Thursday, May 16, 2024

Texas Gov fulfils pledge to pardon man convicted of murdering BLM marcher and sentenced to 25 years

The Govenor of Texas issued a notable (and previously promised) clemency, as detailed in this local article.  Here are excerpts:

Daniel Perry, a former Army sergeant convicted of killing a Black Lives Matter protester in downtown Austin in 2020, was freed from prison Thursday within an hour of Gov. Greg Abbott signing a pardon proclamation in a case that triggered a political and legal firestorm.

In a series of rapid-fire developments in a less than two-hour span, the Texas Board of Pardons and Paroles recommended that Perry be pardoned on the murder conviction.  Abbott then granted the full pardon to Perry, leading to his release from the Mac Stringfellow Unit in Rosharon, about 20 miles south of downtown Houston. Perry, 36 at the time of his April 2023 conviction, may also be able to apply to have his record expunged, according to the Texas Department of Criminal Justice.

The board announced its recommendation to pardon Perry and restore his firearm rights in a statement posted on its website Thursday.  Its decision came after a "meticulous review of pertinent documents, from police reports to court records, witness statements, and interviews with individuals linked to the case," the statement said.

In July 2020, Perry shot and killed Garrett Foster after Perry drove into a racial justice protest on Congress Avenue. Perry claimed that he shot Foster, who was carrying an AK-47 rifle, in self-defense. During Perry’s trial last year, prosecutors argued that Perry had sought out confrontation.

"Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney," Abbott said in a statement Thursday.  "I thank the Board for its thorough investigation, and I approve their pardon recommendation.” In a proclamation Thursday, Abbott took aim at Travis County District Attorney José Garza, writing that Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry."

Less than 24 hours after a jury in April 2023 found Perry guilty of murder, Abbott said on social media that he would approve a pardon if one were recommended by the Texas Board of Pardons and Paroles. The announcement came after prominent conservative figures called on him to undo Perry's conviction. Shortly after Abbott’s announcement, a state district judge unsealed court records that contained Perry’s previously unreleased messages and social media posts, which contained racist rhetoric.

"Daniel Perry was imprisoned for 372 days and lost the military career that he loved," Doug O'Connell, an attorney who represents Perry, said in a statement. "The action by Governor Abbott and the Pardon Board corrects the courtroom travesty which occurred over a year ago and represents justice in this case. "I spoke to Daniel Perry this afternoon. He is thrilled and elated to be free. Daniel is also optimistic for his future."

Garza condemned the actions of the parole board and Abbott, writing in a statement that they have "put their politics over justice and made a mockery of our legal system."

Gov Abbott's proclamation is available at this link and his statement is at this link; the pardon board's statement is available at this link.

Prior related posts:

May 16, 2024 in Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Wednesday, May 15, 2024

Sentencing Project releases new report on "The Second Look Movement"

The Sentencing Project today released this new report fully titled "The Second Look Movement: A Review of the Nation’s Sentence Review Laws."  Here is the start of its executive summary:

Today, there are nearly two million people in American prisons and jails -- a 500% increase over the last 50 years. In 2020, over 200,000 people in U.S. prisons were serving life sentences -- more people than were in prison with any sentence in 1970.  Nearly one-third of people serving life sentences are 55 or older, amounting to over 60,000 people. People of color, particularly Black Americans, are represented at a higher rate among those serving lengthy and extreme sentences than among the total prison population.

Harsh sentencing policies, such as lengthy mandatory minimum sentences, have produced an aging prison population in the United States.  But research has established that lengthy sentences do not have a significant deterrent effect on crime and divert resources from effective public safety programs. Most criminal careers are under 10 years, and as people age, they usually desist from crime.  Existing parole systems are ineffective at curtailing excessive sentences in most states, due to their highly discretionary nature, lack of due process and oversight, and lack of objective consideration standards.  Consequently, legislators and the courts are looking to judicial review as a more effective means to reconsider an incarcerated person’s sentence in order to assess their fitness to reenter society.  A judicial review mechanism also provides the opportunity to evaluate whether sentences imposed decades ago remain just under current sentencing policies and public sentiment.

Legislation authorizing judges to review sentences after a person has served a lengthy period of time has been referred to as a second-look law and more colloquially as “sentence review.”

This report presents the evolution of the second look movement, which started with ensuring compliance with the U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) on the constitutionality of juvenile life without parole (“JLWOP”) sentences. This reform has more recently expanded to other types of sentences and populations, such as other excessive sentences imposed on youth, and emerging adults sentenced to life without parole (“LWOP”).  Currently, legislatures in 12 states, the District of Columbia, and the federal government have enacted a second look judicial review beyond opportunities provided to those with JLWOP sentences, and courts in at least 15 states determined that other lengthy sentences such as LWOP or term-of-years sentences were unconstitutional under Graham or Miller.

May 15, 2024 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Monday, May 13, 2024

Notable dissent from denial of cert in Texas capital case concerning jury selection process

The Supreme Court this morning issued yet another order list which did not grant review in any cases.  But the list is conclude with a notable six-page dissent from the denial of cert authored by Justice Jackson and joined by Justice Sotomayor in a capital case, Sandoval v. Texas.  Here is how the dissent gets started:

Criminal defendants have a “fundamental righ[t]” “to personal presence at all critical stages of the trial.”  Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam).  We have long held that voir dire — the moment that “represents jurors’ first introduction” to the facts of a case — is one such stage.  Gomez v. United States, 490 U.S. 858, 873–874 (1989).  In this capital case, however, the Texas Court of Criminal Appeals (TCCA) determined that a defendant had no due process right to attend “special venire” proceedings held prior to voir dire, during which a judge preevaluated potential jurors who were summonsed specifically for that case and given information about the defendant and the allegations against him.  The TCCA’s ruling raises a significant and certworthy question about whether criminal defendants have a due process right to be present in such circumstances.  In my view, the answer is yes, and this Court should have granted the petition for certiorari to furnish that important holding.

May 13, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Sunday, May 12, 2024

New US Sentencing Commission data on retroactive application of criminal history amendments

Last year, US Sentencing Commission voted for (delayed) retroactive application of its Guideline amendments relating to criminal history.  There were two major parts to these amendment that reduced the sentencing range for certain defendants with "status" points (Part A) and for other defendants who would now be deemed "zero-point" offenders (Part B).   And last week, the Commission release some new data on how retroactivity is playing out in district courts.  Here are links to the USSC's data reports:

NEW Retroactivity Data on Part A

NEW Retroactivity Data on Part B

There are lots of interesting little stories in these data runs, but I figured I might  here highlight the top-line numbers. Specifically, for the Part A "status point" amendment, a total of 2,988 defendants have received sentence reductions averaging 10 months.  For the Part B "zero point" amendment, a total of 2,143 defendants have receive sentence reductions averaging 13 months.

Adding this up, we get at total of 57,738 months of reduced federal prison time (which is a little over 4800 years of imprisonment for those not great at dividing by 12).  Given that the average annual cost of federal incarceration is over $42,000, we might reasonably calculate a savings of over $200 million to US taxpayers resulting from the Commission's decision to make its new criminal history guidelines retoractive.

I presume future retroactivity data runs will report in some more defendants getting reductions under the new guidelines, and I also expect other data will also show a significant number of newly sentenced defendants also benefiting from these new criminal history guidelines.  And especially since there were built on the USSC's copious revidivism data, I am hopeful that there reduction do not come at any real public safety costs. 

May 12, 2024 in Data on sentencing, Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, May 10, 2024

Split Ninth Circuit panel declares federal felon-in-possession criminal law unconstitutional as applied to non-violent offenders after Bruen

Yesterday, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), to become the second circuit to find that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition in on gun possession by nonviolent felons.   The 60-page opinion for the court was authored by Judge Bea, and here is part of how it starts:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.”  Steven Duarte, who has five prior non-violent state criminal convictions — all punishable for more than a year — was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car.  Duarte now challenges the constitutionality of his conviction.  He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society.  We agree.

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge.  Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform.  Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history....

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct — carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32.  The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry.  We do not share that view.  Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right....

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same. 

The 10-page dissent authored by Judge Milan Smith concludes this way:

The majority reads Bruen, a Supreme Court decision reviewing New York’s gun licensing regime, as an invitation to uproot a longstanding prohibition on the possession of firearms by felons. Bruen extends no such invitation.  As Justice Alito cautioned, Bruen decides “nothing about who may lawfully possess a firearm.” Bruen, 597 U.S. at 72 (emphasis added).

One day — likely sooner, rather than later — the Supreme Court will address the constitutionality of § 922(g)(1) or otherwise provide clearer guidance on whether felons are protected by the Second Amendment. But it is not our role as circuit judges to anticipate how the Supreme Court will decide future cases.... Until we receive contrary definitive guidance from the Supreme Court, or from a panel of our court sitting en banc, we are bound by our decision in Vongxay.

I respectfully dissent and express the hope that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.

The location and timing of this ruling is almost as interesting as its substance.  Many hundreds of § 922(g)(1) cases are prosecuted in this big circuit each year, so the echo effects of this ruling could prove profound (though I would guess not that many involve persons with only nonviolent priors).  And, we are likely only weeks away from the Supreme Court finally handing down an opinion in the Rahimi case to address the application of Bruen to a different section of § 922(g). 

Most folks reasonably expect the Rahimi ruling to provide more guidance on how the Bruen Second Amdndment test is to be applied to broad federal criminal gun control laws.  I would expect coming Rahimi opinion will lead to the Ninth Circuit reviewing this important Duarte ruling in some way, though whether that is in the form of en banc review or panel reconsideration might turn on what Rahimi actually says.

May 10, 2024 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Wednesday, May 08, 2024

Notable pending cert petition asks Justices to resolve split over reach of appeal waivers in a notable setting

I recently noticed that an intriguing and distinctive federal case that I heard about some months ago was flagged here as a "Petition of the Week" over at  SCOTUSblog.  I recommend the full SCOTUSblog post for the case details, but here is the start and close of that post:

The vast majority of criminal cases — 98% of those in federal court, and 95% of those in state court — are resolved through plea bargains.  As a condition for pursuing a lesser conviction or shorter sentence, prosecutors may also require someone who pleads guilty to a crime to sign away their right to appeal.  This week, we highlight petitions that ask the court to consider, among other things, whether a plea deal with an explicit waiver of the right to appeal bars defendants from later asking a court to vacate their conviction if the conduct of which they were accused, it turns out, was not a crime at all....

In Khadr v. United States, Khadr asks the justices to grant review and reverse the D.C. Circuit’s ruling.  He argues that the courts of appeals are divided over whether criminal defendants can  ever waive their right to argue that their conviction was legally invalid by pleading guilty. Just as “[p]lea agreements based upon non-criminal conduct cannot” support a conviction, Khadr writes, nor do general waivers of appeal “bar appellants from seeking review of their convictions for conduct that is not criminal.”

The full cert petition in Khadr is available at this link, and here is how it presents the question that the Justices will consider at a conference later this month:

Plea agreements often include a general waiver of the right to appeal. Circuits are divided over whether the inclusion of such a term bars a defendant from bringing a direct appeal of a conviction, when a subsequent controlling judicial decision has held that the conduct to which the defendant pled guilty was not a crime.  The Second, Third, and Fourth Circuits hold that an appeal may proceed.  In the decision below, a divided panel of the D.C. Circuit joined the Seventh and Ninth Circuits in holding that it may not.

Does a plea agreement that includes a general appellate waiver foreclose a direct appeal when a defendant has pled guilty to conduct that was not criminal?

May 8, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Tuesday, May 07, 2024

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

May 7, 2024 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (14)

Friday, May 03, 2024

Reviewing legal complications for Jan 6 rioters convicted of federal charge SCOTUS might overturn

I have discussed briefly in some prior posts some of the legal intricacies that certain Jan 6 defendants could face if the Supreme Court in Fischer v. US were to reverse a key statutory charge brought by federal prosecutors or many cases.  Helpfully, Law360 has this new lengthy discussion of these issues under the headline "If High Court Upends Jan. 6 Conviction, What Happens Next?".  These issues are potentially so complicated, it is hard to map out or summarize all the particulars.  But this article provides an effective overview and gets started this way:

In the coming weeks, the U.S. Supreme Court will decide whether prosecutors overstepped by using a felony obstruction charge against a rioter who stormed the U.S. Capitol building on Jan. 6, 2021.  In oral arguments in April, a majority of justices seemed poised to side with the defendant, a man named Joseph Fischer, who shouted, "Charge!" as he ran into the Capitol building and then assaulted a police officer.

If Fischer prevails, results will likely be mixed for the more than 350 other defendants charged under the same statute for their role in the riot on Jan. 6, in which a mob of former President Donald Trump's supporters seized the Capitol and interrupted the electoral ballot count that would eventually declare Joe Biden the winner of the 2020 presidential election.  For more than 120 defendants who have already been sentenced under the statute, challenging their convictions would depend on whether they've preserved their right to appeal, whether they've already used their shot at vacating a sentence and what other charges would remain.

It's not unusual for the high court to find prosecutors were overbroad in their interpretation of a criminal statute — in recent years, justices have limited the applicability of honest services fraud, aggravated identity theft and computer fraud statutes.  Nor is it unusual for people who have been convicted under an outdated interpretation of the law to face procedural hurdles in getting resentenced, criminal defense attorneys say. 

Time bars on criminal appeals and limits on post-conviction motions point to the federal courts' "very, very strong preference for finality," according to Erica Zunkel, a former federal public defender and a law professor who teaches in the University of Chicago Law School's Criminal and Juvenile Justice Clinic.  "There are different rules and regulations for how you can challenge convictions, how long you have to appeal, what issues you can raise and not raise," she said. "It wouldn't be novel for the Supreme Court to say the interpretation of this statute is overbroad. Truly, this is what happens day in and day out in the criminal system. And then the question is, what to do when the Supreme Court has changed the law."

May 3, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Tuesday, April 30, 2024

Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction

I received from a colleague an interesting new federal court order granting a § 3582 sentence reduction motion based in part on the difficulties associated with extended home confinement. The full ruling in US v. Reynods, No. CR-12-84-GF-BMM-6 (D. Mont. April 30, 2024), is available for download below.  Here is one key passage from the ruling:

The Court finds that extraordinary and compelling reasons exist to warrant a reduction of Reynolds’s sentence.  18 U.S.C. § 3582(c)(1)(A)(i). Reynolds’s age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually.  These factors appear, however, to rise to that level when viewed together.  Reynolds’s advanced age increases her need for consistent, adequate medical care.  Reynolds’s status on home confinement makes it more difficult to schedule medical appointments and impossible to obtain Medicare or supplemental insurance.  Reynolds’s advanced age also makes commuting more difficult.  Reynolds’s status on home confinement prevents, however, Reynolds from obtaining housing closer to her work, UAs, and counselor.  The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Reynolds’s sentence.

Download Reynolds Order Redacted Filed (002)

April 30, 2024 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 28, 2024


The title of this post is the title of this new essay authored by Youngjae Lee and published online in the Notre Dame Law Review Reflection. Here is its abstract:

“Proportionality” is ubiquitous.  The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history.  But that is not the only place where one encounters the concept of proportionality in law and ethics.  The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality.  Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of civilians.  Finally, constitutional theorists around the world outside the United States have been at work for decades on the principle of proportionality as a constitutional principle.  When so many different ideas come under the same label, confusion or at least ambiguity that could encourage confusion can easily creep in, which can lead to repeated mistakes and perpetuation and validation of erroneous thinking.  Accordingly, this Essay first discusses various ways in which the idea of proportionality is used in law and legal theory and documents and corrects certain misunderstandings and misleading arguments in the academic literature, particularly in the context of the Cruel and Unusual Punishments Clause of the Eighth Amendment of the United States Constitution.  This Essay then suggests that a better understanding of the term can yield new analytic and normative perspectives with which we might more effectively evaluate our current system of criminal law, policing, and punishment.

April 28, 2024 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 24, 2024

Prez Biden issues 11 pardons and five commutations to persons "convicted of non-violent drug offenses"

As stated in this press release from the White House, "President Joseph R. Biden, Jr. is using his authority under the Constitution to advance equal justice under law by granting clemency to 16 deserving individuals who were convicted of non-violent drug offenses." The release provide the names and various details about all the clemency recipients, though more background information is given concerning the 11 pardon recipients, and the basic sentence information is provided for the five persons who recieived prison sentence commutations. In this document, titled "Statement from President Joe Biden on Clemency Actions," comes this explanation:

America is a Nation founded on the promise of second chances. During Second Chance Month, we reaffirm our commitment to rehabilitation and reentry for people returning to their communities post incarceration.  We also recommit to building a criminal justice system that lives up to those ideals and ensures that everyone receives equal justice under law. That is why today I am announcing steps I am taking to make this promise a reality.

I am using my clemency power to pardon 11 individuals and commute the sentences of 5 individuals who were convicted of non-violent drug offenses. Many of these individuals received disproportionately longer sentences than they would have under current law, policy, and practice. The pardon recipients have demonstrated their commitment to improving their lives and positively transforming their communities. The commutation recipients have shown that they are deserving of forgiveness and the chance at building a brighter future for themselves beyond prison walls.

Like my other clemency actions, these pardons and commutations reflect my overarching commitment to addressing racial disparities and improving public safety. While today’s announcement marks important and continued progress, my Administration will continue to review clemency petitions and deliver reforms in a manner that advances equal justice, supports rehabilitation and reentry, and provides meaningful second chances.

The Department of Justice also has this list of the clemencies. It looks like most, but not quite all, of these clemency recipients were convicted and sentenced for crack offenses, with some of the pardon recipient crimes going back in the 1990s.  Most of the commutations are for folks given decades of imprisonment in the 2010s.

April 24, 2024 in Clemency and Pardons, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

Tuesday, April 23, 2024

Puzzling through the reach and application of the Eighth Amendment inspired by SCOTUS argument in Grants Pass case

I have listened to most of yesterday's Supreme Court oral argument in City of Grants Pass v. Johnson.  I share the basic sentiments reflected in the headlines of these press accounts of the SCOTUS argument:

From the New York Times, "Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments: A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors."

From NPR, "Supreme Court appears to side with an Oregon city's crackdown on homelessness"

From Vox, "The Supreme Court doesn’t seem eager to get involved with homelessness policy: Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be."

The subheadline of the Vox piece captures what I have been thinking about since listening to the Grants Pass argument.  It seems likely that there are at least six votes to reverse the Ninth Circuit's ruling based on the the Cruel and Unusual Punishment Clause of the Eighth Amendment.  But what will be the path for doing so? 

In this post a few weeks ago, I flagged commentary expressing concern that the Supreme Court might use the Grants Pass case as an opportunity to make a new and hard originalist turn in Eighth Amendment jurisprudence.  But I did not hear much during the oral argument to suggest that many Justices were eager to take up Eighth Amendment originalism as a means to resolve the case.  There surely could be some Eighth Amendment originalism in the Court's coming opinion, but I am now puzzling through other Eighth Amendment issues Grants Pass brings up that perhaps could provide other routes for the case's disposition.   Let me explain:

1. Civil versus criminal sanctionsJustice Thomas, in the first questions of oral argument, asked the lawyer for the City of Grants Pass, "have we ever applied the Eighth Amendment to civil penalties?"  The answer given, which I believe is correct, was " Not the Cruel and Unusual Punishments Clause, no."  That answer was well phrased, because the Supreme Court has applied the Excessive Fines Clause of the Eighth Amendment to "civil" sanctions.   The courts below in this case held that the Fines Clause was implicated by the city's anti-camping ordinance AND that the ordinance was criminal becuase repeat violations could lead to jail time.   But person one technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment when it only imposes a (modest? waivable?) fine for a first infraction.

2. Facial versus as-applied challengesI have never fully understood all the nuances around facial versus as-applied constitutional challenges, in part because it always seemed that Eighth Amendment claims must function as an as-applied challenge upon criminal enforcement.  Put another way, I have always assumed someone needs to first be subject to actual criminal prosecution with punishment threatened to litigate a Cruel and Unusual Punishment claim.  (A thought experiment: Could a doctor worried about new state laws criminalizing abortion bring an Eighth Amendment class-action challenge before being subject to any prosecution and even before he has performed any abortions?)  Then again, the courts below in this case held that the threat of enforcement was sufficient for standing, and arguably the categorical limits on application of the death penalty and LWOP for juveniles operate as a kind of class-wide, facial ruling about Eighth Amendment limits on statutory punishments.  Still, another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially challenged under the Cruel and Unusual Punishment Clause of the Eighth Amendment but only can be challenged in application on a case-by-case basis as it gets actually applied to different individuals.

3. Common-law defenses as constitutional defenses: The lawyer for the City of Grants Pass argued repeatedly that Oregon law recognizes a necessity defense which could be raised by homeless persons subject to the city's anti-camping ordinance.  Justice Gorsuch seemed particularly intrigued by this notion, but it is hard to sort through how this would doctrinally function as a matter of constitutional law.  Is just the availability of such a defense here, which is sure to be uncertain in application, enough to save the anti-camping ordinance from an otherwise winning Eighth Amendment claim?  Would such a ruling be tantamount to declaring that the Eighth Amendment makes a necessity defense sometimes constitutional required?  (Justice Gorush noted that it may make more sense to say a defense is required as a matter of due process, but he also recognized SCOTUS has rebuffed a due process claim regarding the insanity defense.)  Perhaps yet another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue is constitutional unless and until it is clear homeless persons are unable to advance an effective necessity defense in any criminal prosecution.   

Though some of these issues arose during oral argument, it is not clear any will be a focal point for the Court's coming disposition.  Many Justices seemed eager to make sure, in the words of Justice Kavanaugh, that "the federal courts aren't micromanaging homeless policy."  But, because the Justices are the only ones who define Eighth Amendment law, I hope they can at least avoid having this challening case create even more puzzling Cruel and Unusual Punishment jurisprudence.

April 23, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

US Sentencing Commission's new compassionate release data suggest (small) uptick in sentence reduction grants to close 2023

The US Sentencing Commission yesterday released this new compassionate release data report, which includes data on "the compassionate release motions filed with the courts and decided during the first quarter of fiscal year 2024."  (For the USSC, the first quarter of FY 2024 is actually the last three months of 2023.)   I noticed some interesting data points in this report comparing the sentence reduction grants and grant rates of the last three months of 2023 to prior months in 2023 and even earlier years.

Specifically, the months of October and December 2023 saw the highest grant rates for these motions (22.3% and 23% respectively) than for any month since the heart of the COVID pandemic in summer 2020.  Indeed, as Table 1 in the new USSC data shows, the only other month with a greater than 20% grant rate for these motions since August 2020 was in December 2022.  In addition, the total number of sentence reduction grants in Q1 of FY 2024 was also up as compared to recent prior quarters: there were 119 total grants in Q1 of 2024 compared to 81 in Q4 and 111 in Q3 and 114 in Q2 of FY 2023.

What explains the uptick in grants of compassionate release motions in Q1 of FY 2024?  I have two working hypotheses, one general and one 2023 specific: (1) maybe judges are slightly more likely in general to grant these sentence reductions toward the end of the year during the holiday season; and/or (2) maybe judges were influenced a bit by the new US Sentencing Commission policy statement governing compassionate release, § 1B1.13, which became formally effective on November 1, 2023.

Also, as I have noted before in this space, some other notable data points here come from the variations in grant rates from various circuits and districts.  Here is one example in this latest data: in the Second Circuit in this quarter, nine of 12 total resolved sentence reduction motions were granted; in the Third Circuitthis quarter only one of 23 motions were granted.

Critically, my eyeball assessment of these latest data (which reflect small numbers and lots of potential confounding factors) may just be an effort to encourage more systematic analysis of how federal district judges are continuing to use their sentence reduction authority.  Especially with COVID-based reasons likely no longer driving a large number of requests or grants for compassionate release, I hope we start to learn more about what facts and factors are providing most consequential in this form of federal judicial (re)sentencing decision-making.

April 23, 2024 in Data on sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, April 19, 2024

Recapping (incompletely) the SCOTUS argument week that was ... and looking ahead

I flagged in this post at the start of this week that the Supreme Court had a quartet of scheduled oral arguments on criminal issues.  Based on press reports, it seems that defendants/individuals had a pretty good week in court taking on the arguments from  prosecutors/state actors.  But, of course, we cannot know for sure who is truly victorious until we get opinions in a few months.  Here are links to various press stories suggesting where the Court seemed to be leaning in these cases:

Snyder v. US: "Supreme Court Poised to Cut Back Scope of Anti-Corruption Law"

Chiaverini v. City of Napoleon, Ohio: "Justices Wary Of Strict Limit On Malicious Prosecution Cases"

Fischer v. US: "Supreme Court gives skeptical eye to key statute used to prosecute Jan. 6 rioters"

Thornell v. Jones: "High Court Weighs New Sentence for Arizona Death Row Inmate"

Next week's six scheduled Supreme Court arguments are not exclusively crminal matters, but there are two big crime-related cases in the bunch.  On Monday, the Court takes up Eighth Amendment issues in City of Grants Pass v. Johnson and Presidential immunity issues in Trump v. United States.  I am inclined to guess that the Justices will have some more affinity for arguments from prosecutors/state actor in these cases as compared to those cases heard this past week.  But we shall see.

April 19, 2024 in Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 17, 2024

SCOTUS rules unanimously that federal forfeiture errors as subject to harmless-error review

The Supreme Court handed down one opinion in a criminal case this morning in US v. McIntosh, No. 22–7386 (S.Ct. Apr. 17, 2024) (available here).  This case was argued just over six weeks ago, and anyone who listened to the oral argument would have predicted this shiny apple result.  Here is how the Court's opinion, authored by Justice Sotomayor, gets started:

In certain criminal cases, Congress has authorized the Government to seek forfeiture of a defendant’s ill-gotten gains as part of the defendant’s sentence.  Federal Rule of Criminal Procedure 32.2 sets forth specific procedures for imposing criminal forfeiture in such cases.  In particular, Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.”

The question presented in this case is whether a district court that fails to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing is powerless to order forfeiture against the defendant.  In light of the Rule’s text and relevant precedents, this Court holds that the failure to enter a preliminary order does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.

April 17, 2024 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Monday, April 15, 2024

A couple of capital case dissents from denials of cert in latest SCOTUS order list

Though SCOTUS has a week full of criminal case oral arguments, it has been many months since the Justices granted cert in a criminal case.  Then again, it has been months since SCOTUS has granted cert in any case, and that trend did not change today with the release of this new order list.  But this latest order list did include a couple o dissents from the denial of cert in two capital cases.

In Michaels v. Davis, No. 23–5038, a capital case from California, Justice Jackson dissented from the denial of cert to complain about the harmfulness of the admission of a confession that was illegally obtained.  Here is a portion from the start of her four-page dissent:

In this capital case, the Ninth Circuit failed to exercise the required degree of caution. The divided panel assessed a 2-1⁄2-hour illegally obtained confession filled with disturbing details of a horrific crime like it was a compilation of factual information — no different from evidence introduced by other means.  That was legal error. Therefore, I would grant the petition and summarily reverse the Ninth Circuit’s decision as to the penalty phase, in order to facilitate a reassessment that involves the necessary rigor.

In Compton v. Texas, No. 23–5682, a capital case from Texas, Justice Sotomayor, joined by Justice Jackson, dissented from the denial of cert to complain about the way a Texas court reviewed the exercise of preemptory challenages in jury selection  Here is a portion from the start of her eight-page dissent:

In this capital case, prosecutors used 13 of their 15 peremptory strikes on women.  They offered only one justification in each case: the woman’s views on the death penalty. In reviewing the challenged jurors, the Texas Court of Criminal Appeals (TCCA) failed to conduct a side-by-side comparison.  Instead, it tested the prosecution’s justification in the aggregate, looking to the women’s views on capital punishment as a group instead of individually.  That legal error hid the best indication of discriminatory purpose.  Under a side-by-side comparison, it is clear that at least one woman struck by the State had more favorable views on the death penalty than at least one man the State did not strike.  I would summarily vacate the decision below and remand for the TCCA to apply the proper comparative analysis.

April 15, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 14, 2024

Lots of criminal justice issues this week at SCOTUS oral arguments

The Supreme Court gets back to hearing oral arguments on Monday, as it begins an April sitting full of notable criminal cases.  Next week brings argument on the notable Eighth Amendment Grants Pass case (recently discussed here), as well as Trump v. US to consider claims of presidential immunity.  But this week's arguments, all of which involve criminal issues, might lead to rulings that are quite consequential.  Here is what's coming, thanks to SCOTUSblog summaries:


Snyder v. U.S.No. 23-108 [Arg: 4.15.2024]

Issue(s): Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions.


Chiaverini v. City of Napoleon, OhioNo. 23-50 [Arg: 4.15.2024]

Issue(s): Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause.


Fischer v. U.S.No. 23-5572 [Arg: 4.16.2024]

Issue(s): Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.


Thornell v. JonesNo. 22-982 [Arg: 4.17.2024]

Issue(s): Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.

April 14, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, April 12, 2024

New study highlights appellate reversals of excessive sentences in New York

This lengthy Law360 article, headlined "Study Shines Light On Excessive NY Prison Sentences," reports on an interesting recent student about sentencing reversals in New York.  Here are excerpts:

A recent report shining a light on excessive felony prison sentences handed down by more than 140 trial judges in New York over a 16-year period has experts and advocacy groups calling for increased transparency to help ensure that courts are imposing fair penalties on criminal defendants in the Empire State.

The study by judicial accountability nonprofit Scrutinize, in partnership with the New York University School of Law's Center on Race, Inequality, and the Law, found that at least 140 trial judges in the state imposed prison sentences that were later deemed excessive on intermediary criminal appeal.  Of those, 65 judges saw sentencing decisions overturned on more than one occasion.  The 12 judges with five or more excessive sentence findings, meanwhile, had their sentences reduced by a total of 1,246 years.

The organizations urged the state judiciary to release sentencing data for individual judges that are currently not public, information they said could reveal patterns of oversentencing, and to publish an annual report summarizing excessive sentence findings to keep track of those trends....

According to the study, which looked at cases originating from the five counties of New York City and Nassau, Suffolk, Westchester, Orange, Rockland, Dutchess, and Putnam counties, two judges, Edward J. McLaughlin and Vincent Del Giudice, had a total of 39 excessive sentence findings combined, with the appellate court cutting a total of 684.5 years from the sentences they imposed. Justice McLaughlin, who presided over criminal matters in Manhattan, is now retired. Justice Del Giudice still hears criminal cases in Brooklyn.

According to the report, between 2014 and 2022, an average of 19,930 felony cases each year ended with a conviction after a guilty plea or a jury trial verdict.  In 2022, felony dispositions were nearly 15,800, but there were only about 1,100 appeals filed.  And, as acknowledged by the report's authors themselves, only a fraction — about 4% — of felony sentences are reduced for excessiveness on appeal.  That means that looking at overruled sentences provides an incomplete picture of judges' carceral attitudes.

The full study, which is titled "Excessive Sentencers: Using Appellate Decisions to Enhance Judicial Transparency," is available at this link. Here is its executive summary:

Increased focus on state judiciaries has significant potential to improve the criminal legal system.  Recognizing the need for evaluation metrics for judges, this report pioneers a data-driven, evidence-based approach to assessing the judiciary.  We analyze written appellate decisions to quantify individual trial court judges' decisions and impacts.  This methodology transforms complex judicial texts into accessible data, creating metrics of judicial performance for use by policymakers and the public.

This report introduces ‘excessive sentence findings’ as a method to assess individual judges’ decisions and their impact.  In New York, appellate courts review sentences for excessiveness and can reduce them in the “interest of justice,” a rare and clear signal — from highly-respected institutional actors — that a lower court judge made an exceptionally troubling choice.  We identify lower court judges with sentences reduced by appellate courts for being excessive and calculate the total number of years reduced from those sentences.

The study reveals patterns of repeated excessive sentencing by a number of specific judges, raising questions about judicial accountability in New York.

April 12, 2024 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 10, 2024

Might the Supreme Court completely rewrite Eighth Amendment jurisprudence in the Grants Pass case?

The question in the title of this post is discussed at some length in this new Marshall Project piece, which carries this full headline: "This Supreme Court Case on Homelessness May Limit Prisoner Rights and Expand Executions: In Grants Pass v. Johnson, a town in Oregon asks the court to reconsider what constitutes “cruel and unusual punishments."  I recommend the whole article, and here are a few excerpts:

When the Supreme Court hears the case of Grants Pass v. Johnson later this month, the justices will consider how far cities can go in policing homeless people. But just as the court swept away a half-century of precedent by overturning Roe v. Wade, the justices could use this case about homelessness to upend how we interpret four key words in the Bill of Rights — “cruel and unusual punishments.” Their decision could have ramifications across a wide swath of the criminal justice system, including prison conditions and the death penalty.

The case is about whether the city of Grants Pass, Oregon, violates the Constitution’s Eighth Amendment when it arrests, fines and even jails people without homes for sleeping outside.  A lower federal court recently ruled that punishing people for doing something they cannot help is cruel and unusual punishment. “As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the Ninth Circuit Court of Appeals wrote.

Grants Pass appealed the ruling up to the Supreme Court, which will hear oral arguments on April 22, positing that the courts have no business telling cities what behavior they can regulate.  The Eighth Amendment, they say, applies to punishments levied after a crime, not laws that establish what is a crime in the first place, and besides, fines and jail time are hardly cruel or unusual. 

At the heart of this debate are two very different ways of reading the Eighth Amendment.  First, there’s originalism.  In recent sweeping decisions on abortion and guns, conservative justices have focused on what the Constitution’s language meant to the men who wrote it in the 1780s.  But other judges and scholars argue for a “living” Constitution, whose meaning should change as the world changes....

Using the evolving standards argument, federal courts have ruled on access to health care in prison, protection from excessive force and limits on the use of solitary confinement. They have prohibited the death penalty and mandatory life-without-parole sentences for people who are younger than 18 when they commit crimes, as well as executions of people with intellectual disabilities. The language has also served as the basis for decades of decisions requiring that juries consider people’s individual, often trauma-filled lives before deciding whether to send them to death row.... 

More than 100 scholars and organizations have filed “friend of the court” briefs ahead of oral arguments in Grants Pass v. Johnson.  Many argue the court should let these rulings stand and continue to look to contemporary standards when deciding what is cruel and unusual. In one brief on the other side, Republican attorneys general from 20 states urged the justices to throw out the evolving standards interpretation entirely.  (Many of them also made similar arguments in a separate case, supporting Alabama’s request to execute a man with an intellectual disability.)  Among their reasons are that it “has no discernible end point” and that it requires “judges to act as sociologists.”

I somewhat doubt that many Justices will be inclined to use the Grants Pass csse to dramatically rewrite Eighth Amendment jurisprudence, but I understand why various folks are hoping or fearing such a possibility.  And, perhaps ironically, the fact that many amici have filled briefs urging the Court not to approach this case more broadly might perhaps incline some Justices to approach the case more broadly.  But in a Term full of high-profile cases with lots of broad echoes, the Justices may want to keep this one relatively simple.  And perhaps we will get a sense of matters during oral arguments in a couple of week.  In other woids, stay tuned.

April 10, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, April 07, 2024

"The Great Writ of Popular Sovereignty"

The title of this post is the title of this article authored by William M. M. Kamin now available via SSRN. Here is its abstract:

American habeas corpus, long conventionally known as the Great Writ of Liberty (“GWL”), is more properly understood as the Great Writ of Popular Sovereignty (“GWPS”).  That is: a tool for We the People to insist that when our agents in government exercise our delegated penal powers, they remain faithful to our sovereign will.  Once we grasp this conceptual shift, the implications for the law of habeas are profound.

In the past fifteen years, novel archival research has shown the GWL’s founding myth to be ahistorical -- that ideas about sovereignty, rather than individual liberty, drove the common-law writ’s development in the centuries of English history running up to its reception into American law.  Given widespread consensus that (1) English history should and does drive American habeas jurisprudence and (2) the sovereigntist account of that history should now be treated as authoritative, it is puzzling that American courts and scholars have continued to cling to the GWL mythos.  Meanwhile, American habeas law is in crisis, with an ideologically cross-cutting array of scholars and jurists criticizing it as intellectually incoherent, practically ineffectual, and extravagantly wasteful.  Over the Supreme Court’s past three Terms, Justice Neil Gorsuch has led a charge to hollow out federal postconviction habeas almost entirely, arguing that habeas courts should ask only whether the sentencing court was one of general criminal jurisdiction -- and not whether it violated federal constitutional law en route to entering the petitioner’s judgment of conviction.

An accurate understanding of the English history, soundly translated into the logic of American popular sovereignty, demands reconceptualizing the American writ as GWPS.  By following that imperative, we just might save American habeas jurisprudence from its present crisis.  Most critically, a theory of GWPS would illuminate the flaws in Justice Gorsuch’s historical argument for gutting postconviction habeas.  Paradoxically, shifting from the conceptual lens of GWL to that of GWPS would yield habeas doctrine more effective in protecting individual liberty.  Finally, such a shift would bring coherence to otherwise-inscrutable questions in the theory and doctrine of American habeas.

April 7, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Monday, April 01, 2024

"Context Is Everything In Justices' Sentencing Relief Decision"

The title of this post is the title of this new Law360 commentary that I authored regarding the Supreme Court's work in its recent Pulsifer ruling.  Here is how the commentary starts and closes:

"Context is everything." This adage could have been a mantra for both the U.S. Supreme Court majority and the dissenters in Pulsifer v. U.S., decided March 15. Pulsifer resolved an intricate statutory interpretation issue turning on a single word in a provision of the First Step Act.  The dispute concerned how to interpret the word "and" in the FSA's expansion of the "safety valve" provision of federal sentencing law, which exempts certain drug defendants from severe mandatory minimum sentences.

According to the Pulsifer majority, the narrow context of surrounding words and the provision's function called for reading "and" to limit the safety valve.  The dissent stressed the broader context of federal sentencing reform and practices to argue that "and" should be read to loosen that valve.  In the end, some even broader contexts help account for Pulsifer's resolution and the court's division....

The court repeatedly acknowledges that there "are two grammatically permissible" ways to interpret the revised safety valve, but the government's interpretation is to be adopted because it will "function without a hitch" as it "sorts defendants for relief (or not)."  A particular vision of how Congress would want the safety valve to "function" — and especially the notion that Congress likely would not want too many defendants eligible for a sentence below mandatory minimums — provides a critical undercurrent for the majority's application of the word "and" in this context.

In notable contrast, the dissent stresses individual liberty throughout: early on, the dissent highlights that "the lives and liberty of thousands of individuals" are at issue, and the importance of interpreting laws "in favor of liberty" is stressed at the close.  For the dissent, a particular vision of the court's role in protecting individual liberty — especially given that doing so here means only that a sentencing judge will have the usual authority to "'consider every convicted person as an individual' and pick punishments that 'fit the offender and not merely the crime'" — constitutes a purpose more transcendent than figuring out what interpretation of a criminal statute may "function" better. 

In the end, then, the justices' divergent visions of the judiciary's role may best account for their divergent visions of the meaning of the word "and" in Pulsifer.  The majority, comfortable having the court serve as a kind of agent of Congress, excogitated an interpretation of "and" that ensures not too many defendants "escape from otherwise applicable mandatory minimums."  The dissent, believing the court's work should always advance how a "free nation operates against a background presumption of individual liberty," castigates the majority for adopting "an interpretation that restricts safety-valve relief to thousands more individuals."  And these divergent visions are sure to influence how these justices interpret other words in other statutes in the future.

April 1, 2024 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 27, 2024

"Between Cooperation and Conflict in Second Look Sentence Review"

The title of this post is the title of this notable new paper authored by Kay Levine and Ronald Wright now available via SSRN. Here is its abstract:

In this article, we offer the first scholarly assessment of a new practice emerging in many state criminal courts: prosecutor-initiated second look sentencing, also called resentencing.  Attorneys working on resentencing matters consider the continuing integrity of a sentence imposed on a defendant years (or even decades) earlier, with an eye toward revising its terms.  They assess numerous factors, such as whether the defendant still presents a public safety risk, whether the defendant has taken advantage of prison programming, and whether the original sentence now appears disproportionate due to a shift in community values. Second look sentencing thus offers great promise as a means to correct for the punishment excesses of the past.

But as we recount from our original interviews, there are some cracks beneath the surface.  The defense and prosecutor roles in resentencing start from a structural power asymmetry that could weaken the spirit of cooperation that characterizes the early days of the practice.  There are gaps (both real and perceived) between the lofty aspirations of prosecutorial rhetoric at the time of adoption and the more limited reality that emerges when prosecutors start making case-level decisions, subject to resource and political limits. Faced with this frustrating disconnect, some defenders return to their traditional adversarial role and refuse to enable or endorse what they see as programmatic failure.  Left unchecked, these implementation roadblocks, combined with resource limits and political constraints, could delay the spread and blunt the effects of this innovative device.

March 27, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 25, 2024

Noting the notable new tune from the US Justice Department concerning part of the new guideline, Section 1B1.13, for sentence reductions

This recent Bloomberg Law piece, headlined "Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court," details how the Justice Department's legal opposition to one part of the US Sentencing Commission's new sentence reduction guideline, Section 1B1.13, could be laying the groundwork on a legal issue that might work its way to the US Supreme Court.  Usefully, the piece notes that the DOJ legal position now represents something of an about-face:

John Gleeson has fought to scrub away what he calls the injustice of “stacked” mandatory prison sentences in the eight years since he left the federal bench. The Debevoise & Plimpton partner’s work could soon face its toughest test: a face-off with the Justice Department at the US Supreme Court.  Gleeson, an ex-prosecutor, spent two decades as a federal district judge in Brooklyn before joining Debevoise in 2016. He’s the driving force behind “The Holloway Project,” a massive pro bono program focused on criminal justice reform....

A growing team of Debevoise lawyers have successfully represented 55 people to date, getting their prison sentences reduced by 2,230 years combined, according to the firm.  The project is now facing legal jeopardy. The DOJ is challenging Sentencing Commission guidelines that became effective in November, which Debevoise and others have used to obtain reduced sentences in some cases....

The Sentencing Commission guidelines went on the books in November, and they essentially dovetail the Debevoise arguments.  The guidelines allow criminal defendants who have served at least 10 years in prison to seek sentence reductions based on changes to laws that occurred after the sentencing.  A court can reduce a sentence in this situation if it finds a gross disparity between the original punishment and that likely imposed under the new law.  Gleeson is a member of the commission and was involved in developing the guidelines.

The problem is that the Justice Department has a different point of view. The agency continues to fight efforts to reduce sentences in several cases, arguing that the commission exceeded its authority by effectively making the excessive sentence reduction portion of the law retroactive.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said Erica Zunkel, who teaches at the University of Chicago and has collaborated with Debevoise lawyers. “The DOJ is more or less rolling out the same legal arguments in every case that raises this issue across the country.”  That marks a turnabout for the agency, which had previously urged the Supreme Court to wait until the Sentencing Commission made the rules Congress required.

The DOJ has “contradicted itself” by now arguing that the commission doesn’t have the power to answer those questions, according to US District Judge Timothy Batten.  “How can the Commission have the authority to address the question but exceed that authority by addressing the question?” Batten wrote in a case last month. “This argument lacks merit.”  Batten agreed to reduce the defendants’ sentence over prosecutors’ objections.

The issue is currently before district judges and some appeals courts in various cases. Gleeson and others expect it will ultimately reach the Supreme Court. “I would not be surprised if the Supreme Court did take it up,” said Elizabeth Blackwood, who has represented Debevoise co-defendants in her role as counsel and director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyers.

I believe the ruling referenced in this article by Chief Judge Batten came in US v. Allen, No. 1:09-cr-320-TCB (ND Ga. Feb. 12, 2024) (available here).  This ruling includes this passage (cites removed):

To hold that courts cannot consider nonretroactive changes to sentencing laws as extraordinary or compelling reasons would require courts to ignore the policy statement that Congress explicitly directed the Commission to create. The amendments revised the policy statement to unambiguously allow courts to consider nonretroactive changes in individual circumstances.  And nothing in § 3582(c)(1)(A)’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. Congress could have drafted a blanket prohibition into § 3582(c)(1)(A), but decided not to. Therefore, the Commission's decision to expand upon the policy statement was within its statutory authority and presents no separation of powers issues.

Further, the Government's argument contradicts itself. The Department of Justice has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” Amendments to the Sentencing Guidelines, supra at 6; see also [598] at 5 n.11. The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question?  This argument lacks merit.

March 25, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 21, 2024

Highlighting how new resentencing laws could help law students consider becoming prosecutors

Hillary Blout has this intriguing new Slate commentary headlined "One Simple Criminal Justice Reform Could Solve the Prosecutor Shortage Crisis."  The headline is a bit off because the commentary discusses a reform that is not really that "simple" and that surely would not alone "solve" the need for more prosecutors.  Nevertheless, the commentary is worth a full read and makes a good pitch for a concept I certainly favor.  Here are excerpts: 

[P]rosecutor-initiated resentencing is a form of “second-look” legislation that enables prosecutors to revisit old cases and propose revised sentences to the court. PIR posits that if prosecutors can recommend a sentence on the front end, then it is only just that they be able to look back, years later, and determine whether that sentence is still appropriate....

New research shows that there is a rapidly growing prosecutor shortage in this country, with retirements and resignations outpacing new recruits. In Miami, for example, 33 percent of prosecutor positions are unfilled.  Although some may cheer the shrinking scope of law enforcement officers, the shortage crisis may ultimately have a negative impact on reform efforts: If you want more reform, you actually need more prosecutors processing cases.

During the PIR process, prosecutors meticulously review cases, considering factors such as a person’s life before prison, how they have spent their time in prison, and their plans to reenter society. In the past five years, I have worked to advance this area of law, leveraging my experience as a former prosecutor who recognizes the importance of looking back. Today, five states — California, Washington, Oregon, Illinois, and Minnesota — have enacted PIR, resulting in nearly 1,000 people resentenced and given a second chance at freedom.  The process is favored by prosecutors because it centers victim input, rehabilitation, and public safety, making it a balanced and holistic reform.

One way PIR laws are engaging future attorneys is through law school clinics, fellowships, and internships.  These programs educate students about the multifaceted role of prosecutors — beyond influencing decisions on charging, bail, evidence, and plea bargains.  Through law clinics specifically, students review real cases of currently incarcerated people, scrupulously analyzing details over months and presenting them to elected prosecutors, who ultimately decide whether their offices will bring the person home.

Such clinical experience can broaden law students’ understanding of prosecution and reveal prosecutors’ power to effect change on the front end and the back end.  At the core, this challenges the adversarial nature of our criminal justice system.  Innovations like PIR have the power to recruit a young, diverse talent pool who may otherwise choose a different path than prosecution.

I have seen several such attorneys shift career paths toward prosecution after interacting with PIR and similar innovations early on in their careers. It is clear that dynamic innovations such as PIR encourage people who might otherwise not see themselves in these roles — first-generation college students, people of color, and women — to consider prosecution as a means of ensuring justice.

March 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Tuesday, March 19, 2024

Interesting discussion of Washington's 2020 law allowing prosecutor-initiated resentencing

The Seattle Times recently published this lengthy article providing an interesting overview of practices under a recent Washington law enabling prosecutors to seek resentencing when an original sentence "no longer advances the interests of justice."  This article is headlined "WA has no parole. Should prosecutors control who gets a second chance?".  The long article is worth reading in full, and here are excerpts:

Of Washington’s 39 elected county prosecutors, only about a third had sought resentencing under the 2020 law as of August, according to preliminary data gathered through public disclosure requests by a lawyer with the nonprofit Washington Defender Association.  Just three counties — King, Pierce and Clark — had five or more cases.

While that data is incomplete, an informal survey by Pierce County Prosecutor Mary Robnett’s office last November also suggests most of her peers have used the law sparingly or not at all.  Several prosecutors said sparingly is exactly how the law should be used, given the trauma that reopening cases would likely inflict on victims and their familiesthe seriousness of many charges involved and Washington’s firm sentencing guidelines.

But others say a broad opportunity for resentencing is needed given the state’s ending of parole in the early 1980s, its effect magnified by a tough-on-crime era that dramatically increased sentence lengths. About half of the roughly 13,000 people incarcerated in Washington prisons, as of December, are serving a sentence of more than 10 years.

With the limitations of SB 6164 apparent, some are questioning whether prosecutors should serve as gatekeepers. “I think it’s unfair that they’re the only players in the system who can say a person’s incarceration no longer serves the interest of justice,” said state Rep. Tarra Simmons.

March 19, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, March 17, 2024

Some new questions about how new guidelines are retroactively impacting old federal sentences

Spring is often about new beginnings, and I find myself with a couple new questions about whether, when and how some new guidelines have been (or have not yet been) impacting some old federal sentences.  This post may be mostly for the guideline-inclined, but here goes:

Question 1: How is implementation of the USSC's recent criminal history amendments (Amendment 821) going?  The US Sentencing Commission back in August 2023 voted to make retroactive its two big criminal history amendments (which reduced the impact of "status points" and lowered sentences for certain "zero point"offenders) effective as of February 1, 2024.  USSC data suggested that nearly 20,000 current federal prisoners could be eligible for a sentence reduction, and now I am wondering how implementation is going.  I expect the USSC will release retroactivity data in the coming months and years, and I hope the (often challenging) process of retroactive guideline implementation is going smoothly.

Question 2:  Are the Commission's retroactive guidelines rules wrongfully excluding too many persons?  This question is prompted by this new article in the lastest issue of the Federal Sentencing Reporter authored by Steve Sady titled "Retroactive Guidelines Amendments Must Apply to Individuals Who Receive Below-Guidelines Sentences to Protect the Individualized Sentencing Required by Federal Sentencing Statutes."  As the title suggests, this article argues that the USSC's retroactivity rules are too narrow.  Here is the article's abstract:

Retroactive amendments to the federal sentencing guidelines, such as Amendment 821 to the calculation of criminal history, confer discretion on judges to reduce sentences when the Sentencing Commission determines that a guideline is overly harsh.  The statute on retroactive amendments, 18 U.S.C. § 3582(c)(2), authorizes modification of sentences “based on” the pre-amendment guidelines range.  From the time of the initial Commission until 2011, all defendants whose guidelines range calculations included the amended guideline were eligible for a comparably lower sentence, regardless of whether the sentence was below-, within-, or over the guidelines range, under U.S.S.G. § 1B1.10.  But in response to Booker, the Commission amended the policy statement in 2011 to bar from eligibility persons who received below-guidelines sentences, whether by downward variance or departure.

This change reflected the earlier Commission’s hostility to Booker variances under the advisory guidelines and conflicts with subsequent Supreme Court authority holding that downward variances are “based on” the guidelines range within the meaning of § 3582(c)(2).  By disqualifying those who had grounds for below-guidelines sentences, the Commission fails to follow statutory directives regarding individualized sentencing and avoidance of unwarranted disparities.  The exclusion of persons who established that downward departure or variance was warranted under the overly harsh pre-amendment guidelines is irrational and unfair, apparently based on an anachronistic attachment to the mandatory guidelines.  The Commission should amend its policy statement without delay to recognize eligibility for all defendants whose sentences are “based on” the guidelines range within the broad meaning of the statute.

March 17, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Might Pennsylvania's top court pioneer new constitutional checks on extreme felony murder sentences?

The question in the title of this post is prompted by a notable case recenly accepted for review by the Pennsylvania Supreme Court. This recent Bolts article by Victoria Law. This piece should be read in full (like all Bolts pieces), though the full headline covers the essentials: "Pennsylvania Reckons with Its Draconian Laws on Life Imprisonment: Over 1,000 Pennsylvanians are serving life without parole sentences for murders they didn’t themselves commit. The state supreme court agreed to review whether this is constitutional." Here are excerpts: (with links from the original):

In 2014, [Derek] Lee, then age 29, participated in a burglary in which his accomplice fatally shot the homeowner. Lee had not been involved in the killing and wasn’t even in the room at the time.  Nonetheless, two years later, he was convicted of felony murder, a type of charge that prosecutors can bring against someone who was involved in a crime that led to a death, even if the death was unintentional or the defendant didn’t participate in the killing.

In Pennsylvania, felony murder is classified as second-degree murder, and all convictions for second-degree murder trigger an automatic sentence of life without parole.  These abnormally draconian laws have made Pennsylvania home to near-record numbers of people sentenced to die in prison.  The state has the second-highest number of people serving life without parole, nearly 5,100 people; approximately one in five have been convicted of felony murder. ...

Life without parole has frequently been proposed as a more humane alternative to the death penalty, but advocates for reform call it “death by incarceration.” Ashley Nellis, senior researcher with the Sentencing Project, points out that LWOP sentences allow for virtually no second chance no matter a person’s transformation or the amount of time that has elapsed.  “The state is killing you, just slower — and for a wider range of offenses or participation in those offenses,” she said.

Nellis points out that the expansion of life without parole has far outpaced the decline in the death penalty. The number of people serving life without parole has jumped 66 percent since her organization began collecting data in 2003, reaching roughly 56,000 people as of a 2021 report by the organization. In Texas, for instance, the number of life without parole sentences has grown as the number of those sentenced to death has dropped. “When you’re looking at a death sentence, you have a capital attorney and [other] special rights given to you because of the seriousness of the sentence,” Nellis noted, but those protections are not available to those facing LWOP.

March 17, 2024 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (29)

Friday, March 15, 2024

In notable 6-3 split, SCOTUS rules in Pulsifer that "and" means "or" for application of FIRST STEP safety valve

The Supreme Court this morning handed down its opinion in the sentencing case of this Term I have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back onthe first day of this Term).  Specifically, Justice Kagan authored the opinion for the Court, while Justice Gorsuch filed a dissenting opinion joined by Justices Sotomayor and Jackson.  Here is how the Court's lengthy opinion (available here) gets started: 

The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms.  To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history.  That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence.  In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”

The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions.  On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C.   Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three.  The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief.  On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C.  Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three.  Today, we agree with the Government’s view of the criminal-history provision.

Justice Gorsuch's dissent, which runs even longer than the Court's opinion, kicks off:

The First Step Act of 2018 may be “‘the most significant criminal justice reform bill in a generation.’” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9.  Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences.  In part due to these policies, the federal prison population grew by more than 100% in less than a decade.  In the First Step Act, Congress sought to recalibrate its approach.  It did so by promising more individuals the chance to avoid one-sizefits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act.  Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests.  After the Act, all those tests remain, only the first is now less demanding.  As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense.  In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits — A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief ).  Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits — A, B, or C.

If this difference seems a small one, it is anything but.  Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance — just a chance — at an individualized sentence.  For them, the First Step Act offers no hope.  Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result.  Ordinary meaning is its first victim.  Contextual clues follow.  Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.  Respectfully, I would not indulge any of these moves.

Though I will need some time to read and re-read these opinions before having firm thoughts, this ruling serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts.  I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS (sometimes led by Justice Scalia or Justice Stevens or Justice Kennedy reversing circuit rulings for the government).  But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.

March 15, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Thursday, March 14, 2024

US Sentencing Commission releases latest "compassionate release" data through Sept 2023

The US Sentencing Commission has now released its very latest data on sentence reduction motions on this webpage, which also includes additional graphics and context about court dispositions of what are typically known as "compassionate release" motions.  This Fiscal Year 2023 data run includes information through September 2023 (which is technically before the Commission's new guideline became law, but after it had been submitted to Congress).

As I have noted before, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see in FY 2023 many fewer sentence reduction motions filed or granted.  Though there are month-to-month variations, it would be roughly accurate to say that an average month of FY 2023 had a few dozen compassionate release motions granted and a few hundred of these motions denied nationwide.  In will be interesting to see if the relatively stable monthly patterns here change in any significant way in FY 2024 when the Commission's new guideline became the new law of the land (as of November 2023).

As I have noted before, among the striking stories in these data are the variations in application and grant rates from various districts.  As one example from the FY 2023 data, the Eastern District of Michigan granted half of a small number of sentence reduction motions (5 of only 10), whereas the Western District of Michigan granted none of a large number of sentence reduction motions (0 of only 60).  Similarly, the Northern District of Illinois granted nearly half of these motions in FY 2023 (13 of 27), whereas the Central and Southern District of Illinois each granted only one such motion out of a pool of 44 motions. 

There are all sorts of other interesting data points in this new report.  For example, it seems that a distinctively larger number of drug defendants secured sentencing reductions in FY 2023 (making up roughly 60% of the reduction grants while comprising only roughly 45% of the federal prison population).  Also, reasons reported by judges for granting these motions are also intriguing.

March 14, 2024 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 07, 2024

"Eighth Amendment Stare Decisis"

The title of this post is the title of this new paper authored by William W. Berry III and available via SSRN. Here is its abstract:

In 2008, the United States Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment barred death sentences for the crime of child rape because such punishments were cruel and unusual.  In 2023, Florida passed a statute that directly contravenes this constitutional rule.  Under the Florida statute, committing sexual battery against a child is a capital offense.

In a vacuum, one might expect the Court to strike down Florida’s statute as clearly unconstitutional in violation of the Eighth Amendment based on the principle of stare decisis. Traditionally, the concept of stare decisis has referred to the obligation of the Court to follow prior precedent.

The Court’s description of the scope of stare decisis stems from its abortion cases. The Court initially explained stare decisis in Planned Parenthood v. Casey, but arguably loosened in meaning its decision in Dobbs v. Jackson Women’s Health Organization.  Indeed, the Court’s decision in Dobbs, in which it reversed the fifty-year old precedents of Roe v. Wade and its successor Casey, suggests that the Kennedy case could face a similar fate.

But the Eighth Amendment contains substantive doctrinal characteristics that suggest it is unique with respect to stare decisis.  In particular, the Eighth Amendment’s relationship to stare decisis is unusual because the premise of the underlying doctrine is that the meaning of the Amendment will change over time.  Pursuant to “the evolving standards of decency mark the progress of a maturing society,” the Eighth Amendment expands over time to bar punishments formerly constitutional but now determined to be draconian.

As such, there become two possibilities with respect to applying stare decisis under the Eighth Amendment.  First, stare decisis could mean what it means in other contexts — deferring to precedent and refusing to overrule a prior decision unless it rises to the level of the previously Casey and now Dobbs test. A lternatively, stare decisis could mean following the evolving standards of decency doctrine.  This approach contemplates the Amendment would change over time, such that stare decisis would require overruling of precedent, moving the case law in a progressive, less punitive direction.

This Article argues for the latter reading.  Specifically, the Article makes the novel claim that the Eighth Amendment has its own unique stare decisis doctrine, the doctrine moves in one direction, and such a reading of the Eighth Amendment is consistent with the Court’s decision in Dobbs.

In Part I, the Article explores the origins of the unique doctrine of Eighth Amendment stare decisis.  Part II examines past and future applications of this doctrine.  Finally, in Part III, the Article explains why the Court’s decision in Dobbs supports Eighth Amendment Stare Decisis.

March 7, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, March 03, 2024

Despite robust clemency record, one high-profile commutation garners Missouri Gov lots of negative headlines

I flagged in this post from this past Thanksgiving that Missouri Gov Mike Parson had devoted considerable resources to processing clemency requests and, as of then, having "denied about 2,400 clemency requests while granting 613 pardons and 20 commutations."  And this past week, Gov Parson continued his serious clemency work as reported in this March 1 press release: "For the month of February 2024, Governor Mike Parson granted 36 pardons and approved three commutations pursuant to Article IV, Section 7 of the Constitution of the State of Missouri.... In addition to granting 36 pardons and three commutations, Governor Parson denied 63 clemency applications in February."

But one high-profile commutation from last week is already getting far more attention than all of Gov Parson's other clemency work.  Here are the details from this local press report:

Missouri Gov. Mike Parson has commuted the sentence for former Kansas City Chiefs assistant coach Britt Reid on Friday.  Reid, the son of Chiefs head coach Andy Reid, pleaded guilty in 2022 to driving while intoxicated, resulting in a crash that seriously injured then-5-year-old Ariel Young.  He was then sentenced to three years in prison.

But Parson’s move Friday means Reid’s sentence has been reduced.  The governor’s office said Reid will be released, and he will serve the remainder of his sentence, until Oct. 31, 2025, under house arrest.  “Reid has completed his alcohol abuse treatment program and has served more prison time than most individuals convicted of similar offenses,” Parson’s office said in a statement.  Reid will be required to meet with a probation officer weekly, attend behavioral counseling and meetings with a peer support sponsor, and fulfill 30 hours of work a week and 10 hours of community service per month.

Court documents show Reid was intoxicated with a blood alcohol level of .113 and driving about 84 mph at the time of the crash near Arrowhead Stadium in February 2021.  The speed limit in that area is 65 mph.  Reid hit two parked vehicles on the on-ramp to Interstate 435. Ariel Young, who was 5 years old at the time of the crash, suffered a traumatic brain injury in the wreck.... 

Young’s family disagreed with Reid’s plea deal.  Her mother said she wanted Reid to be sentenced to the maximum of seven years. “Where was he when we were in hell? He wasn’t in jail,” Young’s mother wrote.  For his part, Britt Reid told the judge: “I regret what I did. I made a huge mistake. I apologize to the family. I didn’t mean to hurt anybody that night.”

This commutation is generating all sorts of negative headlines:

From The Daily Beast, "Victim’s Family Slams Gov. for Pardoning NFL Coach’s Son"

From the Kansas City Star, "Mike Parson’s startling commutation of Britt Reid sentence is injustice to Ariel Young"

From KSHB, "Jackson County prosecutor says she believes sentencing of Britt Reid was 'just': Family of Ariel Young, those involved in the case not contacted by Parson"

From the St. Louis Post-Dispatch, "Missourians react with dismay to Parson’s commuting DWI sentence of former Chiefs coach"

March 3, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, March 01, 2024

Thourough review of the current state and notable leader of the Justice Department's Office of the Pardon Attorney

Bloomberg Law has this effective new article on DOJ's Pardon Attorney and the work of her office.   I recommend the lengthy piece in full, and here are just a few snippets:

When Liz Oyer, the first known former public defender to lead the Justice Department’s pardon office, arrived in April 2022, she moved in a collection of 22 framed photographs of women serving life sentences. Oyer then commissioned a formerly incarcerated sketch artist to display around 350 copies of his black-and-white profile portraits of fellow inmates he’d originally drawn in the prison yard....

Converting her wing of a drab federal complex into a museum of compassion is one of multiple ways Oyer, 45, has tried maneuvering within strict boundaries to transform the functions and stature of a unit that’s felt out of place in a department led primarily by prosecutors. She reports up to a deputy attorney general’s office filled with career prosecutors who can reject her suggestions to grant clemency before they reach the White House. “I wasn’t sure as somebody who was coming from a public defense background and not having worked in DOJ previously how it would be for me in this building,” said Oyer, who was also previously a partner at global law firm Mayer Brown. “And it’s really turned out to be a wonderful opportunity that has exceeded my expectations.”

Although Oyer has told allies during an active public speaking campaign that she’s working to elevate her office’s influence in broader DOJ policy discussions, some advocates see President Joe Biden’s limited embrace of clemency thus far (13 pardons, 124 commutations) as a telling sign. “The metaphor is pretty strong that we’re talking about people who are literally confined, and there’s a way in which Liz is confined by the structure of this process,” said Mark Osler, a leading clemency scholar and law professor at the University of St. Thomas.

The outcomes of the petitions the office endorses take on heightened stakes in the president’s final guaranteed year in office. If Biden loses re-election in November, he’d have a chance to follow the model of past presidents in signing most of their clemency grants on their way out. But a Trump victory would portend a setback to Oyer’s efforts. In Trump’s prior term, his aides set up an informal system of bypassing the DOJ by welcoming those with access to go directly to the White House.

Trump has also campaigned on promises to pardon the Jan. 6 Capitol rioters, and he has said that he has the “absolute right” to pardon himself, leading to speculation that he would do so if he’s convicted in one of the two federal indictments he’s now facing. Asked how her office might fare in a potential second Trump administration, Oyer said, “This is not a political office. I’m not a political appointee.” She added that “the office will continue to function at a high level regardless of what happens outside” it.

Presidential election aside, Oyer has won praise from even the office’s past critics for her efforts to increase transparency, such creating easier-to-read application forms and holding a speaking tour at federal facilities to instruct inmates on how to file.

“For many years I think the office of the pardon attorney was seen as a place where commutation petitions went to disappear,” said Mary Price, general counsel of the organization Families Against Mandatory Minimums, which has advocated for a broadly revamped pardon office. “The opaque nature of the office has always disturbed advocates and obviously people who are seeking a commutation or a pardon.” Oyer’s transparency in the role has been “terrific,” Price said.

Her efforts can only go so far, however. “At the end of the day, it’s not their decision; it’s not Liz Oyer’s decision,” Price said. “It’s President Biden’s decision, and it remains to be seen how much impact the office will have.”

March 1, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, February 21, 2024

SCOTUS confirms that "an acquittal is an acquittal" in crazy Georgia case

The Supreme Court this morning handed down two unanimous opinions, one of which came in the criminal case of McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here).  Justice Jackson authored the ten-page opinion for the Court, which starts this way:

Under Georgia law, a jury’s verdict in a criminal case can be set aside if it is “repugnant” — meaning that it involves “affirmative findings by the jury that are not legally and logically possible of existing simultaneously.” 308 Ga. 104, 111, 839 S. E. 2d 573, 579 (2020).  In this case, a jury found that petitioner Damian McElrath was “not guilty by reason of insanity” with respect to a malice-murder count, but was “guilty but mentally ill” regarding two other counts — felony murder and aggravated assault — all of which pertained to the same underlying homicide.  Invoking the repugnancy doctrine, Georgia courts nullified both the “not guilty” and “guilty” verdicts, and authorized McElrath’s retrial.

McElrath now maintains that the Fifth Amendment’s Double Jeopardy Clause prevents the State from retrying him for the crime that had resulted in the “not guilty by reason of insanity” finding.  Under the circumstances presented here, we agree.  The jury’s verdict constituted an acquittal for double jeopardy purposes, and an acquittal is an acquittal notwithstanding its apparent inconsistency with other verdicts that the jury may have rendered.  

Justice Alito added a two-paragraph concurrence, which starts this way:

I join the opinion of the Court but write to clarify my understanding of what we have held. In this case, there was indisputably an acquittal on the malice-murder charge. The jury returned a not-guilty verdict on that count, the trial judge entered a judgment of acquittal on that count, and petitioner appealed that part of the judgment. Because the Constitution does not permit appellate review of an acquittal, the State Supreme Court’s decision must be reversed. As I understand it, our holding extends no further

February 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Tuesday, February 20, 2024

SCOTUS order list includes a notable statement in a habeas denial

The US Supreme Court is back in action this morning, staring with the release of this lengthy order list.  The list includes no grants of certiorari (and any "normal" grants these days would not be heard until the fall anyway).  But the list does conclude with a number of dissents and statements regarding the denial of review, one of which involves a federal criminal case.  

In In re Bowe, No. 22–7871 (S. Ct. Feb. 20, 2024) (available here), Justice Sotomayor, joined by Justice Jackson, issued a three-page statement respecting the denial of the petition for a writ of habeas corpus.  Here are excerpts: 

Under §2244(b)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 U. S. C. §2244(b)(1).  State prisoners seek federal postconviction relief under §2254.  Federal prisoners seek postconviction relief under §2255.  This petition raises the question whether §2244(b)(1)’s bar, which explicitly references only §2254, also applies to a claim by a federal prisoner who brings a successive challenge to his conviction under §2255....

JUSTICE KAVANAUGH has previously expressed his desire for this Court to resolve [the 6-3 circuit] split [over the reach of this bar on state prisoner petitions].  Avery v. United States, 589 U. S. ___, ___ (2020) (statement respecting denial of certiorari) (slip op., at 2).  I now join him.  There is a reason, however, that this is the first case to reach the Court presenting this question since he welcomed petitions on the split in Avery.  There are considerable structural barriers to this Court’s ordinary review via certiorari petition....

I would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious §2255 claims.  The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.

I still recall fondly when the Second Circuit in US v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system.  I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket.

February 20, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, February 15, 2024

Another reminder of the long life (and possible ending) of life without parole sentences

This local news piece, headlined "Man, 77, released from prison after serving decades for 1965 murder conviction," caught my eye because of the numbers involved.  Here is part of story behind the numbers:

A 77-year-old man has been released from prison after receiving a new sentence for a 1965 felony murder conviction, in the wake of a decision by the Michigan Court of Appeals declaring mandatory life without parole sentences for 18-year-old defendants unconstitutional.

Ivory Thomas was convicted in October 1965 at age 18 of first-degree felony murder for fatally stabbing 18-year-old Michael Railsback in Dueweke Park during a robbery. However, in 2022, the Michigan Supreme Court decided that mandatory life without parole sentences for 18-year-old defendants violate the Michigan state constitution’s prohibition against cruel and unusual punishment.

Judge Chandra Baker-Robinson resentenced Thomas this week to 40 to 60 years. Thomas was released Tuesday, a spokesperson for the Department of Corrections confirmed. He was serving his sentence at the Thumb Correctional Facility in Lapeer....

The Wayne County Prosecutor’s Office did not object to Thomas’ resentencing, according to a news release. Prosecutor Kym Worthy’s office said Thomas has community support and Railsback’s family does not object to his release.

February 15, 2024 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, February 14, 2024

Noting the first beneficiaries of Minnesota’s felony murder reforms

A helpful reader made sure I did not miss this effective review of the recent sentencing consequences of Minnesota's recent reforms of its felony murder laws.  Here are part of the story and some context:

Two women convicted in connection with a 2017 home invasion murder were released from prison last week because of a change in state law. Megan Christine Cater, 25, of Lakeville and Briana Marie Martinson, 27, of Prior Lake are the first people to be released from custody after legislators overhauled Minnesota’s felony murder statute.

While the two admitted taking part in the burglary of Corey Elder’s apartment, a judge found that they did not share responsibility for his murder....

Cater and Martinson were not in the bedroom with [Maurice] Verser when he fired the fatal shot. But in a deal with prosecutors, the women pleaded guilty to aiding and abetting second-degree unintentional murder. In 2018, Judge Kerry Meyer sentenced them to 13.5 years each. Then in 2023, lawmakers in the DFL-led Minnesota Legislature put new restrictions around the state’s felony murder statute. Under the old law, prosecutors could charge a person with aiding and abetting murder during the commission of an underlying felony no matter their role in that felony.

Mary Moriarty, a longtime public defender who was elected Hennepin County Attorney in 2022, supports the change. “It is not fair when two people get charged with murder when one of them pulled the trigger and the other one had no idea this was going to happen,” Moriarty said. “Certainly both people have to be held accountable, but they should be held accountable for what they actually do.”

Moriarty noted that under the old felony murder law, a killer who signs a plea deal could wind up with a shorter sentence than his accomplice who drove the getaway car and is convicted at trial.

The revised statute limits felony murder prosecutions to people who caused the victim’s death, intended to cause it, or were major participants in the underlying crime. Legislators made the changes retroactive. That allowed Cater and Martinson to petition the court to vacate their murder convictions. Last week, Judge Meyer resentenced Martinson and Cater to 57 and 69 months respectively for burglary with a firearm. Because they’d already served that time, the two left prison....

In an email to MPR News, Cater’s attorney and University of Minnesota law professor JaneAnne Murray said that Minnesota’s old felony murder law has resulted in sentences for too many defendants that are disproportionate to their culpability. “Our client was only 19 at the time of her offense, and she did not intend or participate in a murder,” Murray wrote. “It is right and just that she, and many similarly-situated to her, get punished for what they did, and not for the conduct of others.”

Bobbie Elder, Corey Elder’s mother, countered that the women were major participants in the burglary and their felony murder convictions should stand, even under the new law. “Megan Cater and Briana Martinson were the masterminds behind this entire thing,” Elder told MPR News. “They were the planners of it. They were the ones who ensured that there was a gun on scene. If all they wanted to do was rob somebody, they wouldn’t have had to go to the extremes of planning what they did....”

Last month Meyer rejected Tarrance Murphy’s bid for a sentence reduction after determining that he was a major participant in the robbery and admitted pointing the gun at Townsend.

Long-standing complaints about felony-murder laws among academics and many others typically focus on the failure of such laws to match offense levels and sentencing outcomes to true culpability, especially in situations in which a defedant has little or no culpable mens rea with respect to someone else's killing.  But, as the comments by the mother of the victim here highlights, judgments about culpability can often be highly contested.  This story suggests that the new Minnesota law give judges consideable discretion to assess culpability in this context (though that has to be challenging to do many years after an offense).

February 14, 2024 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Is wilted Garden State clemency about to be spruced up?

The (not-that-clever) question in the title of this post is my reaction to this new press piece headlined "NJ Gov. Murphy says ‘broad’ groups will be eligible for clemency soon."  Here are excerpts:

New Jersey Gov. Phil Murphy says large groups of people convicted of crimes could become eligible for clemency soon. “I would hope sooner than later, within the next month or two, we're going to unveil a process … that will be, I think, revolutionary relative to what you've seen in New Jersey historically,” Murphy said Tuesday during the monthly “Ask Governor Murphy” call-in show on WNYC.

Murphy said the initiative would look at “broad categories of individuals who would automatically be eligible upon application for accelerated consideration” of clemency.  The governor, however, stopped short of saying who might receive clemency, or for what types of crimes.

Murphy’s comments expand the brief mention he made last month during his State of the State address, when he promised to unveil a clemency initiative “that will ensure we live up to our promise as the state for second chances.”

Since taking office in 2018, the governor has not taken clemency actions, either through reducing prisoners’ sentences or granting pardons, Politico reports.  On Tuesday, Murphy said the initiative is still being worked on, but promised that New Jerseyans would hear more about it soon.  Pressed on why he has yet to take any clemency actions, Murphy said that’s “not atypical” for a governor. He said that his impression is that most officials with clemency authority wait until the end of their time in office to make those decisions.

Murphy’s predecessor, former Gov. Chris Christie, issued 55 clemency orders during his time in office, and about half happened in the final days of his term....

During Tuesday’s show, Murphy said he shared a caller’s frustration over years-long backlogs in the state’s expungement process.  In 2019, Murphy signed a law allowing New Jerseyans to expunge their records of most crimes, with exceptions such as murder and sexual assault, if they kept their record clean for ten years. But in October 2023, the New Jersey Office of the Public Defender filed a class-action lawsuit against the state police over delays in processing expungement orders.

I do not know much about clemency practices "i New Jersey historically," though I do know that serving as a Governor for more than six years without a single clemency grant is some pretty ugly history.  But even the most wilted gardens, and Garden State practices, have the potential to be revitalized, and I am pleased to hear Gov Murphy apparently has something better in the works.

As vaguely described above, I am left wondering if the Jersry Boys are drawing inspiration and guidance from the work of Governor Mike DeWine here in Ohio with our great Expedited Pardon Project.  (I am biased in my praise for Ohio's EPP effort in part because OSU's Drug Enforcement and Policy Center (DEPC) has been playing a significant role helping the Governor's clemency work through this ground-breaking program and we recently celebrated at OSU the many pardons that Gov DeWine has already granted.)  There would be a sound basis for other Governors to follow the lead and clemency achievements of Ohio Gov DeWine here, and I hope were hear more soon about what Gov Murphy has in the works.

A few ilder posts about the Ohio "Expedited Pardon Project":

February 14, 2024 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Monday, February 05, 2024

With possible opinions this week, might SCOTUS soon answer if "and" means "or" in Pulsifer safety valve case?

Regular readers likely recall that I have been watching closely the SCOTUS sentencing case of Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act.  The unclear statute at issue in Pulsifer became law in 2018, was dividing circuits by 2021,and the Pulsifer cert petition was filed in October 2022 and granted by SCOTUS in February 2023.  (In addition, the US Sentencing Commission felt compelled in 2023 to build guideline amendments around the statutory ambiguity.)  A resolution of the issue in Pulsifer — which can be imperfectly summarized as a question of whether "and" means "and" or "or" in the context of an expansion of the safety value mandatory minimum exception — has long been needed and has been a long time coming.

But the Supreme Court has now indicated that on Thursday, the day the Justices are scheduled to hear oral argument on whether Donald Trump is now constitutionally ineligible to be President, it "may announce opinions."  I think that means we will definitely get at least one opinion, though how many and which one are left as matter of speculation.  So, in this post, I am speculating on the chances that we could get Pulsifer this week.  And though I am wishing hard that the Pulsifer opinion is just days away, and even though the Pulsifer oral argument was the very first of this current Term, I am not getting my hopes up.

The Justices have been notably slow in the release of opinions this Term, and Adam Feldman here at Empirical SCOTUS has some great data and thoughts on opinion pacing.  So, it wil not surprise me if we were to get only one or two opinions this week.   And, historically, the opinions that get handed down "earlier" are those that are unanimous or nealy unanimous.  The oral argument in Pulsifer suggested a divided court, with at least a couple Justices appearing to have strong views on each side of the case.  Though I suspect we will get Pulsifer within the next few months and not have to wait until late June, I would not place a prop bet that it's coming this week.  But it would be cool to be proven wrong with this prognostication.

A few prior related posts about SCOTUS Pulsifer case:

February 5, 2024 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 01, 2024

Two new grants of sentence reductions rejecting DOJ's arguments that change in the law an improper ground

A helpful reader made sure I saw two notable new grants of sentencing-reduction motions. I recommend the both full opinions as they covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline. Here are links to the opinion and key snippets from the rulings:

US v. Capps, No. 1:11-cr-00108-AGF (ED Mo. Jan. 31, 2024):

the Government argues that subsection (b)(6) is an invalid exercise of the Commission’s authority.  Specifically, the Government contends that subsection (b)(6) conflicts with § 3582(c)(1)(A) because nonretroactive changes to sentencing law are neither extraordinary nor compelling.  The Government further argues that the subsection raises separation-of-powers concerns because it contradicts Congress’s deliberate choice not to make the change in sentencing law here retroactive.

The Court disagrees. “Congress is not shy about placing [sentencing modification] limits where it deems them appropriate.”  Concepcion, 597 U.S. at 494. In this case, Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. See § 3582(c)(1)(A). Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction.

The absence of any such limitation is telling. Congress could have drafted such a blanket prohibition into § 3582(c)(1)(A), as it did in 28 US.C. § 994(t) by specifying that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”  See also Concepcion, 597 U.S. at 483 (“Congress has shown that it knows how to direct sentencing practices in express terms.”).  Congress chose not to impose a similar prohibition with respect to nonretroactive changes in the law.

Download United States v. Capps - Grant (2023.01.31) (002)

US v. Padgett, No. NO. 5:06cr13-RH (ND Fla. Jan. 30, 2024):

The government also asserts that reducing a sentence based on a statutory change that Congress did not make retroactive is inconsistent with Congress’s decision not to make the change retroactive.  Not so.  When Congress chooses not to make a change retroactive, it means the change cannot be invoked by every affected defendant.  It does not repeal § 3582(c)(1)(A)(i) or prevent an affected defendant whose circumstances are extraordinary and compelling from invoking that provision.  See Ruvalcaba, 26 F.4th at 27–28.  Congress could rationally decide to change a statute — by changing the criteria for or length of minimum mandatory sentences, for example — and not to make that change a basis for a sentence reduction in a typical case, while still allowing a reduction in extraordinary and compelling circumstances.  And indeed, that is precisely what Congress has done.  Congress has said rehabilitation alone cannot be an extraordinary and compelling reason for a sentence reduction, but Congress has imposed no other limits on those terms. Id. at 25–26.  Neither the Sentencing Commission nor the courts are obligated to read into the statute an exception Congress did not enact. Id. at 26.

Download Foey Padgett Order reducing sentence b6 is legal (002)

February 1, 2024 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Wednesday, January 24, 2024

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

January 24, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (28)

Tuesday, January 23, 2024

Unsurprisingly, en banc Fifth Circuit seeming chilly toward notion that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last summer a split Fifht Circuit panel ruled in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and this Bloomberg Law report on today's en banc oral argument certainly does not change my prediction:

Conservatives on the US Court of Appeals for the Fifth Circuit seemed skeptical of ruling for convicted felons seeking to declare a lifetime voting ban in Mississippi cruel and unusual punishment under the US Constitution.  Republican appointees on the New Orleans-based court at the en banc argument on Tuesday raised the implications of finding that permanent disenfranchisement of the right to vote is cruel and unusual, and how it could create issues in other contexts.

And some judges suggested that the issue is one for legislators, not the court.  Judge Kyle Duncan, a Donald Trump appointee, said that if the same arguments were presented to the Mississippi Legislature, they may “have a lot of purchase, but we are a court of law.”

Judge Edith Jones, a Ronald Reagan appointee who was the lone dissenting vote on the circuit panel whose ruling was reviewed en banc, asked about people convicted of crimes like murder and rape regaining the right to vote.

Judge James Ho, another Trump appointee, asked how far a ruling finding a deprivation of the right to vote is a cruel and unusual punishment could stretch into other issues. Ho suggested that a court ruling that found depriving someone of the right to vote falls under the Eighth Amendment could be raised in other contexts, like a felon’s right to possess a gun or challenges to prison sentences. “If it’s cruel and unusual to deprive felons of one right, it could apply to other rights,” Ho said.

The Mississippi Constitution states that certain felons can’t vote for the rest of their lives, unless two-thirds of each house of the Legislature reinstates the right on an individual basis. A trial court in Mississippi rejected most of the claims by felons, who had completed their sentences, in a pair of class action suits challenging the ban, but said one claim challenging the process to restore voting rights could go to trial. The divided three-judge Fifth Circuit panel ruled in August that the plaintiffs lacked standing to challenge the way voting rights are restored, but that permanently depriving felons of the right to vote was a “cruel and unusual punishment.”

Judge Stephen Higginson, appointed by Barack Obama, questioned Mississippi Solicitor General Scott Stewart about whether the provision is a qualification to vote, or a punishment. Stewart said “nothing on the face” of the provision itself “shows a punitive intent.” Stewart said that voting is “not just a right, it’s a responsibility.” He said that the Supreme Court has already found that states can disenfranchise felons, and that Mississippi had determined that people convicted of certain crimes should not be able to make governing decisions for other citizens....

The en banc Fifth Circuit in 2022 rejected another challenge to the Mississippi voting ban, that alleged it violated the U.S. Constitution’s Equal Protection Clause.

Prior related posts:

January 23, 2024 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Another FIRST STEP Act sentence reduction for last of "Newburgh Four" defendants involved in "FBI-orchestrated conspiracy"

In this post six months ago, I flagged US District Judge Colleen McMahon's notable opinion in US v. Williams, in which she explained why she was reducing the sentences of three of the "Newburgh Four" defendants using her authority under the FIRST STEP Act's revisions to 18 USC § 3582(c)(1)(A).  The other shoe dropped late last week in this matter, as reported in this AP piece headlined "Judge orders release of ‘Newburgh Four’ defendant and blasts FBI’s role in terror sting."  Here are excerpts from the press account:

U.S. District Judge Colleen McMahon on Friday granted James Cromitie, 58, compassionate release from prison six months after she ordered the release of his three co-defendants, known as the Newburgh Four, for similar reasons. The four men from the small river city 60 miles (97 kilometers) north of New York City were convicted of terrorism charges in 2010.

Cromitie has served 15 years of his 25-year minimum sentence. The New York-based judge ordered Cromitie’s sentence to be reduced to time served plus 90 days.

Prosecutors in the high-profile case said the Newburgh defendants spent months scouting targets and securing what they thought were explosives and a surface-to-air missile, aiming to shoot down planes at the Air National Guard base in Newburgh and blow up synagogues in the Bronx. They were arrested after allegedly planting “bombs” that were packed with inert explosives supplied by the FBI.

Critics have accused federal agents of entrapping a group of men who were down on their luck after doing prison time.

In a scathing ruling, McMahon wrote that the FBI invented the conspiracy and identified the targets. Cromitie and his co-defendants, she wrote, “would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.” “The notion that Cromitie was selected as a ‘leader’ by the co-defendants is inconceivable, given his well-documented buffoonery and ineptitude,” she wrote.

Cromitie was bought into the phony plot by the federal informant Shaheed Hussain, whose work has been criticized for years by civil liberties groups. McMahon called him “most unsavory” and a “villain” sent by the government to “troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.”

Judge McMahon's full opinion in US v. Cromitie, 09 CR 558-01 (CM) (SDNY Jan. 19, 2024), is available at this link. Here is just one notable passage in an opinion filled with notable passages:

Nothing could be more certain than the fact that Cromitie and his codefendants would not have, and could not have, devised on their own a crime involving missiles that would have warranted the 25-year sentence the court was forced to impose.  See United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).  Then Chief Judge Jacobs, who would have overturned Cromitie's (and only Cromitie's) conviction on entrapment grounds, said it best: "It is clear that Cromitie in his unmolested state of grievance would (for all the evidence shows, and as the district court found) have continued to stew in his rage and ignorance indefinitely, and had no formed design about what to do.  The government agent supplied a design and gave it form, so that the agent rather than the defendant inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets. He had to, because Cromitie was comically incompetent, possibly the last candidate one would pick as the agent of a conspiracy." Id. at 230.

Had the Government not contrived its elaborate sting operation, it is highly likely that Cromitie would have lived out his life in Newburgh, quite possibly cycling in and out of jail for a string of petty offenses, but never committing a crime remotely like the ones for which he has been sitting in a federal penitentiary for 15 years.  My misgivings about how the Government ensnared and then arranged things so that these men could be charged with crimes that carried a 25 year mandatory minimum factored significantly in my decision not to sentence them to more than the mandatory minimum (their Guideline, predictably, was life).  I was fully aware, at the time the sentence was imposed, that it did not accord with the so-called "parsimony clause" in 18 U.S.C. § 3553(a); as noted above, I said so.

Prior related post:

January 23, 2024 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Monday, January 22, 2024

Supreme Court grants cert to take another look at capital case of Richard Glossip

Almost exactly nine years ago, on January 23, 2015 to be precise, the Supreme Court granted certiorari in Glossip v. Gross to consider whether Oklahoma's execution methods complied with the Eighth Amendment.  The Supreme Court's ruling for the state in the 2015 version of Glossip did not fully resolve execution jurisprudence, and it also did not lead to Oklahoma executing Richard Glossip.  Nearly a decade later, as detailed in this new SCOTUS order list, the Supreme Court is going to take a look at the substance of Glossip's capital conviction and sentence in a case now titled Glossip v. Oklahoma.

The Glossip cert petition this time around presented this set of questions:

1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

Intriguingly, the SCOTUS cert grant today adds a question (and suggests it could be down one Justice for the case):

In addition to the questions presented, the parties are directed to brief and argue the following question: Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. Justice Gorsuch took no part in the consideration or decision of this motion and this petition.

January 22, 2024 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, January 21, 2024

Detailing what follows historic Massachusetts ruling on life sentences for young adults

I noted here the ruling from earlier this month by the Massachusetts Supreme Judicial Court, Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), holding that article 26 of the Massachusetts Declaration of Rights precluded imposition of a life without parole sentence on any offender under age 21.  It seems that this ruling could impact hundreds of prisoners, and the aftermath of Mattis is discussed in this lengthy press piece headlined "What happens now that Massachusetts has banned life without parole for emerging adults?".  Here are excerpts:

Prison advocates, attorneys and state officials are gearing up to help the estimated 200 prisoners now eligible for parole since a landmark decision last week by the Massachusetts Supreme Judicial Court raised the minimum age to 21 before people could be sentenced to life without parole.

The Committee for Public Counsel Services, the state’s public defender agency, says it is working with the Parole Board to identify prisoners who are newly eligible to be considered for release as the agency prepares at least 40 attorneys to represent them.

Attorney Ruth Greenberg, who represented the defendant Sheldon Mattis in the first-in-the-nation case, says the decision provides solace to prisoners who committed crimes between the age of 18 and 20 who were anticipating spending their entire lives behind bars. “People who were entirely without hope, who have reformed themselves, now have an opportunity to return to the world to show the Parole Board what they've done and who they really are, and that they are better than they were on their worst day,” Greenberg told GBH News....

Officials from the Committee for Public Counsel Services say prisoners impacted by the decision fall into two categories: people who are immediately eligible for parole, because they’ve already served enough time; and those who now can hope for the possibility of release sometime in the future.

If the person's offense occurred before July 25, 2014, their sentence will now be life with the possibility of parole after 15 years. If their offense occurred on or after that date, their sentence will be life with the possibility of parole after between 20 and 30 years. The decision requires Superior Court judges to resentence each prisoner.

Mara Voukydis, director of the Parole Advocacy Unit at CPCS, said the agency’s role is to make sure that the people impacted by the decision have a trained attorney to represent them. Voukydis says she’s been in touch with the Department of Correction and the Parole Board for months in anticipation of the decision. The Parole Board is tasked with calculating people’s parole eligibility dates. Voukydis says this is “complicated work,” because some people have consecutive sentences.

At that point, the public defender agency will assign attorneys based on people’s parole eligibility dates. Lisa Newman-Polk, an attorney who expects to represent some of these new clients, says older prisoners will likely get priority. “They [CPCS] want to get the oldest and longest-serving prisoners assigned counsel first and then kind of work downwards towards the youngest people,” she said....

Advocates say the Parole Board has experience in gearing up, following the 2013 decision that first prohibited life without parole to juvenile defenders. “I do think that anyone that wants a hearing will have a hearing as promptly as possible,” she said. "I'm just not clear what that actually means.”...

Tim McGuirk, spokesperson for the Parole Board, said board members are focused on public safety. “The Massachusetts Parole Board is currently reviewing the decision and is committed to fulfilling its responsibilities under the law,” he said. “Parole is granted when the Board determines that an individual can serve the remainder of their sentence in the community without violating the law, and that their release is not incompatible with the welfare of society.”

January 21, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, January 14, 2024

Notable district court ruling that circuit precedent precludes reduction of extreme stacked 924(c) sentence

A helpful reader made sure I saw a notable new denial of a sentencing-reduction motion in US v. Carter, No. 07-374-1 (ED Pa. Jan. 12, 2024) (available for download below).  I highly recommend the full 25-page opinion; it covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline, a debate that is sure to play out in federal district and circuit courts across the nation in the months ahead.  Here is the start of the opinion and the ruling's concluding paragraphs:

Johnnie Carter is currently serving a de facto life sentence — 840 months, or 70 years — for a string of armed robberies he committed in 2007.  The bulk of this sentence was the result of Carter’s conviction on three charges brought under 18 U.S.C. § 924(c), each of which earned him lengthy, mandatory terms of imprisonment that must be served consecutively.  Congress has since enacted the First Step Act, Pub. L. 115-391, 132 Stat. 5222 (2018), which among its many provisions amended Section 924(c) to substantially lower these mandatory minimums going forward.  As a result, the Government agrees that Carter “is serving a long sentence that would be significantly lower if imposed under current law.”

Carter now moves to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).  That statute, commonly referred to as the compassionate-release statute, authorizes district courts to reduce an imposed term of imprisonment upon a finding that “extraordinary and compelling reasons warrant such a reduction.”  In support of his motion, Carter points to a recently promulgated policy statement from the U.S. Sentencing Commission, which states that an “unusually long sentence,” coupled with a non-retroactive change in the law, can constitute an extraordinary and compelling reason to modify a sentence. U.S.S.G. § 1B1.13(b)(6).  He further highlights his strong family ties, evidence of rehabilitation, and good conduct while incarcerated as “other circumstances” warranting a reduction.  Id. § 1B1.13(b)(5). The Government opposes the motion, arguing that the Sentencing Commission’s recent policy statement exceeds its statutory authority, and that Carter’s circumstances do not otherwise warrant a reduction....

When considered together, these factors paint a clear picture of a defendant who, while undoubtably having earned himself a significant term of imprisonment for serious and violent offenses, does not deserve to spend his life behind bars.  If permitted to do so, the Court would be inclined to agree with his argument that a shorter sentence would be “sufficient, but not greater than necessary, to comply with the purposes” of federal sentencing. 18 U.S.C. § 3553(a). But, as discussed in Parts II.A and II.B, supra, Third Circuit precedent forecloses a finding that “extraordinary and compelling reasons” warrant compassionate release.  Unless and until that changes, his remedy lies not with the judicial branch, but with Congress — which could make its amendments to Section 924(c)’s mandatory minima retroactive — or the executive — whose clemency power operates as “the ‘fail safe’ in our criminal justice system.” Herrera v. Collins, 506 U.S. 390, 415 (1993).

Carter’s progress towards rehabilitation has been laudable, and the sentence he is serving is both unduly long and grossly disproportionate to the sentence a similarly situated defendant would receive today.  But in light of the Third Circuit’s decision in Andrews, these considerations cannot serve as the kinds of “extraordinary and compelling reasons” required to find him eligible for compassionate release.  As such, his motion must be denied.

Download US v. Carter (E.D.Pa.) - DE417 - Opinion Denying Compassionate Release

I have explained in numerous prior posts why I think rulings like Andrews, the Third Circuit precedent that dictates the conclusion in this case that an "unduly long and grossly disproportionate" sentence cannot be modified, is a misreading of § 3582(c)(1)(A)(i).  As I see it, the plain text of applicable statutes, which state only that "rehabilitation alone" cannot be considered an extraordinary and compelling reason, do not permit circuit courts making its own policy by deeming other factors catergorically insufficient for ever serving as the basis of a sentence reduction.

Notwithsanding what seems like clear statutory text, prior to the Sentencing Commission's revision to guideline 1B1.13, the circuit courts divided almost evenly as to whether so-called "changes in law" could provide a basis for a sentence modification.  This new Carter ruling leads me to suspect we will see a similar pattern of rulings replicated in new rounds of motions and appeals.  At some point, the Supreme Court will need to weigh in. 

January 14, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, January 12, 2024

Supreme Court grants cert on Eighth Amendment issue relating to enforcement of public camping restrictions to homeless

As flagged in this recent post, SCOTUS Justices have been actively considering two especially notable Eighth Amendment cases, and this afternoon via this new order list the Court formally granted cert in City of Grants Pass, Oregon v. Johnson.  The cert petition in this case presented the Question Presented this way:

In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the person has “access to adequate temporary shelter.”  Id. at 617 & n.8.  In this case, the Ninth Circuit extended Martin to a classwide injunction prohibiting the City of Grants Pass from enforcing its public-camping ordinance even through civil citations.  That decision cemented a conflict with the California Supreme Court and the Eleventh Circuit, which have upheld similar ordinances, and entrenched a broader split on the application of the Eighth Amendment to purportedly involuntary conduct.  The Ninth Circuit nevertheless denied rehearing en banc by a 14-to-13 vote.

The question presented is: Does the enforcement of generally applicable laws regulating camping on public property constitute “cruel and unusual punishment” prohibited by the Eighth Amendment?

Regardless of the issue, it is often a solid bet that the Supreme Court grants cert with an eye on reversal.  Predicting a reversal here seems especially wise given both the particulars of the ruling below and the apparent views of the current Justices on applying the Eighth Amendment.  But the terms of Eighth Amendment debate (and likely reversal) in this new case could prove both interesting and quite important, especially since the current Court has taken up so few Eighth Amendment rulings in recent years.

January 12, 2024 in Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, January 11, 2024

Might a couple very different Eighth Amendment issues still get on the SCOTUS docket this Term?

Over at SCOTUSblog, John Elwood has the latest of his always informative "Relist Watch" posts available here with the title "OT2023’s last grants?".  Here is an accounting for that title:

The court will be taking a second look at nine cases.  In some ways, that is to be expected.  The court typically casts a broad net at the second January conference, because it’s usually the last conference at which cases can be granted and heard during the April argument session without expedited briefing.  So this week’s list likely includes the last of the grants to be decided this term.

And here is his accounting of two of the relisted cases dealing with very different Eighth Amendment issues (with links from the original):

The most high-profile case of the bunch is City of Grants Pass, Oregon v. Johnson, which has gained some media attention.  A divided panel of the U.S. Court of Appeals for the 9th Circuit held that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the Constitution for the city of Grants Pass, Oregon, to enforce its anti-camping ordinance against homeless people when the local homeless population outstrips the capacity of local homeless shelters.

Fifteen judges dissented from the 9th Circuit’s refusal to rehear the case en banc. Grants Pass now petitions for review, arguing that the 9th Circuit’s decision is not only egregiously wrong, but entrenches a circuit split. Underscoring the importance of the issue, 24 briefs have been filed by an array of amici, from law enforcementofficials to California Governor Gavin Newsom to the homeless advocates the LA Alliance for Human Rights....

The Supreme Court held in Atkins v. Virginia that it violates the 8th Amendment’s prohibition on cruel and unusual punishments to subject intellectually disabled offenders to capital punishment.  Then the court in Hall v. Florida and Moore v. Texas adopted a definition of intellectual disability that looked to (among other factors) “significantly subaverage intellectual functioning,” and in particular, IQ testing and whether “the lower end of [the offender’s] score range falls at or below 70.”

Joseph Clifton Smith was convicted and sentenced to death for murdering Durk Van Dam so he could steal his boots, tools, and $140.  In repeated IQ tests, Smith scored 78, 75, 74, 74, and 72.  On habeas review, the district court held that Smith was intellectually disabled, noting among other things that because his 72 score had a 3-point margin of error, his IQ could be as low as 69.  The U.S. Court of Appeals for the 11th Circuit affirmed.

In Hamm v. Smith, Alabama argues that the record is inadequate to prove intellectual disability because only the lowest of Smith’s five tests satisfies the threshold, and only then at the outer limit of the standard of error.  In addition, Alabama asks the justices to overrule Hall and Moore or at least clarify that those cases permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s margin of error.

January 11, 2024 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split Massachusetts top court rules "life without parole for emerging adults" violates state constitution

The Massachusetts Supreme Judicial Court today handed down a very legnthy ruling, reflecting a 4-to-3 vote among the justices, addressing a constitutional challenge to LWOP sentencing imposed on persons under 21 at the time of thier offense. The ruling of the majoirty in Commonwealth v. Mattis, No. SJC-11693 (Mass. Jan. 11, 2024) (available here), gets started this way:

When it comes to determining whether a punishment is constitutional under either the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, youth matters.  See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015).  In Miller, supra at 465, 476, the United States Supreme Court struck down mandatory life imprisonment without the possibility of parole for juveniles based in part on the "mitigating qualities of youth."  Approximately one and one-half years later, this court went further than Miller and concluded that sentencing a juvenile to life without parole in any circumstance would violate art. 26.  See Diatchenko I, supra at 669-670.

The defendant, Sheldon Mattis, was convicted of murder in the first degree, among other charges, and was sentenced to a mandatory term of life in prison without the possibility of parole, see G. L. c. 265, § 2 (a). Commonwealth v. Watt, 484 Mass. 742, 754-756 (2020).  On appeal, he challenged the constitutionality of his sentence as applied to him. He argued that because he was eighteen years old at the time of the murder, he is entitled to the same protection as juvenile offenders (i.e., those from fourteen to seventeen years of age) convicted of murder in the first degree, who receive a term of life with the possibility of parole. See G. L. c. 265, § 2 (b).

Here, we consider whether our holding in Diatchenko I should be extended to apply to emerging adults, that is, those who were eighteen, nineteen, and twenty years of age when they committed the crime.  Based on precedent and contemporary standards of decency in the Commonwealth and elsewhere, we conclude that the answer is yes.

There are a number of concurrences and dissents, and here are a few paragraphs paragraph from the start of the lead dissent authored by Justice Jowy:

I cannot say that society, through its elected officials, may not express its revulsion of the crime of murder in the first degree by imposing a punishment of life without the possibility of parole on adults without offending our Declaration of Rights.  Therefore, I respectfully dissent....

Our assessment under art. 26 is not whether the mandatory imposition of life without the possibility of parole for individuals from eighteen to twenty-one is, in our view, wise, prudent, or even best for society.  Our inquiry is limited to whether the punishment, chosen by the Legislature, is so disproportionate that it reaches the level of cruel or unusual. See Diatchenko I, 466 Mass. at 669.  Because, under our contemporary standards of decency and precedent, the mandatory imposition of life without the possibility of parole on adults who commit murder in the first degree when they are from eighteen to twenty-one is not "so disproportionate" that "it 'shocks the conscience and offends fundamental notions of human dignity,'" id., quoting Cepulonis, 384 Mass. at 497, the sentence does not violate art. 26's proscription against cruel or unusual punishment. It therefore must be upheld.

January 11, 2024 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Friday, January 05, 2024

Two new papers examining administrative law issues around USSC's new sentence reduction guideline

Jaden Lessnick has posted to SSRN recently two notable new papers discussing administrative law issues related to the US Sentencing Commission's recent amendment to USSG § 1B1.13, the sentence reduction policy statement. Here are the titles, links and part of the abstracts of these pieces:

"Will Federal Compassionate Release Survive the Death of Chevron?"

This Essay charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron.  By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference.  On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement.  Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.

"Is U.S.S.G. § 1B1.13 an Elephant, and Is § 994(t) a Mousehole? Why the Sentencing Commission’s New Compassionate Release Policy Statement Does Not Violate the Major Questions Doctrine"

This Article debunks the recent suggestion by many that the Commission’s updated compassionate release policy statement violates the major questions doctrine.  After describing the status quo lay-of-the-law, this piece proceeds through the text and statutory history of the sentence-reduction statutes to show why § 1B1.13’s changes-in-the-law provision is unlike the actions invalidated in the Court’s recent major questions cases, such as West Virginia v. EPA and Biden v. Nebraska.  Though the amended policy statement has been the source of recent political controversy, this Article shows that the policy statement actually reflects a narrowing of the Commission’s historical authority.  It concludes by confronting the nascent split among the Court’s conservatives on the status of the major questions doctrine’s clear-statement rule, contending that under either view, the Commission’s actions had clear congressional authorization.

January 5, 2024 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, January 02, 2024

Framing how holiday federal clemencies should be remembered after the holidays

As noted in this post, Prez Biden used his clemency pen in notable ways on the Friday just before Christmas. To kick off the new year, Rachel Barkow and Mark Osler have this new Hill commentary that seeks to frame what's really memorable and important about his latest actions. The piece's headline, "Biden’s marijuana clemency grants are a small present in a big box," captures on of its themes. Here are excerpts from a piece that should be read in full:

Most of President Biden’s Dec. 22 grants of clemency were a small gift in a big box. His claim to “have exercised my clemency power more than any recent predecessor has at this point in their presidency” is pure hyperbole, but underneath might be the seed of a truly significant movement towards more meaningful uses of federal clemency.

President Biden’s clemency grants covered two categories.  The first was in the big box.  It was his extension of an earlier categorical pardon that covers people convicted of simple possession or use of marijuana, or “attempted simple possession of marijuana,” including those convicted in the District of Columbia and on federal lands.

Biden’s original announcement of this categorical pardon last year came with great fanfare. It got lots of favorable press.  But underneath all the gift wrapping and tissue paper, there is not much there. Not a single person was released from prison as a result of Biden’s proclamation.  There is a popular conception that many people are moldering away in federal prisons for simply having some marijuana.  This just isn’t true and hasn’t been for decades....

It is the second category of grants from Dec. 22 that holds the promise of significant clemency relief.  President Biden commuted the sentences of 11 people who were serving extraordinarily long sentences for nonviolent drug distribution offenses. Four of the people were serving life sentences and all but one of the others were serving sentences of 20 years or more.

Eleven grants from a backlog of more than 16,000 clemency petitions waiting for action is hardly grounds for applause. But sometimes big things come in small packages.  These are exactly the kinds of cases that President Biden should be focused on. They might not get the press of the big marijuana proclamation, but these are the cases where clemency really matters. Unjust sentences that should have never been issued will be corrected as a result of those 11 grants. Eleven human beings will be released from prison.

January 2, 2024 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)