Friday, December 02, 2022

Sobering numbers from "mass" marijuana pardon efforts in Pennsylvania

In this post over at my marijuana blog a few months ago, I flagged the announcement of outgoing Pennsylvania Gov Tom Wolf to create a large-scale project, called the Pennsylvania Marijuana Pardon Project, to enable people with certain low-level convictions to submit an application online for an official pardon from the state.  Subsequent reports about this effort noted that many thousands of people had submitted pardon applications.  But this new local article, headlined "Thousands applied, but fewer than 250 qualified for Wolf’s marijuana pardon," spotlights how the devil is often in the details in this arena:

When announcing the marijuana pardon project earlier this year, Gov. Tom Wolf said it had the potential to help thousands of Pennsylvanians clear their records. But it has fallen well short of that goal. More than 3,500 people applied for the program, aimed at wiping out low-level marijuana convictions in a one-time mass act of clemency. Fewer than 250, however, will have an opportunity to clear their record later this month.

On Thursday, the Pennsylvania Board of Pardons voted whether to move forward on more than 2,600 applications from the project. Of those, 231 were approved and will go for a final vote by the board on December 16. Any of the cases that make it through that round, will go on to Wolf to grant the pardon. Another 2,002 applications were denied Thursday because they did not meet the requirements of the project and 434 were held under advisement, meaning the board can vote on them at a later date.

The program only applied to people who were convicted of possession of a small amount of marijuana and excluded anyone who had any additional criminal convictions on their record. Advocates said the narrowness of the program was a significant concern for how effective the program could be.

“Often cannabis consumers get multiple convictions when they are arrested that first time,” said Chris Goldstein, NORML’s Pennsylvania, New Jersey and Delaware regional organizer. “They get a paraphernalia charge, and they get a possession charge all at once. You would have to essentially lead a police-free life other than that one marijuana encounter to qualify.”

Goldstein said the fact that program had a very short window for people to apply also likely limited its impact. Wolf announced the program on September 1 and people had until September 30 to apply....

Goldstein said more than 13,000 people were arrested for possession of a small amount of marijuana in 2021. About 10 percent of those people wind up with a conviction for the offense. Most others are either dismissed or plead out to a lower level crime.

More than 1,150 people were sentenced in 2018 with possession of a small amount of marijuana as the highest charge in their case, according to the latest year of data available from the Pennsylvania Sentencing Commission.

While Goldstein said he was disappointed that only a fraction of the people affected will receive a pardon through the program, clemency for those people will mean less barriers to housing, employment and hopefully improve their lives. “I’m sure to the 231 people who went through this process, got approved, do qualify, when they get the pardon certificate in their hands, it will matter in their lives,” he said. “They had a reason they wanted this pardon. Whether they wanted it for their own person justice, to clear their own name, or they needed it as answer to their record, those pardons will matter.”

December 2, 2022 in Clemency and Pardons, Data on sentencing, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 01, 2022

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

December 1, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, November 27, 2022

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

November 27, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, November 22, 2022

Following Prez Biden's lead, Oregon Gov pardons over 47,000 marijuana possession convictions

As reported in this local artcle, around "45,000 people previously convicted of marijuana possession in Oregon will be pardoned and $14 million in fines forgiven, the Governor's Office announced Monday."  Here is more:

Gov. Kate Brown is pardoning the 47,144 convictions for possession of one ounce or less of marijuana going back several decades. Criminal convictions, even for possessing small amounts of marijuana that would be legal now, can be barriers to employment, housing and education.

“No one deserves to be forever saddled with the impacts of a conviction for simple possession of marijuana — a crime that is no longer on the books in Oregon,” Brown said in a statement Monday. “Oregonians should never face housing insecurity, employment barriers, and educational obstacles as a result of doing something that is now completely legal, and has been for years. My pardon will remove these hardships." She noted that while all Oregonians use marijuana at similar rates, Black and Latino people have been arrested, prosecuted and convicted of marijuana possession at disproportionate rates.

Officials with the American Civil Liberties Union applauded Brown’s action on Monday, saying her move followed an important step by President Joe Biden last month to pardon thousands of people nationwide of federal convictions for marijuana possession. Officials with the ACLU of Oregon said Brown is the first governor take this action on pardoning. Sandy Chung, executive director of ACLU of Oregon, said they were grateful for Brown's use of clemency to address the state's outdated and racially-biased practices, including policies from the failed "War on Drugs."...

According to the Governor's Office, the pardon applies to electronically available Oregon convictions for possession of one ounce or less of marijuana in pre-2016 cases in which the person was 21 years of age or older, where this was the only charge, and where there were no victims. This pardon does not apply to any other offense related to marijuana or other controlled substances. More information can be found online.

Following Brown's pardon, the Oregon Judicial Department will ensure that all court records associated with the pardoned offenses are sealed. About $14 million in unpaid court fines and fees associated with the pardoned convictions will be forgiven. The pardoned marijuana convictions will no longer show up on background checks of public court records, but the conviction may show up on background checks conducted by law enforcement officials or licensing authorities as a pardoned conviction....

Jessica Maravilla, policy director of ACLU of Oregon, said by eliminating $14 million in fines and fees, Brown is breaking down a massive barrier many have to housing, schooling and jobs. "For low-income communities and people of color, they can result in continued entanglement in the criminal legal system," she said. "The Governor’s forgiveness of $14,000,000 in fines and fees is a significant step in addressing unjust systemic burdens created by prior convictions — especially, in this case, for a crime that no longer exists.”

The official statement from Gov Brown's office is available at this link.

November 22, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, November 20, 2022

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

November 20, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, November 19, 2022

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

November 19, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 14, 2022

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

November 14, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, November 12, 2022

After getting 241-year sentence as juvenile, Bobby Bostic released on parole after 27 years in prison

In this post late last year, I provided an update on the case of Bobby Bostic, who had been sentenced in Missouri as a teenager in the 1990s to 241 years in prison.  Because MIssouri law was changed, Bostic was able to secure parole after serving over a quarter century behind bars.  And this past week, as reported in this lengthy local piece, Bostic was formally released on parole.  Here are excerpts from the piece with some legal context

Standing on the Missouri Capitol steps moments after being released from prison, Bobby Bostic said the first place he planned to visit was his mother’s grave in St. Louis — a city he’d last freely walked in 1995. “I’m a free man all because of you all who supported me,” Bostic, 43, said Wednesday morning while surrounded by friends and family donning matching sweatshirts that read “Bobby Bostic is Free.”

“While I cannot change what happened so many years ago,” he said, “I will mentor and teach young people to take a different path than I did when I was a young child myself.”

Bostic was imprisoned in 1995 for a crime he committed when he was 16, when he was an accomplice in two armed robberies in St. Louis.  Now-retired St. Louis judge Evelyn Baker sentenced Bostic to 241 years, with the first chance at parole being when Bostic turned 112.

Baker sentenced him to die in prison without giving him an official life sentence. “Your mandatory date to go in front of the parole board will be the year 2201,” Baker told Bostic at his sentencing date in 1997. “Nobody in this room is going to be alive in the year 2201.”

By sentencing him in this way, Bostic wasn’t protected under a 2010 U.S. Supreme Court ruling that mandated parole hearings for juveniles who’ve been sentenced to life without parole.  Bostic’s case fell into a legal loophole that existed in Missouri and only a few other states.  Missouri courts had held that this mandate didn’t apply to juveniles like Bostic, who received a sentence for multiple offenses that added up to life in prison.  All of Bostic’s legal remedies were exhausted by 2018, when his petitions to both the Missouri Supreme Court and U.S. Supreme Court were denied without comment.

But then in 2021, Republican Rep. Nick Schroer of O’Fallon successfully pushed legislation to allow juveniles who have been sentenced to 15 years or more to be eligible for parole after serving 15 years in prison.  Bostic is one of about 100 people who got a new chance at parole after the law passed....

Baker, who came to regret how she handled the case in 1995, became one of Bostic’s biggest allies, appearing as his advocate in front of the parole board last year.  “Bobby should’ve had a chance,” Baker said Wednesday, explaining that only after she sentenced him did she learn that teenagers’ brains aren’t fully developed.  “I had no awareness at that time that Bobby, by being certified to be tried as an adult, did not become an adult,” Baker said. “He was still a 16-year-old boy.”

On Dec. 12, 1995, Bostic and then 18-year-old Donald Hutson robbed a group of six people at gunpoint who were delivering Christmas gifts to a needy family in St. Louis, according to the ACLU’s 2017 petition to the U.S. Supreme Court.  During the robbery, two people were shot at.  One received a tetanus shot because the gunshot grazed his skin. The other testified that he was not injured at all.

After the robbery, Bostic and Hutson forced a woman into her car and drove off.  They robbed her and then, at Bostic’s insistence, let her go, the petition states.  Then, Bostic and Hutson threw their guns in the river and used the money to buy marijuana.  Bostic was pulled over by the police and ultimately charged with 18 felonies....

Bostic said he plans on taking things “one day at a time,” doing things he never had the chance to do — like learn to drive, use the internet and talk on a cell phone for the first time.  On Wednesday, he returned home to St. Louis. “It’s perfect because I know St. Louis,” he said, “But I’ve got to relearn it.”

Prior related posts:

November 12, 2022 in Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 11, 2022

SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

November 11, 2022 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

Veterans-original_cropThe question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

November 11, 2022 in Clemency and Pardons, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Another important look at the role of prosecutors in second-look sentencing

Many years ago, I had the honor of giving a keynote speech at a conference focused on the work of prosecutors where I suggested they should be much more involved in reviewing past sentences.  That speech, whi got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010), came to mind as I read this new Marshall Project piece headlined "Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do."  I recommend the lengthy and effective piece in full, and here is a brief excerpt:

Louisiana is one of five states that has recently passed prosecutor-initiated resentencing laws, along with California, Washington, Illinois and Oregon.  Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — considered similar bills this year, though none were brought to a vote.

Many incarcerated people view these laws as a way to get fresh eyes on their cases.  Advocates for criminal justice reform say the laws are needed to help reduce mass incarceration.

But their reach so far has been concentrated in the offices of a few district attorneys, mainly in urban areas, according to a review by The Marshall Project.  One reason is the high cost of reviewing old cases, prosecutors say. There are also moral and political issues.  Some prosecutors are philosophically opposed to the notion of overturning sentences handed down by a judge, and others fear pushback from voters.

Some of many recent prior related posts:

A small sampling of my prior writing on this front:

November 11, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 10, 2022

"Dresser Drawer Pardons: Pardons as Private Acts"

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

Can a President issue a pardon without telling anyone but the recipient that she has issued it?  Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so.  While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may otherwise lay buried in a sock drawer in case it is ever needed without losing any of its force or effect.

In this article, I make the case for secret pardons based upon Supreme Court precedent dating back to Chief Justice Marshall’s tenure on the Court.  In the years since Marshall’s 1833 ruling in United States v. Wilson, the Court has repeatedly reaffirmed the historical and formalist approach to the pardons clause that Marshall inaugurated.  Declaring that English practice should be the guide to the federal pardons clause, Marshall endorsed the understanding of pardons maintained by English treatise writers.  Marshall and the English writers describe pardons as a kind of deed or private act.

Besides validating secret pardons, the fact that pardons are to be treated as private acts or deeds also teaches us that oral pardons are likely invalid and that self-pardons are utterly nugatory.  Along the way to these conclusions, I confront the oddity of the Court-backed legal truth that pardons are private acts, explaining how a power with so many public consequences for the criminal justice system could possibly be considered a private act.  I also consider an abortive challenge to the historical–formalist approach to the pardon power established by Chief Justice Marshall that Justice Holmes raised in the 1920s.  Studying the clash between Marshall and Holmes allows us to see clearly the difference between Holmes’ legal realism and Marshall’s antiquarian formalism.

November 10, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 08, 2022

How many federal LWOP sentences have been reduced via 3582(c)(1)(A) and on what grounds?

The question in the title of this post was prompted by a notable new ruling sent my way, US v. West, No. 06-21185 (E.D. Mich. Nov. 7, 2022), which grants a sentenced reduction motion for a prisoner serving a federal LWOP sentence.  Before discussing that opinion (which can be dowloaded below), I will note that Figure 2 of the USSC's latest Compassionate Release Data Report from September 2022 reports that 27.9% of the over 4000 prisoners who have had their 3582(c)(1)(A) motions granted were serving original sentences of "20 years or more."  In other words, since the First Step Act became law in December 2018, well over 1000 persons serving sentences of 20 or more years have received sentence reductions.  But, to my knowledge, the USSC has not provided further details with any data specifically regarding prisoners serving LWOP securing compassionate release or regarding the reasons judges commonly give when reducing LWOP sentences.

General numbers and broader trends aside, the ruling in West makes for an interesting read because the judge here decides that Apprendi error as well as unwarranted sentencing dispartity provided extraordinary and compelling reasons for a sentence reduction.  Here is how the West opinion gets started:

Roy West is in year 17 of a life without parole sentence.  The indictment and case submitted to the jury should have netted West not more than ten years in prison.

Errors on the part of competent people — prosecutors, defense counsel, probation officers and, ultimately, this judge at the time of sentencing — resulted in the imposition of a sentence in violation of the law on West.  Even skilled appellate counsel failed to raise the sentencing error.

West has no way to correct this extraordinary and compelling error — and end his days in prison — but through his now pending motion for sentence reduction (compassionate release).

18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, opens an avenue for this Judge to correct a fundamentally unfair sentence that did not exist before.  Justice and faith in our judicial system demand correction for the benefit of Roy West.

This human error on multiple levels, the resulting sentencing disparity, the absence of any other avenue for relief, and West’s extraordinary rehabilitation constitute extraordinary and compelling reasons for sentence reduction.  The 18 U.S.C. § 3553(a) factors support a sentence reduction as well.

Download West CR opinion

November 8, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 06, 2022

Recapping last week's SCOTUS arguments in two complicated review procedure cases

Last Tuesday, the Supreme Court hear arguments in two complicated criminal cases: Jones v. Hendrix, which I previewed here last week, and Cruz v. Arizona, a capital case.  These cases have not garnered that much general attention, surely because they both involve complicated procedural issue.  Still, the folks at SCOTUSblog have detailed reviews of the arguments, and I have also seen a few other discussions of the arguments:

Jones:

From SCOTUSblog, "In habeas case, the liberal justices try to untangle a complex statute"

From Law & Crime, "Justice Alito Concerned that Freeing Legally Innocent Man from Prison Would Clog Up the Federal Courts"

 

Cruz:

From SCOTUSblog, "Arizona asks court to approve “Kafkaesque” treatment of due-process claim from man on death row"

From Cronkite News, "Supreme Court presses state on its rejection of Arizona death-row appeal"

From the Arizona Republic, "U.S. Supreme Court hears oral argument of Arizona man on death row"

November 6, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, November 04, 2022

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. Glossip, now 59, has long maintained his innocence.

He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

November 4, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 31, 2022

Previewing SCOTUS argument on federal statutory collateral review mechanisms

Though the Supreme Court's oral argument today in the affirmative action cases is understandably garnering lots of attention, criminal justice fans should not forget that tomorrow brings oral argument in a big interesting federal CJ case with Jones v. HendrixThis SCOTUSblog preview, titled "On the narrow road to challenge a federal conviction, when is a vehicle 'inadequate'?," provides a detailed preview that starts this way:

On Tuesday, the justices will hear argument in Jones v. Hendrix, the latest in a string of cases that raise profound questions about the rights of prisoners who claim to be innocent to challenge their convictions. Last year, the court restricted the ability of state prisoners to develop new evidence to support claims that their attorneys failed to investigate leads that could have shown they were factually innocent.  Jones involves a federal prisoner who is legally innocent — the conduct a jury found he committed isn’t a crime.  But should that fact relieve him from his 27-year prison sentence?  In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple.  Indeed, the case comes before the court as a three-way split: the petitioner, Marcus DeAngelo Jones, challenged his conviction in a federal habeas petition under 28 U.S.C. § 2241, arguing that the “motion to vacate” his conviction provided by 28 U.S.C. § 2255 is inadequate to afford him relief.  The U.S. Court of Appeals for the 8th Circuit ruled he cannot pursue a petition because he already filed a motion under Section 2255, which bars him from filing a successive petition, and he should have raised his claim earlier.  The federal government — which prosecuted Jones — says the 8th Circuit got the reasoning wrong but the outcome right: It urges the Supreme Court to correct the lower court’s error but deny Jones relief. 

And here are a couple of additional previews of Jones, which seems to me to be the most important federal criminal law case of the current SCOTUS Term to date:

From JD Supra, "Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s 'Saving Clause'"

From Law360, "Habeas Case May Open Prison Door For Retroactive Innocents"

October 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, October 24, 2022

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent related posts:

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

October 24, 2022 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 23, 2022

"A Second Look for Children Sentenced to Die in Prison"

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

Scholars have championed “second look” statutes as a decarceral tool.  Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences.  This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing.  Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public safety.  While resentencing and even releasing these individuals would not directly result in mass decarceration, it would serve as a litmus test for expanding second look statutes to adults convicted of violent crimes — the very group for whom meaningful decarceral efforts must ultimately be aimed.

The Essay also argues that second look legislation has the potential to redress two specific sentencing problems common to cases involving children: the inability to accurately assess an individual’s capacity for change and racially discriminatory sentencing outcomes.  To redress these problems, and to avoid reflexive impositions of original sentences, this Essay recommends three critical additions to juvenile second look statutes: automatic eligibility for resentencing at age twenty-five, jury resentencing, and inadmissibility of the defendant’s original sentence.

October 23, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, October 19, 2022

"Inflation and the Eighth Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Meara Maccabee, a student at The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by OSU's Drug Enforcement and Policy Center, and here is its abstract:

As inflation pushes the prices of goods higher and higher, the monetary thresholds that separate misdemeanor thefts from felony thefts deflate.  This paper argues that deflated felony thresholds provide courts a unique opportunity to wade into what is typically 'properly within the province of legislatures': sentence proportionality.  Because inflated thresholds are the result of a natural economic event, rather than legislative enactment, courts have more deference to find felony sentences disproportionate when the underlying theft would have constituted a misdemeanor absent inflation.

October 19, 2022 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

New FAMM report: "Grading the States: The State Compassionate Release Report Card Project"

Compassionate-Release-MapAs detailed in this press release, the folks at FAMM have today released a lot of new materials and resources focused on how states approach compassionate release for state prisoners.  Here are details from the press release:

Today, FAMM has released a compassionate release report, including report cards for every state, grading compassionate release programs designed for incarcerated people struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

“It was not surprising, but still disheartening to see so little improvement in compassionate release across the country since we first examined state compassionate release in 2018,” said Mary Price, FAMM’s general counsel and author of the report. “Lawmakers across the country fund compassionate release programs that sit idle and leave people to die in prison – including during the COVID-19 pandemic.

“There comes a point in a person’s sentence where they are so sick that incarceration loses any meaning or worse, becomes torture. If the programs are broken and can’t be used effectively, the lawmakers should fix them.”

In concert with the report, FAMM today also released a new national poll which found that 70% of Americans, across political lines, support compassionate release programs.

“At a time of concern about rising rates of crime, why are so many states wasting their limited resources to incarcerate sick and elderly people?” said Kevin Ring, FAMM’s president. “Committing to compassionate release programs could allow for funds to be better used to address concerns about crime.”

FAMM graded the compassionate release programs for each state in several categories before assigning a letter grade. The map of results is below.

The report is an update to “Everywhere and Nowhere: Compassionate Release in the States,” a comprehensive, state-by-state report on the early-release programs. That report was released in 2018.

October 19, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, October 17, 2022

Half dozen GVRs provide only "excitement" for CJ fans in latest SCOTUS order list

Regular readers now know I am making a regular habit (see here) of complaining about the relative lack of interesting criminal matters on the Supreme Court's docket this Term.  That reality leads me to eagerly await each new SCOTUS order list with the hope the Justices will add something spicy for sentencing fans (or really any criminal cases concerning more than just intricate procedural issues).  So, I opened today's SCOTUS order list ... and the title and start of this post surely made it plain that there were not any exciting new criminal justice cert grants or even opinions dissenting about any denials (in fact, there were no cert grants or opinions at all).

That said, I was intrigued to see that the new order list did include six GVRs based on criminal justice rulings last Term.  Specifically, there were five GVRs based n Ruan (basics here) and one based on Concepcion (basics here).  I have not kept a running list of the number of GVRs from these cases or others, but maybe that will be my best bet for SCOTUS excitement these days.

But hope springs eternal in the SCOTUS fall, and the Justices will release another order list in a couple of weeks on October 31.  Perhaps someone can scare up some spirited cert grants for that special day.  And, not to be forgotten, a big case for federal prisoners seeking review of convictions and sentences, Jones v. HendrixNo. 21-857, is be argued on November 1.  (And, as I will discuss in another coming post, in the meantime sentencing fans do have the excitement of the first public US Sentencing Commission hearing in nearly four years on October 28.)

October 17, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, October 14, 2022

Might new Justice Jackson create a whole new Court in criminal cases (at least on acquitted conduct)?

The question in the title of this post is a modified version of a question I asked at the end of this lengthy July 2022 post which set out some of my initial thoughts on the SCOTUS criminal justice work during October Term 2021.  Here is what said at that time in that post:

One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned. 

In this Bloomberg Law piece, Jordan Rubin picks up this theme under the headline "Justice Jackson Can Shift High Court’s Crime Docket Post Breyer." Here is how this piece gets started:

Supreme Court Justice Ketanji Brown Jackson will face an early test of whether she can form a new majority in some criminal cases along with Republican-appointed colleagues on issues that cross ideological lines.

Jackson is expected to side with criminal defendants in cases involving sentencing and search and seizure more often than her predecessor, Stephen Breyer, who cast tie-breaking votes for the government.  But to make a majority on the court dominated by six Republican appointees, criminal defendants may need to attract not only Jackson and the other two Democratic appointees but two Republican appointees as well.

“Justice Jackson is going to bring all of her experiences in the criminal legal system to the table — and to conference — and I anticipate her voice and vote having added gravitas on criminal law, criminal procedure, and federal sentencing,” said Devi Rao, director of the MacArthur Justice Center’s Washington office and deputy director of its Supreme Court and Appellate Program.

“She’ll be more than just the ‘junior Justice’ when it comes to these issues,” Rao said of the former public defender who represented Guantanamo detainees and was a sentencing commissioner at the center of reducing drug punishments.

An upcoming test of a potential new criminal coalition comes as the justices prepare to consider taking a case that asks whether judges can punish defendants for conduct they’re acquitted of at trial.

The rest of the Bloomberg article discusses a case that should be familiar to readers, namely McClinton v. US, in which the Seventh Circuit affirmed a 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case (and I also have this amicus brief filed).  The government has now received three extensions on their response to the cert petition, so we likely will not have a cert decision until next month (if not later).

A few recent of many, many prior related posts:

October 14, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Thursday, October 13, 2022

US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

In an update to this post last week, I noted that the US Sentencing Commission had produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  That analysis explained where "senior administration officials" were getting the talking point that around 6500 people were going to benefit from President Joe Biden's decision to grant a blanket pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act"  That USSC accounting also led me to wonder if we might ever get "race and gender and age and criminal history information" regarding this now-pardoned population.

Excitingly, late yesterday the US Sentencing Commission issued this news advisory announcing that it had completed "additional analyses" of the pardoned population "providing additional information on demographics and geographic distribution."  The additional USSC analyses include race and gender data (but no age and criminal history data), and the biggest story in the new analyses seems to be that the pardoned population is comprised of more Whites (41.3%) and Hispanics (31.8%) than Blacks (23.6%).  This reality may be a bit surprising given that the ACLU has repeatedly documented that states have in recent decades arrested Blacks at nearly four times the rate as whites (see here and here).  But since most federal marijuana possession offenses are concentrated near the border or on federal property (like military bases and national parks), this racial distribution perhaps should not be all that surprising.

Prior related posts:

October 13, 2022 in Clemency and Pardons, Data on sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, October 12, 2022

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

October 12, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

October 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, October 06, 2022

A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana

As noted in this prior post, Prez Biden today granted a mass pardon to "all prior Federal offenses of simple possession of marijuana."  This official proclamation, titled "A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana," provides some who and how details:

Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to (1) all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation, regardless of whether they have been charged with or prosecuted for this offense on or before the date of this proclamation; and (2) all current United States citizens and lawful permanent residents who have been convicted of the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1); which pardon shall restore to them full political, civil, and other rights. 

My intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48–904.01(d)(1), and not any other offenses related to marijuana or other controlled substances.  No language herein shall be construed to pardon any person for any other offense, including possession of other controlled substances, whether committed prior, subsequent, or contemporaneous to the pardoned offense of simple possession of marijuana.  This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense.

Pursuant to this proclamation, the Attorney General, acting through the Pardon Attorney, shall administer and effectuate the issuance of certificates of pardon to eligible applicants who have been charged or convicted for the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1).  The Attorney General, acting through the Pardon Attorney, is directed to develop and announce application procedures for certificates of pardon and to begin accepting applications in accordance with such procedures as soon as reasonably practicable.  The Attorney General, acting through the Pardon Attorney, shall review all properly submitted applications and shall issue certificates of pardon to eligible applicants in due course. 

Helpfully, the Justice Department's Office of the Pardon Attorney has this extended Q&A about the reach of the pardon proclamation, and here are some interesting parts:

Does the proclamation apply to convictions under state law?  

No. President Biden’s proclamation does not pardon convictions under state law, although it does apply to possession of marijuana convictions under the District of Columbia’s criminal code.  

Does the proclamation apply to all types of federal marijuana offenses?  

No. President Biden’s proclamation applies only to simple possession of marijuana offenses. Conspiracy, distribution, possession with intent to distribute, and other charges involving marijuana are not pardoned by the Proclamation.  

Do I qualify for a pardon if I was convicted under 21 U.S.C. § 844 of possessing marijuana and another drug in a single offense?  

No. The proclamation does not apply to persons who were convicted of possessing multiple different controlled substance in the same offense. For example, if you were convicted of possessing marijuana and cocaine in a single offense, you do not qualify for pardon under the terms of President Biden’s proclamation. If you were convicted of one count of simple possession of marijuana and a second count of possession of cocaine, President Biden’s proclamation applies only to the simple possession of marijuana count, not the possession of cocaine count.  

Does the proclamation apply to charges that are currently pending as of October 6, 2022? 

Yes. President Biden’s Proclamation applies if the qualifying offense occurred on or before October 6, 2022, even if a conviction has not been obtained by that date.  

Does the proclamation protect me from being charged with marijuana possession in the future? 

No. The proclamation pardons only those offenses occurring on or before October 6, 2022. It does not have any effect on marijuana possession offenses occurring after October 6, 2022. 

In various press reports, I keep seeing some version of this accounting of the impact from this ABC News piece:

The executive action will benefit 6,500 people with prior federal convictions and thousands of others charged under the District of Columbia's criminal code, according to senior administration officials.  Elaborating on the number of people affected, officials said "there are no individuals currently in federal prison solely for simple possession of marijuana."

I presume that the US Pardon Attorney will keep detailed records of how many people end up acquiring certificates of pardon (though all these people have been pardoned, a certificate just serves as a way to get an official memorialization of that fact).  And I would love to see more details, now or later, about some of the demographics of the estimated population who got these pardons.  Someone has clearly run the numbers, though I suspect any accounting here is a bit of a guess and also lacks as much demographic information as might be really interesting.

UPDATE: Thanks to commentor atomicfrog, I just saw that the US Sentencing Commission has produced this three-page analysis of "data relating to offenders sentenced between fiscal year 1992 and fiscal year 2021 convicted of at least one count of simple possession involving marijuana."  The analysis merely details yearly convictions since 1992 with number of convictions of US citizens and lawful permanent residents.  The data is more than a bit inscrutable in part because there are three charts for which the relationship to each other is unclear and because of a note stating that "2,085 cases were excluded from the three analyses in this report due to missing information relating to citizenship."

Since these data are from the US Sentencing Commission, the data sets used for these analyses ought to have race and gender and age and criminal history information.  Perhaps in time the US Sentencing Commission or the White House will look to provide additional demographic information here.   Also, now seeing that the mid-1990s brought as many as 500 federal marijuana possession convictions per year, I suspect there were at least few thousand more prior relevant convictions not captured in these data but subject to coverage by the mass pardon from Prez Biden.  I am tempted to start saying that it looks like 10,000 or more pardons were actually announced by the President in this initiative.

October 6, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Wednesday, October 05, 2022

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

October 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

October 5, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, October 04, 2022

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, October 03, 2022

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. HendrixNo. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

October 3, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, October 02, 2022

"State Constitutionalism and the Crisis of Excessive Punishment"

The title of this post is the title of this new article available via SSRN authored by Robert J. Smith, Zoe Robinson and Emily Hughes. Here is its abstract:

The institutional site of responsibility for America’s mass incarceration crisis represents one of the most important and undertheorized barriers to reducing excessive punishment in the United States.  While mass incarceration is frequently presented as an American crisis, with more that 113 million Americans impacted by the criminal justice system, this Article argues that mass incarceration is not a national issue, but instead a local issue.  Ninety percent of the people in America’s prisons are confined under state laws, procedures, and norms created by state legislative and executive branches, and thirty-seven individual U.S. states have an incarceration rate higher than any country other than the U.S. itself.  While there exists a growing popular and scholarly movement attempting to address the political intractability of mass incarceration, this Article argues that missing from the debate is the role of state courts and state constitutions.

Drawing on two burgeoning movements — the movement to end mass incarceration and the re-emerging significance of state constitutionalism — this Article argues that state constitutionalism is critical for curbing the excessive punishment regimes that drive mass incarceration.  The Article evaluates state courts’ quiet divestment of independent state constitutional interpretation in the years following incorporation, outlining the unique issues posed by constitutional unitarism for limiting excessive punishment.  Motivated by recent developments in state courts, the Article highlights the growing support for, and potential of, independent state constitutionalism for preventing excessive punishments and addressing the mass incarceration crisis.  In doing so, the Article offers a path forward, sketching a doctrinal trajectory for state courts to use when interpreting their state constitutional provisions limiting excessive punishments that respects federal developments while also capturing the localism of criminal law and ultimately emphasizing the potential of state courts as transformative institutions in reducing mass incarceration.

October 2, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, September 28, 2022

Spotlighting one Governor's notable clemency track record

The Guardian has this notable lengthy new piece, fully headlined "The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’; Kate Brown has granted more commutations or pardons than all of Oregon’s governor from the last 50 years combined."  I recommend the full piece, and here is how it starts:

Last October, Kate Brown, the governor of Oregon, signed an executive order granting clemency to 73 people who had committed crimes as juveniles, clearing a path for them to apply for parole.

The move marked the high point in a remarkable arc: as Brown approaches the end of her second term in January, she has granted commutations or pardons to 1,147 people – more than all of Oregon’s governors from the last 50 years combined.

The story of clemency in Oregon is one of major societal developments colliding: the pressure the Covid-19 pandemic put on the prison system and growing momentum for criminal justice reform.

It’s also a story of a governor’s personal convictions and how she came to embrace clemency as a tool for criminal justice reform and as an act of grace, exercising the belief that compassionate mercy and ensuring public safety are not mutually exclusive.

“If you are confident that you can keep people safe, you’ve given victims the opportunity to have their voices heard and made sure their concerns are addressed, and individuals have gone through an extensive amount of rehabilitation and shown accountability, what is the point of continuing to incarcerate someone, other than retribution?” Brown said in a June interview.

September 28, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Extended discussion of the messy uncertainty of Excessive Fines jurisprudence from Ohio Supreme Court

Earlier this month, as well detailed in this lengthy courthouse news piece headlined "Court-Ordered Truck Forfeiture for Third Drunk-Driving Offense Found Constitutional," a split Ohio Supreme Court upheld the forfeiture of a 2014 Chevrolet Silverado for a repeat OVI offense. Here is how the ruling in State v. O'Malley, No. 2022-Ohio-3207 (Ohio Sept 25, 2022) (available here) gets started:

In this case, we are asked two separate questions about R.C. 4511.19(G)(1)(c)(v) and Ohio’s criminal-forfeiture scheme for vehicles owned and used by repeat drunk drivers.  First, we are asked whether that scheme violates the Equal Protection Clauses in the state and federal Constitutions by treating owners and nonowners differently.  Next, we are asked, more specifically, whether the forfeiture of appellant James O’Malley’s 2014 Chevrolet Silverado constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. We find that there was no equal-protection violation and that, as applied to O’Malley, the vehicle forfeiture mandated by R.C. 4511.19(G)(1)(c)(v) did not violate the Excessive Fines Clause of the Eighth Amendment because it was not grossly disproportional to the gravity of his offense.  Accordingly, we affirm the judgment of the Ninth District Court of Appeals affirming the trial court’s forfeiture order.

The equal protection discussion in O'Malley is relatively brief, but the Eighth Amendment analysis is extended and should be of interest to those still trying to figure out how excessive punishment are to be constitutionally assessed. There are many passages from the majority opinion that are notable, but this one particularly struck me as jurisprudentially interesting:

The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus.  Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood.  While we appreciate the allure of a seemingly airtight checklist that ideally would — but in practice may not — address all future contingencies, we do not believe — for both practical and principled reasons — that it is necessary or appropriate for us to establish the multifactor test sought in this case.  Instead, we rely on our decision in Hill and the United States Supreme Court’s decision in Bajakajian to evaluate the forfeiture imposed in this case.

The dissenting opinion criticizes this approach by claiming that we provide no additional guidance and merely engage in error correction.  The dissent is mistaken.  Rather, in this case, we have revisited an issue that is of great public interest, reviewed how the issue has developed over the past 30 years since we decided Hill, and have simply come to the same conclusion that we reached in Hill — a bright-line test analyzing an Eighth Amendment excessiveness challenge is not appropriate.  We must allow trial courts flexibility so that they may consider the situation before them and make a fully informed and reasoned decision about whether a forfeiture is unconstitutionally excessive.  We need not bind trial courts’ hands in these already difficult forfeiture cases.

September 28, 2022 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 27, 2022

"Race and Wrongful Convictions in the United States 2022"

The title of this post is the title of this lengthy new report from the National Registry of Exonerations.  Here is the start of its executive summary:

Black people are 13.6% of the American population but 53% of the 3,200 exonerations listed in the National Registry of Exonerations.  Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.

We see this racial disparity, in varying degrees, for all major crime categories except white collar crime.  This report examines racial disparities in the three types of crime that produce the largest numbers of exonerations: murder, sexual assault, and drug crimes.

For both murder and sexual assault, there are preliminary investigative issues that increase the number of innocent Black suspects: for murder, the high homicide rate in the Black community; for rape, the difficulty of cross-racial eyewitness identification.  For both crimes, misconduct, discrimination and racism amplify these initial racial discrepancies.

For drug crimes, the preliminary sorting that increases the number of convictions of innocent Black suspects is racial profiling.  In addition, the Registry lists 17 “Group Exonerations” including 2,975 additional wrongfully convicted defendants, many of whom were deliberately framed and convicted of fabricated drug crimes in large-scale police scandals. The overwhelming majority are Black.

September 27, 2022 in Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (0)

Monday, September 26, 2022

Kentucky parole board orders school shooter to serve out the remainder of his life sentence

In this post last month, titled "Grappling with parole possibilities a quarter-century after horrific school shooting by young teen," I flagged an article discussing the first modern teen school shooter who was due to receive parole consideration 25 years after his crime.  This new lengthy CNN piece reports on the results of the process, and here are excerpts:

The Kentucky Parole Board on Monday denied parole to Michael Carneal, a man serving a life sentence for killing three students in a school shooting in 1997 when he was 14 years old. The ruling by the full parole board to have Carneal serve out his sentence comes after a two-person panel failed to reach a unanimous decision about Carneal’s release last week.

“Due to the seriousness of your crime — your crime involved a weapon, you had lives taken, and the seriousness, again — it is the decision of the parole board today to allow you to serve out the remainder of your sentence,” Parole Board Chairperson Ladeidra Jones said Monday. Carneal, who attended the hearing via video conference, responded, “Yes ma’am,” and stepped out of frame.

Carneal has served nearly 25 years in prison for opening fire at Heath High School in Paducah on December 1, 1997, killing the three students and wounding five others just after the students’ prayer circle in the lobby said “Amen.” Carneal pleaded guilty to three counts of murder, five counts of attempted murder, and a count of first-degree burglary. While he was sentenced to life in prison, Kentucky law requires that minors be considered for parole after 25 years.

Many survivors and families of the victims were opposed to Carneal’s requested release.  But now 39, Carneal pleaded his case to members of the parole board in a hearing last week, saying that if he were released, he planned to live with his parents, continue undergoing mental health treatment and eventually get a job.

Carneal’s public defender, Alana Meyer, asked the board to remember Carneal was a teenager when he opened fire, was suffering from undiagnosed paranoid schizophrenia and was struggling with bullying and the transition from middle to high school. In the quarter century since, Carneal “has committed himself to his mental health treatment, to participating in available educational and vocational programs, and to being a helpful and positive person within the prison,” Meyer wrote....

Carneal told the panel he has received multiple mental health diagnoses and has long heard voices in his head – including on the day of the shooting.  He said that before opening fire he heard a voice telling him to “pick up the gun out of the backpack and hold it in front of me and shoot.”

“There’s no justification or excuse for what I did,” Carneal said. “I’m offering an explanation. I realize there’s no excuse for what I did.”  Carneal said he still hears voices in his head, but now knows when to ignore them.

A colleague has informed me that there is litigation in lower courts contesting the legality of the Kentucky parole board converting a life with parole sentence into a life without parole sentence via this kind of "serve out" order.  

September 26, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, September 23, 2022

Noticing notable aspect of SCOTUS vote on Alabama execution stay

The story of Alabama botched execution last night has many interesting elements, but this new Washington Examiner piece flags one (small) part of the story that ought not be overlooked.  The article, headlined "Barrett sides with liberal justices in opposition to halted Alabama execution," merits a full read for SCOTUS fans.  Here are excerpts:

Supreme Court Justice Amy Coney Barrett sided with the high court's three liberal justices on Thursday in dissenting a decision to allow the execution of an Alabama inmate, but the state called off the execution at the last minute....

In a 5-4 vote prior to the halted procedure, the Supreme Court ruled that the execution of Miller could move forward, lifting a lower court's injunction that had blocked his death by lethal injection. Barrett joined Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in dissent....

Barrett has sided with the liberal justices in other death penalty cases.

In February 2021, Barrett sided with Sotomayor, Kagan, former Justice Stephen Breyer, and a justice who did not disclose his vote in a "shadow docket" case that blocked the execution of Alabama inmate Willie Smith....

In January 2022, Barrett once again sided with Sotomayor, Kagan, and Breyer in voting to block the execution of Alabama inmate Matthew Reeves, who was convicted of robbing and killing a tow truck driver in 1998.

However, Barrett has not exclusively voted against the death penalty in Supreme Court cases. She went against liberal justices in the March 2022 case that reinstated the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev.

Though it may be pure coincidence, it seems Justice Barrett often has particular concerns with how Alabama is seeking to move forward with executions.  In almost all other capital cases, Justice Barrett seems to be a fairly predictable vote for the state. Indeed, Justice Barrett's first official SCOTUS vote in November 2020, as detailed here, had her joining with her five more conservative colleagues to lift a stay on a federal execution.

A range of distinct and complicated procedural issues attended the stay in this latest Alabama execution effort, and the SCOTUS order lifting the stay only notes the dissent without any explanation for any of the votes.  It will be interesting to see if this case or other capital cases will give us further clues on what issues are driving various votes in these kinds of matters.

September 23, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

September 23, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 22, 2022

"Racial Disparities in Lifer Parole Outcomes: The Hidden Role of Professional Evaluations"

The title of this post is the title of this new article recently published in the journal Law & Social Inquiry. The article was authored by Kathryne M. Young and Jessica Pearlman and here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these people will eventually be eligible for discretionary parole release.  Yet parole hearings are notoriously understudied.  With only a handful of exceptions, few researchers have considered the ways in which race shapes decision-makers’ perception of parole candidates.  We use a data set created from over seven hundred California lifer parole hearing transcripts to examine the factors that predict parole commissioners’ decisions.  We find significant racial disparities in outcomes, with Black parole candidates less likely to receive parole grants than white parole candidates, and test two possible indirect mechanisms.  First, we find that racial disparity is unassociated with differences in rehabilitative efforts of Black versus white parole candidates, suggesting that differential levels of self-rehabilitation are not responsible for the disparity.  Second, we test the hypothesis that racial disparity owes to commissioners’ reliance on other professionals’ determinations: psychological assessments, behavioral judgments, and prosecutors’ recommendations.  We find that reliance on these evaluations accounts for a significant portion of the observed racial disparity. These results suggest that inclusion of professional assessments is not race-neutral and may create a veneer of objectivity that masks racial inequality.

September 22, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, September 16, 2022

Federal judge orders Philly prosecutors to send written apologies to victim family members for poor behavior in capital habeas case

This ABA Journal article, headlined "Federal judge orders district attorney to write apology letters to families of murder victims," reports on a notable federal court order from earlier this week. Here are the highlights:

A federal judge has ordered Philadelphia District Attorney Larry Krasner to write apology letters to the families of the victims of a double murder after concluding that supervisors in his office made misleading statements to the court.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania scolded prosecutors for being “vague” and “unclear” about whether they consulted with victims’ families before supporting efforts to overturn the death penalty in the case against Robert Wharton.  In reality, prosecutors communicated with just one person — the family member who survived the attack, Lisa Hart-Newman.  The district attorney’s office had written in a court notice that it decided to concede an ineffective counsel claim following a review by its capital case review committee and “communication with the victims’ family,” wrote Goldberg in a Sept. 12 opinion.

Wharton was convicted for killing Bradley and Ferne Hart in 1984 in retaliation for failure to pay for construction work.  Working with an accomplice, he then shut off the heat to the couple’s home, leaving their 7-month-old daughter, Lisa, “to fend for herself,” according to a 2018 opinion by the 3rd U.S. Circuit Court of Appeals at Philadelphia.  A relative found the baby still alive three days later.

The 3rd Circuit ordered the death penalty review to determine whether Wharton’s trial lawyer was ineffective by failing to present evidence about the defendant’s positive adjustment to prison.  The district attorney’s office agreed that Wharton’s Sixth Amendment rights had been violated and asserted that a full review by the judge was unnecessary, according to Goldberg’s opinion.  But precedent “plainly holds that a jury’s death sentence verdict cannot be undone until all facts are placed on the table so that a fully informed judge, not the district attorney, can make the decision as to whether a decades-old verdict should be set aside,” Goldberg said.

Although the 3rd Circuit required a review of evidence in favor and in opposition to the death penalty, the district attorney’s office failed to advise the court about Wharton’s “violent escape from a city hall courtroom” and subsequent escape conviction, Goldberg said.  That’s “possibly the worst type of prison adjustment,” he observed.

Department supervisors on the capital case review committee said they recommended conceding Wharton’s habeas petition without knowing about the escape attempt. But that admission “was curiously contrary” to an assistant supervisor’s assertion in court that the office was aware of Wharton’s escape conviction, Goldberg said.... Goldberg said the district attorney’s office “continues to misunderstand its role” in collateral review proceedings in death penalty cases.  “If the district attorney’s office files its concession on a misleading presentation of the facts, it attempts to misuse the court’s power,” Goldberg said.

Goldberg directed Krasner to send separate written apologies to Hart-Newman and three family members for representing that the office had communicated with the victims’ family.

The full and interesting 28-page ruling in Wharton v. Vaughn is available at this link.

September 16, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, September 14, 2022

Ninth Circuit panel holds non-retroactive sentencing changes can be considered in compassionate release motions

Weighing in on an issue that has split circuits, a Ninth Circuit panel today in US v. Chen, No. 20-50333 (9th Cir. Sept. 14, 2022) (available here), held that "a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  The Chen opinion explains how "other circuits are split concerning this issue," but ultimately decides to "join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A)."  Here is a portion of the panel's explanation for its ruling:

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that “[r]ehabilitation . . . alone” is not extraordinary and compelling.... To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98225, 55–56, 121 (1983)....

The Supreme Court’s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.” 142 S. Ct. at 2396.  Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now....

Through § 3582(c)(1)(A) and § 994(t), Congress has demonstrated that it can, and will, directly limit what constitutes extraordinary and compelling reasons.  It is therefore hard to reconcile the argument that we should infer a categorical bar on extraordinary and compelling reasons with Congress’s prior decisions not to create such stark limitations on a district court’s discretion.

September 14, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, September 12, 2022

US Sentencing Commission releases latest "Compassionate Release Data Report" with detailed data through March 2022

I just noticed that the US Sentencing Commission late last week published this updated compassionate release data report, which includes data on all "motions decided by the courts during fiscal years 2020, 2021, and the first half of 2022 (October 1, 2019 – March 31, 2022)."   As I have noted with prior data runs, there are lots and lots of interesting data points throughout this report covering the period just before, during and after the heights of the COVID pandemic.  

As I also have noted before, perhaps most striking data points are the dramatic variations in grant rates from various districts.  As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.  And the District of Maryland — with a total of 244 sentencing reduction motions granted (though "only" a grant rate of 33%) — granted more of these motions than all the courts of five different circuits (and circuit grant rates ranged from a low of 9.8% in the Fifth Circuit to a high of 29.6% in the First Circuit).

I expect the newly confirmed Sentencing Commission will be giving these data a good luck as the consider revisions to the out-of-data guideline that is supposed to help courts considering sentencing revision motions brought under 18 U.S.C. § 3582(c)(1)(A).  

September 12, 2022 in Data on sentencing, Detailed sentencing data, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Noting opaque SCOTUS rulings, split Ninth Circuit panel rejects habeas Eighth Amendment claim against 292-year prison term

Being sentenced to serve in 292 years in prison for a bunch of non-violent offenses certainly seems pretty "cruel."  And such an extreme prison term is still somewhat "unusual" in modern times, and surely would have been entirely unknown to the Founders. (Remarkably, were someone sentenced to 292 years in prison in 1790, he would still have 60 years left to serve circa 2022.)  But, despite textualist and originalist turns in other areas, modern Eighth Amendment jurisprudence does not (yet?) focus on the text and original understanding of this provision.  Indeed, because there have been so few modern cases about application of the Eighth Amendment to extreme adult prison sentences, it remains unclear just whether and how the Eighth Amendment still serves to limit extreme adult prison terms at all.

I flag these issues in the wake of a notable recent split Ninth Circuit panel decision in Patsalis v. Shinn, No. 20-16800 (9th Cir. Sept. 6, 2022) (available here), in which the very opaqueness of Eighth Amendment jurisprudence provided the basis for rejecting a habeas challenge to a 292-year state prison term. Here is the start of the majority opinion in Patsalis providing context as well as passages from the discussion:

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis’s constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis’s individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm....

There is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.... Lockyer is instructive....  The Court noted that its sentence-proportionality precedents “have not been a model of clarity.” Id. at 72. It further recognized that it has “not established a clear or consistent path for courts to follow” in analyzing proportionality of a sentence to a term of years. Id. Nor has it been clear about “what factors may indicate gross disproportionality” or provided “clear objective standards to distinguish between sentences for different terms of years.” Id. (cleaned up). Other than the basic principle of proportionality, the only thing that the Court has established is that the rule against grossly disproportionate sentences is violated “only in the exceedingly rare and extreme case.” Id. at 73 (cleaned up)....

To grant Patsalis’s habeas petition, we must conclude that “there is no possibility fairminded jurists could disagree” that the Arizona Court of Appeals’ decision conflicts with the Supreme Court’s clearly established precedents. Harrington, 562 U.S. at 102.  This we cannot do given the limited Supreme Court precedent regarding the prohibition against disproportionality of a sentence to a term of years.

Judge Christen penned a lengthy dissent, and here are parts of its opening and analysis:

Atdom Patsalis was convicted of various non-violent theft-related crimes committed over a three-month period when he was twenty-one years old. The total value of the property was about $5,000. Pre-trial, the State of Arizona made two plea offers of twenty years or less. Patsalis rejected both offers and was convicted of the charged offenses after a jury trial. The longest sentence imposed for any of his crimes was 15 years, but the court specified that his multiple sentences would run consecutively. The net result was a cumulative sentence of 292 years....

On appeal, my colleagues agree that AEDPA deference applies and they affirm on that basis. The majority acknowledges that the state court did not address Patsalis’s cumulative sentence — yet it asserts that the state court rejected Patsalis’s federal claim on the merits. The state court’s opinion is clear: it affirmed Patsalis’s individual sentences while expressly declining to consider whether his 292-year sentence was grossly disproportionate. Because the state court did not reach the merits of the claim Patsalis actually presented, there is no state-court decision to which we can defer and de novo review is the proper standard. Reviewing Patsalis’s claim de novo, I conclude that his cumulative sentence violates the Eighth Amendment. Accordingly, I respectfully dissent....

The facts and circumstances in the Supreme Court’s Solem and Graham opinions inescapably point to the conclusion that Patsalis’s 292-year sentence is one of the extremely rare cases that gives rise to an inference of disproportionality at the first step of the Eighth Amendment analysis. Patsalis was just 21 years old when he committed his offenses so he did not have a track record that had accumulated over the course of even the eleven years at issue in Solem. (Indeed, he had only been an adult for three years.) His offenses were non-violent and theft-related, and he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000. While four of his offenses involved entering private residences — admittedly serious conduct — eighteen of the twenty-two burglaries for which Patsalis received consecutive sentences did not involve entry into a home, but into a garage, a vehicle, and a detached shed. All of them were deemed “non-dangerous” by the trial court. As was the case in Graham, the sentence Patsalis received was multiples of the sentences imposed for murderers or rapists, yet Patsalis did not injure anyone and there is no indication that any violence or weapons were involved in any of his offenses.

Remarkably, in an era in which life sentences and lengthy term-of-years sentences keep reaching historic new levels (see reports discussed here and here), it has now been nearly two full decades since the Supreme Court has addressed an Eighth Amendment challenge to an adult term of years sentences.  Lockyer and Andrade were decided way back in 2003, and Justice Thomas is now the only member of SCOTUS who remains on the Court since those rulings were handed down. 

With SCOTUS transitions and the recent textualist and originalist turns in other jurisprudence, I would like to imagine Patsalis as the kind of case in which certorari might be granted and the Justices might look to finally clean up precedents that have not been a "model of clarity" and that seem quite inconsistent with the text and original understanding of the Eighth Amendment.  But, I should probably know better than to hope and expect that people sentenced to live in a cage for nearly three centuries will garner the kind of constitutional attention as praying football coaches and college admissions officers.

September 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Sunday, September 11, 2022

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

September 11, 2022 in Clemency and Pardons, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Saturday, September 10, 2022

"Irrational Collateral Sanctions"

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

In the modern era, a criminal sentence is rarely truly over just because someone has served their time.  Instead, both legal and social barriers continue to haunt most people who have been convicted of crimes for years.  These barriers often persist long past the point of making good sense.

While social barriers like stigma are not always easy for lawyers and lawmakers to address, legal barriers like so-called “collateral sanctions” (also known as “collateral consequences”) are their bread-and-butter.  In Part I of this Essay, I tell an anonymized client story that illustrates many of the existing efforts to blunt the effects of collateral sanctions in Ohio.  In Part II, I discuss in more depth both the problem of collateral sanctions and both the challenges and opportunities posed by existing remedial efforts.  In Part III, I discuss the opportunity for rational-basis challenges to irrational collateral sanctions when other remedial opportunities are unavailing. 

September 10, 2022 in Collateral consequences, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, September 09, 2022

Split Washington Supreme Court revisits its limits on long prison terms for juvenile offenders

As explained in this AP article, a "year after saying virtual life sentences are unconstitutional for teenage killers, the Washington Supreme Court changed course Thursday in a split ruling that drew irate dissents from four justices.  The 5-4 decision was a striking departure for a court that in recent years has steadily embraced research showing that juveniles’ brain development typically makes them less culpable than adults, and which has made significant efforts to undo the impact of racial bias in the criminal justice system."  The majority opinion in Washington v. Anderson, No. 97890-5 (Wash. Sept. 8, 2028) (available here), starts this way:

Tonelli Anderson is serving a 61-year sentence for two first degree murders he committed at age 17. Anderson asks us to hold that his sentence is unconstitutionally cruel in violation of article I, section 14 of Washington’s constitution.  He argues that this court’s recent decision in State v. Haag announced a bright line rule that no juvenile offender can ever receive a sentence of 46 years or longer — no matter how serious or numerous their crimes may be — and so his sentence is unconstitutional because it is longer than 46 years.  We disagree with Anderson’s interpretation of Haag.

Haag is properly understood as announcing that article I, section 14 of Washington’s constitution limits the category of juvenile offenders who can receive de facto life without parole (LWOP) sentences, the harshest punishments possible for juvenile offenders under Washington law.  In Haag, we determined that a particular juvenile offender could not receive such a harsh punishment because his crime reflected youthful immaturity, impetuosity, and failure to appreciate risks and consequences. But when, as here, a juvenile offender’s crimes do not reflect those mitigating qualities of youth, Washington’s constitution does not bar a de facto LWOP sentence.

The King County Superior Court properly considered all of Anderson’s evidence regarding the mitigating qualities of his youth and his rehabilitation while in prison.  In light of that evidence and the trial record, the court appropriately determined that Anderson’s crimes do not reflect youthful immaturity, impetuosity, or failure to appreciate risks and consequences. Article I, section 14 of Washington’s constitution therefore does not prohibit Anderson’s 61-year sentence. We affirm.

A dissent by Chief Justice Gonzalez starts this way:

Even if I could join the majority’s repudiation of our recent constitutional jurisprudence, I could not join it in affirming the trial court’s resentencing decision here. The resentencing judge abused her discretion by failing to meaningfully consider how juveniles are different from adults, by failing to meaningfully consider how those differences applied to Tonelli Anderson, by failing to consider whether Anderson’s case was one of the few where a life without parole sentence is constitutionally permissible, by failing to give meaningful weight to the significant evidence that Tonelli Anderson had rehabilitated himself while in prison, and by improperly allocating the burden of proof to him at resentencing. For all these reasons, I respectfully dissent.

Another dissent from Justice Yu starts this way:

I agree with the dissent that Tonelli Anderson is entitled to resentencing pursuant to this court’s precedent, which recognizes “that life is more than just life expectancy and that a juvenile must have a meaningful opportunity to rejoin society after leaving prison.” State v. Haag, 198 Wn.2d 309, 328, 495 P.3d 241 (2021). I write separately to elaborate on the ways in which the majority undermines our precedent, ignores fundamental principles of stare decisis, and disregards this court’s own call to “recognize the role we have played in devaluing [B]lack lives.” Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. at 1 (June 4, 2020), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20 News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-H5P7]. Today’s decision is contrary to both longestablished principles of law and newly recognized principles of justice. I therefore respectfully concur in the dissent.

September 9, 2022 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 06, 2022

South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional

As reported in this AP piece, a "South Carolina judge ruled Tuesday that the state's newly created execution firing squad, as well as its use of the electric chair, are unconstitutional, siding with four death row inmates in a decision sure to be swiftly appealed as the state struggles to implement its new execution protocols." Here is more:

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die," Judge Jocelyn Newman wrote in a case brought by the inmates against the state. "In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

Last month, Newman heard arguments from lawyers for four men on the state's death row, who said that the prisoners would feel terrible pain whether their bodies were “cooking” by electricity or heart stopped by a marksman’s bullet — assuming they are on target.

Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely used electric chair would be instantaneous and the condemned would not feel any pain. The state Supreme Court had ordered Newman to issue her decision within 30 days, with further appeals all but certain. Officials with the state Corrections Department told The Associated Press on Tuesday that the agency was “assessing the ruling.”

From 1995 to 2011 — when the state’s last execution was performed — South Carolina carried out the death penalty with lethal injections on 36 prisoners. But, as the state’s supply of lethal injection drugs expired in 2013, an involuntary pause in executions resulted from pharmaceutical companies' refusal to sell the state more. Condemned inmates technically had the choice between injection and electrocution, meaning that opting for the former would in essence leave the state unable to carry out the sentence.

Prison officials sought help from state lawmakers, who for several years had considered adding the firing squad as an option to approved methods, but debate never advanced. Last year, Democratic Sen. Dick Harpootlian and GOP Sen. Greg Hembree, both of whom previously served as prosecutors, again argued in favor of adding the firing squad option....

The ultimately approved measure, signed into law by Republican Gov. Henry McMaster last year, made South Carolina the fourth state in the country to allow use of a firing squad, and made the state's electric chair — built in 1912 — the default method for executions, thereby giving prisoners a new choice.

During last month's trial, a Corrections Department official said he devised the firing squad protocols after consulting a prison official in Utah, location of the only three inmates to die by firing squad since 1977. Colie Rushton, the department’s security director, testified the .308 Winchester ammunition to be used is designed to fragment and split up in the heart to make death as fast as possible. Much of the rest of the trial was each side calling its own experts to detail whether inmates feel any pain before they die.

In her ruling, Newman relied on this testimony, including two physicians who said that an inmate “is likely to be conscious for a minimum of ten seconds after impact.” During that time, the judge wrote, “he will feel excruciating pain resulting from the gunshot wounds and broken bones,” sensation that “constitutes torture” as it is “exacerbated by any movement he makes, such as flinching or breathing.”

September 6, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, September 01, 2022

First Circuit panel reiterates district courts' "broad discretion" and "holistic review" when resolving compassionate release motions

Today seems to be my day for catching up with circuit rulings regarding federal compassionate release decision-making.  My prior post today here about the Second Circuit's panel rulings limiting the consideration of certain arguments prompted a helpful reader to make sure I saw the recent First Circuit panel ruling running the other way.  In US v. Trenkler,  No. 21-1441 (1st Cir. Aug. 29, 2022) (available here), the panel stressed and reiterated a prior ruling setting out compassionate release rules:

Ruvalcaba convincingly set the standard for a district court reviewing a prisoner's proposed reasons for compassionate release, making it clear that district courts have the discretion to review prisoner-initiated motions by taking the holistic, any complex-of-circumstances approach we discussed earlier.  Indeed, this approach makes sense.  After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.  This is not to say that a district court must find a certain number of extraordinary and compelling reasons.  Rather, in conducting their reviews, district courts should be mindful of the holistic context of a defendant's individual case when deciding whether the defendant's circumstances satisfy the "extraordinary and compelling" standard -- "any complex of circumstances" contemplates that any number of reasons may suffice on a case-by-case basis, whether it's one, two, or ten.

I noted here the remarkable district court opinion last year in Trexler, and this case and so many others serve as a remarkable reminder of just how many different federal prisoners can cite to so many different circumstances when seeking a sentence modification.  A huge federal prison system necessarily creates a huge number of questions in the wake of the First Step Act's change to the compassionate release rules. 

September 1, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Second Circuit panel rules evidence attacking underlying conviction "cannot be raised in a § 3582 motion" for compassionate release ... and reiterates point after Concepcion

UPDATE/Clarification:  A helpful reader flagged for me that on Aug 31, the Second Circuit actually reissued its Orena opinion after having issued its original opinion on June 15.  I have now corrected/amended this post accordingly.

---- 

Just today I saw a second version of a panel opinion from the Second Circuit issued which expressly invents another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.  The per curiam opinion in US v. Orena, No. 21-2747 (2d Cir. June 15, amended Aug. 31, 2022) (original available here), get started this way:

As part of the First Step Act of 2018, Congress authorized courts to reduce a term of imprisonment upon motion by a defendant. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A)).  Section 3582(c)(1), colloquially known as the “compassionate release” provision, permits a district court to reduce a previously imposed sentence “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”  Appellant Victor Orena contends primarily that the district court erred in denying his motion pursuant to § 3582 by refusing to consider new evidence that he says calls into question the validity of his conviction.

We conclude that when considering a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 U.S.C. § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 U.S.C. § 2255 or § 2241. Because the district court properly refused to consider such evidence here as to the § 3553(a) factors and otherwise did not abuse its discretion in denying Orena’s motion for compassionate release, we affirm.

Here is a key paragraph from the opinion:

Orena primarily contends that the district court erred by assuming the PSR’s accuracy and refusing to weigh his new evidence as part of the § 3553(a) factors.  We disagree. Section 3582(c)(1)(A) directs courts to “consider[] the factors set forth in section 3553(a).”  Section 3553 in turn provides “[f]actors to be considered in imposing a sentence.” 18 U.S.C. § 3553(a) (emphasis added).  To impose a sentence, there must necessarily be a valid conviction.  If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to 28 U.S.C. § 2255, which imposes particular procedural limitations.  A defendant cannot evade this collateral review structure by attacking the validity of his conviction through § 3582.  Accordingly, we conclude, arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the § 3553(a) sentencing factors.  Rather, such arguments are properly raised on direct appeal or collateral review pursuant to 28 U.S.C. § 2255.  Other courts have reached the same conclusion. See e.g., United States v. Bard, No. 21-3265, 2022 WL 843485, at *2 (3d Cir. March 22, 2022) (unpublished per curiam); United States v. Miller, 855 F. App’x 949, 950 (5th Cir. 2021) (unpublished per curiam)

I get the logic of courts wanting to channel efforts to invalidate a conviction into 2255 or 2241 motions. But in some cases prisoners may be eager to highlight problems with the validity of an underlying conviction to bolster their arguments under § 3553(a) that a sentence reduction would produce a sentence that better "promote[s} respect for the law" or would help "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Because there is no express text in § 3582(c)(1)(A) that would seem clearly to bar this kind of evidence and argument, and because there is text in § 3553(a) that would seem potentially to invite this kind of evidence and argument, I think it problematic — at least for those of us concerned about textualist limits of judicial policy-making — to see another circuit court inventing another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.

As I blogged here back in June, the Supreme Court's ruling in Concepcion seem to clearly indicated that circuit courts should not be creating extra-textual limits on the discretion that Congress has given to sentencing judges.  And the defendant in this Second Circuit cases sought reconsideration based on Concepcion, which led to the reissued opinion linked below.  Here is a key added footnote in the amended opinion:

The Supreme Court’s decision in Concepcion does not conflict with our decision in this case.  In Concepcion, the Court emphasized a “longstanding tradition” of discretion afforded to courts consider changes in law or fact when sentencing or resentencing a defendant. 142 S. Ct. at 2395.  However, the Court acknowledged that that discretion is subject to constraints imposed by Congress and the Constitution. Id. at 2400–01.  One such constraint is 28 U.S.C. § 2255, which provides the procedural mechanism for Orena’s arguments regarding actual innocence and the legality of his conviction.

Download Orena Aug 31 2022

This footnote makes my head hurt, because there is absolutely no language in 28 U.S.C. § 2255 which can be fairly read as a "constraint" on what may be valid considerations in the exercise of § 3582/3553(a) discretion.  There is language in § 2255 which limits when and how § 2255 motions are to be resolved, but nothing in that provision places any express or implicit "constraint" on what should be part of compassionate release considerations.  Sigh... Cf. Lewis Carroll, Through the Looking-Glass (1871) ("'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less'.")

September 1, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, August 31, 2022

En banc Eight Circuit reverses ruling that Missouri must improve its parole process to comply with Miller

In this post from three years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines.  An in this post last year, I noted that a split Eighth Circuit panel upheld the bulk of this ruling over a dissent by Judge Colloton.  Yesterday, Judge Colloton got to turn the tables by writing a new majority opinion for the en banc Eighth Circuit that starts this way:

In 2016, in light of Supreme Court decisions interpreting the Eighth Amendment’s proscription on cruel and unusual punishment, the Missouri legislature modified state law regarding parole. The legislature enacted a statute permitting a juvenile homicide offender to petition for parole if he had been sentenced to mandatory life imprisonment without parole. A class of inmates who were juvenile offenders sued the state officials responsible for administering the parole process.  The inmates alleged that the policies and practices of the parole officials violated their rights to be free from cruel and unusual punishment and to due process of law under the federal and Missouri constitutions. The district court determined that the parole review practices were constitutionally deficient, and ordered the State to implement an elaborate remedial plan. The State appeals, and we conclude that there is no constitutional violation. We therefore reverse the judgment of the district court.

Here is a key concluding passage from the majority opinion:

In sum, the Supreme Court’s juvenile-specific jurisprudence under the Eighth Amendment does not warrant declaring a constitutional violation and imposing on the State the elaborate set of parole procedures endorsed by the district court.  A requirement to allow “some meaningful opportunity” for release, even if applicable to these juvenile homicide offenders, is satisfied here.  The juvenile homicide offenders in Missouri received more process than offenders under the regular parole process: they presented more documentary evidence than adult offenders, received longer hearings than the average parole hearing, and were entitled to consideration of statutory factors that apply only to juveniles who were formerly sentenced to life without parole.  Of course, a “meaningful opportunity” does not imply that every juvenile homicide offender must be released immediately upon eligibility for parole.  We do not believe the Court intended through its decisions in Graham, Miller, and Montgomery to judicialize the parole process in the manner urged by the inmates.

The dissent is authored by Judge Kelly and joined by Chief Judge Smith and Judge Arnold and it concludes this way:

Missouri’s parole policies and practices, when considered in combination as implemented, work to deprive Plaintiffs of their Eighth Amendment right to a meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.  See Miller, 567 U.S. at 479. The Supreme Court has clearly stated that juvenile offenders are “constitutionally different” than adult offenders, id. at 471, and “should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential,” Graham, 560 U.S. at 79.  Because the parole review process in place under SB 590 fails to adequately “ensure[] that juveniles whose crimes reflect[] only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence,” Montgomery, 577 U.S. at 212, it violates the Eighth Amendment.

Prior related posts:

August 31, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 29, 2022

DC sniper Lee Boyd Malvo makes still more law as top Maryland court says he must be resentenced in light of Miller

Though Lee Boyd Malvo is now 37 years old and serving a life prison term in Virginia, he was only 17 years old when he (with John Allen Muhammad) killed multiple people in Virginia, Maryland and Washington over a few weeks in 2002.  Malvo's juvenile status at the time of his awful crimes means that the Supreme Court's Eighth Amendment jurisprudence limiting juvenile LWOP sentencing has been applicable to him.

The Supreme Court had granted cert to considering Malvo's Virginia sentencing, until Virginia changed its sentencing law and mooted that case.  And late last week, as reported in this AP article, Malvo's Maryland sentencing generated a notable ruling:

Maryland’s highest court has ruled that Washington, D.C.-area sniper Lee Boyd Malvo must be resentenced, because of U.S. Supreme Court decisions relating to constitutional protections for juveniles made after Malvo was sentenced to six life sentences without the possibility of parole

In its 4-3 ruling, however, the Maryland Court of Appeals said it’s very unlikely Malvo would ever be released from custody, because he is also serving separate life sentences for murders in Virginia.

“As a practical matter, this may be an academic question in Mr. Malvo’s case, as he would first have to be granted parole in Virginia before his consecutive life sentences in Maryland even begin,” Judge Robert McDonald wrote in the majority opinion released Friday.

McDonald wrote that it’s ultimately not up to the Court of Appeals to decide the appropriate sentence for Malvo, or whether he should ever be released from his Maryland sentences.

“We hold only that the Eighth Amendment requires that he receive a new sentencing hearing at which the sentencing court, now cognizant of the principles elucidated by the Supreme Court, is able to consider whether or not he is constitutionally eligible for life without parole under those decisions,” McDonald wrote....

Judges Jonathan Biran, Brynja Booth and Joseph Getty joined McDonald in the majority. Judges Shirley Watts, Michele Hotten and Steven Gould dissented.  Watts wrote that the sentencing court took Malvo’s status as a juvenile into account.

“The record demonstrates that Mr. Malvo received a personalized sentencing procedure at which his youth and its attendant characteristics were considered, and the circuit court was aware that it had the discretion to impose a lesser sentence,” Watts wrote.

The full 108-page opinion in Malvo v. Maryland is available at this link.

August 29, 2022 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)