against cert in the McClinton acquitted-conduct sentencing case because the Sentencing Commission was now considering the issue.  I stressed in my prior post that only the Justices can address constitutional questions related to acquitted-conduct sentencing, so the Commission could not itself fully resolve issues raised in McClinton and other acquitted conduct cases.  But, beyond the substantive failings of what might be called the "Commission dodge," it was also quite curious that the references to the Commission's work were dated.  

In Justice Sotomayor's closing paragraph, she says: "The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year."  Likewise, Justice Kavanaugh's statement asserts that "the Sentencing Commission is currently considering the issue" of "use of acquitted conduct to alter a defendant’s Sentencing Guidelines range."  These statements were accurate in late 2022 and early 2023: the Commission in October 2022 voted to make consideration of the use of acquitted conduct in applying the guidelines a policy priority; then in January 2023, the Commission promulgated a proposed guideline amendment to prohibited consideration of acquitted conduct as relevant conduct for guideline enhancements; and in February 2023, the Commission received extensive comment and held a public hearing on this proposed guideline amendment. 

However, the Commission ultimately decided in April 2023 not to address acquitted-conduct sentencing in the 2023 amendment cycle.  Moreover, the Commission released its proposed priorities in June 2023 for the 2024 amendment cycle, and those priorities make no mention of any acquitted conduct issues.  Consequently, it no longer seems to be accurate to state that the Commission "has announced that it will resolve questions around acquitted-conduct sentencing in the coming year" or that "the Sentencing Commission is currently considering the issue."  Though these statements were accurate from November 2022 through March 2023 (which was when, notably, the McClinton case was first conferenced and relisted), these statements are now dated and just not quite right as of late June 2023 when the Justices finally announced  its resolution of a large batch of acquitted conduct cert petitions.  

Ultimately, the substantive failings of the "Commission dodge" by the Justices are more significant and consequential than its untimely (mis)representation of the Commission's activities.  But, if these were the views and votes of the Justices many months ago, why did they sit on these cases for months on end while not bothering to update their statements?  Perhaps ironically, the Commission may well have decided in April 2023 not to address acquitted-conduct sentencing issues because it was expecting some relevant action by SCOTUS in the McClinton case.  Had the Justices in a timely manner denied cert back in late 2022 or early 2023 based on its "Commission dodge," perhaps the Commission would have moved forward with a guideline change in the 2023 amendment cycle. 

Perhaps the Commission will decide to return to this issue in the 2024 amendment cycle, and perhaps the Justices will soon see that whatever work is done by the Commission does not obviate the need for them to resolve enduring constitutional issue.  But, as I mentioned before, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas complained that acquitted-conduct sentencing had "gone on long enough" without being squarely address by the Justices.  With another decade of these matters unresolved, resolution of these issues in all quarters cannot come soon enough. 

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address

Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address

In the Declaration of Independence, signed 247 years ago today, the Founder of this Nation complained of a "long train of abuses and usurpations" by "the present King of Great Britain," which included "depriving us in many cases, of the benefits of Trial by Jury."  And the jury trial right was so important to the Framers that it was twice placed in our Constitution.  Section 2 of Article III provides: “The trial of all crimes, except in cases of impeachment, shall be by jury.”  The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  So, the jury trial right has been considered so essential to a just American system of justice that it helped inspire a revolution and was doubly codified in our Constitution.

The Supreme Court has recognized its role in protecting the constitutional jury trial right, recognizing that "the jury right could be lost not only by gross denial, but by erosion," Jones v. United States, 526 U.S. 227, 248 (1999), and striking down practices that amount to an "unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." Apprendi v. New Jersey, 530 U.S. 466, 497 (2000).   Court protection of the jury trial right is critical, as Justice Scalia explained for the Court, because it is a "fundamental reservation of power in our constitutional structure" and because the "judge’s authority to sentence derives wholly from the jury’s verdict.  Without that restriction, the jury would not exercise the control that the Framers intended."  Blakely v. Washington, 542 U.S. 296, 305-06 (2004).

Against this backdrop, it is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues.  The cert petition filed by Dayonta McClinton makes this clear in its Question Presented: "Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant."  That petition notes, inter alia, that some state courts have found due process rights, as well as the jury trial rights, violated by acquitted-conduct sentencing.   These rights are, as the Court put it in Apprendi, "constitutional protections of surpassing importance" because they define restraints on state powers and processes to impose criminal punishments.

These constitutional realities and stakes, properly understood, reveal the limited significance of the prospect of the US Sentencing Commission (or even Congress) someday promulgating guidelines concerning the use of acquitted conduct at federal sentencing.  How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton.  Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved.  And, of course, the USSC and and Congress can only speak to the use of acquitted conduct at federal sentencing, even though the vast majority of criminal cases (over 90%) are sentenced in state courts (which also struggle with constitutional uncertainty in this arena). 

This is one of many reasons I found so curious aspects of the statements of Justice Sotomayor and of Justice Kavanaugh (joined by Justices Gorsuch and Barrett) respecting the denial of certiorari in McClinton.  The statements suggested these Justices voted against cert because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing.  For example, Justice Kavanaugh states that it is "appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct."  But he does not explain why it is "appropriate" to leave unresolved a constitutional issue while a federal agency might address a policy issue.  Most fundamentally, the Justices' statements referencing the USSC does not account in any way for how any "Sentencing Commission determination" would have any impact on the Court's consideration of "constitutional protections of surpassing importance."

I fully recognize that the Fifth and Sixth Amendment issues surrounding acquitted-conduct sentencing present challenging constitutional issues.  But dodging those issues by trying, in essence, to punt them to an agency that can only make policy determinations is not just "inartful," but really an abdication of constitutional responsibility by Supreme Court Justices.  On a day we celebrate throwing off "abuses and usurpations" that included deprivations of "the benefits of Trial by Jury," I hope that citizens of this country will keep asking the Justices to live up to their responsibility to fully adumbrate just what those "benefits" are in modern American.  

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial

Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial

As noted in this post from last Friday, the final work of the Supreme Court's noteworthy OT22 was a lengthy order list that included the denial of cert in a large group of cases raising the issue of acquitted conduct sentencing.  Therein, one also finds 12 pages worth of statements from a total of five Justices in the acquitted conduct case of US v. McClinton (a case in which I filed amicus brief in support of cert).  There were many curious aspects to these statements, which I will discuss in a (short) series of coming posts.  The theme of these posts will be the Supreme Court's decision to again dodge consideration of the problematic issues surrounding use of acquitted conduct in federal sentencing, and how clumsy some of the Justices' statements were.  So I'll be using the label "inartful dodgers" to describe the Court's work here.   

Before I get to the inartful aspects of the statements of the Justices, I wanted to first make mention of the four Justices who did not sign on to any statements in McClinton.  Specifically, the Chief Justice and Justices Thomas, Kagan and Jackson were silent in this setting, and I find the silence by Justices Thomas and Jackson particularly noteworthy. 

Back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic.  That dissent asserted that acquitted conduct sentencing had "gone on long enough" without being squarely address by the Justices in the wake of the Court's work in Sixth Amendment cases like Apprendi, Blakely, Cunningham and Alleyne.  Given that Justice Thomas signed on to an opinion in 2014 asserting it was time for the Justices to address this issue, I find it troubling that nearly a decade later he is silent on the Court's latest decision to dodge this issue.  And that reality leads me to worry that Justice Thomas may not be a sure vote for cert on acquitted conduct anytime soon.

Justice Jackson's history as a federal public defender and as a member of the US Sentencing Commission makes me confident that she fully understands the (ugly) significance of acquitted conduct enhancements in federal sentencing.  And yet, she is silent here, neither registering any dissent to the cert denials nor joining Justice Sotomayor's statement about them.  (Notably, Justice Sotomayor's statement is not a dissent, and I will speak to that interesting reality in a future post.)  There are lots of reasons Justice Jackson might be silent, but I now cannot help but wonder if she might actually be okay with acquitted conduct sentencing enhancements.  After all, not only did Justice Jackson clerk for Justice Breyer, but she did so the year that Apprendi was decided and so she likely worked on Justice Breyer's lengthy Apprendi dissent in which he argued that "the real world of criminal justice cannot hope to meet" an idealized notion of "juries, not judges, determining the existence of those facts upon which increased punishment turns."  And so, with no dissent registered now against that history, I am inclined worry that Justice Jackson may not be a sure vote for cert on acquitted conduct anytime soon.

A little more critical commentary on Jones v. Hendrix

I am hopeful, though not particularly optimistic, that the Supreme Court's recent disappointing ruling regarding federal collateral review in Jones v. Hendrix (basics here) will generate attention in various quarters and perhaps even prompt a congressional response.  As discussed in prior posts, Jones may leave many hundreds of legally innocent federal prisoners stuck serving erroneous prison term without a pathway for court review, and I certainly want to believe the potential erroneous incarceration of many legally innocent persons in federal prison would not escape serious scrutiny.  But the technicalities of the Jones ruling, as well as debates as to who does and does not qualify as legally innocent (as well as other possible means for relief), likely will muffle the attention these matter receive.

That all said, I have be pleased to see recently a bit more critical commentary of Jones (in addition to what was previous noted here on the day of the opinion):

From The Hill, "Supreme Court injustice: ‘legal innocence’ is not enough"

From NNPA, "Supreme Court ruling limits challenges to unlawful convictions for innocent federal prisoners"

From Reuters, "US Supreme Court shows indifference to wrongful convictions"

Prior related posts:

• By expected 6-3 vote, SCOTUS in Jones v. Hendrix limits reach of habeas corpus statute, § 2241, for federal prisoners 
• Early (mostly critical) commentary on Jones v. Hendrix
• How many legally innocent federal prisoners are stymied by Jones and do they have other pathways to relief?

In final order list of Term, Supreme Court grants cert on big new Second Amendment case and denies/punts cert on acquitted conduct cases

While the rest of the legal world is still processing the final sets of big SCOTUS opinions as it completed handed down opinion in argued cases from OT 22, the final official action of the Term came in the form of this big final order list setting up lots of new intrigue for OT 23.  In particular, on topics I have followed here closely, we get a cert grant in US v. Rahimi to address (at least) one aspect of how Bruen applies to federal firearm possession criminalization, and we get a disappointing cert denial in all the acquitted conduct cases. 

The McClinton case on acquitted conduct (where I filed an amicus brief) generated a bunch of opinions suggesting that a future cert grant on acquitted conduct sentencing might still be in the offing.  Specifically, Justice Sotomayor has a five-page statement that ends this way: 

The Court’s denial of certiorari today should not be misinterpreted.  The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented

Justice Kavanaugh, joined by Justices Gorsuch and Barrett, provided this one-paragraph statement:

As JUSTICE SOTOMAYOR explains, the Court’s denial of certiorari today should not be misinterpreted.  The use of acquitted conduct to alter a defendant’s Sentencing Guidelines range raises important questions.  But the Sentencing Commission is currently considering the issue.  It is appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.

And Justice Alito has a six-page opinion concurring in the denial of cert that ends this way:

If the Court in some future case takes up the question of the constitutionality of considering acquitted conduct at sentencing, better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question.  But because my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.

I will surely have some more commentary on this eventful cert denial in later posts (likely over the weekend).  For now I will say I am disappointed, but not all that surprised, that the Justices keep being content to kick this ugly-but-challenging acquitted-conduct can down the road.

New report from Human Rights Watch highlights people released from LWOP sentences in California

This press release from Human Rights Watch notes a new report that focuses on individuals who have been released from prison in California after having once been given a life without parole sentence. The press release starts this way:

People formerly sentenced to life without parole (LWOP) in the state of California have flourished since they have had an opportunity to return home, Human Rights Watch said in a report released today. As changes in legislation and executive power have allowed new pathways for release, the vast majority of people who have been released after serving these sentences are volunteering in their communities, caring for family members, and mentoring youth.

The 53-page report, “‘I Just Want to Give Back’: The Reintegration of People Sentenced to Life Without Parole,” details what people who were once sentenced to die in California prisons have done with their second chances.  Human Rights Watch surveyed more than three-quarters of those released since 2013 and found that 94 percent reported volunteering regularly, 84 percent said they financially assisted others, and 90 percent worked full or part-time, with 43 percent working in the nonprofit sector.  Based on these findings, the report recommends that California government officials take steps toward eliminating the use of LWOP sentences.

Here is a snippet from the report's summary:

In recent years, less than 4 percent of people sentenced to life without parole in California have been released due to changes in state law and executive power.  At the time research began, there were only 143 people who fit this description.  This report focuses on the historic release of these individuals and examines the positive contributions they have made with their second chances.

Using statistical data from the California Department of Corrections and Rehabilitation and qualitative data from a series of interviews conducted with individuals formerly sentenced to LWOP in the state of California, this report sheds light on the positive impact these people can have on society.  Notably, the interviews were conducted with 110 out of the 143 individuals who had been released, representing approximately 77 percent of the total population.  This comprehensive sample reinforces empirical research suggesting that LWOP sentences are unnecessary when it comes to promoting public safety.  Moreover, it contends that LWOP sentences are counterproductive to public safety because they deprive communities of the unique and valuable contributions individuals with the sentence can make.

US Sentencing Commission schedules public hearing to consider retroactivity of amendments to criminal history rules

I received an official email today from the US Sentencing Commission providing "Notice of Public Hearing" to be on Wednesday, July 19, 2023 from  9:00 AM - 3:00 PM (EDT).  Here is the topic:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing of the Commission is scheduled for Wednesday, July 19, 2023, from 9:00 a.m. - 3:00 p.m. (EDT).  The hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby). 

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Parts A and B of the 2023 Criminal History Amendment. Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.

The hearing will also be livestreamed and recorded at this link.

Related Materials: Public Comment and Impact Analysis

The Commission requested public comment on this issue and received thousands of submissions. The comment period has now closed. On May 15, 2023, the Commission also published an analysis of the impact of the amendment if parts A and B are made retroactive.

• View Public Comment
• View Impact Analysis

Spotlighting the development of prosecutor-led resentencing movement

Law360 has this notable and lengthy new article, headlined "Minnesota Joins Prosecutor-Led Resentencing Law Movement," highlighting an interesting and important trend in enabling prosecutors to have a role in what might be called "right-sizing" sentences.  I recommend the piece in full, and here are excerpts: 

The prosecutor-led resentencing law enacted by California in 2018 was the first of its kind in the nation.  It was aimed at providing relief to youth who had been charged as adults, aging prisoners who are no longer deemed a threat to public safety, and individuals whose sentences are far out of line with more recently adopted sentencing laws and guidelines.

Similar laws were later passed in Washington, Oregon, Illinois and Louisiana in recent years.  While prisoners have only limited avenues to challenge their sentences or to seek release, prosecutor-led resentencing laws give prosecutors new discretion to identify people they no longer believe need to be in prison, and to file motions in court recommending them for a resentencing hearing.

Judges can then resentence the prisoners to a shorter term or to "time-served," in which case they are released. In making resentencing decisions, courts can consider the age of prisoners when they committed their offenses, their rehabilitation efforts, and whether they pose a risk to others if released.

Last month, Minnesota became the latest state to allow prosecutor-led resentencing. A provision in an omnibus bill signed by Gov. Tim Walz, a Democrat, on May 19 gives prosecutors the authority to defendants deemed safe for release.  Minnesota Sen. Ron Latz, a Democrat who sponsored the legislation, said the measure gave prosecutors discretion to reevaluate sentences that may be considered too harsh by today's sentencing standards, or that might simply have been the product of overzealous judges or prosecutors. "It's another tool in the toolbox to seek justice in particular cases where the prosecuting authority thinks that justice will be served by a shorter sentence," he told Law360.

The law's enactment adds momentum to a nationwide movement that seeks to bolster the role of prosecutors in reducing incarceration and curbing what advocates say are excessive prison sentences.

Supporters of the resentencing movement say some incarcerated people can be safely released and that prosecutors are uniquely positioned to initiate the process to get them out of prison. "The justice system, and the role of the prosecutor, oftentimes feels like an assembly line," said John J. Choi, the district attorney of Ramsey County, Minnesota, which includes St. Paul.  "I think the prosecutor's role should not just end once we've finished processing a case. We should always be thinking about ensuring that there is justice for those who are rehabilitated [and] who have done everything that we have asked them to do."

Like the one enacted in Minnesota, prosecutor-led resentencing laws do not compel district attorneys to reconsider people's sentences; they only provide the authority to do so.  But elected officials who oppose the laws argue the resentencing process leaves victims of crimes powerless.  They also say that giving prosecutors the power to seek resentencing leaves them facing political pressure to use it.

California Assemblymember Tom Lackey, a Republican who once served as a California Highway Patrol officer, said he voted against the prosecutor-led resentencing bill because he deemed it unfair to victims.  "This bill and the energy behind it, and those associated with it, tip the scale of justice against victims of violent crime," he said.  "The victim is totally ignored in this decision-making process.  They are not included in this discussion on how that resentencing may impact them."

But Michael A. Hestrin, the conservative district attorney of Riverside County, California, who used the prosecutor-led process to resentence Smith, said his office always engages with victims of crimes, considering their input when making decisions on resentencing.  Ultimately, however, prosecutors should be trusted in their decisions....

More than 350 people have been released in California since the law passed, according to an estimate by For The People, a nonprofit advocating for prosecutor-initiated resentencing laws nationwide that spearheaded the efforts to get the law passed in the Golden State.

With proper funding and the participation of all 58 county prosecutor's offices, the group believes some 26,000 people could be released in California.  Nationally, the prosecutor-led process led to the resentencing of more than 450 people.  Hillary Blout, a former prosecutor at the San Francisco District Attorney's Office who founded For The People and conceptualized, drafted and secured the passage of the first prosecutor-initiated resentencing law in 2018, said the breakthrough in California has inspired prosecutors elsewhere to advocate for similar policies.

For The People's national policy manager, May Lim, said the organization assisted legislators in analyzing prison population data to help them understand the potential effects of prosecutor-initiated resentencing in the state.  They focused on prisoners' ages — comparing them to how old they were when they committed their offenses — as well as the length of their sentences and how much time they had already served....

For The People also told stakeholders that part of the process of a prosecutor seeking resentencing involves engaging with victims of crimes to get their input.  Most of the time, Blout said that victims are supportive of releasing perpetrators early through resentencing after learning that they have turned their lives around while in custody. "Some victims say, 'I didn't even know this person was still incarcerated'," she said.