Tuesday, January 15, 2019

"The Clemency Process Is Broken. Trump Can Fix It."

The title of this post is the title of this notable new Atlantic commentary authored by Rachel Barkow, Mark Holden and Mark Osler.  Here are excerpts:

It took six years of intense wrangling to get the First Step Act passed. Clemency reform, however, requires the action of only one man. The president can act alone to fix what Congress did not.

​Even the First Step Act’s primary nemesis, Republican Senator Tom Cotton, has acknowledged a role for clemency, saying as part of his attack on the legislation, “I grant that, in a particular case, the interaction of specific facts and the law can create an unjust sentence. If that happens, the best course of action is the scalpel of the governor or the president’s pardon and clemency power, not the ax of criminal leniency legislation.”

​Unjust sentences resulting from mandatory minimums are not rarities. That is why the First Step Act no longer permits mandatory minimum life sentences for third-strike drug offenses and lowered a two-strike, 20-year mandatory minimum for drug offenses to 15 years. The Act also requires that an individual first be convicted of an offense involving a firearm before receiving an additional 25-year mandatory minimum if he commits a second offense with a gun. (Previously, first-time offenders such as Weldon Angelos could receive multiple 25-year mandatory enhancements if the police documented multiple drug buys before making an arrest.)

One problem, as noted above, is that these and other welcome changes do not operate retroactively. People serving sentences now deemed excessive by Congress and the president have no recourse other than clemency to have those sentences rightsized. ​ There are more than 3,000 people left in prison serving mandatory sentences under the old firearm-enhancement law and the three-strikes provision that imposed a life sentence. Add to that the many individuals who are serving excessive sentences because of prosecutorial overcharging, and it is easy to see the urgent need to correct these injustices.

​For clemency to reach those thousands, the country needs a process that fairly, thoroughly, and efficiently evaluates candidates for a commutation (or shortening) of their sentence under the Constitution’s pardon power. At the moment, there are two possible processes, but neither works very well.

The first is informal: The president evaluates individual cases based on personal recommendations. This system does not scale.

​The second, more formal method isn’t any better. It courses through seven levels of review, much of it through a hostile Department of Justice bureaucracy that tends to defer to local prosecutors who are, in turn, loath to undo the harsh sentences they sought in the first place....

​Some states have better systems in place. In Arkansas, Connecticut, Georgia, and South Carolina, among others, an expert board plays a leading role in identifying and evaluating good cases. The best-functioning boards consist of people with expertise in criminal justice, social work, and psychology, and represent key stakeholders such as former judges, defense lawyers, prosecutors, and community activists who share a common belief that the purpose of the pardon power is to temper justice with mercy.

This model could work at the federal level as well. The president could create a similar board of clemency advisers who represent a diverse range of experiences, including those who work in criminal defense or corrections and people who were formerly incarcerated. Ideally, this body would be bipartisan and work collaboratively with a professional staff to identify cases for the president. This body could also track the progress of individuals granted clemency to document how they use their second chances. Many no doubt will serve their communities ably, and publicizing their experiences could help counteract the risk of a single Willie Horton–type incident overshadowing the positive stories of people who have been granted clemency....

​The members of the bipartisan coalition that pushed through sentencing reform were united by a belief in liberty, a desire to cut costs, a respect for public safety, and a belief in second chances. But as the name of their legislation indicates, sentencing reform was just a first step. Clemency should come next.

A few of many recent related posts: 

January 15, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Via distinctive 5-4 vote, SCOTUS concludes Florida robbery satisfies "physical force" requirement as Armed Career Criminal Act predicate

In this post last year, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  This cheeky question flows from the challenges and frustrations that surround trying to figure out which prior convictions do and do not serve as predicates for application of the federal Armed Career Criminal Act's 15-year mandatory minimum term.  And today the Supreme Court added still more color to its modern ACCA jurisprudence by handing down its decision in Stokeling v. US, No. 17-5554 (S. Ct. Jan. 15, 2018) (available here).  Here is how the majority opinion in Stokeling, authored by Justice Thomas, gets started:

This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  We conclude that it does.

Here is how the sole dissenting opinion in Stokeling, authored by Justice Sotomayor, gets started:

In Johnson v. United States, 559 U.S. 133 (2010), this Court ruled that the words “physical force” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as “force” for purposes of the common-law crime of battery.  Id., at 139–140.  This case asks whether Florida robbery requires such “physical force,” and thus qualifies as a “violent felony” under the ACCA, even though it can be committed through use of only slight force. See §924(e)(2)(B).  Under Johnson, the answer to that question is no.  Because the Court’s contrary ruling distorts Johnson, I respectfully dissent.

Among the reasons ACCA jurisprudence looks like a hellscape to me is that the 2010 Johnson case being debated in this ACCA case is different from the 2015 Johnson case that declared part of ACCA unconstitutionally vague.  (In The Good Place there are lots of Janets; in the ACCA bad place, it seems, there are lots of Johnsons.)

I may have more to say about the substance of the opinions in Stokeling in a future post, but for now I will conclude my highlight the unique line-up of Justices in the 5-4 split of votes:

THOMAS, J., delivered the opinion of the Court, in which BREYER, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., and GINSBURG and KAGAN, JJ., joined

Because Justice Kavanaugh is new to the mix, it is not saying much to say this is the first time this group of Justices have come together this way.  But I cannot recall many cases in which the Chief Justice was a fourth vote for a criminal defendant but Justice Breyer served as the key fifth vote for the government.  Interesting times.

January 15, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

First scheduled execution of 2019 stayed by Texas Court of Criminal Appeals

As reported in this local article, the "Texas Court of Criminal Appeals has stopped the state’s first execution of the year, calling for a lower court to take another look at the case following changes in bite-mark science and laws regarding intellectual disability and the death penalty."  Here is more:

Blaine Milam received a stay from the court on Monday, a day before his death was scheduled. Milam, 29, was convicted in the brutal death of his girlfriend’s 13-month-old baby girl in 2008 in East Texas.

In a late appeal, Milam's lawyers argued against the state’s reliance on bite-mark testimony, which was a key part of his trial. His lawyers also claimed he was intellectually disabled and therefore ineligible for execution.

In December 2008, Milam called 911 and police in Rusk County arrived to find the body of Amora Carson, according to court opinions. The medical examiner counted 24 human bite marks on the baby’s body and found evidence of blunt force trauma and sexual assault. At trial, the prosecution linked Milam to several of the bite marks. But his attorneys now say that science has largely been discredited, pointing to the Court of Criminal Appeals’ recent decision to overturn the murder conviction of Steven Chaney....

Rusk County prosecutors, meanwhile, argued to the court that the questions over bite-mark science were settled at Milam’s trial in 2010. And they said the state had enough other evidence that it wouldn’t have affected the jury's decision at the time. They pointed to testimony that Milam told his sister from jail to find a hidden pipe wrench believed to be used in Carson’s assault — and his apparent confession to a jail nurse.

The trial court must also take another look at Milam’s claims of intellectual disability, according to the court order. The issue was raised at Milam’s trial, which prosecutors said put the issue to bed, but there has been considerable change in how the state determines such disability since 2010.

In 2017, the U.S Supreme Court tossed out the method the Texas Court of Criminal Appeals had previously used to determine who is intellectually disabled and, therefore, constitutionally ineligible to be executed. The Court of Criminal Appeals later said it would change its test, which used outdated medical standards and nonclinical factors created by its judges, including how well the person could lie. “Because of recent changes in the science pertaining to bite mark comparisons and recent changes in the law pertaining to the issue of intellectual disability ... we therefore stay his execution and remand these claims to the trial court for a review of the merits of these claims,” the court said in its order Monday....

The stay was not only the court's first of 2019 but also its first without death penalty critic Elsa Alcala, who left the bench at the end of 2018 and was replaced by Judge Michelle Slaughter. Slaughter, along with Presiding Judge Sharon Keller and Judge Kevin Yeary, dissented against the stay.

Despite the court's decision, Texas is still set to host the nation's first execution of the year. Robert Jennings is scheduled to die on Jan. 30, according to the Texas Department of Criminal Justice. Five other executions are scheduled in the state through May.

January 15, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, January 14, 2019

Justice Kavanaugh joins Chief and more liberal Justices in GVR of Kentucky capital case

This morning's Supreme Court order list is fairly short and is mostly denials of certiorari. But the last page of the order list should intrigue capital sentencing fans, and it contains an order in White v. Kentucky, No. 17-9467, in which the Court vacated the decision below "and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___ (2017)."

This GVR is made extra interesting because Justice Alito issued this short dissent, which was joined by Justices Thomas and Gorsuch:

The Court grants, vacates, and remands this case in light of Moore v. Texas, 581 U. S. ___ (2017). But Moore was handed down on March 28, 2017—almost five months before the Supreme Court of Kentucky reached a decision in this case. I would accordingly deny the petition for the reasons previously stated in my dissent in Kaushal v. Indiana, 585 U. S. ___, ___ (2018), and in Justice Scalia’s dissenting opinion in Webster v. Cooper, 558 U. S. 1039, 1040 (2009).

As the title of this post suggests, I find the fact that Justice Kavanaugh did not join this dissent particularly noteworthy, though the fact that the Chief Justice usually provides the key fifth vote in these types of cases prevents me from too boldly predicting at this early stage that Justice Kavanaugh could prove to be a swing vote in capital cases akin to the role his predecessor Justice Kennedy played.

January 14, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, January 13, 2019

California Supreme Court exercises its curious, rarely-used power to reject 10 of out-going Gov's clemencies

I have often said California is a crazy and crazy-interesting state for sentencing developments, and this story about recent clemency developments showcases this reality.  The story is headlined "‘It was like a ton of bricks crushed me’: California grapples with historic clemency rejections," and here are some of the particulars:

Joe Hernandez found out that the California Supreme Court had rejected his commutation request late last month during a phone call with his wife, when she checked the online docket for his case....

His family was already planning for the possibility when, on Dec. 21, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation. “It was like a ton of bricks crushed me,” Hernandez said in a phone interview. “I didn’t know what to say. This was our first real hope after 25 years.”

Hernandez’s was one of ten clemency actions blocked by the court in the final weeks of the Brown administration, the first time since 1930 that it has rejected pardon or commutation requests under consideration by a governor.

The move stunned observers of the California Supreme Court, which under the state constitution must review clemency requests for anyone convicted of felony more than once, and has left them grasping for answers about how to proceed. The court approved 86 other applications over the past eight years.

Even Brown seemed to be unsure what to make of the rejections. He granted a historic 1,332 pardons and 283 commutations during his final two terms, part of a broader push to scale back the state’s tough-on-crime approach that began under his first governorship.

“Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is,” Brown told reporters in early January, shortly before he left office.

That leaves new Gov. Gavin Newsom, a fellow Democrat, to puzzle through the court’s position as he considers whether to continue Brown’s powerful embrace of executive clemency. “The weight of that is pretty heavy,” Newsom said at a benefit concert on Sunday before his inauguration. “The governor looks at dozens of those every single week. There’s a binder. Quite literally, every time I see him, he shows me the binder and he says, ‘This is one of the most important jobs that you will have.’”

The court wrote an administrative order in March about its role in evaluating pardon and commutation applications that stated it was not acting on the merits of the cases but rather to determine whether granting clemency would be an “abuse of power” by the governor.

Nevertheless, it’s no more clear now to experts what that boundary might be. David Ettinger, an appellate lawyer who writes a blog about the California Supreme Court called At the Lectern, said that from the information publicly available about the rejected cases, he couldn’t distinguish them from “a significant number of other life without parole commutations that the Supreme Court signed off on. I just don’t know.”

“There’s really no guidance for future courts, for future clemency requests, for future governors making requests, as to why certain ones might get blocked and certain ones won’t,” he said. “It is a problem for future courts and future governors, how to apply this general ‘abuse of power’ standard to specific cases.”

Kate Chatfield, policy director for Re:store Justice, a criminal justice nonprofit, has assisted two clients with commutation applications. She said the court’s action was unlikely to change the work of lawyers in her field or the desire of inmates to seek clemency. But she was concerned about the Supreme Court’s standard, and how to address it, if it is not a review of the merits of a case....

Santa Clara County District Attorney Jeff Rosen would also like more guidance from the court, which he said could help prosecutors focus their arguments in cases they oppose. His office weighs in on every clemency request that the governor is considering for a case they prosecuted, some of which have also been reviewed by the Supreme Court. He said his team determines a position by looking at criteria like the underlying crime, how the perpetrator has behaved in prison and the wishes of the victim’s family, a particularly important factor in murder cases.

“The thing about governors and clemency is it’s a very powerful tool that does not have a lot of checks on it,” Rosen said. “I believe that the governor would want all of the relevant information to make the decision.”

January 13, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 11, 2019

Supreme Court adds three (little?) criminal cases to its docket

The US Supreme Court this afternoon released this order list in which the Court granted certiorari in eight new cases.  Three of these cases are criminal justice matters, and here are the basics with a big assist from SCOTUSblog:

Quarles v. United States, No. 17-778

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

Rehaif v. United States, No. 17-9560

Issue: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

Mitchell v. Wisconsin, No. 18-6210

Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Quarles is the only true sentencing case of this bunch, but the other two strike me as much more interesting.  But none of this group seems likely to be a blockbuster ruling.

January 11, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 08, 2019

Florida Supreme Court confirms Sixth Amendment rights still of sentencing consequence

Though decided a few weeks ago, I just recently saw the notable Florida Supreme Court ruling in Brown v. Florida, No. SC18-323 (Fla. Dec. 20, 2018) (available here). Here is how it begins:

We review the Fifth District Court of Appeal’s decision in Brown v. State, 233 So. 3d 1262 (Fla. 5th DCA 2017). In Brown, the Fifth District expressly declared valid section 775.082(10), Florida Statutes (2015), which requires that a qualifying offender whose sentencing scoresheet totals 22 points or fewer be sentenced to a nonstate prison sanction unless the trial court makes written findings that a nonstate prison sanction could present a danger to the public. We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const. As explained below, because subsection (10) requires the court, not the jury, to find the fact of dangerousness to the public that is necessary to increase the statutory maximum nonstate prison sanction, we hold that subsection (10) violates the Sixth Amendment to the United States Constitution and quash the Fifth District’s decision.

And here is a key part of the court's analysis:

We agree with Brown that subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes as defined by Blakely, as “a nonstate prison sanction,” § 775.082(10), Fla. Stat., for her and similarly situated offenders. This is because, absent a factual finding of “dangerousness to the public” — a finding not reflected in the jury’s verdict on the theft charge — the statute plainly states that “the court must sentence the offender to a nonstate prison sanction,” id. (emphasis added), given the crime charged and Brown’s criminal history as reflected on her criminal punishment code scoresheet.  Although it would have been possible for the Legislature to have written this statute as a “mitigation statute,” giving the court discretion to impose up to five years unless the defendant proved non-dangerousness, the Legislature did not do so. We read statutes as they are written.

Accordingly, we hold that subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction.

January 8, 2019 in Blakely in the States, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 07, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Supreme Court order list full of (state-friendly) criminal justice per curiams and notable cert denial with statements

The Supreme Court is full back in action for the New Year, beginning with this new long order list with the always-expected long list of denials of certiorari and denials of rehearing. But the list also includes these two notable per curiam rulings:

City of Escondido v. Emmons, No. 17-1660, which summarily reverses/vacates a Ninth Circuit ruling that two officers were not entitled to qualified immunity in a excessive force case.

Shoop v. Hill, No. 18-56, which summarily vacates a Sixth Circuit ruling that an Ohio capital defendant was entitled to habeas relief because the state courts misapplied precedents concerning an Eighth Amendment intellectual disability claim.

In addition, the SCOTUS order list includes these two cert denials that prompted notable statements from the Justices:

Hester v. US, No. 17-9082, concerned whether the Sixth Amendment requires jury findings in support of restitution orders and Justice Alito issued a concurrence in the cert denial, largely in response to Justice Gorsuch's extended dissent which was joined by Justice Sotomayor.

Lance v. Sellers, No. 17-1382, concerned a Georgia capital defendant's claim that his lawyer was constitutionally ineffective and Justice Sotomayor issued a lengthy dissent from the cert denial which was joined by Justices Ginsburg and Kagan.

In a separate post, I may have more to say about some of these rulings, particularly Justice Gorsuch's dissenting opinion in Hester.

UPDATE:  I now do have a new post on the Hester case here under the title "Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments."  And Amy Howe here at SCOTUSblog has a review of all the action today in the first big SCOTUS order list for 2019.

January 7, 2019 in Death Penalty Reforms, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, January 04, 2019

"Why Aren’t Democratic Governors Pardoning More Prisoners?"

The question in the title of this post is the headline of this notable new piece in The Atlantic by Matt Ford. The subtitle adds "It's one of the most effective tools for reducing mass incarceration, but few are taking advantage of it."  Here are excerpts:

Governors in most states have the power to pardon or commute sentences, either at their sole discretion or with some level of input from a commission. Since most convictions occur at the state level, some governors can wield even greater influence on criminal justice than the president can.  But most governors rarely use this power, and few have made it a mainstay of their tenure in office — a major missed opportunity for justice and the public good.

Some outgoing governors were particularly resistant. New Mexico Governor Susana Martinez, a former prosecutor, issued only three pardons during her two terms in office and added new restrictions to deter applicants.  Florida Governor Rick Scott turned the state’s clemency system into a hopeless slog.  Wisconsin Governor Scott Walker issued no pardons during his eight years in power, and in one of his final official acts, he signed a bill requiring state officials to keep a list of pardoned people who commit subsequent crimes and the governor who pardoned them.

All three of those governors hail from the Republican Party, which traditionally favored tough-on-crime policies. But even Democratic governors can be stingy.  New York Governor Andrew Cuomo made headlines last month when he pardoned 22 immigrants who faced deportation or couldn’t apply for citizenship because of previous state convictions.  The pardons gave Cuomo a chance to cast himself as a leading figure in the Democratic resistance to President Trump.  But with almost 200,000 New Yorkers in prison, probation, or parole, issuing fewer than two dozen pardons is hardly a courageous act....

What would it look like if governors pursued a more aggressive approach to their clemency powers?  Jerry Brown, California’s outgoing governor, carved out a model of sorts.  The state’s longtime leader spent his fourth and final term in office setting a national benchmark for clemency: The Times of San Diego reported that Brown has pardoned at least 1,332 inmates since 2011, quadrupling the number issued by the preceding four governors combined.  The burst of activity is particularly stark compared to his two immediate predecessors, Arnold Schwarzenegger and Gray Davis, who respectively issued fifteen and zero pardons....

So where could a more apprehensive governor begin? Perhaps the most prudent place would be the swelling numbers of elderly prisoners who were condemned to spend their dying years behind bars.  In a December 2017 report, the Vera Institute for Justice found that roughly 10 percent of prisoners in state custody in 2013 — roughly 131,000 people — were more than 55 years old. Demographic trends are expected to raise that figure to 30 percent by 2030.  Multiple states already have compassionate-release programs for elderly or dying prisoners; governors could fast-track pardon and commutations to accelerate the process.

January 4, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

FIRST STEP Act leads to release of Matthew Charles from federal prison after remarkable re-incarceration

I discussed in this post from last May the remarkable case of Matthew Charles, who a few years ago had his 35-year sentence reduced thanks to lower crack sentencing guidelines, but thereafter was reincarcerated when the Sixth Circuit concluded he was not eligible to benefit from guideline changes.  Now, as this local article details, Charles today has been freed thanks to the FIRST STEP Act:

Matthew Charles, a man who was forced to return to prison after a court reversed a judge's ruling that his sentence was unfair, will be released again after the passage of a sweeping federal law that allows courts to shorten unduly harsh prison terms.

U.S. District Judge Aleta Trauger ruled on Thursday that Charles was "entitled to immediate release" under the new law, known as the First Step Act.

Charles, 52, was sentenced to 35 years in prison on charges that he trafficked crack cocaine in 1996. Advocates and experts have argued that sentence was unfair because punishments at the time were much lower for people convicted of dealing powder cocaine. Over the years, reform laws have aimed to address the disparity by shortening sentences for crack cocaine. Charles' attorneys argued the Fair Sentencing Act, passed in 2010, justified lowering his term.

In 2015, former federal judge Kevin Sharp agreed Charles deserved a shortened sentence. As a result, Charles was released in 2016. He did not re-offend.

But after an appeals court reversed Sharp's ruling, Charles was ordered to serve a full 35 years behind bars. As Charles prepared to return to prison in 2018, his case received national attention in part due to coverage from Nashville Public Radio.

But the new First Step Act, passed into law late in 2018, allowed judges to apply the drug sentencing reforms of the Fair Sentencing Act retroactively. The law cleared the way for Charles' sentence to be reconsidered again.

Federal public defenders representing Charles asked for his sentence to be lowered on Dec. 27, days after the First Step Act was signed by President Donald Trump. Prosecutors responded Wednesday, saying they did not oppose his release because it was allowed under the new law. "Because Congress has now enacted a new law that does appear to make Charles legally eligible for a reduced sentence, the government does not object to the court exercising its discretion to reduce Charles’s sentence," the federal prosecutors wrote....

"Justice prevailed here," Sharp, the former federal judge, said in an interview. "It gives you hope that it can happen again." Sharp, who has become a leading advocate for sentencing reform, said Charles was "a poster child for why this act was needed." The former judge mentioned Charles' case during a meeting with Trump to discuss inequality in the criminal justice system.

The problem, Sharp said, is that Charles' case is not unique. It is similar to many others that do not receive publicity or review. "There are thousands of them out there," Sharp said. "We can't quit."

Prior related post:

January 4, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered | Permalink | Comments (1)

Monday, December 31, 2018

NY Gov closes out 2018 with clemency grants

This New York Post piece, headlined "Cuomo grants clemency to 29 convicts, including murderers," reports on a final act of sentencing significance from the Governor of New York. Here are the basic details:

Gov. Cuomo granted clemency to 29 convicts Monday — including four serving lengthy sentences for murder.

Twenty-two of the inmates won pardons, including several immigrants convicted of drug crimes who were facing possible deportation. Nine others had their sentences commuted, four for murder and three for armed robbery.

“These actions will help keep immigrant families together and take a critical step toward a more just, more fair and more compassionate New York,” the governor said in a statement.

The convicted murderers had all served between 20 and 33 years and had committed the crimes in their teens. Alphonso Riley-James and Roy Bolus, both 49, were were part of a group involved in a drug deal in Albany that went bad and left two men dead.

But neither inmate was accused of causing the deaths, Cuomo said, and both have served 30 years of a potential life sentences. The governor said both showed remorse and had exemplary records in prison....

Two other convicted killers were also crime victims themselves, the governor said. Dennis Woodbine, 42, served almost 22 years of a 25-to-life sentence following an incident in Brooklyn in 1998, when he was 19. While chasing a group of young men who had stolen his jewelry, Woodbine fired a gun and struck and killed an innocent bystander. He has since earned a B.A. and is a mentor in the organization Rehabilitation Through the Arts and was featured in a PBS documentary.

The governor also commuted the sentence of Michael Crawford, 38, who served 20 years of a 22-to-life sentence after being convicted at age 17 of shooting an individual who stole concert tickets from him in Buffalo in 1999. The governor also commuted the sentences of three other prisoners convicted of robbery or weapons possession.

The full official statement and list of clemency grants from Gov Cuomo is available at this link.

December 31, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, December 27, 2018

More than 40 months after death sentencing, lawyers for Boston bomber Dzhokhar Tsarnaev file their 1000+-page appellate brief with First Circuit

As reported in this local article, headlined "Lawyers: Tsarnaev ‘should not have been tried in Boston’," a very long appellate brief has been filed in a very high-profile federal capital case.  A federal jury handed down Dzhokhar Tsarnaev death sentence way back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now, as Prez Trump heads into the second half of his term, Tsarnaev's team of lawyers has fully briefed his complaints about his trial and sentencing.  Here are the basic details:

Boston Marathon bomber Dzhokhar Tsarnaev’s appellate team presented their oft-delayed opening argument Thursday, urging sparing him a federal execution and allowing him to be retried for the 2013 Patriots Day terror attack that killed an 8-year-old boy and two women.  Their premise is summed up in the opening line: “This case should not have been tried in Boston.

“Forcing this case to trial in a venue still suffering from the bombings was the District Court’s first fundamental error, and it deprived Tsarnaev of an impartial jury and a reliable verdict, in violation of the Fifth, Sixth, and Eighth Amendments,” the brief states.

The partially redacted document filed in the U.S. Court of Appeals for the First Circuit spans 1,124 pages, nearly half of which is the 500-page opening brief alone.

Absent a new trial, Tsarnaev’s team is asking the Appeals Court to reverse his death sentence and order a punishment of life imprisonment.

Tsarnaev, 25, has been in solitary confinement at the federal Supermax prison in Florence, Colo., since his 2015 conviction.  Tsarnaev’s trial attorneys made repeated bids for a change of venue.  His appeal focuses on and echoes several familiar protests raised during his trial, chief among them the argument that he was a pawn of his domineering big brother, Tamerlan Tsarnaev.

Among other things, the public defenders accuse Tsarnaev’s jury forewoman, a restaurant manager his attorneys tried to get removed, of retweeting a social media post calling the University of Massachusetts Dartmouth sophomore a “piece of garbage”  before she received a juror summons, but that she claimed during questioning for her suitability to serve she had not “commented on this case.”  A second juror, a male municipal worker, outright “disobeyed the Court’s instructions,” the brief asserts, by joining a Facebook discussion about the case before he was seated....

Tsarnaev’s appeal blames his 26-year-old brother for his involvement, calling Tamerlan “a killer, an angry and violent man” who “conceived and led this conspiracy.” And but for his influence, “Jahar would never have been on Boylston Street on Marathon Monday.

“Tsarnaev admitted heinous crimes,” the lawyers acknowledge, “but even so — perhaps especially so — this trial demanded scrupulous adherence to the requirements of the Constitution and federal law. Again and again this trial fell short.”

The Tsarnaevs detonated two homemade pressure-cooker bombs packed with shrapnel near the marathon finish line in Copley Square 12 seconds apart on April 15, 2013.  Three spectators were killed — 8-year-old Martin Richard of Dorchester, Krystle Campbell, 29, a restaurant manager from Medford, and Boston University graduate student Lingzi Lu, 23.  More than 260 other people were injured. Sixteen of them lost limbs in the blasts.  Three days later, the brothers shot and killed MIT Police Officer Sean Collier, 27, in his cruiser during an ambush on campus and failed attempt to steal his service weapon.

UPDATE: Thanks to a helpful tweet, I now see that the 500-page brief is available at this link. And there I noticed the final notable section starts this way:

XV. Under The Supreme Court’s Eighth Amendment Jurisprudence, This Court Should Vacate Tsarnaev’s Death Sentences Because He Was Only 19 Years Old At The Time Of The Crimes.

Tsarnaev was just 19 years old when he committed the crimes for which he was sentenced to death. According to now well-established brain science, and increasingly reflected by changing law around the country, the physical development of the brain and related behavioral maturation continues well through the late teens and early 20s. Consistent with the Supreme Court’s Eighth Amendment jurisprudence and a recent resolution adopted by the American Bar Association, this Court should hold that those who commit their crimes as “emerging adults,” when they were under 21 years old, are categorically exempt from the death penalty.

December 27, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, December 26, 2018

Another dive into the choppy waters of Miller and Montgomery implementation

I am sure I have posted any number of articles highlighting that implementation of the Eighth Amendment limit of juvenile life without parole sentences has been choppy at best (see here and here and here for a few more examples). The latest iteration of this depressingly evergreen story comes from Mother Jones here under the headline "The Supreme Court Said No More Life Without Parole for Kids. Why Is Antonio Espree One of the Few to Get Out of Prison?".  I recommend this long piece in full, and here is a taste:

As a result of [the Graham and Miller and Montgomery] decisions, the number of states banning life without parole for children in all cases, not just in mandatory sentencing schemes, has quadrupled since 2012. Of the more than 2,600 juvenile lifers in 2016, about 1,700 have been resentenced.

But although Justice Kennedy stated that all but the “rarest of juvenile offenders” should get a shot at parole, some prosecutors continue to argue that many do not deserve this benefit, or that they should serve years longer in prison before they can get out. So far, only 400 juvenile lifers nationwide have been freed.

In part, that’s because the Supreme Court gave states leeway to decide how to review lifers’ cases, leading to inconsistencies across the country. In Pennsylvania, home to the nation’s second-biggest juvenile lifer population, prosecutors are required to “prove beyond a reasonable doubt” that a defendant can never be rehabilitated if they want to deny the option of parole during resentencing; otherwise, the presumption is he should be given a second chance. So far, the state has released more than 150 juvenile lifers, many under the jurisdiction of Philadelphia’s District Attorney Larry Krasner, who campaigned last year on a platform of reducing mass incarceration.

But in Michigan, where 363 juvenile lifers were serving mandatory sentences in 2016, there is no such requirement, and prosecutors have argued that nearly two-thirds of juvenile lifers are those rarest offenders who should be kept in prison for good. “Justice in this country is largely based on where you live,” says Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth, an advocacy group.

Even Henry Montgomery, who won his Supreme Court case, isn’t free. In February, the Louisiana parole board rejected his request for release, arguing that he had not finished enough classes in prison.  His lawyers countered that he hadn’t been given much of a chance: For his first three decades at Louisiana’s notorious Angola prison, lifers like him were prohibited from taking classes. (About a third of juvenile lifers nationally say they have been denied access to prison educational programs.)  When the courses opened up, he was deemed ineligible to complete his GED.  A judge described him as a model inmate, but family members of the sheriff’s deputy he killed testified against him at the parole hearing.  So Montgomery, now 72 years old, was denied.  He’ll have to wait a year to reapply.

December 26, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Bernie Madoff's secretary wants to use new Trump law to get out of jail early"

The title of this post is the juicy headline of this notable new ABC News article about a notable defendant eager of make use of the FIRST STEP Act to seek release from federal prison.  I call the headline juicy in part because of the Bernie Madoff connection, as well as the fact that the FIRST STEP Act is described as the "new Trump law."  Here are excerpts:

One of the five employees of Bernie Madoff convicted in a $20 billion Ponzi scheme is seeking early release from prison based in part on the new criminal justice reform law signed last week by President Donald Trump. Annette Bongiorno, who was Madoff’s longtime secretary, has been in prison since February 2015 and asked the judge to order her release no later than March 2019, more than a year before her scheduled release date.

In a letter to U.S. District Judge Laura Taylor Swain, defense attorneys cited the First Step Act that they contend makes Bongiorno, 70, eligible for home confinement, since she is at an advanced age and has served two-thirds of her sentence. "The new statute permits her to make a direct application to the court for this relief, and Mrs. Bongiorno respectfully makes the application," defense attorney Roland Riopelle wrote.  "She remains an 'old fashioned' family oriented person who would benefit greatly from the release to home confinement that the First Step Act provides," he wrote.

A spokesperson for federal prosecutors in the Southern District of New York was not immediately available to respond to a request for comment on Bongiorno's bid for early release.  The office declined to comment to a similar request for comment by the Associated Press....

Bongiorno was convicted in 2014 after a six-month trial during which she insisted she did not know her boss was running what is widely-seen as the biggest Ponzi scheme in American history.  Madoff, who is now 80, is serving a 150-year sentence following conviction on a fraud that was exposed a decade ago.

In his letter to the judge, Riopelle called Bongiorno a "model prisoner" who has served her sentence at FCI Coleman medium security prison in Sumterville, Florida, "without a disciplinary violation of any kind." Riopelle said she was in decent health and in "generally good spirits" though finds the holiday season "a bit depressing."

Without seeing the filing referenced in this article, it is unclear to me if Bongiorno is seeking so-called "compassionate release" or is seeking relief under an elderly prisoner reentry pilot program.  The FIRST STEP Act has important new provisions making available two different possible means for elderly prisoners to seek release to home confinement or sentence modification, but the legal requirements and process are distinct in important ways.  Bongiorno certainly will not be the only older prisoner looking to take advantage of the FIRST STEP Act, and I expect there could be a lot of interesting jurisprudence emerging in the weeks and months ahead on these fronts.

December 26, 2018 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Monday, December 24, 2018

Lamenting lack of retroactive application of new sentencing changes in FIRST STEP Act (... and so rooting again for robust clemency)

This recent piece from The Guardian, fully headlined "Current inmates feel left behind by Trump's criminal justice reform bill; First Step Act reduces the mandatory sentence for three-strikes offenders but the provisions will not be made retroactive," spotlights how certain inmates have gotten left behind even as the inappropriateness of their sentences inspired key sentencing reforms in the FIRST STEP Act.  Here are excerpts:

On paper, Chris Young seems exactly the kind of person a prison reform bill ought to release from federal custody. In the eight years since he was last free, Young has become an avid reader, taught himself to write computer code and worked as a tutor for fellow prisoners. Right now he’s reading Yuval Noah Harari’s Homo Deus “for fun”.  He also says that since he can’t get real-world practice, he re-reads the same passage of a programming book every day after lunch, to make sure it’s committed to memory.

When he was 22, Young was arrested on a third low-level drug charge. Under so-called “three strikes” laws, he was given a mandatory life sentence.  For decades, in cases involving repeat drug offenders, such laws have stripped federal judges of discretion. The judge who sentenced Young, Kevin Sharp, was so shaken by the experience he retired shortly after.  “What I was required to do that day was cruel,” Sharp tweeted earlier this year.

The bipartisan First Step Act, signed into law by Donald Trump on Friday, softens that “cruel” requirement for federal judges, reducing the mandatory sentence in such cases to 25 years. But it will not do anything for Young.  In one of many compromises made by progressive reform advocates to secure conservative support, this and several other provisions were not made retroactive.  “I’m human and I would have loved to have benefited from the bill, but unfortunately I don’t,” Young told the Guardian from federal prison in Lexington, Kentucky. “I don’t necessarily feel left behind, I just feel [lawmakers] don’t understand what goes on with the … actual humans that their choices and politics affect.”...

Advocates believe [the Act] can be a launching point for state and local reform which could have a much greater impact on the US inmate population. After all, just 10% of people incarcerated in the US are in the federal system.  “I absolutely think that this one is going to be catalytic towards other de-carceration campaigns on the local and state level,” said Glenn Martin, a formerly incarcerated reform advocate who helped bring dozens of former inmate-led groups on board for the First Step Act.

“I think that the Senate — a conservative Republican Senate — has just given permission to conservatives all over the country [to become] engaged in criminal justice reform.” Nonetheless, the lack of retroactivity on a majority of the sentencing reforms was “a tough pill to swallow”.

“It’s one of the concessions that hurts the most,” said Martin. “It’s about fairness, and yet there’s this group of people who continue to be harmed because of the lack of retroactivity.”

That includes people like John Bailey, a 71-year-old inmate of the federal prison in Hazleton, West Virginia which is nicknamed “misery mountain”. Bailey’s brother Oliver said he was struggling to understand the logic of the changes not applying to inmates like John, who was imprisoned in 1992 on a non-violent drug charge. “If you recognize the injustice now,” asked Bailey, “how come it doesn’t apply to those that suffered the same injustice before?”

Advocates who worked on the bill said conservatives and politically vulnerable Democrats opposed retroactivity because of how releasing prisoners early might resonate with voters.

There is one bright spot for the Baileys. One provision of First Step that does apply to current inmates is a requirement that prisoners be housed no more than 500 driving miles from their home. Bailey, who is from St Petersburg, Florida, has spent his prison life in Leavenworth, Kansas and now West Virginia, thousands of miles away. Oliver has not seen John since he was jailed. “At this point something’s better than nothing,” he said. “We need to progress from here.”

It’s a common sentiment. Chad Marks is serving a 40-year sentence on drug conspiracy charges, thanks to another provision First Step will restrict. Marks’ sentence was enhanced by “stacking” language in federal law which dramatically increases a sentence if an offender possesses a firearm in the commission of a drug crime, whether or not it is used. “I don’t understand how lawmakers can say that doing this is wrong,” he said, “and that they are going to fix it, but not apply it retroactively. That was a big blow. What has my focus and attention right now is the fact that lawmakers did something, but my focus is also on a second step coming.”...

Young, Bailey and Marks continue to wait for a second step. While they do, all three must place their primary hope for release in an act of clemency: a pardon or commutation issued by the president. Young’s case has been endorsed by Kim Kardashian, who successfully lobbied for the release of another federal prisoner, Alice Johnson, in June. Marks said he was “more than hopeful that I will find relief through clemency”.

“I am praying that president Trump will find me worthy of mercy and grace,” he said. “I won’t let him down or disappoint him.”

As regular readers know, Prez Trump has been letting me down and disappointing me by having so far failed to make good on all the talk from earlier this year that he was looking at "3,000 names" for possible clemencies. I sincerely hope that Prez Trump and those assisting him on clemency matters are going to give extra attention to persons serving extreme sentences that would no longer be applicable under the new sentencing provisions of the FIRST STEP Act.  (I also think persons serving particularly extreme sentences should file (or seek to re-file) constitutional or other challenges to their sentences that might be emboldened by FIRST STEP Act reforms, but I will discuss this idea in a subsequent post.)

A few of many recent related posts: 

December 24, 2018 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, December 22, 2018

More notable state clemency developments for the holiday season

In this post a few days ago, I flagged some notable recent clemency grants by Governors in Arkansas and Colorado and Pennsylvania (while also lamenting that Prez Trump has not followed up a lot of big clemency talk with any big clemency action). With the Christmas holiday nudging every closer, I am not surprised (though still pleased and grateful) that Governors in a few more states are using the ink their clemency pens. Here is another round-up of notable new state clemency stories:

Colorado: "Hickenlooper orders clemency for 33 Colorado offenders, including 7 men convicted of murder"

Michigan: "Gov. Rick Snyder grants clemency to lifer Melissa Chapman, 60 others"

Pennsylvania: "Wolf grants clemency to two more inmates, including one midstate woman"

Tennessee: "Tennessee Governor Granted Clemency To 11 People, Cyntoia Brown Not Included"

Texas: "Christmas clemency: Gov. Greg Abbott pardons six Texans, two for marijuana possession"

December 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 20, 2018

Second Circuit panel reverses federal death sentence based on "prosecutorial error" during sentencing phase

A helpful reader made sure I did not miss this 146-page(!) Second Circuit opinion in US v. Aquart, No. 12‐5086 (2d Cir. Dec. 20, 2018) (available here). Here is an overview from the start of the opinion for the panel:

Aquart here appeals both his conviction and his death sentence. As to conviction, he argues that (1) the trial evidence was insufficient to support guilty verdicts on any of the charged VICAR counts, (2) the prosecution suborned perjury by witnesses John Taylor and Lashika Johnson, and (3) he was prejudiced by prosecutorial misconduct in summation. As to sentence, Aquart’s challenges fall into three categories: (1) prosecutorial misconduct at the penalty phase, (2) insufficiency of the evidence as to certain identified aggravating factors, and (3) unconstitutionality of the death penalty both generally and as applied to his case.

The panel affirms Aquart’s conviction but, based on prosecutorial error, vacates his death sentence and remands the case for a new penalty hearing.

There is too much in the 139-page Aquart opinion for the court for me to summarize it here.  But I noticed that a former boss of mine, Judge Calabresi, has this amusing paragraph on an important issue in his short concurrence:

§2.b. Whether Aquart’s Death Sentence is Constitutionally Disproportionate. Because, as the Majority correctly explains, existing Supreme Court Law does not mandate proportionality review, the question of whether, if it did, Aquart would pass that test is entirely hypothetical. (I’m too much an academic to call it academic.) It need not be reached, and I decline to do so

December 20, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

State clemency developments during a holiday season still full of (foolish?) hope for clemency boldness from Prez Trump

In this post last week, I noted Prez Trump's tweet talking about how criminal justice reform "brings much needed hope to many families during the Holiday Season."  I stressed that long-promised additional clemency action could provide another means for the President to make families happy and hopeful during this special time of year.  (On that front, it is worth recalling that, as posted here, Prez Trump issued his first commutation of Sholom Rubashkin exactly a year ago today.  His other commutations were to Alice Marie Johnson in June 2018, and then Dwight and Steven Hammond in July 2018.)

While we all continue to wait and hope for Prez Trump to use his historic constitutional clemency power to "bring much needed hope to many families," I thought it worth noting some recent actions on this front at the state level.  Specifically, here are relatively recent stories of Governors in Arkansas and Colorado and Pennsylvania making notable use of their clemency powers:

I suspect there may be some more state clemency grants already issued and still to come, though I keep pushing for Prez Trump to be active on this front because I believe it provides a useful push (and perhaps some political cover) for state executives considering clemency petitions. In particular, a GOP Governor is considering a high-profile clemency cases in Tennessee, Cyntoia Brown as reported here, and any kind of peer pressure is likely beneficial in this context.

A few of many recent related posts: 

December 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, December 17, 2018

"Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions"

The title of this post is the title of this new article by Eve Brensike Primus now available via SSRN. Here is its abstract:

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions.  But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential.  Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Essay terms equitable gateways to federal habeas relief.  Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should.

Here I consider one important category of equitable gateways animated by a concern about ensuring that federal claims get fair consideration in the courts.  When a federal court believes that a state prisoner has not yet had a full and fair opportunity to present her federal claims and have them fairly considered, it is more likely to bypass procedural and substantive restrictions on review.  But state prisoners often fail to highlight certain kinds of fair consideration failures, thus depriving themselves of potential access to the equitable gateways.  This Essay suggests that this blind spot is partly due to the history of fair consideration principles: for decades, the idea of a fair consideration gateway was a central feature of proposals for further restricting the scope of federal habeas review.  In current circumstances, however, fair consideration is a rubric for expanded habeas review, and habeas litigants should take note.

December 17, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Some of Senator Cotton's suspect claims in his latest case for amendments to the FIRST STEP Act

As noted in an update to this prior post, Senator Tom Cotton has this new National Review commentary making the case for his proposed amendments to the latest version of the FIRST STEP Act under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."  This commentary closes with a passage that troubled me, especially when I looked up the facts of the case he discusses.  Here is how Senator Cotton concludes (with a few details emphasized by me for further commentary):

So far the debate over First Step has been clouded by euphemism and abstraction, which has prevented the public from understanding what the bill actually does. A concrete example will help clarify the stakes. Richard Crawford is a former NASCAR driver who was convicted in August of trying to force a twelve-year-old girl to have sex with him. Crawford was sentenced to nearly 11 years in federal prison, but the statute he was convicted under does not appear in First Step’s “ineligible prisoners” list.  If the bill passes, he will therefore be eligible for time credits that would reduce his time in prison by up to one-third, or nearly four years.  At the end of his prison sentence he would be moved into pre-release custody or supervised release.  He would essentially be a free man.

Crawford’s sex crime was not obscure, low-level, or “victimless.”  Quite the opposite.  His crime had the potential to shatter a child’s life.  It was punished accordingly by a judge and a jury of his peers.  That is how criminal justice ought to work in America.  Now a group of politicians and activists are in a position to overturn that public judgment with the First Step Act.  Conservatives should resist this revolution.

The last few sentences of this passage initially troubled me because nothing in the FIRST STEP Act serves to "overturn" a jury conviction or even a sentencing term.  Rather, the FSA creates additional incentives, through "time credits," for offenders to engage in recidivism-reducing programs.  I think the FSA is popular because the "public judgment" is that it would generally be better for Crawford to be released in 2025 after having successfully engaged in this programming than to be released in 2028 without having made any effort to better himself.

But even more irksome to me is how Senator Cotton portrays his poster child, Richard Crawford, because it seems a bit much to say he tried "to force a twelve-year-old girl to have sex with him" given that he was convicted based on law enforcement posing as a man soliciting people to have sex with a fictitious 12-year-old.  This article about the case explains:

Crawford was accused of agreeing to pay $50-$75 to have sex with a 12-year-old girl, making arrangements with a man named Mike on Craigslist.  Mike and the 12-year-old girl were fictitious and used by law enforcement to catch Crawford in the act.  He responded to an undercover federal agent via e-mail and text between Feb. 10 and Feb. 28. According to the agent, Crawford texted him, “Love for her to be naked and ready,” and asked for photos of the girl.  Crawford was arrested at a location at which he agreed to meet “Mike” on March 1 by the Seminole County Sheriff’s Office and was indicted March 30.

Crawford claimed he agreed to the scenario because he didn’t believe it really involved a child.  His defense was detailed in a recent court filing, arguing against a lengthy sentence.  "Mr. Crawford testified that he thought 'Mike,' the person he was corresponding with, was engaging in a fantasy and that he agreed to participate," the filing read. "Mr. Crawford did not believe there would be a minor present; instead, he thought there would be an adult woman, presumably 'Mike's' wife or girlfriend, and that he and this woman would act the roles in 'Mike's' fantasy."

"Mr. Crawford consistently maintained that he had no intent to have sex with a minor, and if a minor had been present, he would not have had sex with the minor.”

A jury rejected Crawford's claims of innocence and convicted him of "attempted enticement of a minor to engage in sexual activity."  But to say he tried to force a 12-year-old to have sex seems off since there never was an actual 12-year-old.  Indeed, I think it fair to call Crawford's crime "victimless," though the case really serves as a great indication of how hard it is to place accurate short-hand labels on various crimes (and how easy it is for Senator Cotton to make a crime sound worse than it was is using short-hand labels).  To allow Crawford, who is 60 years old and appears to have no criminal history, the chance to earn "time credits" by completing evidence-based programming to reduce his risk of recidivism seem to me sensible, not scary.  (And, as I understand matters, if a risk assessment procedure were to classify Crawford as "high-risk" he would not in fact get any sentence reductions.)

We will see in the coming days whether Senator Cotton gets his proposed amendments added to the FIRST STEP Act.  But if Richard Crawford is the worst version of Willie Horton that he can conjure up for the coming debate, I am not at all convinced there is any need to carve out still further exceptions to the prison reform provisions that seem well-conceived to try to reduce the recidivism risk of as many federal prisoners as possible.

Some of the most recent of many prior related posts:

December 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Sunday, December 16, 2018

Making the case against amendments to the FIRST STEP Act proposed by Senators Cotton and Kennedy ... UPDATED with a response on 12/17

In this post a few days ago, I provided details and links concerning three amendments that Senator Tom Cotton and Senator John Kennedy will seek to have made to the FIRST STEP Act this coming week.  Unsurprisingly, advocates of significant sentencing reform are not fans of the Senators' proposed changes.  The Brennan Center, for example, has this release explaining that it "strongly rejects attempts by Sens. Tom Cotton (R-Ark.) and John Kennedy (R-La.) to add a series of 'poison pill' amendments that would unacceptably weaken the FIRST STEP Act....  These amendments would stigmatize incarcerated people, block incentives that encourage those who need it most from participating in recidivism-reduction programming, and risk retraumatizing victims of crime."

FreedomWorks has this even longer posting on this front titled "The Senate Must Reject Poison Pill Amendments to the First Step Act."  Here are excerpts that provide a taste of the arguments being made against these amendments:

Aside from the fact that the Cotton-Kennedy amendments have been introduced to hurt the First Step Act’s prospects of passage, there are a number of problems with the amendments that we’ve identified. For these reasons, we encourage the Senate to reject the amendments when they are brought to the floor for a vote.

Amendment 1: Excluding serious felons from early release to prerelease custody and supervised release

This amendment seems to be more of the same type of objections raised by Sen. Cotton in the past regarding the exclusions list on the prison reform side of the bill. The exclusions list is already superfluous because of the risk and needs assessment, which in its operation ensures that those who have committed such heinous crimes as Sen. Cotton has identified, will not become low- or minimum-risk of recidivism in order to earn time credits....

Amendment 2: Notifying victims before a offender is allowed to transfer out of prison early

This amendment masquerades as a harmless addition to promote victims’ rights, which is certainly a sympathetic cause. However, the amendment is not only redundant to current law and policy but its approach is also counterproductive and harmful for victims....

Amendment 3: Tracking the effectiveness of the anti-recidivism programs

This amendment creates redundancy. The U.S. Sentencing Commission already provides detailed information on the recidivism rates of federal offenders. Although the measure of recidivism varies by report, the rates of rearrest, reconviction, and reincarceration are accounted for in many reports.

Although the rate of recidivism defined by rearrest is a common data point in U.S. Sentencing Commission reports, this is a poor measure. It is likely, though, that this measure is the one included in the amendment by its authors on purpose and for that very reason....

Additionally, the First Step Act as it stands already includes multiple mechanisms to ensure the effectiveness of the anti-recidivism programming and other aspects of the legislation as well. The First Step Act includes its own reporting requirements, establishes an Independent Review Committee to report on the system, and requires a Government Accountability Office report of the risk and needs assessment and the programming together.

Some of the most recent of many prior related posts:

MORNING UPDATE on Dec. 17, 2018: I have receive a one-page response to the arguments linked above in a document titled "Myths vs. Facts on the Cotton-Kennedy-Toomey-Kyl-Barrasso amendments to First Step." Here it is for downloading: Download Final Cotton-Kennedy Myths v. Facts

In addition, Senator Cotton has this new commentary at the National Review making the case for his proposed amendments under the headline "Fix the First Step Act and Keep Violent Criminals behind Bars."    This commentary closes with a passage that I will be discussing in a subsequent post, but here I will reprint how it starts:

This week, the Senate will vote on the latest version of the First Step Act, a criminal-justice bill that would release thousands of dangerous criminals from federal prison earlier than under current law.  This effort is misguided and dangerous, as I have written before.  Thankfully, there is still time to limit the damage.

Along with Senator John Kennedy, I have introduced an amendment to categorically exclude violent felons and sex offenders from the bill’s time-credit program, which can be used for early release.  We also have amendments to notify victims before a prisoner is released early, and to monitor whether prisoners who are released early commit more crimes. If advocates of First Step want to protect public safety, they will support all three amendments.

December 16, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (1)

Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel's extended opinion "concurring specially." This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts....  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context....

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing.... But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information....

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (1)

Saturday, December 15, 2018

Second Circuit refuses to enforce appeal waiver because it "was unsupported by consideration"

I have never been a big fan of appeal waivers in plea agreements that require defendants to waive any challenge to a sentencing that has not yet taken place. Consequently, I am a big fan of appellate courts that put limits on when and how they will enforce such waivers, and the Second Circuit had a notable recent decision in this area in US v. Lutchman, No. 17-291 (2d Cir. Dec 6, 2018) (available here). In this case, a Second Circuit panel refused to enforce an appeal waiver because the defendant clear got no benefit for agreeing to it. Here are a few key passages from the opinion:

“We construe plea agreements according to contract law principles . . . .” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted).  So, “a guilty plea can be challenged for contractual invalidity, including invalidity based on a lack of consideration.”  United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004).  Yet, “because plea agreements are unique contracts, we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards.” Riggi, 649 F.3d at 147 (internal quotation marks omitted).  Accordingly, “courts construe plea agreements strictly against the Government,” which “is usually the party that drafts the agreement” and “ordinarily has certain awesome advantages in bargaining power.” Ready, 82 F.3d at 559.

Lutchman’s waiver of the right to appeal his sentence was unsupported by consideration.  The plea agreement provided that Lutchman would waive indictment, plead guilty to a violation of 18 U.S.C. § 2339B(a)(1), and waive the right to appeal any sentence lesser than or equal to the 240‐month maximum.  The government would achieve “a conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt” and save the time and expense of an appeal.  United States v. Rosa, 123 F.3d 94, 97, 101 n.7 (2d Cir. 1997).  Lutchman, however, received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.  The government refused to agree with Lutchman’s contention that a three‐level reduction under Guidelines § 2X1.1(b)(2) was applicable, and specifically reserved the right to argue to the district court that the reduction was inappropriate.  True, the government agreed not to oppose a two‐level reduction under Guidelines § 3E1.1(a) for Lutchman’s acceptance of responsibility and agreed to move the district court to apply an additional one‐level reduction under Guidelines § 3E1.1(b) for Lutchman’s timely notification to the government of his intention to plead guilty.  But a three‐level reduction under Guidelines § 3E1.1 was available to Lutchman even in the absence of an agreement to waive his right to appeal. See U.S.S.G. § 3E1.1 cmt. 6 (“The government should not withhold [a § 3E1.1(b) motion] based on . . . whether the defendant agrees to waive his or her right to appeal.”).

Moreover, those reductions had no practical impact.  Even after a three‐level reduction to the respective Guidelines ranges advocated by each party, the bottom of the resulting ranges exceeded the statutory maximum.  In fact and effect, the agreed‐upon Guidelines range equaled the 240‐month statutory maximum ‐‐ a sentence the government expressly stated in the agreement that it would recommend.  Furthermore, Lutchman pleaded guilty to the only count charged in the information, and the government has not articulated or identified any additional counts that could have been proven at trial.

The plea agreement here provided Lutchman with no increment of “certainty as to the extent of his liability and punishment,” Rosa, 123 F.3d at 97, and it provided him no “chance at a reduced sentence,” Brunetti, 376 F.3d at 95 (emphasis omitted).  Because the agreement offered nothing to Lutchman that affected the likelihood he would receive a sentence below the statutory maximum, the appellate waiver was unsupported by consideration, and we will not enforce it to bar this appeal .... and [will] proceed to the merits of Lutchman’s arguments.

Unfortunately, for this defendant, after achieving a procedural victory to get his appeal on the merits heard, the panel affirmed his sentence, rejecting his challenges based on procedural and substantive reasonableness. But fortunately for others, this ruling serves as a good precedent for raising concerns about any appeal waivers foisted upon defendants without any clear benefits in return.

December 15, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, December 13, 2018

Six former governors urge outgoing California Gov Jerry Brown to commute 740 death sentences

This new opinion piece in the New York Times is authored by six former governors and is headlined "Jerry Brown Has the Power to Save 740 Lives. He Should Use It."  Th2 headline is itself a bit factually misleading because none of the persons on California's death row seem at risk of being executed anytime soon.  There has not been a single execution in California in more than a dozen years, and the next Governor seems unlikely to be eager to start up the state's machinery of death anytime soon.   Still, the six former governors — Richard Celeste of Ohio, John Kitzhaber of Oregon, Martin O’Malley of Maryland, Bill Richardson of New Mexico, Pat Quinn of Illinois, and Toney Anaya of New Mexico — make a notable pitch and here are excerpts:

Among a governor’s many powers, none is more significant than signing a death warrant. It’s a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.... [W]e know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension.

Even the most ardent proponents of capital punishment would shudder at composing a plan to execute 740 people. Would California’s citizens allow mass executions? If the state were to execute a single person every day, people would still be waiting on death row after two years....

Since the death penalty was reinstated in the United States in 1976, 11 governors have granted clemency to death row prisoners in their states. They did not free them; they either reduced their sentences to life, declared a moratorium on executions or repealed their death penalty. We have all done one of these; so have Gov. George Ryan of Illinois in 2003; Gov. Jon Corzine of New Jersey in 2007; Gov. Dannel Malloy of Connecticut in 2012; Gov. Jay Inslee of Washington in 2014; and Gov. Tom Wolf of Pennsylvania in 2015.

The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.

Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. Or, he can declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair. Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.

December 13, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"An Unappreciated Constraint on the President's Pardon Power"

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

Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited.  This paper suggests that this common view is mistaken in at least one unexpected way: Presidential pardons must satisfy a specificity requirement.  That is, to be valid, the pardon must list the specific crimes insulated from criminal liability.

This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion.  Nonetheless, that burden can be met.  The paper’s argument rests on an originalist understanding of the Constitution’s text, an approach that leaves little doubt that a specificity requirement is an implicit limitation on the President’s pardon power.  It also demonstrates that the main objections to the argument — that the requirement runs contrary to the Constitutional text or historical practice – are misguided and unpersuasive.

Of course, even if a specificity requirement exists, one may wonder about its significance.  After all, the requirement does not prevent a President from issuing a pardon to any person or for any crime.  Nonetheless, as the paper explains, a specificity requirement may prove more powerful than it first appears.  Most importantly, it both limits the scope and raises the cost of issuing pardons for criminal violations, including violations of the electoral process.  In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

December 13, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, December 12, 2018

Noting possible Miller follow-up cases on the latest SCOTUS relist list

I continue to wonder when the Supreme Court will take up a new case to clarify (or, ideally, extend) its Eighth Amendment jurisprudence limiting extreme prison sentences set forth in Graham and Miller.  The latest Relist Watch from John Elwood at SCOTUSblog spotlights a few cases that might be in the works as the next possible Miller follow-up:

Newton v. Indiana17-1511, and Mathena v. Malvo18-217, both raise the same issue involving the lawfulness of imposing a discretionary life sentence on a juvenile offender. In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Four years later, in Montgomery v. Louisiana, the court held that “Miller announced a substantive rule of constitutional law” that must be given retroactive effect in cases in which direct review was complete when Miller was decided.  Numerous state courts and the U.S. Court of Appeals for the 4th Circuit have held that Montgomery expanded the prohibition against “mandatory life without parole for those under 18 at the time of their crimes” to include discretionary life sentences as well; other courts have concluded that Montgomery did no such thing.  Petitioner Larry Newton, a prisoner, and Randall Mathena, the chief warden of Virginia’s high-security Red Onion State Prison, seek resolution of the issue.

As an aside, the respondent in Mathena v. Malvo will be familiar to anyone who lived in the D.C. area in fall 2002. When he was 17 years old, Lee Boyd Malvo, along with the much older John Allen Muhammad, committed a series of murders known as the “D.C. sniper” attacks. Currently, Malvo is serving multiple life sentences at Red Onion for his role as the triggerman in 10 of the shootings (Virginia executed Muhammad in 2009.).

Because the next SCOTUS conference is not until January 4, we will not know anything more on this front until next year.

December 12, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, December 11, 2018

Another reminder that clemency grants bring "much needed hope to many families during the Holiday Season"

The big sentencing news today was, of course, the promise by Senate majority leader Mitch McConnell that he will soon bring up FIRST STEP Act for a vote.  And it was pleasing to see Prez Trump use Twitter to say something nice in reaction to this news with this tweet:

Among other notable realities, this tweet is a useful reminder that Prez Trump will be eager to tout the benefits of the FIRST STEP Act after its passage and through its implementation (which will take years). Indeed, among the reasons I am so eager to see the FIRST STEP Act passed this year is so that all GOP leaders who urged its passage will be invested in helping to ensure its long-term success (and will, I hope, be eager to support further reform if the FSA proves very successful).

But another thought came to mind upon reading Prez Trump's accurate statement that criminal justice reform "brings much needed hope to many families during the Holiday Season" — namely that clemency grants provide another means to make many families hopeful during this time of year. I have noted in recent posts here and here some notable recent clemency work by Govs in California and Oklahoma, and it would be great to have many more such stories to spotlight from both Governors and the President of the United States.

As regular readers know, Prez Trump was sure talking up a good clemency game over the summer, but we have not seen much action on this front in recent months. I suspect that one possible reason for clemency hesitation was a White House focus on getting the FIRST STEP Act passed. Now that that there seems to finally be legislative movement on this front, perhaps Prez Trump and his team can focus now again on using a tool that "brings much needed hope to many families" without having to deal with any folks in Congress.

A few of many recent related posts: 

December 11, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.

December 11, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Monday, December 10, 2018

SCOTUS rules unanimously that ACCA predicates can include all sorts of burglary

The Supreme Court this morning handed down its first full sentencing opinion of the Term, and the opinion in yet another Armed Career Criminal Act dispute over statutory interpretation is not all that interesting or all that surprising.  Justice Breyer wrote a short opinion for a unanimous court in US v. Stitt, No. 17-765 (S. Ct. Dec. 10, 2018) (available here), and it gets started this way:

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term.  The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes.  18 U. S. C. §924(e).  Those prior convictions include convictions for “burglary.” §924(e)(2)(B)(ii).  And the question here is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.  We hold that it does.

And here are a few paragraphs from the opinion's substantive discussion:

The word “burglary,” like the word “crime” itself, is ambiguous.  It might refer to a kind of crime, a generic crime, as set forth in a statute (“a burglary consists of behavior that . . . ”), or it might refer to the way in which an individual offender acted on a particular occasion (“on January 25, Jones committed a burglary on Oak Street in South San Francisco”).  We have held that the words in the Armed Career Criminal Act do the first.  Accordingly, we have held that the Act requires us to evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”  Begay v. United States, 553 U.S. 137, 141 (2008). A prior state conviction, we have said, does not qualify as generic burglary under the Act where “the elements of [the relevant state statute] are broader than those of generic burglary.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 19).  The case in which we first adopted this “categorical approach” is Taylor v. United States, 495 U. S. 575 (1990).  That case, which specifically considered the statutory term “burglary,” governs here and determines the outcome.

In Taylor, we did more than hold that the word “burglary” refers to a kind of generic crime rather than to the defendant’s behavior on a particular occasion.  We also explained, after examining the Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied to all cases in which the Government seeks” an enhanced sentence under the Act.  Id., at 580–592.  We held that this uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and entering a dwelling at night with intent to commit a felony.  Id., at 593.  But we added that it must include more.  The classic definition, by excluding all places other than dwellings, we said, has “little relevance to modern law enforcement concerns.” Ibid. Perhaps for that reason, by the time the Act was passed in 1986, most States had expanded the meaning of burglary to include “structures other than dwellings.” Ibid. (citing W. LaFave & A. Scott, Substantive Criminal Law §§8.13(a)–(f) (1986)).

For a small number of federal defendants facing ACCA's long mandatory minimum based on a quirky prior crime, this ruling is very important and consequential.  For others, not much too see here.

December 10, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, December 08, 2018

Even more great clemency news in Oklahoma in wake of 2016 sentencing reform ballot initiative

In this post a few month ago, I noted the important work of lawyers and law students in seeking commutations for dozens of Oklahoma inmates in the aftermath of the state's passage of Question 780, which  made nonviolent drug possession offenses and low-level property offenses misdemeanors instead of felonies.  And last month in this post I reported that the Oklahoma Pardon and Parole Board had recommended commutations for a sizable group of offender, and this past week Governor Mary Fallin officially approved 21 commutation requests.  This local article reports on these development, and here are excerpts (with some emphasis added): 

Oklahoma Governor Mary Fallin has approved commutation requests for 21 non-violent offenders. The 21, whose names were read off one-by-one Wednesday by the governor, made it to the final step in a three-stage process by receiving a favorable vote from at least a simple majority of the five-member Oklahoma Pardon and Parole Board.

"We can keep people who are dangerous to society locked up, for those who have addiction issues that are non-violent, low-level offenders, there's a better way of doing this in our nation," Fallin said.  "On a personal note, this is just me saying this but, as we prepare for the Christmas holiday season, let's not forget there is a God of second chances."

Those being assisted through the commutation campaign are serving 10 years or longer for crimes that now carry lesser punishments following recent reforms approved by voters and legislators.

One of those was Juanita Peralta. Her daughter, Destiny Pinon, told News 4 that her mother was serving a 15-year sentence after she was arrested for a DUI while in a drug court program. Peralta has served about two years of her sentence in Taft, Oklahoma. "It’s unreal. I mean, it’s a good unreal feeling," Pinon said.  "When they said her name, it was just a rush of emotions."...

The 21 offenders were sentenced to a cumulative 349 years of incarceration. Wednesday’s action shaved 306 years off those incarcerated.

Richard Quillen, along with other parents and family members, was able to break the news over the phone to his daughter, Peyton Quillen. She had been serving time in Tulsa for a drug-related offense. "Governor Mary Fallin just signed your release papers and, as of this moment, you are a free woman," Richard told his daughter over the phone. "Okay, I love you."

Edmond resident Alyshea Rains, the mother of commuted offender Alexis Rains, told News 4 that the past two years without her daughter has been nothing short of tough. Alexis, now 24, was sentenced to 10 years for drug possession. She will return home to her now 5-year-old daughter....

News 4 spoke with Kayla Jeffries on Wednesday moments after she was released from the Kate Barnard Correctional Center. Her 20-year sentence was commuted after she was arrested for drug infractions at the age of 18. Jeffries served two and a half years at Mabel Bassett Correctional Center and six months at the Kate Barnard Correctional Center. “It’s surreal. I’m praising God. I’m thanking God every step I take,” she said. “I had my youngest daughter at Mabel Bassett, so I haven’t really had any bonding or or one on one time with her so I’m really looking forward to that and to just being a good mom and telling my story.”

Next Wednesday, the Oklahoma Pardon and Parole Board will consider sending eight more commutation applicants to the governor.

Prior related posts:

December 8, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, December 06, 2018

Tennessee Supreme Court rule in high-profile case that juve life sentence allows for possible release after 51 years

As reported in this local article, "Tennessee Supreme Court said Thursday that Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16, could be eligible for release after she serves 51 years in prison." Here is more about a notable ruling in a high-profile case:

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Her legal team launched a challenge to her life sentence in the federal court system, pointing to a 2012 ruling from the U.S. Supreme Court saying that giving juveniles life sentences without parole was cruel and unusual in most cases.

The Sixth Circuit Court of Appeals, which is considering Brown’s case, said Tennessee sentencing laws are unclear. Some sections suggested Brown's conviction should lead to life without parole while others suggested she should eventually be released.

During a hearing this summer, Sixth Circuit judges suggested that if Brown would never be eligible for release under state law, her sentence could be overturned. The appeals court asked Tennessee's high court to weigh in before it made a final decision.

The Tennessee Supreme Court’s unanimous answer that Brown would eventually be eligible for release sometime after her 69th birthday could complicate her legal team’s argument.

In its eight-page decision released Thursday, the state Supreme Court determined that a defendant sentenced to life in prison for a first-degree murder committed on or after July 1, 1995, will become eligible after serving a minimum of 51 years in prison. The rule also applies to 14 other offenses including rape, kidnapping and aggravated child abuse. The opinion will be handed over to the federal appeals court for review.

Brown also is asking Gov. Bill Haslam for clemency. The state parole board, which was split in its recommendations, sent the case file to the governor's office in July....

At 16, Brown climbed into a pickup truck on Murfreesboro Pike with Allen, a stranger, drove to his home, got into his bed — then shot him in the back of the head with a .40-caliber handgun as he lay naked beside her. Brown's advocates say she was forced into prostitution in fear of her life and wronged by the legal system. Prosecutors say Brown killed the man to rob him. Following her trial in 2006, Brown was convicted of Allen's murder.

Pop stars such as Rihanna and Kim Kardashian West have taken to social media encouraging Brown's freedom.

The full ruling from the Tennessee Supreme Court is available at this link.  Given the SIxth Circuit's existing jurisprudence applying Miller, it now seems quite unlikely Brown will succeed with an Eighth Amendment challenge to her sentence.

December 6, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, December 05, 2018

Previewing SCOTUS (re)consideration of "separate sovereigns" Double Jeopardy exception in Gamble v. US

After delaying a day for honoring a deceased former Prez, on Thursday morning, the Supreme Court will hear oral argument in Gamble v. United States to “separate sovereigns” doctrine providing that different sovereigns can prosecute for the same conduct without violating the Constitution's double jeopardy prohibition. Here are links to some folks discussing this case:

The Atlantic: "There’s an Exception to the Double-Jeopardy Rule: The Supreme Court will hear a challenge to the “separate sovereigns” doctrine in Gamble v. United States."

The Economist: "The Supreme Court considers nixing a “double jeopardy” loophole"

SCOTUSblog: "Argument preview: Justices to reconsider potentially far reaching double-jeopardy exception"

The Volokh Conspiracy: "Dual Sovereign Doctrine Under Attack in the Supreme Court: Strong originalist arguments exist for overruling the dual sovereign doctrine in a case being argued before the Supreme Court today."

December 5, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Timely reminder that now would be the perfect time for Prez Trump to make good on his clemency talk

The Washington Examiner has this notable recent article headlined "The criminal justice reform Trump can achieve without Congress." Here are excerpts:

President Trump unveiled one of his top legislative priorities before Democrats take over the House of Representatives: passage of the First Step Act, which would reduce some prison sentences. Though he still must win a tug-of-war within the Republican Party to get that bill through, he has a Plan B — and he doesn't need Congress for it.

That would be the creation of a White House clemency commission to supplement or replace the Justice Department’s opaque Office of the Pardon Attorney, which critics say is inherently biased in favor of prosecutors.

A new clemency commission can be created without Congress. The idea has support from both left-wing and conservative advocates, who note Trump’s repeated musing about the unfairness of the criminal justice system, including a remark in October that “a lot of people” are in prison for “no reason” and that he was “actively looking” to address that.

Trump has nearly unchecked power to pardon or release federal inmates — an authority he’s already used in unconventional ways, breaking with stingy recent predecessors to give nine early-term pardons or commutations, including the first pardons to currently incarcerated inmates since the 1800s.

“The reason you haven’t seen anything done yet is that there are only 24 hours in the day, and this requires some thought,” said Heritage Foundation scholar Paul Larkin, who advocates a clemency review process headed by the vice president.

Larkin attended a September meeting at the White House hosted by Jared Kushner and Ivanka Trump. Kim Kardashian West joined a dozen reformers around a Roosevelt Room table, where guests discussed commission ideas.

U.S. Sentencing Commission member and New York University law professor Rachel Barkow, who also attended the White House meeting, offered a similar assessment. “My guess is institutional resources might be focused on the First Step Act, so clemency reform could be on hold,” she said....

Mark Osler, a University of St. Thomas law professor also involved in talks about a commission, doesn't expect the clemency board to be used as a Plan B but rather as a second step: “I suspect it will get more attention once the First Step Act is dealt with,” though he declined to say if he’s been in touch with the White House. “It’s important to reform the clemency process, and I think the project will come to the front of the agenda when President Trump wants to or does grant more clemencies. The September meeting was a great start,” he said....

The pending First Start Act would, among other reforms, expand good-time credit, allow judges greater sentencing flexibility, and retroactively shorten some crack cocaine sentences. But it wouldn’t reduce many already imposed terms.... Amid uncertainty over the bill’s fate, some advocates have recommended greater unilateral action to a potentially jilted Trump.

“Now is the perfect opportunity for President Trump to show Senate Majority Leader Mitch McConnell who's the boss," CAN-DO Foundation founder Amy Povah said recently. "He can commute the sentences of hundreds, if not thousands of prisoners who would qualify for an immediate release if First Step passes with one stroke of the pen."

A few of many recent related posts: 

December 5, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, December 02, 2018

En banc Fifth Circuit overrules multiple precedents to clean up (and expand) its "crime of violence" jurisprudence

A helpful reader made sure I did not miss a remarkable en banc opinion handed down by the Fifth Circuit on Friday in US v. Reyes-Contreras, No. 16-41218 (5th Cir. Nov. 30, 2018) (available here).  Regular readers may recall that I suggested in this post that it might feel like dropping through Dante's various levels of hell when seeking to sort through intricate precedents to figure out what is and what is not a "violent felony" or a "crime of violence" for federal sentencing purposes.  There is a hellish-landscape quality to the 30+ pages of Reyes-Contreras, but the start and close of the opinion hints at how the en banc Fifth Circuit is doing its level best to escape (with footnotes omitted):

Fredis Reyes-Contreras pleaded guilty of illegal reentry.  Because he had been convicted of voluntary manslaughter in Missouri, the district court applied a sentencing enhancement for a crime of violence (“COV”).  Well represented by the Federal Public Defender, Reyes-Contreras appealed to challenge the enhancement.  Burdened by binding caselaw that required us to declare that killing a person with a baseball bat is not a COV, the panel vacated for resentencing.  The court granted the government’s petition for rehearing en banc, thus vacating the panel opinion.  Finding it necessary to overrule several of our precedents, we now affirm the judgment of conviction and sentence....

It is high time for this court to take a mulligan on COVs.  The well-intentioned experiment that launched fifteen years ago has crashed and burned.  By requiring sentencing courts and this court to ignore the specifics of prior convictions well beyond what the categorical approach and Supreme Court precedent instruct, our jurisprudence has proven unworkable and unwise.  By employing the term “crime of violence,” Congress and the U.S. Sentencing Commission obviously meant to implement a policy of penalizing felons for past crimes that are, by any reasonable reckoning, “violent,” hence the term.

As with many legal standards, decisions are difficult at the margins.  But this case is nowhere near the margin.  Except as otherwise directed by the Supreme Court, sentencing should not turn on “reality-defying distinctions.” United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied, 139 S.Ct. 63 (2018).  The interests of justice and Congress’s commands are not served by the absurd conclusion that intentionally killing with a baseball bat, and intentionally ramming a vehicle into a car containing a child, are not COVs.  A more realistic approach comports with reason and common sense. 

In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisible. Using the modified categorical approach, Reyes-Contreras was convicted under Subdivision (1), which is generic manslaughter, a COV.  In the alternative, even if Section 565.023.1 were not divisible, we hold that the statute as a whole is a COV because Subdivision (2) satisfies the use-of-force requirement and thus is independently a COV.

In finding “use of force” for purposes of identifying COVs, the distinction between direct and indirect force is abolished.  Likewise for the now-repudiated distinction between causing injury and using direct force. We show that the Missouri assisted-suicide statute satisfies the use-of-force requirement.  And we hold that, even if it did not, there is not the realistic probability of enforcement.

The holdings just announced, true to Supreme Court precedent, are in conflict with numerous panel and en banc decisions of this court. We therefore overrule, in whole or in part, as explained herein, the following [18] decisions and their progeny....  Reyes-Contreras’s conviction of voluntary manslaughter under MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The judgment of conviction and sentence is AFFIRMED.

December 2, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, November 30, 2018

Outgoing California Gov Jerry Brown urged by notable group to commute 742 death sentences

As reported in this Reuters article, a "Catholic group close to Pope Francis and representatives of 25 countries on Wednesday appealed to outgoing California Governor Jerry Brown to commute all the state’s 742 death sentences before laving office." Here is more:

The Sant’ Egidio peace group made the appeal together with the justice ministers of South Africa, Benin, Zimbabwe and Malaysia, and 21 lower-ranking officials from other countries at a conference on the death penalty held in Italy’s parliament. Mario Marazziti, a Sant’ Egidio leader, asked Brown to “declare a moratorium on all executions and begin the process of commuting the sentences into jail terms before leaving office”.

Brown, who once trained to be a priest of the Jesuit order, will leave office after completing his current two terms on Jan. 7, when Governor-elect Gavin Newsom is sworn in.

There are currently 742 people condemned to die in California, where the last execution took place in 2006. Executions since then have been blocked by legal issues.

Sant’ Egidio, which has branches in many countries and hundreds of thousands of followers around the world, is in the forefront of efforts to abolish the death penalty and help migrants. It has found great favor with the pope. Last August, the Roman Catholic Church formally changed its teaching to declare the death penalty inadmissible, whatever the circumstance....

An editorial in the Los Angeles Times last week urged Brown to commute at least the death sentences of those who committed crimes when they were young. The newspaper also urged Newsom to place a new anti-death penalty initiative on a future ballot.

Propositions to end capital punishment were defeated in 2012 [and] 2016 in California.

November 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 29, 2018

"The Death Penalty & The Fundamental Right to Life"

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

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment.  But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process.  The legal literature has followed suit, scarcely addressing the issue.

This Article makes the case for why the death penalty violates the fundamental right to life.  It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government.  It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution: arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring.  Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights.

Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon.  The road less traveled is substantive due process: the right to life of the condemned.  On the long road toward abolition, this Article argues that two lanes are better than one.

November 29, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 28, 2018

SCOTUS argument in Timbs suggest agreement on incorporation of Excessive Fines Clause and perhaps little else

In this post yesterday previewing today's SCOTUS oral argument in Timbs v. Indiana, I confidently predicted that the Justices will decide that the Excessive Fines Clause applies to the states, and further suggested that the Court may be too divided to say much more about the application of the EFC.   My prediction was not especially bold, but reports on the argument suggest that it is on the right track.

From SCOTUSblog: Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does....

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited....

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

From The Volokh Conspiracy: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures:

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states.  The justices also seem likely to rule that at least some state asset forfeitures violate the Clause.  Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation.  It is hard to say, however, what — if anything — the Court will do on the question of how to define "excessive."  The justices could well decide to leave it to the lower courts, at least for the time being.

The full transcript of oral argument in Timbs v. Indiana is available at this link.

Prior (somewhat) related posts:

November 28, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Lessons for Sentencing Reform and Reentry: A Case Study of Project New Opportunity"

The title of this post is the title of this new Center for Community Alternatives' Justice Strategies report. Here is its executive summary:

This study looks at the development and implementation of Project New Opportunity (PNO).  PNO was created to provide reentry support to people being released from federal prison under President Obama’s Clemency Initiative and the United States Sentencing Commission’s (USSC) 2014 reduction in drug sentencing guidelines.

Through the retroactive application of the guideline reforms, about 6,000 individuals were eligible to be released on November 1, 2016.  Another 1,928 were released though the Clemency Initiative. Yet except for probation supervision and Bureau of Prison (BOP) halfway houses, there were no reentry supports available to these individuals, many of whom had served decades in prison.

The Center for Community Alternatives (CCA) worked with Project Director Malcolm Young to design the PNO project to provide a model of reentry support for people released under these criminal justice reform efforts.  PNO is based on research both about the challenges that accompany the transition from prison to community and the role that formerly incarcerated people can play in helping newly released people make this transition.  Imprisonment leaves scars including post-traumatic stress responses, a lack of familiarity with the routines of daily life, and forms of culture shock as one confronts technological and other changes that have occurred during one’s time in prison.  These adjustment issues contribute to recidivism, which is highest within the first 6 months of release.

The key elements of PNO’s model are: 1) a staffing plan that relies on formerly incarcerated people as Reentry Consultants, and 2) an “inside/outside” connection that introduces incarcerated people to their Reentry Consultant six months prior to their release and continues after release.  The majority of PNO participants cited this pre-release connection with someone who will be there when they get out as the primary benefit of the program.

PNO adds yet another example to the growing body of evidence that shows that sentencing reform, shorter sentences and early release mechanisms are reasonable and humane without jeopardizing public safely.  While PNO was unable to track recidivism of its participants through official data, it was able to follow up through the Reentry Consultants and/or participants themselves.  The information, while informal, is very encouraging: there were no known incidents or reports of rearrests, violations of the terms of probation supervision, or incarceration from the consultants or participants.  This suggests that PNO was able to help people stabilize and avoid new encounters with the criminal justice system in the immediate aftermath of release.

November 28, 2018 in Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 27, 2018

Previewing SCOTUS consideration of civil forfeiture in Timbs v. Indiana from many sources

On Wednesday morning, the Supreme Court will hear oral argument in Timbs v. Indiana to consider whether the Eighth Amendment's prohibition of excessive fines applies to the states.  I am reasonably confident that the Justices will decide that the Excessive Fines Clause does apply to the states, but I am not so confident about what more the Court will say about the application of the EFC to the interesting (and fairly simple) facts surrounding the forefeiture of Tyson Timbs' Land Rover. 

Because there is a whole lot worth saying about the facts and law surrounding Timbs, I figured I would link to a whole bunch of folks from a whole bunch of sources discussing this case.  So:

Prior (somewhat) related posts:

November 27, 2018 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, November 25, 2018

Student SCOTUS preview: starting a series of posts on United States v. Haymond

6a00d83451574769e201b7c9134b4d970b-320wiIn this post last year I noted the interesting constitutional procedure opinion handed down by the Tenth Circuit in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here), and in this post last month I noted that the  Supreme Court accepted the petition for certiorari filed by the federal government in the case.  I am very lucky to have a great student, Jim McGibbon, who is very interested in the Haymond case, and he has agreed to draft a series of preview posts on the case.  Here is this first one:

The Supreme Court, on October 26, 2018, granted certiorari in United States v. Haymond.  The case concerns the constitutionality of a federal statutory provision which imposes a mandatory minimum prison sentence for federally-convicted sex offenders who commit another sexually-related offense while serving a term of supervised release.

A federal district court, in 2010, convicted Haymond of possessing child pornography and sentenced him to thirty-eight months of prison and ten years of supervised release.  A sentencing judge is authorized to impose a supervised release sentence based on 18 U.S.C. § 3583(a), a provision of the Sentencing Reform Act of 1984.   Supervised release has long been considered, in the words of the Tenth Circuit, “part of the sentence” for the original crime as are the various terms and conditions that an offender must comply with during the period of supervised release.  Violation of the conditions of supervised release sometimes can result in revocation and additional prison time, but the Supreme Court in Johnson v. United States, 529 U.S. 694 (2000), described “postrevocation sanctions as part of the penalty for the initial offense.”  Id. at 700.

On April 24, 2013, Haymond was released from prison, and he began serving his 10-year term of supervised release.  Two years into his supervised release, Haymond’s probation officers conducted a surprise search of Haymond’s apartment.  The officers seized a password-protected cellphone and a personal computer belonging to Haymond, as well as other computers belonging to a roommate or in the apartment.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release on various grounds. 

Haymond was subject to a supervised release revocation hearing before a district judge, a unique hearing generally considered comparable to parole revocation in which the "full panoply of rights due a defendant ... does not apply.”  Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond’s supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  The relevant portion of 18 U.S.C. § 3583(k) provides that sex offenders on supervised release who commit “any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … not less than 5 years.”

Haymond appealed to the Tenth Circuit Court of Appeals, arguing that “(1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process.”  The Tenth Circuit affirmed the district court’s finding of child pornography possession and the revocation of Haymond’s supervised release, but vacated the mandatory sentence and remanded the case back to the District Court for resentencing.

A split panel of Tenth Circuit held that 3583(k) was unconstitutional for two reasons.  The majority first asserted that the statute impermissibly strips the sentencing judge of discretion established under Booker and its progeny because it imposes a mandatory minimum sentence.  The court also asserted that it unlawfully imposes heightened punishment using  a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne

The government filed a petition for a writ of certiorari on June 15, 2018 posing this question for review:

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

With certiorari granted last month and the briefs forthcoming, this case poses the potential to impact not only the operation of federal supervised release revocation, but also the future of Apprendi rights. 

In coming posts, the briefs filed by the parties and potential amici will be discussed.

Prior related posts:

November 25, 2018 in Blakely in the Supreme Court, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Paroling elderly inmates is humane solution to costly mass incarceration"

The title of this post is the headline of this new Hill commentary authored by Marc Schindler. Here are excerpts:

[G]rowth in long prison sentences has done little to improve public safety, with states that have reduced incarceration levels experiencing larger drops in crime than states that continue to incarcerate people at very high rates.  But it has contributed to a rapidly expanding population of incarcerated elderly people, so that our prisons now essentially function as expensive yet inhumane nursing homes.  In 1993, there were 45,000 incarcerated individuals over 50 years old; with the continuous growth, it is estimated that number will reach 400,000 by 2030.

For policymakers to significantly reduce the growing and costly prison population, strategies must include reform to long sentences for violent crimes.  Focusing reforms on reducing incarceration of geriatric people is an effective way to safely reduce the prison population.  Research indicates they are the least likely to pose a risk to public safety; criminal behavior typically peaks at 17 years old and then drops as an individual develops into adulthood.  While many states, such as California, Texas and New York, have expanded geriatric parole eligibility, it is infrequently used.

A naturally-occurring experiment, just a few miles from the nation’s capital, provides a roadmap for this strategy to safely reduce incarceration, create a more humane justice system and save significant taxpayer dollars.  A landmark court ruling — Unger v. Maryland — and the opportunities it created, offer powerful lessons for policymakers and stakeholders in tackling mass incarceration.  The 2012 case, centered on remedying improper jury instructions, applied to a cohort of 235 people sentenced prior to 1981.  In the six years since the decision, 188 people have been released; at release, the average age of the Ungers was 64, and the average term served was 40 years....

In the six years since the decision, we have learned a number of important lessons, the most significant of which is that the Unger experience proves we can safely release people who have committed a serious, violent offense.  And since they’ve been home, the Ungers have been contributing to their communities; as volunteers and mentors they help keep us all safer by encouraging youths to avoid the mistakes they made when they were younger.

One of the things that make the Ungers unique is that, thanks to an investment by the Open Society Institute-Baltimore, they received specialized reentry programming before and after release.  With that individualized support, the Ungers have had a less than 3 percent recidivism rate, a fraction of the Maryland rate of 40 percent.  This support is a significant advance over what most people receive and should be a model for governments across the country to replicate.

The Ungers were primarily convicted of homicide and rape, yet they have safely returned to the community. Too often we fail to take into consideration a research-based assessment of the risk of reoffending when making release decisions.  It is time to reconsider parole policies and assessment tools that disregard rehabilitation and continue to keep people locked up based solely on the severity of their underlying offense.

Imposing extremely long sentences, alongside low rates of parole, serves political motivations, not increased public safety.  By pivoting away from a parole approach focused solely on the crime committed, to one that assesses the current risk of re-offending and provides tailored re-entry services, states can safely reduce their prison population, save taxpayer money and create a fairer and more effective justice system in the process.  There are hundreds of thousands of geriatric-aged individuals in prisons across the country, many with the same profile as the Ungers.  Maryland alone could save over $100 million in the first year by reducing its low-risk geriatric population.

This commentary builds off this recent report by the Justice Policy Institute titled "The Ungers, 5 Years and Counting: A Case Study in Safely Reducing Long Prison Terms and Saving Taxpayer Dollars."

November 25, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Saturday, November 24, 2018

What might the Founders have to say about modern federal sentencing debates?

HamiltonI had the great fortune last night to (finally!) get to see the musical Hamilton (in Chicago).  Reflecting on the play and the history of the founding of the United States, I could not resist wondering aloud here about how the historic figures of Founding era might have viewed the federal sentencing controversies today.

Because I am not a constitutional historian, I cannot provide a definitive account of what all the Framers said about crime and punishment.  But I can highlight the work here of Professor John Bessler highlighting the impact and import of Italian thinker Cesare Beccaria's book On Crimes and Punishments on their thinking:

Beccaria’s book shaped American history.  George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.”  At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words.   And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

One way in which Beccaria influenced America’s Founding Fathers is by shaping their views on cruelty, the concept embedded in the U.S. Constitution’s Eighth Amendment.  James Wilson — a signer of the Declaration of Independence and the U.S. Constitution — regularly cited Beccaria’s work and called “cruel” punishments “dastardly and contemptible.” And in the 1820s, Madison spoke of his attraction to “penitentiary discipline” as a substitute for “the cruel inflictions so disgraceful to penal codes.”  After receiving an anti-death penalty pamphlet that quoted Beccaria, Madison wrote to a Kentucky physician: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”...

One of Beccaria’s core principles — embraced by American revolutionaries such as John Adams, Thomas Jefferson, James Wilson and William Bradford — was that any punishment which is not “absolutely necessary” is “cruel” and “tyrannical.”

I can also here note a few classics directly from the pen of Framers, such as Alexander Hamilton in Federalist No. 74 defending a broad and unfettered pardon power vested in the President:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.  As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

And Thomas Jefferson starts his "Bill for Proportioning Crimes and Punishments" with an accounting of the need and value of properly proportioned punishments:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

I am inclined to read all these sources and resources as evidence that the Founders would have been quite supportive of the FIRST STEP Act and of modern US Presidents using their clemency powers often and on behalf of a lot more than turkeys.

November 24, 2018 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, November 23, 2018

Noticing California Gov Jerry Brown's recent robust approach to clemency

The Marshall Project earlier this week had this notable account of the outgoing California Gov's clemency history under the headline "The Jerry Brown Way of Pardoning."  Here is an excerpt from this piece:

Unlike President Donald Trump, who has focused attention on cases brought to him by fellow celebrities and on political allies, Brown’s clemency decisions focus on people facing what the governor seems to view as systemic injustices.  They are often timed to coincide with Catholic holidays, a reflection of his faith.

“It’s a recognition that people can, and do, change — even after committing terrible crimes,” Evan Westrup, a spokesman for Brown, said in a statement.  “It’s also a recognition of the radical and unprecedented sentencing increases and prison building boom of the 80s and beyond as well as the diminished role of parole as a vital ingredient in California’s system of sentencing and rehabilitative process.”

Among the people who have received clemency recently: Southeast Asian immigrants who came to the United States as children and who face deportation unless granted a pardon; non-citizen military veterans who were deported for crimes committed after their service; and prisoners serving life without parole, who were given hope of release....

During his first two terms in office, from 1975-83, Brown oversaw a dramatic shift in sentencing policy that led to a surge in the state’s prison population and coincided with a number of tough-on-crime bills.  In those years, he handed down only one commutation and about 400 pardons.... By contrast, since returning to the governor’s office in 2011, Brown has issued 82 commutations and more than 1,100 pardons, far more than any California governor since at least the early 1940s.

The previous governor, Arnold Schwarzenegger, issued only 10 commutations and 15 pardons during his two terms. His predecessor, Gray Davis, issued none.

A few days after this piece was published, Gov Brown issued another batch of clemencies as reported in this AP article headlined "California governor pardons former state lawmaker, refugees."  Here is how this piece starts:

A former state senator convicted of lying about his residence and three refugees from Vietnam who could face deportation are among 38 people pardoned Wednesday by Gov. Jerry Brown ahead of the Thanksgiving holiday.  Brown's pardons also include a man who just lost his Paradise home in a wildfire.

The Democratic governor also commuted the sentences of 70 people still serving time, including Walter "Earlonne" Woods, who co-hosts a podcast called "Ear Hustle" from inside San Quinton state prison.

November 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 21, 2018

Notable account of Acting AG Matt Whitaker's sentencing work as US Attorney in Iowa

The Washington Post has this interesting new piece about the current Acting US Attorney General's sentencing record as a chief federal prosecutor in Iowa. The lengthy piece is headlined, "As U.S. attorney, Whitaker imposed longer-than-usual drug sentences," and merits a full read. Here are snippets:

Raeanna Woody’s crimes hardly seemed like they would add up to a life sentence in prison. She had two nonviolent drug convictions, for possessing marijuana and delivering 12 grams of methamphetamine. But when she was arrested in a third drug case, she said, the office of U.S. Attorney Matthew G. Whitaker decided to make an example of her.

Under Whitaker, who is now acting attorney general, Woody was given a choice: spend the rest of her life in jail, or accept a plea bargain sentence of 21 to 27 years, according to court records. She took the deal.

Federal Judge Robert W. Pratt in the Southern District of Iowa later accused prosecutors of having “misused” their authority in her nonviolent case. He urged President Barack Obama to commute her sentence — and Obama did shorten her term , after she had served 11 years.

Woody’s case highlights one of the most controversial if little-known aspects of Whitaker’s career: his efforts to obtain unusually stiff sentences for people accused of drug crimes. Whitaker spent nearly five years as U.S. attorney for the Southern District of Iowa. His office was more likely than all but one other district in the United States to use its authority to impose the harshest sentences on drug offenders, according to a finding by a different Iowa federal judge, Mark W. Bennett, who it called a “deeply troubling disparity.”

“If the president can look at my case and he can see that what I had done wasn’t severe enough to warrant that many years, then why was I given that many years to begin with, why was that much of my life taken from me?” Woody, a 57-year-old mother of five, said in an interview. “I blame Whitaker’s office and everybody underneath him.”...

The rate at which Whitaker’s office and another one in Iowa imposed the harshest possible sentence was a “jaw-dropping and deeply troubling disparity compared to the vast majority of federal courts in the nation,” Bennett said in a statement to The Washington Post. Whitaker never appeared before him, and he declined to comment about Whitaker’s term as U.S. attorney.

Whitaker’s Southern District of Iowa used enhanced sentences in 84 percent of relevant cases, compared with 26 percent nationwide, Bennett’s finding said. Bennett concluded that a defendant in the Northern District of Iowa — which had a rate of filings similar to Whitaker’s district — was 2,532 percent more likely to be subjected to an enhanced sentence compared with someone convicted of a similar offense in a Nebraska district. “I found their harshness in filing 851 notices inexplicable,” Bennett said....

In Raeanna Woody’s case, the filing was used as leverage by Whitaker’s office. Woody, whose last name at the time was Paxton, appeared before Judge Pratt in the Southern District on July 10, 2008. Her previous drug convictions resulted in little or no jail time. Her third offense occurred when authorities determined that she drove a car in which another individual was pursuing a drug deal.

Woody said a prosecutor from Whitaker’s office, Jason T. Griess, had informed her that, as a third-time offender, her sentence could be “enhanced” to mandatory life in prison under an 851 filing. She said she had no choice but to make a plea bargain that resulted in the sentence of 21 to 27 years. “I remember them saying through Jason that he wouldn’t budge, and ‘me and my office are going to make an example out of you.’ ”...

Pratt [later] then wrote a letter to Obama’s pardon attorney expressing his displeasure with how the case had been handled by Whitaker’s office. Pratt wrote in the May 13, 2016, letter that he was forced to impose a sentence that “was entirely disproportionate” to her crime.

The “most compelling reason” that the president should grant clemency, Pratt wrote, was that Whitaker’s office “misused” its power by threatening Woody with a life sentence by using the 851 filing, “effectively removing my discretion” to give Woody “a fair sentence.” Pratt stressed that Woody “was and is a nonviolent offender. She was not a significant player in the overall ‘conspiracy’ in this case. . . . This was not a conspiracy that involved ‘drug kingpins.’ It was a situation where methamphetamine-addicted individuals resorted to selling the drug to support their own addictions.”

For me, this story is not as much about the work of a particular US Attorney as it is yet another tale about the need to reform federal sentencing laws to reduce the sentencing powers now given to federal prosecutors rather than to federal judges.

November 21, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, November 20, 2018

"The process to pardon turkeys is more rational than the one used for humans"

Regular readers know I am ever eager this time of year to complain about the contrast between the annual predictable turkey pardons and unpredictable White House clemency efforts.  Helpfully, my colleague and clemency guru Mark Osler has this matter well covered in this new CNN commentary with a headline that I have used as the title for this post.  Here are excerpts:

This week, we will once again be treated to the awkward spectacle of the President pardoning a turkey while confused-looking children look on.  Of late, that ceremony has been accompanied by a raft of opinion pieces suggesting the President should consider granting clemency to some humans, as well.  I've written a few of those myself.

After years of fruitlessly making that same argument, a more worthwhile observation might be this: The process used to choose which turkey might be pardoned is far more rational, efficient and effective than the one used to evaluate clemency for humans.  In particular, the turkey-choosing process features four attributes sorely missing from the human one.

First, it occurs regularly.  Turkeys are pardoned every year, not just in the waning days of an administration.  Second, decisions are made by objective specialists with the current chairman of the National Turkey Federation, or NTF, responsible for managing a thorough selection process. Typically, the NTF head will familiarize dozens of birds with human contact and saturate them with loud music before making a final choice.  Third, there are defined criteria.  The finalists are selected based on their willingness to be handled, their health and their natural good looks.  Fourth, attention is paid to making sure they thrive after their grant of clemency.  After the ceremony, they are sent to Virginia Tech's "Gobbler's Rest" exhibit, where they are well cared for.

This contrasts sharply with the process of giving clemency to humans.  For the past seven years I have worked with my students to prepare and file petitions on behalf of deserving clients, and have found that the procedure through which clemency is granted is irregular, run largely by biased generalists, devoid of consistent, meaningful criteria, and it does little to ensure success of individuals after their release....

What's missing is all the things that make the turkey process work.  It's irregular, as inattention by any one of the numerous sequential evaluators stops the whole thing.  And instead of objective specialists, we have decisions being made by the deputy attorney general, who is neither objective nor a specialist.  The criteria are poorly articulated and currently issued by the stiflingly conflicted DOJ.  And finally, there is little to no connection between the process and what comes after, as prison gives way to freedom.

Is there a better way?  Sure.  Just take the process out of the DOJ and put it in the hands of a board, as most states do, and then have that board make regular recommendations pursuant to consistent criteria while monitoring outcomes.  If we did that, the clemency process would finally be at least as functional as the one that informs a silly holiday tradition.  There is a place for circuses, but we also need to regularly bake the bread of mercy that is promised in the Constitution.

November 20, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 19, 2018

Justice Gorsuch, joined by Justice Sotomayor, dissents from denial of cert in Confrontation Clause case from Alabama

Because the Confrontation Clause has been deemed inapplicable at sentencing (which has always seemed problematic to me), I tend not always pay a lot of attention to the Supreme Court's modern Confrontation Clause jurisprudence.  But I do always pay a lot of attention to any indication that a new Justice is particularly concerned about the rights of criminal defendants, and so it is now interesting and notable to see Justice Gorsuch (joined by Justice Sotomayor) penning a dissent from the Supreme Court's denial of cert this morning in Stuart v. Alabama.  Here are key paragraphs from the start and end of the dissent:

More and more, forensic evidence plays a decisive role in criminal trials today.  But it is hardly “immune from the risk of manipulation.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009).  A forensic analyst “may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.”  Ibid.  Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.  See ibid.; see also Bullcoming v. New Mexico, 564 U.S. 647, 654, n.1 (2011) (documenting laboratory problems).  To guard against such mischief and mistake and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination.  Because cross-examination may be “the greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U.S. 149, 158 (1970) (internal quotation marks omitted), the Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6.

That promise was broken here.  To prove Vanessa Stuart was driving under the influence, the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest.  But the State refused to bring to the stand the analyst who performed the test.  Instead, the State called a different analyst.  Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving.  Through these steps, the State effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction.  The engine of cross-examination was left unengaged, and the Sixth Amendment was violated....

Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area.  Williams imposes on courts with crowded dockets the job of trying to distill holdings on two separate and important issues from four competing opinions.  The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly recur.  I would grant review.

November 19, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, November 15, 2018

"Eight Keys to Mercy: How to shorten excessive prison sentences"

The title of this post is the title of this notable new Prison Policy Initiative report.  I recommend the whole report, and here are excerpts from its start and its summary concepts:

After decades of explosive growth, prison populations have mostly flattened. Much of that is due to lawmakers lessening penalties for drug possession or low-level property offenses. While a welcome start, a bolder approach is necessary to truly begin to make a dent in the numbers of individuals who have served and will serve decades behind bars. This approach will take political courage from legislators, judges, and the executive branch of state governments.

Approximately 200,000 individuals are in state prisons serving natural life or “virtual” life sentences.  And as of year’s end 2015, one in every six individuals in a state prison had been there at least for 10 years. 

These are not merely statistics. These are people, sentenced to unimaginably long sentences in ways that do little to advance justice, provide deterrence, or offer solace to survivors of violence. The damage done to these individuals because of the time they must do in prison cells — as well as to their families and their communities — is incalculable.

People should not spend decades in prison without a meaningful chance of release.  There exist vastly underused strategies that policy makers can employ to halt, and meaningfully reverse, our overreliance on incarceration. We present eight of those strategies below....

Our 8 strategies

The eight suggested reforms in this report can shorten time served in different ways:

  • Several ways to make people eligible for release on parole sooner. 
  • One way to make it more likely that the parole board will approve conditional release on parole.
  • Several ways to shorten the time that must be served, regardless of sentencing and parole decisions.
  • One simple way to ensure that people are not returned to prison.

Of course, states vary in many ways, most critically in how they structure parole eligibility, and policymakers reading this report should anticipate tailoring our suggested reforms to their state systems. Each of the reforms laid out in this report could be effective independent of the others.  However, we encourage states to use as many of the following tools as possible to shorten excessive sentences:

  1. Presumptive parole
  2. Second-look sentencing
  3. Granting of good time
  4. Universal parole eligibility after 15 years
  5. Retroactive application of sentence reduction reforms
  6. Elimination of parole revocations for technical violations
  7. Compassionate release
  8. Commutation

November 15, 2018 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, November 14, 2018

"The Second Chances Gap"

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

Over the last decade, dozens of states have enacted “second chance” reforms that increase the eligibility of individuals charged or convicted of crimes to, upon application, shorten or downgrade their past convictions, clean their criminal records, and/or regain the right to vote.  While much fanfare has accompanied the increasing availability of “second chances,” less is known about their uptake.

This study introduces the concept of the “second chance gap” — the gap between eligibility for and award of certain forms of second chance relief, and sizes it in connection with several initiatives (Obama’s Clemency Initiative, California’s Propositions 47 and 64, and Maryland and Pennsylvania records clearing provisions).  It finds approximate uptake rates to be low (less than 20% in most cases) suggesting that among the studied initiatives, the majority of second chances have been missed chances, apparently due to administrative factors like low awareness and high-cost, high-friction application processes and backlog.

To narrow second chance gaps and unlock opportunities and equal access to benefits for individuals with criminal histories, this Essay argues, policymakers should embrace automation, burden-shifting, centralization, and consistency in the implementation of second chance laws.  Ensuring that the design and administration of second chance laws reflect their intent can help remove the red tape, not steel bars, that stand in the way of second chances.

November 14, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, November 13, 2018

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

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

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

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

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

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

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

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

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

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

November 13, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)