Thursday, August 18, 2022

California board, after 17 rejections, finally paroles last person convicted in 1976 school bus mass kidnapping

This Los Angeles Times article, headlined "Man behind 1976 kidnapping of 26 Chowchilla children and bus driver is granted parole," reports on a notable parole outcome this week.  Here are just some of the interesting particulars:

A parole board affirmed Tuesday that Frederick Woods, one of three men convicted of kidnapping a school bus full of 26 children and their driver in Chowchilla, Calif., in 1976 in an effort to coerce a $5-million ransom, will be released.

Woods, 70, was first found suitable for parole in a hearing at the California Men’s Colony in San Luis Obispo on March 25, marking the 18th time he appeared in front of the parole board, according to Terry Thornton, a spokesperson for the California Department of Corrections and Rehabilitation. Woods had previously been denied parole 17 times.

Gov. Gavin Newsom referred Woods’ parole grant for review by the board, which occurred Tuesday. Woods’ release date was not disclosed because of safety and security reasons, Thornton said.

Woods, with accomplices Richard and James Schoenfeld, had schemed for more than a year on a kidnap for ransom plan. An appeals court ordered Richard Schoenfeld’s release in 2012; then-Gov. Jerry Brown granted release for James Schoenfeld, Richard’s brother, in 2015.

In July 1976, farmer and bus driver Ed Ray was driving a yellow school bus carrying elementary students from Dairyland Unified when he saw a white van stopped in the road. Ray slowed the bus to see if those in the van needed assistance, and three men armed with guns jumped out, commandeering the bus and driving it into a dry canal bottom, where they had left another van.

Ray and the schoolchildren were loaded into the two vans and driven for 11 hours to a quarry in Livermore, 100 miles from Chowchilla. The kidnappers forced them to climb down a ladder into a moving trailer they buried.

Ray and some of the children started stacking mattresses, ultimately managing to get out of the trailer 16 hours later. Meanwhile, the three kidnappers left and tried to contact the Chowchilla Police Department to make their ransom demand but were unable to get through because the phone lines were busy. They napped and awoke to the news of the escape, and were captured or surrendered within weeks. Ray was hailed as a hero. He died in May 2012 at age 91.

James Schoenfeld told parole officials that he was jealous of his friends who had “his-and-hers Ferraris.” Woods, who was 24 at the time of the crime, said during an earlier parole hearing that he just “got greedy,” saying in 2012 that he didn’t need the money. Woods is the son of Frederick Woods III, who owned the quarry and a 100-acre Portola Valley Estate; the Schoenfelds came from the family of a wealthy Menlo Park podiatrist. “I’ve had empathy for the victims, which I didn’t have then,” Woods said at the March parole hearing. “I’ve had a character change since then.”...

Madera County Dist. Atty. Sally Moreno came out against Woods’ release in a statement after the hearing. “It’s hard to articulate everything I’m feeling — all the suffering that he caused to those children throughout their lives, which will continue unabated; his continuing inability to conform his behavior to the rules demonstrating his own unrepentance and lack of rehabilitation; his obvious lack of understanding of the impact his acts have on others as demonstrated by the totality of his conduct in prison,” she said....

Jennifer Brown Hyde, one of the survivors opposing Woods’ parole and who now lives in Tennessee, was 9 years old during the kidnapping. She said she and her family were “disappointed in the parole board’s decision.”...

The three men were convicted of kidnapping with bodily harm and given life sentences. Newsom’s father, state Judge William Newsom, was on the 1980 appellate panel that reduced their life sentences to give them an opportunity at parole. William Newsom advocated for the kidnappers to be released in 2011, saying no one was seriously injured in the incident. He died in 2018.

Survivor Larry Park, who supported Woods’ release during the March parole hearing, said he believes Woods “served enough time for the crime you committed.” However, Park encouraged Woods to seek help. “I’m concerned about the addiction you may have about money,” Park said.

August 18, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 16, 2022

Notable new polling on prison oversight and criminal justice reform attitudes

Via email I learned this morning that the organization FAMM released the results of a new national poll on various criminal justice questions.  The polling explored most fully prison oversight issues and the FAMM email about the poll stressed that "among other findings, an overwhelming 82% of respondents said they believe 'that states and the federal government should have a system of independent oversight for their prisons'."  Here are a couple of other key broader criminal justice findings from the poll:

-- 79% of respondents said that they think the criminal justice system "needs significant improvements"

-- 74% of respondents generally support "reforming the nation's criminal justice system"

The detailed poll findings about prison oversight are not easily summarized here, but they are discussed a bit more in this FAMM press release. (Notably and valuably, this survey was completed before last week's search of Mar-a-Lago.)

August 16, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, August 13, 2022

Notable Oregon Court of Appeals ruling upholds broad clemency grants against legal challenges

Fans of clemency law and history will want to be sure to check out a big recent ruling by the Oregon Court of Appeals in Marteeny v. Brown, 321 Or App 250 (Aug. 10, 2022) (available here). The start of the 40+-page opinion provides an effective overview of its coverage:

In 2020 and 2021, Oregon Governor Kate Brown granted clemency to approximately 1,026 convicted felons, comprising three groups: (1) individuals “vulnerable to the effects of COVID-19,” (2) individuals who had fought “the historic wildfires that ravaged the state around Labor Day 2020,” and (3) 73 individuals who were sentenced as juveniles before the passage of Senate Bill (SB) 1008 (2019), sec-25 of which was codified as ORS 144.397.  SB 1008 made substantial changes to the prosecution and sentencing of juvenile offenders, including providing for early release hearings, conducted by the Board of Parole and Post-Prison Supervision (BOPPS), after 15 years of incarceration. The legislature did not make SB 1008 retroactive.  The effect of the Governor’s commutation order for these 73 individuals was to afford them the same procedure, under ORS 144.397, that would be afforded to a juvenile offender convicted today.

Two groups of relators — Douglas Marteeny, Linn County District Attorney, and Patricia Perlow, Lane County District Attorney (the DA relators), and four family members of victims of the crimes of which the some of the youth prisoners were convicted (the victim relators) — petitioned the Marion County Circuit Court for a writ of mandamus directing the Governor, the Department of Corrections (DOC), the Oregon Youth Authority (OYA), and BOPPS “to honor and follow all procedural and substantive provisions of Oregon law.”  In their legal arguments, relators argue that the commutations here were procedurally flawed, and unlawful for a variety of reasons that we detail below.  But underlying those technical arguments exists a palpable emotion that deserves acknowledgement: relators feel that they have been denied justice.

As we detail below, the clemency power of presidents and governors traces its origins to the earliest days of English common law.  The arguments and emotions present in this case echo through the centuries.  The power to pardon, sitting within a singular executive — be they monarch, president, or governor — has always been controversial, seemingly at odds with legislative determination and judicial decision-making.  Whenever it has been used, it has lauded by some, and condemned by others.  We are not called here to judge the wisdom of the Governor’s clemency of these 953 individuals; that is a political question.  We are tasked solely with determining her authority to do so under Oregon law.  And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute.

August 13, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 10, 2022

"When a Prison Sentence Becomes Unconstitutional"

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

Mass incarceration has many evils.  One of them is the length and apparent fixedness of many criminal sentences — a relatively new development in the history of American criminal adjudication.  Sympathetic system actors, concerned about this problem, often complain that they lack the ability to revisit sentences that have outlived commonsense value. This complaint has prompted incarcerated people, their families, attorneys, scholars, judges, and even many prosecutors to call for “second-look” legislation that would create the authority they say is needed.

This Article argues that such legislation is unnecessary: the same authority should already exist, under current doctrine, in the substantive component of the federal Due Process Clause and (or) its state analogues.  Though the Supreme Court’s approach to incarceration is anomalous as compared with other fundamental rights, the Court has made clear that incarceration pursuant to a criminal conviction must satisfy rational-basis scrutiny.  Some sentences are plainly irrational: for example, when a person is factually innocent, their incarceration was never rational (though it may have once looked that way).  But a sentence can also become irrational over time.  And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it.  In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second-look resentencing — a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway doctrine.”  (This Article’s account likewise provides a doctrinal grounding for the proposition that the Constitution prohibits the execution of an actually innocent person and requires the retroactive application of a new substantive rule.)

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one.  Rational-basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements — including forcing adverse parties to give reasons for their actions.  Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test.  Courts themselves, therefore, have due-process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position.  Finally, if the Court ever resolves its fundamental-rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

August 10, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, August 09, 2022

Dozens of Oklahoma lawmakers call for new hearing before next month's scheduled execution of Richard Glossip

As reported in this Guardian piece, a "letter signed by 61 Oklahoma lawmakers — most of them pro-death penalty Republicans — has been sent to the state’s attorney general calling for a new hearing in the case of Richard Glossip, a death row inmate scheduled to be executed next month."  Here is more:

Forty-four Republican and 17 Democratic legislators, amounting to more than a third of the state assembly, have written to John O’Connor pleading for the new hearing.  The outpouring of concern is an indication of the intense unease surrounding the Glossip case, and the mounting fear that Oklahoma is preparing to kill an innocent man.

Glossip, 59, is due to be killed on 22 September as part of a sudden speeding up of capital punishment activity in Oklahoma.  He was sentenced to death for the 1997 murder of Barry Van Treese, the owner of a Best Budget motel in Oklahoma City, where Glossip was manager.

Justin Sneed, the motel’s maintenance worker, admitted that he had beaten Van Treese to death with a baseball bat. But Sneed later turned state’s witness on Glossip, accusing the manager of having ordered the murder.  As a result, Sneed, the killer, avoided the death penalty and was given a life sentence.  Glossip was put on death row almost entirely on the basis of Sneed’s testimony against him, with no other forensic or corroborating evidence.

In their letter, the 61 legislators ask the attorney general to call for a hearing to consider new evidence that has been uncovered in the case.  Last year a global law firm, Reed Smith, was asked by state lawmakers to carry out an independent investigation.  Their 343-page report found that the state had intentionally destroyed key evidence before the trial.  The review concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder”.

Glossip’s scheduled execution forms part of an extraordinary glut of death warrants that have been issued by Oklahoma in recent weeks. In July, the state received court permission to go ahead with 25 executions at a rate of almost one a month between now and December 2024....

The first scheduled execution of the 25 is that of James Coddington, 50, on 25 August.  Coddington’s fate is now in the hands of Kevin Stitt, Oklahoma’s Republican governor, after the state’s parole board recommended that he commute the prisoner’s sentence to life without parole.  The clemency petition pointed out that Coddington had been impaired by alcohol and drug abuse starting when he was a baby.  It said he had shown full remorse for having murdered Albert Hale, a friend who had refused to lend him $50 to buy cocaine.

August 9, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, August 08, 2022

"'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage"

The title of this post is the title of this new paper authored by Michael Perlin, Talia Roitberg Harmon and Haleigh Kubiniec now available via SSRN. Here is its abstract:

Some fifteen years ago, in Panetti v. Quarterman, 551 U.S. 930, 956 (2007), the Supreme Court ruled that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”  In a recent paper, two of the authors (MLP & TRH) analyzed the way the Fifth Circuit had construed that case, and concluded that that court “has basically ignored Panetti’s holdings in all its decisions.” See “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman, 60 U. LOUISVILLE L. REV. 557, 578 (2022).  In this article, we expand that inquiry to consider how all federal circuits have interpreted Panetti, and we find that Panetti has never -- with the exception of one case, later vacated -- been a remedy upon which defendants with serious mental illness facing the death penalty could rely.

We analyze all the circuit-level Panetti decisions, and consider the case law through a therapeutic jurisprudence (TJ) filter, concluding that this body of cases violates all TJ precepts, and offer a series of recommendations -- as to issues related to adequacy of counsel, the need for databases of experts competent to testify in such matters, the need for other scholars to study the cases we discuss here, and to seek to breathe new life into arguments made some years ago barring the death penalty in all cases of defendants with serious mental illness -- to, we hope, ameliorate this situation in the future.

August 8, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Friday, August 05, 2022

ABA House of Delegates considering a number of notable sentencing resolutions

As detailed in this ABA news release from last week, the "American Bar Association’s policymaking body, the House of Delegates, convenes next month to conclude the ABA 2022 Annual Meeting with more than 30 items on the agenda, including several resolutions that address the country’s incarceration challenges and other criminal justice issues." Here is more from the release with links to some key sentencing-related resolutions being considered:

The in-person-only ABA 2022 Annual Meeting begins on Wednesday, Aug. 3. The House, known as the HOD, encompasses 583 delegates from ABA entities and state, local and specialty bar associations and meets Aug. 8-9....

With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national developments during the past few weeks....

Resolution 501 offers the ABA Criminal Justice Standards on Diversion, which provide guidance on various aspects of diversion programs.  The standards are consistent with efforts to reduce collateral consequences; address over-criminalization; reduce incarceration; curtail the burden on and investment in the criminal legal system; and eradicate racial disparities throughout the system.

Resolution 502 urges governmental entities to enact legislation permitting courts to hear petitions that allow hearings to take a “second look” at criminal sentences where individuals have been incarcerated for 10 years.  The report to support the resolution noted that the U.S. is home to less than 5% of the world’s population but houses nearly 25% of the world’s prisoners, adding incarceration disproportionately impacts people of color.

A related Resolution 604 asks governmental entities to adopt the ABA Nine Principles on Reducing Mass Incarceration, suggesting governmental jurisdictions could immediately begin reducing the number of people they incarcerate by following the principles....

For details on all policy resolutions and other matters for consideration during the two-day session, click here. HOD proposals do not become ABA policy until approved by the House, which meets twice annually.

August 5, 2022 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, August 03, 2022

Oklahoma board recommends clemency for first of many scheduled to be executed in coming months

As noted in this post last month, Oklahoma has scheduled 25 executions over the next few years after the ending a moratorium on lethal injections.  The first of these executions is scheduled for later this month.  But, as this new local article reports, the Oklahoma Pardon and Parole Board voted Wednesday to spare the life of the condemned scheduled to be execution on August 25.  Here are the details:

James Coddington addressed the board himself and expressed remorse for killing his friend, 73-year-old Albert Hale, at Hale’s Choctaw residence in 1997 after Hale refused to give Coddington money for drugs.  “The person that he welcomed into his home was not me, it was a shell of me.  It was a drug addict that didn’t deserve his friendship,” said Coddington.

Hale’s family spoke about their loss to the board.  Son Mitch Hale said he’s forgiven Coddington but the murder devastated the family.  “Not only did he brutally kill a kind, gentle, elderly man, he also killed our family.  When he took my father’s life, he completely destroyed the gathering place and tradition of five generations,” said Hale.

Board member Edward Konieczny, appointed by Gov. Kevin Stitt in Jan., joined Richard Smothermon and Larry Morris in voting for clemency.  Cathy Stocker and Scott Williams voted to deny clemency.

Konieczny cited exceptional childhood abuse, as well as Coddington’s age of 24 years at the time of the murder as concerns. “I certainly want to hear from my colleagues.  We’ve had a number of trainings and conversations around the maturation of a person’s brain and also the impact of abusive environments.  In this particular case, it’s not just somebody suggesting that.  We have documentation of what could be considered extraordinary drug and alcohol and physical and emotional abuse.  I would just appreciate hearing from some of my other colleagues,” said Konieczny....

Smothermon, who has thus far voted to deny clemency to every death row inmate, said how people endure abuse in similar situations matters to him. “Given that environment, what is the resulting actions of other people or children that were in that environment and how did they turn out?”...

Cathy Stocker, appointed by Stitt in Mar., said Coddington’s background was already considered in court and so she voted to deny clemency. Before voting no, Scott Williams acknowledged that Coddington, who earned his GED in prison in 2002, had changed for the better.  “Just from what we’ve seen, I’d say there’s definitely been some change there and he’s had an exemplary record for a number of years.  At the same time, that doesn’t take away from all of the facts and everything we have to consider today,” said Williams....

The board’s clemency suggestion will go to Stitt to decide.  Coddington is still scheduled for execution Aug. 25.

Prior recent related posts:

August 3, 2022 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, August 02, 2022

Ninth Circuit panel finds no improper enhancement when safety-valve-proffer information is considered with other information in setting below-guideline sentence

Addressing an issue of first impression, a Ninth Circuit panel today issued an interesting opinion addressing the application of a small provision of the FIRST STEP Act in US v. Brown, No. 20-5313 (9th Cir. Aug. 2, 2022) (available here).  Here are excerpts from part of the opinion providing background and the heart of the ruling:

In this case, Appellant Marquis Brown was arrested for smuggling drugs across the border. He pleaded guilty to the charge and faced a statutory ten-year mandatory minimum sentence.  He subsequently took advantage of a safety valve proffer and became safety valve eligible for a sentence below the mandatory minimum sentence. The district court imposed a 78-month sentence. That sentence was below Brown’s guidelines range of 108–135 months, but above the 71 months requested by the government, and the 42 months recommended by his attorney and the Probation Department.

Brown now appeals, arguing that his sentence was procedurally defective because the district court improperly relied on information he disclosed in his safety valve proffer to “enhance” his sentence....

Brown contends that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018.  The First Step Act, which in part amended 18 U.S.C. § 3553(f), proscribes, inter alia, district courts judges from using information “disclosed by a defendant” in a safety valve proffer “to enhance the sentence of the defendant unless the information relates to a violent offense.” Pub. L. No. 115391, 132 Stat. 5194 (Dec 21, 2018). Despite the district court imposing a sentence that is below his guidelines range, Brown argues that the court ran afoul of this proscription when it relied on information from the safety valve proffer to deny him a further sentence reduction....

We have regularly held that the denial of a sentencing benefit or reduction is not an “increase in punishment.”  See, e.g. United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (reviewing whether amendments to a statute violated a constitutional prohibition on when States can increase the punishment for a defendant’s crime).  In Waters, the appellant argued that a statute the district court relied on to deny his request for sentence reduction violated the Ex Post Facto Clause. Id. at 680.  We held that the amendments merely limited the appellant’s ability to reduce his sentence and “[did] not increase the punishment for his crime[.]” Id. at 681....

We hold that the district court did not impose an improper sentence enhancement here.  Brown contends that because the district court used information from the proffer in determining his final sentence, it was an improper enhancement.  It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips.  This is not prohibited.  The district court noted the previous drug smuggling trips, but also mentioned various other aggravating factors, including the nine-year-old being in the car, the amount and type of drug involved, and the impact on the community.  The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance.  The district court imposed a sentence of 78 months — a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range.  This does not constitute an enhancement.

Brown takes issue with the fact that the sentence was not as low as he had requested.  But the failure to reduce a sentence is not an enhancement.  Moreover, we do not take the First Step Act’s proscription as Congress stripping away a district court’s discretion.  All that § 3553(f)(5) prohibits is using information from a safety valve proffer “to enhance the sentence[.]” § 3553(f)(5).  Here, Brown got the benefit of the safety valve reduction, resulting in a sentence below both the mandatory minimum and his guidelines range. This is not an improper “enhancement” of a sentence under § 3553(f)(5).

August 2, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

"McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride"

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

Writing for the Supreme Court in McCleskey v. Kemp, Justice Lewis F. Powell, Jr. authored a maximalist decision that transcended capital practice and effectively barred constitutional claims of systemic inequality.  Powell would ultimately come to regret the ruling, announcing in retirement that the death penalty should be abolished entirely.  Powell struggled, then, with an apparent tension between moral conviction and purported legal command — a tension that Robert Cover called a “moral-formal dilemma.”  Cover used this concept to evaluate the decision-making processes of antebellum abolitionist judges asked to apply the fugitive slave acts.  These judges knew better but repeatedly refused to do better, resorting instead to a set of methodological crutches to make immoral outcomes appear legally inevitable.  And, in McCleskey, Powell relied upon some of the same crutches.

In other ways, however, Powell’s opinion does not fit neatly within the Cover mold.  Cover rooted the cowardice of his antislavery judges in the “thoroughgoing positivism” of the era.  But Powell was not a positivist.  Indeed, he was not even a death-penalty abolitionist — at least not in the way we would normally understand that term.  What, then, accounted for Powell pursuing such a remarkably similar — and similarly shoddy — moral, prudential, and jurisprudential course?  In this essay, I dissect McCleskey v. Kemp.  I argue that amoral positivism cannot explain the opinion.  To understand Powell’s motivation, we must dig deeply into his biography.  There we discover his abiding principled commitment to a particular brand of anti-positive hubris.  Powell was a proud institutionalist — a moral orientation that constituted an implicit bias, which prevented him from considering adequately the moral interests of systemic outsiders.  I conclude the essay with a sketch of the kind of judge who could better confront the quandary of whether to apply immoral law.  Perhaps surprisingly, this judge is a type of positivist — a skeptical positivist.

August 2, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 31, 2022

"AEDPA Repeal"

The title of this post is the title of this new article authored by Brandon Garrett and Kaitlin Phillips available via SSRN.  Here is its abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus.  Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation.  The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas corpus cases, whether capital or non capital.  Still more perverse, the impact of AEDPA was particularly strong in non capital cases. Since its enactment, AEDPA has been widely criticized by academics, legislators, and judges, for erecting a complex, poorly drafted set of procedural barriers, and for limiting federal review on the merits of most constitutional claims.

This Article examines statutory approaches designed to restore federal habeas corpus.  Any partial or complete repeal of AEDPA raises complex and unexplored issues.  The central challenge is that AEDPA operates alongside decades of Supreme Court created restrictions of federal habeas corpus.  In this Article, we walk through proposals for how AEDPA provisions could be amended, benefits and costs of each change, and how Supreme Court doctrine affects each choice.  AEDPA repeal is not as simple as eliminating the judicially created doctrine of qualified immunity in civil rights litigation.  However, real improvements to federal habeas practice are achievable, and in this Article, we provide a legislative roadmap for habeas reform through AEDPA repeal.

July 31, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Friday, July 29, 2022

Via multiple rulings, Michigan Supreme Court places new restrictions on when juveniles can receive life sentences

The Michigan Supreme Court yesterday issued five(!) rulings addressing, and generally restricting, whether, when, and how juveniles convicted of homicide can receive sentences of life with or without parole.  Some of the most notable of the rulings are discussed in these press pieces that have headlines providing a basic summary:

"Mich. court bars automatic life sentences for 18-year-olds"

"State Supreme Court rules life with parole for juveniles who commit 2nd-degree murder violates MI Constitution"

"Michigan high court extends juvenile age for first-degree murder sentences; Ruling in Macomb County case also places burden on prosecutors for juvenile life sentences"

Here are links to all of the Michigan Supreme Court rulings, all of which are quite lengthy and divided:

154994, People v Robert Taylor 7/28/2022

162425, People v Montez Stovall 7/28/2022

162086, People v Kemo Parks 7/28/2022

157738 & 158695, People v Demariol Boykin, People v Tyler Tate 7/28/2022

Because Michigan has long had a significant juvenile lifer population, I suspect these rulings can and will lead to a notable number of resentencing in the state.  I would be eager to hear from Michigan experts about just how consequential these rulings might prove to be.

UPDATE:  Ashley Nellis of the Sentencing Project has this new tweet noting part of the likely impact of these state rulings:

Michigan #LWOP ban for 18 yr olds should ease the excessive sentences imposed on ~300 people sentenced for first and second degree murder.

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

Tuesday, July 26, 2022

New NY Gov so far has ugly clemency record like last NY Gov

Roughly a year ago, anticipating the resignation of disgraced NY Gov Andrew Cuomo, I wondered in this post whether a change in New York leadership might lead to a better record on clemency.  As noted in that post, Cuomo had talked big about NY clemency efforts in 2015 and again in 2017, but he never thereafter delivered any significant results.  This new press piece, headlined "Governor Hochul’s ‘Rolling’ Clemency Process Has Set Just One Person Free," suggests that there is little reason for new clemency optimism with the new NY Gov.  Here is an excerpt:

In 2015, Cuomo announced the formation of the state’s executive clemency bureau to identify people who might be worthy of commutation. His announcement encouraged thousands serving decades-long sentences across the state to ask for clemency.  By the time Cuomo left office last year, the clemency bureau had received more than 10,000 applications ... [but] Cuomo issued only a total of 41 commutations in response.

When Kathy Hochul took office, those seeking clemency — and their loved ones — hoped that she would show more compassion than her predecessor.  On Christmas Eve 2021, Governor Hochul announced plans to devote additional staff resources into clemency and create an advisory panel.  She also declared that she would grant clemency on "a rolling basis" rather than only once each year.  That day she granted nine pardons and one commutation.  The singular commutation devastated many behind bars — and outraged family members and advocates — who had hoped for more.

Seven months later, Hochul has granted no other clemencies. Since becoming governor, her office has received 286 applications for commutations, and 82 for pardons.  At an event in mid-July, the governor told reporters that her office was overhauling the clemency system, including creating uniform applications for commutations and pardons, and instituting a process notifying applicants of their status.  She also said that she was still considering who to appoint for her clemency advisory board.  "It’s not an overnight process, but it’s one that’s going to be thoughtful, and one that will be long-term enduring," Hochul said.

The delays are frustrating advocates who have been working for years to push the governor’s office to fully exercise its executive power to grant more clemencies.  "There are fully vetted, powerful, robust applications, hundreds on her desk, so if she wanted to do it, they’re there," said Steve Zeidman, co-director of the CUNY Law School’s Defenders Clinic Second Look Project.  "We filed some going back four or five years that we supplement from time to time. It's not as if there aren't applications. It's just the will to do it."

Some prior related posts:

July 26, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 19, 2022

Might Prez Biden wisely focus on marijuana offenders for his next clemency efforts?

It has now been almost a full three months since, as noted here, Prez Biden in April 2022 made his first and only use of his historic clemency powers.   Though I was disappointed that it took Prez Biden 15+ months in office before using his clemency pen, I was hopeful the large number of grants (three pardons and 75 commutations) might be a sign of things to come.  But now, three months later, I am fearful that Prez Biden will continue to fail to live up to his campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."

Still, as the question in the title of this post is meant to suggest, there would seem to be a unique opportunity for Prez Biden to focus clemency efforts on a particular group of individuals convicted of "non-violent and drug crimes," namely marijuana offenders.  This group is on my mind in part because of this recent press release which highlights the "the ongoing collaboration between The Weldon Project, National Cannabis Roundtable and other partners to secure clemency for individuals convicted on federal marijuana offenses."  Here is the start of the release:

The Weldon Project’s MISSION [GREEN] and The National Cannabis Roundtable (NCR) today announced the launch of the Cannabis Clemency Campaign, an initiative that will encourage the Biden Administration and Congress to advance policies that would grant clemency to qualifying individuals who have been convicted on federal cannabis charges. The campaign will also facilitate collaboration with marijuana clemency experts and academics, kicking off with a marijuana clemency symposium in Washington, D.C. on July 20th.

“Through clemency, President Biden has an opportunity to deliver justice for the thousands of Americans who have been impacted by federal cannabis prohibition and punitive sentencing practices,” said Weldon Angelos, President and co-founder of The Weldon Project. “This would fulfill one of President Biden’s campaign pledges and send a powerful message about this Administration’s dedication to criminal justice reform. I’m proud to formally launch this campaign alongside the National Cannabis Roundtable, and look forward to working together to redress the harm done by federal marijuana prohibition.”

I have the great honor of participating in the symposium mentioned in this release, and I am hopeful that it will help Prez Biden come to see that it is never too late and always the right time for sound use of his clemency powers. 

A few on many prior related posts:

July 19, 2022 in Clemency and Pardons, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Monday, July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

Prior recent related posts:

July 11, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 10, 2022

Some initial thoughts on some SCOTUS criminal justice work with OT21 now complete

The Supreme Court recently completed a truly historic Term, though the blockbuster cases were not on the criminal side of the docket. (That said, as noted in prior posts, the big rulings in Dobbs (reversing Roe) and Bruen (expanding the Second Amendment) will have many criminal justice echoes.)  Still, based on this helpful list from Crime & Consequences, about a third of the OT21 SCOTUS docket dealt with criminal justice issues, with many interesting and important stories to be found within these nearly two dozen cases.  Here are some initial thoughts on the criminal justice Term that was (with an eye on Terms to come):

1. Federal defendants who were not the Boston Marathon Bomber did quite well.  All the talk about SCOTUS being now so conservative does not reflect this Term's outcomes in federal statutory criminal cases.  Though Dzhokhar Tsarnaev had his federal death sentence reinstated and a few other federal defendants lost on procedural issues, a number of federal defendants prevailed on an array of statutory issues (see Concepcion, Ruan, Taylor, Wooden).  The considerable success of these federal defendants on various statutory claims is surely a function of selective certiorari grants, but it is still notable and a trend to watch.

2. State defendants pursuing federal habeas actions have real reason for real pessimism.  There were significant losses for state defendants as federal habeas petitioners in Davenport and Shinn and Twyford.  These rulings all included an unmistakable tone and notable dicta signaling that a super-majority of the Justices are quite eager to restrain the authority of federal courts to review and reverse state convictions via habeas.  We shall see if the conservative block of Justices will continue to look for opportunities to rein in lower federal courts seeking to give state prisoners habeas relief.  

3. Murderers, deference/comity, bites at the apple, and a coming test case.  Tsarnaev and Davenport and Shinn and Twyford all involved defendants convicted of serious murders (all but Davenport were capital cases).  A few capital defendants did prevail on distinctive issues: Ramirez provided clergy access at execution; Nance preserved 1983 as a robust mean to contest execution protocols.  A possible through-line here is that the Court is particularly troubled when federal courts fail to show deference or comity to give serious criminals multiple "bites at the apple," but they still will protect an initial "bite."  These themes add intrigue to the collateral review case already on the SCOTUS docket for next Term, Jones v. HendrixNo. 21-857, which involve statutory avenues for federal defendants to raise issues that were previously legally unavailable.

4.  A dynamic conservative block in criminal cases (with KavaRob as the new Kennedy?).  Among the conservative Justices, one can usually expect in criminal cases that Justice Alito will be the most likely to vote for the government and Justice Gorsuch will be the most likely to vote for the defendant.  But, in capital cases, Justice Gorsuch is a consistent vote against defendants while CJ Roberts and Justice Kavanaugh seem a bit more "defense friendly."  Interestingly, in two notable 5-4 rulings this Term, it was Justices Gorsuch and Thomas providing the key votes for a federal defendant in Concepcion and it was CJ Roberts and Justice Kavanaugh providing the key votes for a state capital defendant in Nance.

Before Justice Barrett replaced Justice Ginsburg, Justice Gorsuch alone could be a swing vote joining the liberal block to give a criminal defendant a win in closely divided cases (McGirt from 2020 is a notable example).  But now Justice Gorsuch's vote for a defendant may just be a fourth vote in dissent (as in Castro-Huerta and Twyford this Term).  Consequently, CJ Roberts and Justice Kavanaugh, who voted together this Term in 100% of cases, may now need to be the focal point for advocates in closely divided criminal cases.  (I call this pair "KavaRob" because I sense Justice Kavanaugh may care a bit more about the criminal side of the docket than does the Chief; I call them the "new Kennedy" because for many years criminal litigants knew that Justice Kennedy was the key swing vote they needed to target.) 

5. Justices Barrett seems mostly in line, so far, with Justice Alito in criminal cases.  I had been hoping that Justice Barrett might prove likely to vote with Justice Gorsuch on various criminal justice issues.  But this Term, Justice Barrett was more likely to vote with Justice Alito than even other conservative Justices, and that seemed particularly true in criminal cases (see Ruan), even though they were not always in sync (see Taylor).  I gave a talk not long after Justice Barrett joined the Court where I suggested she might follow Justice Gorsuch's path; some Seventh Circuit practitioners responded that I should not count on it.  The practitioners' perspective seems to have been more astute than my view from the ivory tower.

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

July 10, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Couple of choice Concepcion commentaries

The Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), is an important sentencing precedent that is sure to be overshadowed by this Term's higher profile cases.  But I have been pleased to see  a couple new notable commentaries on Concepcion.  Here are links and excerpts from two pieces worth reading in full:

From CNN by Van Jones and Nisha Anand, "A rare Supreme Court ruling this term where conservative and liberals joined forces"

The Supreme Court's ruling in Concepcion could mean reduced sentences for thousands of people.  It also means that the Court just made it easier to reward those who take steps to better themselves.  And allowing judges to take new information into account will help ensure that rehabilitation becomes the main point of our criminal justice system.

Helping people transform their lives reduces crime.  It keeps us all much safer than simply locking people behind bars with no hope for the future. If members of a deeply divided Supreme Court can recognize this, then surely the rest of us can as well.

From Law360 by Mark Osler, "Justices' Resentencing Ruling Boosts Judicial Discretion"

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law.  However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities.  After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing....

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant.  While this decision, in isolation, may bring mixed results, that trend is a good one.

Prior related posts:

July 10, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11)

Friday, July 08, 2022

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

July 8, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Thursday, July 07, 2022

Notable Seventh Circuit panel discussion of judicial challenges when revoking supervised release

As detailed in this post last month, the latest issue of the Federal Sentencing Reporter explores in depth the huge (but too often overlooked) issue of community supervision in the federal criminal justice system.  That issue came to mind when I reviewed the very interesting new Seventh Circuit decision in US v. Shaw, No. 21-1692 (7th Cir. July 6, 2022) (available here), which was brought to my attention by a kind reader.  Here is how the thoughtful and thorough majority opinion in Shaw starts and a key passage:

Terrance Shaw violated multiple conditions of his supervised release. The district court revoked his supervised release and sentenced him to two years’ imprisonment — well above the range recommended by the Sentencing Commission’s policy statements.  The court did not mention the sentencing factors from 18 U.S.C. § 3583(e), the statute that governs revocation of supervised release, as grounds for the upward variance.  The court instead explained that it was sending Shaw to prison to “help” him and give him a chance to access rehabilitative programs.  Congress has directed sentencing courts to recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).  Courts are thus precluded from imposing or lengthening a prison term to promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. 319, 325–26 (2011). Because the record suggests that the district court lengthened a term of imprisonment to rehabilitate Shaw, we vacate Shaw’s sentence and remand for further proceedings....

[W]e recognize that courts are free to discuss the availability of rehabilitative programs and even encourage defendants to use them.  But by relying on rehabilitation as the sole basis for an upward variance, the court crossed the line from permissible comments to impermissible consideration. Because Tapia applies to both the imposition of a prison sentence and the lengthening of one, the court’s reliance on rehabilitation to impose the upward variance warrants remand.

We also recognize the difficult position that district courts find themselves in under Tapia.  On one hand, 18 U.S.C. § 3583(e) requires courts to consider several purposes of sentencing — including rehabilitation — before revoking an offender’s supervision or imposing a sentence.  On the other, § 3582(a) forbids courts from relying on rehabilitation as a reason for prison time.  Combined, these provisions seemingly force courts to walk a tightrope where they must both demonstrate their consideration of the offender’s need for rehabilitation while also disavowing that consideration as a reason for any resulting term of imprisonment.

Judge Hamilton wrote a concurring opinion to highlight how "Tapia and the statute put district judges in a difficult position."  Here is how his interesting discussion concludes:

When I read this sentencing transcript, I see a judge who was patient, humane, wise, and fair.  Judge McDade was dealing with an unusually difficult case.  The defendant had been provided multiple opportunities to straighten out his life, including a path to an unusually well-paying job in the middle of the pandemic.  He kept wasting those opportunities. The judge’s choice to revoke Shaw’s supervised release and to send him to prison was reasonable and easily predictable.  As the lead opinion notes, Shaw had repeatedly violated important conditions of his supervised release.  Sanctions less severe than prison had not had any noticeable effect.  The judge was not required to credit Shaw’s assurances that this time he would finally follow through on therapy and other rehabilitative programs if they were imposed again as conditions of supervised release.  A more legalistic explanation of Shaw’s revocation sentence on remand should pass muster as long as the district court makes explicit reasons that were left implicit in this transcript and avoids hinting that goals of rehabilitation in prison affected the fact or length of the prison sentence.

Tapia is just one example of how federal sentencing law has become more and more complex, with more and more opportunities for reversible error.  A district judge can reduce the risk of reversible error by disengaging from the individual defendant and the difficult challenges: Just calculate the Guidelines and follow them, perhaps noting that any tricky guideline issue had no effect on the bottom line and that the § 3553(a) factors control.  As was sometimes true during the years when the Sentencing Guidelines were binding, an error-free sentencing hearing can still sound a lot like an arithmetic problem.  A remand like this one further encourages that sort of mechanical march through the Guidelines and the statutory factors.

Yet we hope for more.  We want the sentencing judge to engage with the defendant, the offense, and victims — understanding the stories behind the crime and the prospects for the future.  We want the judge to sentence the defendant as an individual with his own history and characteristics and to tailor the sentence to those individual circumstances. See generally Concepcion v. United States, 142 S. Ct. —, — (2022).

That’s what Judge McDade was doing in this difficult case, trying to reach Shaw in any way he could: drawing on his own history, drawing on concepts of faith, ethics, and sin, and explaining in almost parental terms why the sentence needed to be more severe than the time-served slap on the wrist that Shaw sought. I view this remand as compelled by § 3582(a) and Tapia, but unfortunate and otherwise unnecessary.

July 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Still more discussion of the BOP's failings with FIRST STEP Act

At Forbes, Walter Pavlo has this new piece under the headline "Bureau Of Prisons Holding Inmates For Longer Than Law Allows." The piece provides another account of the difficulties the BOP is having in giving persons in federal prison the credits set forth in the FIRST STEP Act. Here is an excerpt:

The FSA, signed into law by President Donald Trump in December 2018, allows many prisoners to earn additional time off of their sentence, up to a year, and also earn extensive time in pre-release custody (halfway house and home confinement). Those credits, up to 15 days for every 30 days of holding a job and participating in programs/education, can be significant. It means the difference between rejoining one’s family a year or more earlier than before the FSA. However, there are reports from around the country that the BOP is not providing accurate information to prisoners about their FSA credits and some are staying in prison longer than necessary....

A declaration by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse of the challenges the BOP faces in trying to implement FSA. Giddings is the Chief of the Unit Management Section of the Correctional Programs Branch at the BOP’s Central Office in Washington DC. In addition to her role overseeing Correctional Systems, she has been involved in the development and implementation of the BOP’s FSA procedures. As part of Giddings’ declaration for the Petitioner, inmate Robert Stewart, she noted that “... for reasons that are not apparent to me, Petitioner’s FSA credits were in fact incorrectly calculated.” If one person’s is wrong, many others are as well. One of the reasons might be that the BOP is currently calculating these FSAs manually....

Thousands of inmates are in the position to be freed under FSA but many will be held longer than necessary as the BOP tries to get its computer system up to speed. As one family told me about waiting for the BOP’s new sentence calculator, “it can’t come soon enough.”

Some prior related posts:

July 7, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, June 30, 2022

US Supreme Court officially swaps one former US Sentencing Commissioner for another

There is, of course, much more to say about today's historic transition in Supreme Court personnel than what I have flagged in my post title.  But, as one ever keen to keep a focus on sentencing issues, I kind of like my framing of this afternoon's SCOTUS news:

Ketanji Brown Jackson was sworn as an associate justice of the Supreme Court on Thursday, officially taking her place in history as the first Black woman to serve on the nation's highest court.

"We're here today to administer the oaths of office to Judge Ketanji Brown Jackson to become an associate justice of the Supreme Court of the United States," Chief Justice John Roberts said at the start of the ceremony, acknowledging the oaths will allow Jackson to begin her work "without any further delay."

In a brief ceremony at the Supreme Court that was broadcast live, Jackson first took the constitutional oath, administered by Roberts, followed by the judicial oath, administered by now-retired Justice Stephen Breyer. Breyer's retirement from the high court was made official at noon on Thursday, paving the way for Jackson, his former clerk, to fill his seat.

"On behalf of all of the members of the court, I am pleased to welcome Justice Jackson to the court and to our common calling," Roberts said, as applause broke out. Jackson took the oaths with her hand on two Bibles held by her husband, Patrick: a family Bible, and the "Harlan" Bible, which Justice John Marshall Harlan donated to the court in 1906.

In attendance for the swearing in were most of Jackson's new colleagues: Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett, as well as former Justice Anthony Kennedy.

In a statement distributed by the court, Jackson, 51, thanked Roberts and Breyer, calling him a "personal friend and mentor" for 20 years. She said she is "well-positioned to serve the American people." "With a full heart, I accept the solemn responsibility of supporting and defending the Constitution of the United States and administering justice without fear or favor, so help me God," she said. "I am truly grateful to be part of the promise of our great nation. I extend my sincerest thanks to all of my new colleagues for their warm and gracious welcome."

Breyer extended congratulations to the newest justice. "I am glad today for Ketanji. Her hard work, integrity, and intelligence have earned her a place on this court. I am glad for my fellow justices. They gain a colleague who is empathetic, thoughtful, and collegial. I am glad for America," he said in a statement. "Ketanji will interpret the law wisely and fairly, helping that law to work better for the American people, whom it serves."

June 30, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Lots and lots of note in big SCOTUS order list at close of Term for the ages

I suspect I am not the only one fatigued from the historic Supreme Court Term that was concluded today (and I only pay really close attention to the Court's criminal docket).  But criminal justice fans may want to find some energy to review this morning's final order list, which includes lots of note.

For starters, the the order list begins with more than a few GVRs based on all the big cases of the last week including Concepcion and Ruan and Castro-Huerta.

Then, SCOTUS granted cert on three new cases, including these two criminal ones involving fraud convictions under federal law: Percoco v. US and Ciminelli v. US.

And, last but not least, the Court has a long series of statements about the denial of cert.  To cover them all, I can borrow from How Appealing's helpful posting:

In Grzegorczyk v. United States, No. 21–5967, Justice Brett M. Kavanaugh issued an opinion, in which Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Samuel A. Alito, Jr., and Amy Coney Barrett joined, respecting the denial of certiorari. And Justice Sonia Sotomayor issued a dissent, in which Justices Stephen G. Breyer, Elena Kagan, and Neil M. Gorsuch joined, from the denial of a grant, vacate, and remand order.

In Storey v. Lumpkin, No. 21–6674, Justice Sotomayor issued an opinion respecting the denial of certiorari.

In Canales v. Lumpkin, No. 20–7065, Justice Sotomayor issued a dissent from the denial of certiorari.

In Ramirez v. Guadarrama, No. 21–778, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

In Cope v. Cogdill, No. 21–783, Justice Sotomayor issued a dissent from the denial of certiorari.

In Dr. A. v. Hochul, No. 21–1143, Justice Thomas issued a dissent, in which Justices Alito and Gorsuch joined, from the denial of certiorari.

And in Hill v. Shoop. No. 21–6428, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

I hope to find time before too long to review all of of these statement and later comment on those that strike me as particularly notable.  Readers are, of course, encouraged to flag in the comments items of particular interest.

June 30, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (19)

Wednesday, June 29, 2022

Furman at 50: so much and so little

On this date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court's history.  But the actual opinion of the Court is a so short that I can be reprinted it in full here: 

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969).  Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga. Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969).  Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971).  The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.  The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.  THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50.  As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little.  I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.

June 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Monday, June 27, 2022

SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors

There are many notable aspects to the Supreme Court's work this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here).  The votes alone could justify many posts, with Justices Thomas and Gorsuch joining an opinion broadly praising broad district court sentencing discretion (citing historical cases for good measure), and with all the other conservative justices embracing a fairly impractical (and unjust) statutory construction without considering any statutory canons. 

More generally, in keeping with my prior complaints about the oral arguments in this case, I was struck that none of the opinions in Concepcion mention sentencing purposes or justice or fairness even once in a case that concerns efforts by Congress to give full effect to the Fair Sentencing Act through the FIRST STEP Act.  The fundamental legal issue in Concepcion was whether a group of defendants (almost all of whom are persons of color) who have been serving, according to Congress, unjust and wrongful federal sentences for more than a dozen years should be limited in how they can now argue for more just and rightful sentences.  And, given that the defendant in the case had already served 15 years (of a 19-year sentence) for a conviction based on selling a tablespoon of crack, there are an array of rich legal and human stories here that justify further attention.

But, as the title of this post highlights, I am already thinking about what the Concepcion ruling means outside the crack context.  Specifically, I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.  Let me explain.

As most recently highlighted via this post about a First Circuit ruling in February, there is a deep circuit split about whether non-retroactive changes in sentencing law may constitute "extraordinary and compelling reasons" for compassionate release.  Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise.  And yet, this language from the Supreme Court's opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained....

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them.  That discretion also carries forward to later proceedings that may modify an original sentence.  Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence....

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution....

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much....  Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

All this language about a court's broad discretion not only at initial sentencing but also when considering a sentence modification is directly relevant to federal judges' consideration of so-called compassionate release motions.  Concepcion makes plain, contrary to the problematic rulings of some circuits, that the "only limitation" on valid considerations are those in the Constitution or that Congress has expressly set forth.  And thus the Supreme Court's textualist ruling here ought to not only benefit Carlos Concepcion, but also every federal prisoner moving for compassionate release on any and all possible grounds not expressly excluded by Congress or the Constitution.

Prior related post:

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

SCOTUS unanimously rejects federal convictions for opioid docs in Ruan, with majority stressing mens rea requirement

Every member of the Supreme Court agreed this morning in Xiulu Ruan v. US, No. 20-1410 (S. Ct. June 27, 2022) (available here), decided that the federal drug distribution convictions of two doctors who prescribed opioids was problematic.  But the Court divided on the rationale, with Justice Breyer writing the opinion for the majority that starts this way:

A provision of the Controlled Substances Act, codified at 21 U.S.C. § 841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. 84 Stat. 1260, 21 U.S.C. § 841(a) (emphasis added). Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” 21 CFR §1306.04(a) (2021).

In each of these two consolidated cases, a doctor was convicted under § 841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

Justice Alito authored a lengthy opinion to concur in the judgment which was joined in full by Justice Thomas and partially by Justice Barrett. Here is how it begins:

In criminal law, the distinction between the elements of an offense and an affirmative defense is well-known and important. In these cases, however, the Court recognizes a new hybrid that has some characteristics of an element and some characteristics of an affirmative defense. The consequences of this innovation are hard to foresee, but the result may well be confusion and disruption. That risk is entirely unnecessary.

We granted certiorari in these cases to decide whether a physician may be convicted of dispensing or distributing drugs by prescription under a provision of the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §841(a), if he or she believed in good faith that the prescription was within the course of professional practice. In my view, there is a straightforward answer to this question. The CSA contains an exception for prescriptions issued in the course of professional practice, and this exception is a carry-over from the CSA’s predecessor, the Harrison Narcotics Act of 1914, 38 Stat. 785. In interpreting the Harrison Act, this Court held that a registered physician acts “in the course of his professional practice” when the physician writes prescriptions “in good faith.” Linder v. United States, 268 U.S. 5, 17–18 (1925). I would hold that this rule applies under the CSA and would therefore vacate the judgments below and remand for further proceedings.

June 27, 2022 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Via 5-4 ruling, Supreme Court stresses broad sentencing discretion in crack resentencing case Concepcion

In a 5-4 decision, with a somewhat surprising group of Justices in the majority, the Supreme Court this morning in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), stressed the broad scope of information that may be consider at sentencing or sentence modification. Here is how Justice Sotomayor's opinion for the Court gets started:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U.S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U.S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U.S. 476, 492 (2011).  Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.

Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.

The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

Justice Kavanaugh authored the chief dissent for the Chief Justice, Justice Alito and Justice Barrett. It concludes this way:

The Court’s disregard of the text of the First Step Act is especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act reflects a compromise among competing interests. Not for the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the statutory text. The Court in effect green-lights district courts, if they wish, to make the 2016 amendment to the career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. Perhaps the Court’s decision represents better sentencing policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First Step Act as the Court thinks best.

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to the crack-cocaine sentencing ranges, but not based on other unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.

I will need some time to review these opinions closely before being able to discuss the broader meaning and impact. But, yet again, it turns out sentencing jurisprudence at the Supreme Court is more pro-defendant than in many lower courts.

June 27, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, June 26, 2022

After historic week, SCOTUS still has a final few notable criminal justice cases to resolve

Earlier this month, I flagged in this post the six notable cases that I was most eagerly awaiting as a remarkable Supreme Court Term was coming to a close.  Four of those cases were resolved last week, with Taylor and Nance providing small wins for criminal defendants, and then Bruen and Dobbs producing big jurisprudential changes for gun rights and abortion practices.  In some other years, Bruen would be the Term's memorable case.  But the enduringly contentious issue of abortion, and the legal and political uncertainty following the full reversal of Roe and Casey, ensures that Dobbs will be the most consequential and debated case for many years to come.

But the Supreme Court still has final seven cases to resolve, three of which involve criminal justice matters.  The lingering criminal cases, some or all of which could be handed down as early as tomorrow morning, are not the highest profile of the remaining matters.  Cases involving the authority of the EPA to regulate greenhouse gases, detention policies at the southern border and a praying high school football coach are sure to get more attention than any of the criminal cases.  And yet, the three remaining criminal cases could still prove to be a big deal, and I will borrow here from Amy Howe's helpful accounting of them:

  1. Concepcion v. United States (argued Jan. 19): Whether, when a court is deciding whether to resentence a defendant under the First Step Act, which gives federal district courts power to resentence offenders in light of changes in the Fair Sentencing Act of 2010, a district court must or may consider intervening developments, or whether such developments only come into play (if at all) after courts conclude that a sentence reduction is appropriate.
  2. Ruan v. United States (argued Mar. 1): Whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms.
  3. Oklahoma v. Castro-Huerta (argued April 27): Whether a state has authority to prosecute defendants who are not Native Americans, but who commit crimes against Native Americans on land that Congress historically reserved for Native people. 

June 26, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, June 24, 2022

Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

In this post yesterday, I wondered "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?"  That question was prompted by the fact that the majority opinion in the Supreme Court's big Second Amendment case, Bruen (basics here), seemed to reject lots of recent lower court rulings and jurisprudence regarding the application of the Second Amendment.  Lower courts have, prior to Bruen, generally rejected Second Amendment attacks on federal law's broad criminalization of any felons possessing any guns.  But Bruen makes clear that to "justify its [gun] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

Because the broad federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is applied many thousands of times each year, I am expecting a robust new round of litigation on that issue as to whether and when felon dispossession is "consistent with this Nation’s historical tradition of firearm regulation."  But here I want to flag another notably broad provision of federal firearms law, though one probably unlikely to get nearly the same attention.  Specifically, 18 U.S.C. § 922(g)(3), categorically criminalizes any gun possession by anyone who is an "unlawful user of or addicted to any controlled substance."  In an era in which marijuana use is legal for medical or recreational use in the vast majority of states but still is federal prohibited, this broad federal criminal "unlawful user" gun dispossession statute technically applies to dispossess tens of millions of Americans.  As a matter of policy and practice, I sense very few people get actually federally prosecuted and sentenced under just 922(g)(3) even for very serious and dangerous drug use, but it certainly happens sometimes.

Notably, more than a few states also have laws criminalizing gun possession by those his drug use history, and some even extend to users of legal drugs (including alcohol).  As one notable example, my state of Ohio, via Ohio Revised Code § 2923.13, prohibits knowingly having any firearm if one "is drug dependent, in danger of drug dependence, or a chronic alcoholic."  Arguably, anyone prescribed and using Oxycotin is "in danger of drug dependence," though again I do not think these kinds of laws in Ohio (or in other states) tend to be broadly enforced.  Still, these laws probably do get used as a basis refuse to issues some firearm licenses (see generally "Blowing Smoke at the Second Amendment"). 

Whatever the policy or practical virtues or vices of broad drug user gun dispossession laws, their constitutional status would seem subject to new questions thanks to Bruen.  The federal firearm prohibition for anyone who is an "unlawful user of or addicted to any controlled substance" has been upheld through various balancing tests in lower courts stressing the important government interest in restricting gun access to potentially dangerous individuals.  But, now, thanks to Bruen, such a regulation's "important interest" is not what is key for Second Amendment interpretation, "rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation."

I am not legal historian, but I know enough about drug law history to know that there were very few criminal prohibitions on drug use at the time of the ratification of the Second Amendment.  Notably, there were some localities and even a state (Maine) embracing alcohol prohibition before and into the Civil War era, but I have no sense of how various early temperance laws may have interacted with gun regulations at that time.  I do surmise, from reading then-Judge Amy Coney Barrett's dissent in Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), that history suggests "founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety."  Perhaps broad drug user gun dispossession statutes could be justified on that ground, but I have a very hard time viewing modern users of medical marijuana consistent with state law as analogous to those groups considered categorically dangerous in the founding era.

As suggested before, I expect to see a lot more litigation over broad felon-in-possession criminal laws than over broad drug user gun dispossession statutes.  Nevertheless, I think this is another interesting area of Second Amendment law that seemed reasonably settled before Bruen and now may be up for new (historical) debate.

Prior recent related posts:

June 24, 2022 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (6)

Thursday, June 23, 2022

By 5-4 vote, SCOTUS reaffirms all method of execution challenges can proceed as § 1983 actions

In an important ruling for capital case litigation, the Supreme Court this morning held in Nance v. Ward, No. 21-439 (S. Ct. June 23, 2022) (available here), that all method of execution claims can be brought via § 1983.  Justice Kagan wrote the opinion for the Court, which starts this way:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.  To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.  In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim.  We have held that such a claim can go forward under 42 U.S.C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.  See Nelson v. Campbell, 541 U.S. 637, 644–647 (2004).  Here, the prisoner has identified an alternative method that is not so authorized.  The question presented is whether § 1983 is still a proper vehicle.  We hold that it is.

Justice Barrett authored the dissent in this case, and she is joined by Justices Thomas, Alito and Gorsuch. Here is how her opinion starts:

An inmate must bring a method-of-execution challenge in a federal habeas application, rather than under 42 U.S.C. § 1983, if “a grant of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547 U. S. 573, 583 (2006).  Under this criterion, Michael Nance must proceed in habeas because a judgment in his favor would “necessarily bar” the State from executing him. Ibid.  Nance asked the District Court to “enjoin the Defendants from proceeding with [his] execution . . . by a lethal injection,” claiming that the use of such method would violate the Eighth Amendment as applied to him. App. to Pet. for Cert. 103a– 104a.  But lethal injection is the only method of execution authorized under Georgia law.  See Ga. Code Ann. §17–1038(a) (2020). Thus, if Nance is successful, the defendants in this case — the commissioner of the Georgia Department of Corrections and the warden — will be powerless to carry out his sentence.  That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.

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

Wednesday, June 22, 2022

Split North Carolina Supreme Court rulings declares sentences excluding parole for over 40 years unconstitutional for juveniles

Last week, as reported in this local article, the Supreme Court of North Carolina issues two notable opinions placing a notable limit on sentences for juvenile offenders.  Here are the basics:

Juveniles convicted of the most violent crimes in North Carolina cannot spend more than 40 years behind bars before becoming eligible for parole.  The N.C. Supreme Court made that determination Friday in a pair of 4-3 decisions.  The court’s four Democratic justices ruled in favor of the defendants in both cases.  The three Republican justices dissented.

In State v. Conner, Democratic justices determined that a 15-year-old convicted of rape and murder faced an excessive prison sentence.

According to Justice Michael Morgan’s majority opinion, Riley Dawson Conner pleaded guilty to raping his aunt outside her home in 2016, then killing her “with blows from a shovel.” He then left her dead body in a wooded area near her home.

Under the original consecutive sentences on rape and murder charges, Conner would have reached the age of 60 before having the chance to seek parole. Such a lengthy sentence would violate federal court precedents involving juvenile offenders, Morgan argued. Instead he and his fellow Democratic justices set a new 40-year maximum prison sentence before a juvenile offender would become eligible for parole....

Republican Justice Phil Berger Jr. rejected the argument. He accused Democratic justices of writing the 40-year maximum sentence into law.  “[T]he majority darts into the legislative lane, usurping legislative authority by enacting its new law simply because they find this result ‘desirable’ for violent juveniles,” Berger wrote in dissent....

Democratic and Republican justices also split in State v. Kelliher.  As with the Conner case, the court’s majority ruled that defendant James Ryan Kelliher should serve no more than 40 years in prison for murders committed when he was 17.

All of the opinions in the Connor and Kelliher cases make for interesting reads. From a quick review, I was struck by the fact that the Connor ruling suggests that both the US and North Carolina constitutions supported the 40-year cap announced by the court. But the Kelliher ruling more expressly relies on the NC constitution as revealed in this paragraph from near the start of the opinion:

After careful review, we hold that it violates both the Eighth Amendment to the United States Constitution and article I, section 27 of the North Carolina Constitution to sentence a juvenile homicide offender who has been determined to be “neither incorrigible nor irredeemable” to life without parole.  Furthermore, we conclude that any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole within the meaning of article I, section 27 of the North Carolina Constitution because it deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison.  Thus, Kelliher’s sentence, which requires him to serve fifty years in prison before becoming eligible for parole, is a de facto sentence of life without parole under article I, section 27.  Because the trial court affirmatively found that Kelliher was “neither incorrigible nor irredeemable,” he could not constitutionally receive this sentence.

June 22, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, June 21, 2022

Ruling 5-4 against state prisoner, SCOTUS rules federal court misapplied All Writs Act in habeas proceeding

In a technical (and seemingly little) ruling, the Supreme Court reversed a procedural order in Shoop v. Twyford, No. 21-511 (S. Ct. June 21, 2022) (available here). The opinion for the Court was authored by Chief Justice Roberts, and it starts and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing.  The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief.  The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse....

A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U.S.C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored the main dissent, which Justices Sotomayor and Kagan joined. It starts this way:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition.  Ante, at 1. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding.  See ante, at 9–10.  I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch authored a solo dissent, which runs only two paragraphs and merits reprinting in full:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question.  The District Court’s transportation ruling was an interlocutory order, not a final judgment.  To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases.  See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545–547 (1949). In a terse footnote today, the Court does just that.  Ante, at 5, n. 1.

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 (2009).  If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ibid.

June 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement

The Supreme Court this morning handed down an opinion in one of the criminal sentencing cases still on its docket, US v. Taylor, No. 20–1459 (S. Ct. June 21, 2022) (available here).  The opinion for the Court is a win for the federal defendant and was authored by Justice Gorsuch.  Here is how that opinion starts and ends:

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)?  The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison.  But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment....

The government quickly abandons the legal theory it advanced in the courts of appeals — and neither of the two new options it auditions before us begins to fill the void.  In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.  Following that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things.  Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act.  But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison.  The judgment of the Court of Appeals is Affirmed.

Justice Thomas issued a solo dissent that is as long as the opinion of the Court. It starts this way:

Justin Eugene Taylor and an accomplice pulled a gun on a fellow drug dealer as they tried to rob him.  During the attempted robbery, the victim was shot and killed.  Taylor pleaded guilty to using a firearm during an attempted Hobbs Act robbery, which he conceded was a “crime of violence” under 18 U. S. C. §924(c)(3).  Taylor made that concession because threatening to shoot someone during a robbery is undoubtedly a violent act.  Yet, the Court holds that Taylor did not actually commit a “crime of violence” because a hypothetical defendant — the Court calls him “Adam” — could have been convicted of attempting to commit Hobbs Act robbery without using, attempting to use, or threatening to use physical force.  Ante, at 5; see §924(c)(3)(A).

This holding exemplifies just how this Court’s “categorical approach” has led the Federal Judiciary on a “journey Through the Looking Glass,” during which we have found many “strange things.”  L. Carroll, Alice in Wonderland and Through the Looking Glass 227 (J. Messner ed. 1982).  Rather than continue this 30-year excursion into the absurd, I would hold Taylor accountable for what he actually did and uphold his conviction.  Accordingly, I respectfully dissent

Justice Alito also issued a (shorter) solo dissent, and it concludes this way:

I believe that the Court’s approach and ultimate holding in this case are misguided. I would hold that Taylor committed a “crime of violence” within the meaning of §924(c)(3)(A) and reverse the judgment of the Fourth Circuit below.  But there is a silver lining in the majority opinion. Because the Court assumes — and does not hold — that alternative elements do not qualify as independent elements of a crime for purposes of applying §924(c)(3)(A), the Government remains free to advance the correct interpretation of that provision in a future case.  For my purposes, however, the text of the statute is clear enough to support reversal here and now.  As a result, I respectfully dissent.

June 21, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Supreme Court grants cert on a quasi-criminal case (while two justices dissent from denial of cert in Ohio capital case reversal)

The Supreme Court started what could be a historic week with this (relatively uneventful) order list.   The Court granted cert in two cases, one of which is somewhat like a criminal case.  Specifically, the issue in Bittner v. US, No. 21-1195, is described by SCOTUSblog this way:  "Whether a 'violation' under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported."

More likely of interest to criminal justice and sentencing fans is the denial of cert in Shoop v. Cassano, No. 21-679, a capital case from the Buckeye State.  Justice Thomas, joined by Justice Alito, penned a 12-page dissent from the denial of cert that starts and ends this way:

In 1997, respondent August Cassano was serving a life sentence in Ohio for aggravated murder.  The prison assigned Cassano a new cellmate, Walter Hardy . A few days later, Cassano murdered Hardy by stabbing him 75 times with a prison shank.  An Ohio jury convicted Cassano of capital murder, and the trial court sentenced him to death.  Yet, more than 20 years later, the Sixth Circuit granted Cassano habeas relief because it thought that the state trial court had ignored Cassano when he purportedly invoked his right to represent himself at trial.  In doing so, the Sixth Circuit failed to treat the state-court adjudication of Cassano’s self-representation claim with the deference demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

To correct this manifest error, I would grant Ohio’s petition and summarily reverse the Sixth Circuit.  Therefore, I respectfully dissent from denial of certiorari....

The Court of Appeals should have faithfully applied AEDPA deference and denied the writ.  Its failure to do so “illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.” Harrington, 562 U.S., at 104.  Because I would grant the State of Ohio’s petition and summarily reverse, I respectfully dissent from denial of certiorari.

June 21, 2022 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 20, 2022

"The Trump Clemencies: Celebrity, Chaos, and Lost Opportunity"

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

The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term.  Buried beneath this rolling disaster was a brief moment of hope and  a lost opportunity: the chance for a restructure of the clemency process in the Fall of 2018, enabled by a rare alignment of factors including Trump’s alienation from the Department of Justice and the interest of his son-in-law, Jared Kushner. This article explores the fullness of Trump’s clemency legacy and explores what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

June 20, 2022 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Mississippi Supreme Court upholds, against Eighth Amendment challenge, mandatory LWOP habitual-offender sentence for marijuana possession

Last year in this post, I reported on a Mississippi state intermediate appeal court ruling that upheld a mandatory life without parole sentence for possession of over 30 grams of marijuana because the defendant was a violent habitual offender under Mississippi law.  Last week, the Supreme Court of Mississippi, by a 6-3 vote, affirmed this sentence in Russell v. Mississippi, No. 2019-CT-01670-SCT (Miss. June 16, 2022) (available here).  Here is the start and some concluding parts of the  majority opinion:

This certiorari case considers whether Allen Russell’s life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State, No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021).  We affirm Russell’s sentence....

In the limited scenario in which the mandatory sentence facing a defendant under Section 99-19-83 is life without parole and the crime for which the defendant is being sentenced, unenhanced, is a nonviolent crime that carries a minimal-maximum sentence (i.e. less than ten years), trial judges should specifically consider “all matters relevant to” the sentence as contemplated in Presley to determine the issue of gross disproportionality and the constitutionality of the sentence as to that particular defendant. Presley, 474 So. 2d at 620....  None of this benefits Russell. We reiterate, once again, that the burden is upon the defendant to show that the sentence mandated by the legislature is unconstitutional as to that particular defendant.  Because Russell presented no evidence, the only substantive evidence before the court were the prior convictions....

The record is replete with additional evidence, as documented in the separate opinion of the chief justice.  We would refer the reader to the chief justice’s separate opinion for a thorough recounting of the details surrounding Russell’s arrest.  However, it is pertinent to note that the arrest came while law enforcement was attempting to serve another drug related warrant on Russell as well as execute a search warrant on his premises. The search warrant came about as a result of Russell’s being developed as a suspect in a murder in a hotel room where a medical document naming Russell was found....

In Russell’s case, the trial judge followed our procedure and the law, Russell presented no evidence related to the Solem factors and the trial judge sentenced Russell to the only sentence available.  Therefore, we affirm.

The lengthy separate concurring opinion is an interesting read that seeks to highlight "Solem’s weaknesses." Here is how it concludes:

Based on both this Court’s precedent and the rulings of the United States Supreme Court in Rummel, 445 U.S. 263, Harmelin, 501 U.S. 263, Andrade, 538 U.S. 63, and Ewing, 538 U.S. 11, Russell’s sentence as an habitual offender was not grossly disproportionate.  His sentence meets the prescribed statutory punishment.  There is no legal basis to vacate Russell’s sentence.  It is neither cruel nor unusual.  As Russell has failed to prove that the threshold requirement of gross disproportionality was offered and met, because his sentence fell within the statutory requirement, and because his sentence is a constitutionally permissible sentence, we should affirm Russell’s conviction and sentence.

The short dissenting opinion includes this point in making the case Solem ought to help Russell:

Recent developments in Mississippi and elsewhere concerning the treatment of marijuana possession arguably provide a material difference between Solem and Russell that favors Russell as to the objective factors.  In the past year, the state of Mississippi joined many of its sister states in adopting a medical marijuana program.  Pursuant to the bill creating the program, the difference going forward between going to jail for possessing 2.5 ounces of marijuana and owning it legally would be a prescription.  See S.B. 2095, 2022 Miss. Laws.  For better or for worse, the adoption of a medical marijuana in Mississippi is in keeping with a nationwide change on the treatment of marijuana in the law.  An April 2021 law journal article points out that thirty-six states now have medical marijuana programs, and fourteen states and the District of Columbia now allow its recreational use.  Paul J. Larkin, Jr., Cannabis Capitalism, 69 Buff. L. Rev. 215, 216-217 (2021).  Less than thirty years ago, however, all states and the federal government outlawed its distribution. Id. Whether it be wisdom or folly, the above-described move toward decriminalizing the use of marijuana considered in light of the first objective Solem factor, i.e., the gravity of the offense and the harshness of the penalty, surely weighs in favor of Russell.  There appears to be no similar widespread movement to legalize “uttering a ‘no account’ check[.]” Solem, 463 U.S. at 281.

June 20, 2022 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, June 15, 2022

Nothing for sentencing fans as SCOTUS resolves six more cases (and increases end of Term drama)

With its usual end-of-Term rush, the Supreme Court issued five more opinions and a dismissal (DIG) this morning.  But no blockbusters or sentencing rulings were among the cases resolved today, and I do not believe there will be any more opinion days until next Tuesday (June 21). 

As I have suggested in prior posts, few should be surprised that the Second Amendment case and the abortion case (Bruen and Dobbs) have not yet been released.  I am expecting both the very last week of the Term.  But I am struck that a number of criminal/sentencing cases argued months ago have not yet been resolved.  I am now almost starting to expect something really notable could be coming in cases like US v. Taylor, and Concepcion v. US and Ruan v. US.  

Stay tuned.

A few prior related posts:

June 15, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 13, 2022

Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Concepcion, two little sentencing cases?

Images (5)The Supreme Court this morning handed down an order list and five new opinions (partially blogged here and here).  Though the Court issued a number of opinions on criminal (or criminal-adjacent) procedural issues, we did not today get a ruling in any of the six notable cases that I flagged in this post last week.  As of this writing, SCOTUS has 24 more argued cases to resolve this Term, and there will be additional opinions released on Wednesday morning.  (If five opinions per day becomes the new normal for the Justices, the Court could wrap the current Term by the end of this month with just two "opinion days" during each of the last two weeks of June.)

Most Court watchers have long expected the "biggest" cases, such as the Second Amendment case and the abortion case (Bruen and Dobbs) to not be released until the very end of the Term.  But two "little" sentencing-related cases are also taking a very long time to come out.  US v. TaylorNo. 20-1459, which concerns the definition of a "crime of violence" for application of a 924(c) sentencing enhancement, was argued more than sixth months ago during the Court's December sitting.  And Concepcion v. USNo. 20-1650, which concerns proper resentencing considerations in a crack offense resentencing under Section 404(b) of the FIRST STEP Act, was argued nearly five months ago during the Court's January sitting.  Only very high-profile cases are still outstanding from the December sitting other than Taylor, and Conception is the only case from the January sitting now still unresolved.

The standard and ready explanation, of course, for why decisions in Taylor and Concepcion may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions.  And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the "standard" ideological lines.  Justice Gorsuch, of course, tends to vote in favor of (non-capital) criminal defendants more than most of his conservative colleagues and Chief Justice Roberts and Justice Kavanaugh also can be somewhat more pro-defendant in some settings.

Notably, the SCOTUSblog accounting of who has written which majority opinions so far indicates that neither Justice Gorsuch nor Justice Kavanaugh has authored a majority opinion from the January sitting; we might reasonably expect (though cannot be certain) that one of those two was tasked with authoring the Court's opinion in Concepcion.  Cases from the December sitting are harder to game out because a few more are still unresolved; but since Justice Alito apparently had Dobbs, Justices Breyer, Kagan, Gorsuch and Kavanaugh are those so far without majority opinions from the December sitting and one of them might reasonably be expected to be authoring the Court's opinion in Taylor.

Of course, this analysis is all just tea-leaf-reading and speculation.  We could get other opinion authors or unanimous opinions or who knows what from the Court (especially given that various statutory construction and sentencing jurisprudence doctrines could be brought to bear in these cases).  But, especially within a Term generating so much news from other cases, I am tempted to start speculating that Taylor and/or Concepcion could prove to be sleeper cases.   (I cannot help but note that 18 years ago around this time, I started speculating about whether Blakely v. Washington might be a brewing blockbuster.  I will be truly shocked if either Taylor or Conception gets anywhere close to the jurisprudential earthquake of Blakely, but I find myself growing ever more eager to see what's what in these sentencing cases.)

Anyone else have speculations or thoughts about these lingering sentencing cases (or any other aspect of the eventful SCOTUS Term now winding down)?

June 13, 2022 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Justice Sotomayor pens lengthy dissent from denial of cert in Texas capital case that has previously led to SCOTUS per curiam reversal

Almost exactly two years ago, the Supreme Court issued a per curiam decision in Andrus v. Texas (discussed here) in which the Court felt compelled to find that "Andrus’ counsel provided constitutionally deficient performance under Strickland," but then remanded so Texas courts could "address the prejudice prong of Strickland in the first instance."  This case resulted in another notable opinion today, making this otherwise new SCOTUS short order list much longer.  Specifically, Justice Sotomayor authored a 25-page dissent from denial of certiorari, which was joined by Justices Breyer and Kagan.  Here is how it starts:

A state habeas court recommended vacating petitioner Terence Andrus’ death sentence after an 8-day hearing that uncovered a plethora of mitigating evidence that trial counsel had failed to investigate or present.  The court held that Andrus had received ineffective assistance of counsel at the punishment phase of his trial. See Strickland v. Washington, 466 U.S. 668 (1984).  The Court of Criminal Appeals of Texas reversed; this Court summarily vacated and remanded. See Andrus v. Texas, 590 U.S. ___ (2020) (per curiam).

This Court held that counsel had rendered constitutionally deficient performance.  That conclusion was based on an “apparent ‘tidal wave’” of “compelling” and “powerful mitigating evidence” in the habeas record, none of which counsel presented to the jury. Id., at ___, ___, ___ (slip op., at 9, 11, 18).  The Court also found counsel ineffective for several specific failures to investigate and rebut the State’s case in aggravation. Id., at ___–___ (slip op., at 13–16).  The Court remanded to allow the Texas court to evaluate in the first instance whether, in light of the Court’s holding as to deficient performance, Andrus had shown prejudice under Strickland.

On remand, the Court of Criminal Appeals, in a divided 5-to-4 decision, failed to follow this Court’s ruling.  Instead of properly weighing the habeas evidence as a whole, the Texas court concluded that Andrus failed to establish prejudice (and therefore denied habeas relief) based on its disagreement with, and rejection of, the determinations underlying this Court’s holding that Andrus’ counsel had rendered deficient performance.  As a result, the dissenting judges below explained, the Texas court’s opinion was irreconcilable with this Court’s prior decision and barred by vertical stare decisis and the law of the case.

I agree with the dissenting judges below. Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.  The Court, however, denies certiorari. I would summarily reverse, and I respectfully dissent from the Court’s failure to do so.

June 13, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, June 12, 2022

Iowa Supreme Court refuses to extend Eighth Amendment juve mandatory LWOP prohibition to murder committed days after 18th birthday

As reported in this Des Moines Register article, the Iowa Supreme Court issued an interesting ruling refusing to extend an Eighth Amendment right protecting juvenile murderers. Here are the basics:

Two Iowans who were sentenced to life in prison for murders committed when they were teenagers must stay incarcerated, the Iowa Supreme Court ruled on Friday. Lawyers for the Des Moines men claimed they should not have been sentenced to adult standards because the crimes were committed when they were 18 and 19 years old. Two Iowa Supreme Court decisions rejected claims that sentencing very young adults to adult sentences constitutes cruel and unusual punishment.

Building on U.S. Supreme Court precedent, the state court has previously held that youth who commit crimes before they turn 18, even first-degree murder, cannot be sentenced to life in prison without parole. But once someone turns 18, Friday's rulings held, they face the full penalties prescribed by law.

The two cases both involve Des Moines men who've been fighting for decades to overturn their convictions and sentences for murder. In one case, the defendant was only five days past his 18th birthday at the time of the offense. James Dorsey, who was convicted of the 1984 murder of Juanita Weaver during a home invasion, argued that modern medical and social science shows the brain does not fully mature until age 25.

Justice Christopher McDonald, who wrote both majority opinions, acknowledges that the 18th birthday might be an arbitrary place to draw a line, but said a line must be drawn somewhere. He noted many areas outside criminal law where turning 18 triggers new rights and responsibilities....

In the second case, Fernando Sandoval was 19 in 2004 when he shot and killed two men during a fight outside a Des Moines bar. He was convicted in 2006 and sentenced to life in prison, and has brought multiple unsuccessful appeals and petitions for postconviction relief....

The only dissenter in both cases was Justice Brent Appel, the sole Democratic appointee on the court. Appel wrote in Dorsey's case that he would not "simply extend the categorical rule ... prohibiting life-without-possibility-of-parole sentences to young adults," but instead that such cases should be treated as other states treat death sentences, requiring an "individualized assessment" by the court whether the defendant truly merits lifelong detention....

Iowa law mandates life without parole for anyone convicted of first-degree murder, except for juveniles, who may be eligible for parole.

The full ruling in Dorsey v, Iowa, No. 19–1917 (Iowa June 10, 2022), is available at this link and here is how the majority opinion begins:

Petitioner James Dorsey shot and killed a woman when he was eighteen years and five days old. He was found guilty of murder in the first degree and was sentenced to a mandatory term of life in prison without the possibility of parole.  Dorsey contends this sentence violates his state constitutional right to be free from “cruel and unusual punishment.” Iowa Const. art. I, § 17.  He argues the state constitution prohibits imposing a mandatory punishment on a young adult offender and instead requires the district court to hold an individualized sentencing hearing before imposing any sentence. He further argues his life sentence without the possibility of parole is grossly disproportionate to the crime. For the reasons expressed below, we affirm Dorsey’s sentence.

Here is how the lengthy dissent by Judge Appel wraps up:

While an offender under the age of eighteen may be entitled to a categorical exclusion from a life-without-possibility-of-parole sentence, I would hold that an individual older than eighteen might be subject to life without possibility of parole provided that the state can make the necessary showing of incorrigibility to support the sentence.

Because of the confluence of the mitigating factors of youth and the harshness of the penalty, I would apply a different version of the gross proportionality test than has traditionally been applied under the federal caselaw. Instead, in the context of a youthful offender facing life without possibility of parole, the state should be required to show that the individual offender is so incorrigible that even considering a parole-based release at a later date is out of the question.  This heightened sense of proportionality is necessary because of the potent combination of potential mitigating factors and the irreversible and severe nature of the underlying punishment.  This extension of individualized determinations is a small but necessary evolution of our current law.

June 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, June 07, 2022

Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol

As reported in this AP article, a "federal judge in Oklahoma on Monday ruled the state’s three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case."  Here is more from the press report:

Judge Stephen Friot’s ruling followed a six-day federal trial earlier this year in which attorneys for 28 death row inmates argued the first of the three drugs, the sedative midazolam, is not adequate to render an inmate unable to feel pain and creates a risk of severe pain and suffering that violates the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

“The prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court,” Friot wrote, citing three earlier rulings on the death penalty. He continued: “The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court.”

Jennifer Moreno, one of the attorneys for the death row inmates, said they are still assessing their options for an appeal to the 10th U.S. Circuit Court of Appeals in Denver. “The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” Moreno said in a statement.

Oklahoma Attorney General John O’Connor said in a statement that the state effectively proved that both the lethal injection drugs and the state’s execution protocols are constitutional. “The Court’s ruling is definitive: The plaintiffs in this case ‘have fallen well short’ of making their case, and midazolam, as the State has repeatedly shown, ‘can be relied upon … to render the inmate insensate to pain,’” O’Connor said. “My team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.”...

The state has carried out four lethal injections since October that Oklahoma’s former Solicitor General Mithun Mansinghani said during closing arguments “are definitive proof that the protocol works as intended.” Oklahoma resumed lethal injections in October with the execution of John Grant, who convulsed on the gurney and vomited before being declared dead. Since then, three more executions were carried out without noticeable complications.

The 45-page ruling of the federal district court is available at this link.  This ruling serves as yet another example of the extra difficulties that death row prisoners have in prevailing on execution protocol challenges since the Supreme Court's April 2019 ruling in Bucklew v. Precythe,139 S. Ct. 1112 (2019).  And yet, no doubt in part because of the COVID pandemic, there have still been fewer annual average state executions in the three years since Bucklew than in any other period in the last forty years.

June 7, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, June 06, 2022

Reviewing big criminal cases lingering as SCOTUS seeks to wrap up a remarkable Term

Entering the current Supreme Court Term last fall (the term known as October Term 2021), the sentencing case that garnered the most attention was US v. TsarnaevNo. 20-443, concerning the lawfulness of the Boston Marathon Bomber's death sentence.  And, at that time, the sentencing case that I thought could be most impactful was Wooden v. US, No. 20-5279, concerning application of the Armed Career Criminal Act.  The Term also started with arguments scheduled on two potential landmark cases significantly implicating a range of criminal justice issues: New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, concerning the reach and application of the Second Amendment, and Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerning when and how abortions may be criminalized.

Fast forward eight months and SCOTUS activity and jurisprudence appears ever more uncertain, in part because we now know that soon-to-be-Justice Ketanji Brown Jackson will be replacing soon-to-retire Justice Stephen Breyer and in part because we still do not know who leaked a draft majority opinion in Dobbs and how that might be impacting the Court's work.  We did get (predictable?) opinions in Tsarnaev (a win for the government) and Wooden (a win for the defendant), and a few more notable criminal justice issues were added to the SCOTUS docket. 

As we head now into the traditional finishing month of the SCOTUS Term, and especially because the Justices handed down only three civil opinions this morning, I figured it would be useful to review the considerable number of criminal cases still pending at the Supreme Court.  Here, with help from SCOTUSblog, are the big undecided criminal cases in my sights:

From the November sitting

Issue(s): Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

From the December sitting

Issue(s): Whether all pre-viability prohibitions on elective abortions are unconstitutional.
U.S. v. TaylorNo. 20-1459 [Arg: 12.7.2021]
Issue(s): Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

From the January sitting

Concepcion v. U.S.No. 20-1650 [Arg: 1.19.2022]
Issue(s): Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

From the February sitting

Ruan v. U.S.No. 20-1410 [Arg: 03.1.2022]
Issue(s): Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

From the April sitting

Nance v. WardNo. 21-439 [Arg: 04.25.2022]
Issue(s): (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

This list of a half-dozen cases I am eagerly awaiting does not provide a complete accounting of all the criminal-law-relevant matters still on the SCOTUS docket from this Term.  But it does comprise those cases that I think should likely be of greatest interest to sentencing fans.  (And, with roughly 30 cases left to be decided, this list comprises about 20% of what's now left for the Court to resolve.) 

Since the start of the Term, I figured we should not expect to see Bruen or Dobbs decided before the very last week of the Term.  But the fact that cases like Taylor and Conception are still pending strikes me as an interesting signal that something consequential (and divided) may be afoot in these cases.  But SCOTUS tea-leaf reading is always fraught, and perhaps this year it would be wise to just predict that everything is unpredictable.

June 6, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Sunday, June 05, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, June 04, 2022

Notable (Pyrrhic?) victory under California Racial Justice Act for double murderer getting LWOP

A couple of years ago in this post, I noted the enactment of the California Racial Justice Act and suggested it could have a significant impact depending upon how it was applied by judges in the state.  I have not followed closely subsequent litigation over the CRJA's application, but this week I did see this local report on a notable ruling under the headline "O.C. district attorney violated Racial Justice Act in double murder case, judge finds."  Here are the basics:

An Orange County Superior Court judge ruled Friday that Dist. Atty. Todd Spitzer violated the Racial Justice Act when he made comments about the dating habits of Black men while discussing a double murder case.

However, Judge Gregg Prickett stopped short of imposing any sanctions that would have reduced Jamon Buggs’ sentence.  The appropriate remedy in the case — seeking life without the possibility of parole rather than the death penalty — had already been applied by the district attorney’s office, Prickett said.

The Racial Justice Act, passed in 2020, prohibits prosecutors from seeking or obtaining a criminal conviction or imposing a sentence based on race, ethnicity or national origin.  “The defendant has received what the statute would say was the appropriate remedy for the violation,” Prickett said.  “The court does not find that it would be in the interest of justice to dismiss enhancements, special circumstances or reduce charges.”

Buggs, who was convicted of murder in May for fatally shooting a man and woman inside a Newport Beach condominium, allegedly in a jealous rage, was sentenced by Prickett to life in prison without the possibility of parole....  During a roughly two-week trial, Buggs’ attorneys argued that he killed Darren Partch, 38, and Wendi Miller, 48, in the heat of passion, fueled by what they described as a toxic relationship between Buggs and his ex-girlfriend, Samantha Brewers....

The case had been mired in controversy since Spitzer made racist comments about the dating habits of Black men during an October staff meeting on whether to pursue the death penalty against Buggs.  At the meeting, Spitzer told prosecutors that he knows “many Black people who get themselves out of their bad circumstances and bad situations by only dating white women,” according to a memo written by then-prosecutor Ebrahim Baytieh, who attended the meeting.

Spitzer has said allegations of “any racial animus or bias against the defendant are baseless and quite frankly offensive.”  Buggs is Black, while Buggs’ ex-girlfriend and Miller are both white. Spitzer has alleged that Baytieh wrote the memo in retaliation because Spitzer had initiated an investigation of him related to another murder case....

Prosecutors argued in court Friday that the defense failed to provide a preponderance of evidence that Spitzer’s comments negatively affected Buggs’ case. Denise Gragg, one of Buggs’ defense attorneys, said Spitzer’s comments were an example of “the oldest bias that exists” regarding Black men and white women. She added that Spitzer has not acknowledged his comments as biased.

“If you can’t even recognize that is a bias, how can you assure yourself or us that there were not decisions made in this case or not made in this case that were influenced by that bias?” she asked. “Justice is not just done from the jury box,” she added. “It’s done from the back halls; it’s done in chambers…. That is the place where this case was damaged.”

A quick Google search did not turn up any reports or data on how the California Racial Justice Act has been applied or adjudicated so far.  I continue to suspect the CJRA could have a variety of notable impacts (especially if it were to ever be made retroactive). But the accurate statement that many criminal justice decisions get made in "back halls," and the broader challenge of identifying and crafting remedies for problematic discretionary decision-making, necessarily means the impact of the CJRA may prove hard to fully gauge or assess.

June 4, 2022 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, June 01, 2022

John Hinckley, Prez Reagan's would-be assassin in 1981, due to be fully released this month 40 years after being found not guilty by reason of insanity

As reported in this new AP article, "John Hinckley, who shot President Ronald Reagan in 1981, is “no longer a danger to himself or others” and will be freed from all restrictions this month, a federal judge said Wednesday, capping Hinckley’s four-decade journey through the legal and mental health systems."  Here is more:

U.S. District Court Judge Paul L. Friedman said in September that he would free Hinckley from all remaining restrictions on June 15 as long as Hinckley continued to do well living in the community in Virginia as he has for years.  At a hearing Wednesday in Washington which Hinckley did not attend, Friedman noted Hinckley has continued to do well, and the judge made no changes to his plans for full freedom from court oversight.

“He’s been scrutinized.  He’s passed every test. He’s no longer a danger to himself or others,” Friedman said at a hearing that lasted about an hour.  Friedman devoted much of the hearing to talking about the “long road” of the case, which he was randomly assigned two decades ago, the third judge to be involved in the case.  He noted that Hinckley, who turned 67 on Sunday, was profoundly troubled when he shot Reagan but that he had been able to get mental health help.  Hinckley has shown no signs of active mental illness since the mid-1980s, the judge noted Wednesday, and has exhibited no violent behavior or interest in weapons.

Hinckley was confined to a mental hospital in Washington for more than two decades after a jury found him not guilty by reason of insanity in shooting Reagan.  Starting in 2003 Friedman began allowing Hinckley to spend longer and longer stretches in the community with requirements like attending therapy and restrictions on where he can travel.  He’s been living full-time in Virginia since 2016, though still under restrictions.  Some of those include: allowing officials access to his electronic devices, email and online accounts; being barred from traveling to places where he knows there will be someone protected by the Secret Service, and giving three days’ notice if he wants to travel more than 75 miles (120 kilometers) from his home in Virginia.

Prosecutors had previously opposed ending restrictions, but they changed their position last year, saying they would agree to Hinckley’s release from conditions if he continued to show mental stability and follow restrictions.  Prosecutor Kacie Weston said in court Wednesday that the government believes the case “has demonstrated the success that can come from a wraparound mental health system.”  She noted Hinckley has expressed a desire to continue receiving mental health services even after he is no longer required to do so, and said the government wishes “him success for both his sake as well as the safety of the community.”  Hinckley’s longtime lawyer, Barry Levine, said the case had “started with a troubled young man who inflicted great harm” and but that, in the end: “I think we have salvaged a life.”...

Reagan recovered from the March 30, 1981, shooting, but his press secretary, James Brady, who died in 2014, was partially paralyzed as a result.  Secret Service agent Timothy McCarthy and Washington police officer Thomas Delahanty were also wounded.  Reagan died in 2004.

In the 2000s, Hinckley began, with the judge’s approval, making visits to his parents’ home in Williamsburg, Virginia.  His father died in 2008, but in 2016 he was given permission to live with his mother full time.  Still, he was required to attend individual and group therapy sessions, was barred from talking to the media and could only travel within a limited area. Secret Service would also periodically follow him.  Hinckley’s mother died in 2021. He has since moved out of her home. In recent years, Hinckley has made money by selling items at an antique mall and by selling books online.

June 1, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Robina Institute releases big new report on "American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size"

American_prison-release_systems_page_coverThe Robina Institute of Criminal Law and Criminal Justice today released this great big new report titled ""American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size."  Here are excerpts from this important report's introduction:

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant.  The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards.  To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing.  When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases.

From a systemic perspective, indeterminacy can be seen as the field of play in which back-end officials with time-served discretion exercise their powers.  The larger the field — the greater the degree of indeterminacy — the greater the whole-system impact of back-end decisions.  Indeterminacy builds up cumulative effects over hundreds and thousands of cases. In systems with high degrees of indeterminacy, a substantial amount of control over prison population size is located at the back end of the system.  In many states, back-end officials have more to say about prison numbers than sentencing courts.

For those concerned about mass incarceration, serious attention should be paid to the prison-release frameworks at the back ends of America sentencing systems.  These are varied and are often highly complex.  In each state, it is important to consider the institutional structure for release decisions, how and by whom time-served discretion is currently being exercised, and the range of possibilities for future changes in existing decision patterns.  Not all, but a large portion of the nation’s prison policy is implicated. In recent years, much of the mass incarceration debate has been focused on “front-end” decisionmakers such as courts and prosecutors.  For a comprehensive slate of possible reforms, equal attention must be directed to the back end.

This project offers new conceptual tools to better understand and compare the wide range of prison-release systems across America.  We hope this will allow state officials to see their own systems in new perspective, and may shine a spotlight on policy options that would otherwise go unseen.

June 1, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 29, 2022

"A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment"

Though we are still a full month away from the exact date marking the 50th anniversary of the Supreme Court's landmark Eighth Amendment ruling in Furman v. Georgia, this new article on SSRN (which shares the title of this post) seem like a fitting way to start reflecting on capital punishment.  The article is authored by Mugambi Jouet, and here is its abstract:

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application.  This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court.  The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment.  This is truer of the Furman decision itself than of the way the case was litigated.  Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity.  Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath.  Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus.  “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs.  The architect of this strategy was Anthony Amsterdam, a famed litigator.  Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims.  This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows.  On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations. 

May 29, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Saturday, May 28, 2022

Supreme Court of Canada declares all LWOP sentences unconstitutional as "degrading in nature and thus intrinsically incompatible with human dignity"

As this press article details, "Canada’s supreme court has ruled that life sentences without the chance of parole are both “cruel” and unconstitutional, in a landmark decision that could give more than dozen mass killers who committed “inherently despicable acts” the faint hope of release in the future." Here is more from the press piece about Friday's ruling:

The court unanimously determined on Friday that sentencing killers to lengthy prison terms with little hope of freedom risked bringing the “administration of justice into disrepute”.

The closely watched case centred on the fate of Alexandre Bissonnette, the gunman who killed six worshippers at a mosque in Québec City in 2017, but the court’s decision will possibly have consequences for at least 18 others who are serving multiple life sentences.

In Canada, those serving a life sentence for first-degree murder are eligible to apply for parole at 25 years. But in 2011, the Conservative government gave justices the ability to hand out consecutive sentences, rather than concurrent blocks of 25 years.

In the case of Bissonnette, the 27-year-old pleaded guilty to six counts of first-degree murder and six counts of attempted murder in 2018, after he entered the Islamic Cultural Centre in Québec City with a semi-automatic rifle and pistol, opening fire on worshippers. The prime minister, Justin Trudeau, called the act a “terrorist attack”.

Drawing on the 2011 provision, Crown prosecutors asked a judge to impose a parole ineligibility period of 150 years, the harshest sentence ever handed down in Canada since the abolition of the death penalty. Prosecutors said Bissonnette should serve 25 consecutive years for each of the six people he murdered.

The sentencing judge instead ruled Bissonnette would have the chance of parole at 40 years. That decision was overturned in 2020 by Quebec’s court of appeal, which ruled unanimously that Bissonnette should have a chance of parole at 25 years. Bissonnette, now 32, will be eligible to apply for parole in his 50s.

The ruling of the court applies retroactively to 2011 and could affect at least 18 others whose parole eligibility exceeds 25 years, even those who have exhausted their appeals. In some cases, people have been handed a 75-year wait period before being able to apply for parole....

Acknowledging the heinous crimes of those serving multiple life sentences, Chief Justice Richard Wagner wrote that the ruling “must not be seen as devaluing the life” of innocent victims. “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”

The full ruling in R. v. Bissonnette, 2022 SCC 23 (Canada May 27, 2022), is available here.  Here is just one of many notable passages: 

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.  The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system.  A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity.  Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them.  Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

To review, then, in Canada it is unconstitutional to impose functional life without parole sentences on even mass murderers, wheres in the United States many thousands of persons (and mostly persons of color) have been sentenced in recent decades to LWOP terms for federal drug offenses.

May 28, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Thursday, May 26, 2022

Air Force Court of Criminal Appeals decides court martialed prisoner cannot seek compassionate release in military courts

A helpful reader altered me to an interesting ruling this week from the US Air Force Court of Criminal Appeals in In re Kawai, Misc. Dkt. No. 2022-02 (AFCCA May 25, 2022) (available here). Here is how the opinion gets started:

On 29 January 2022, Petitioner requested this court grant him extraordinary relief in what he styled as a “Motion for Compassionate Release and Reduction in Sentence,” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).  This court received, by mail, Petitioner’s request on 2 March 2022, and docketed his petition on 11 March 2022; the Court did not order briefs by the Government or Petitioner in response.  We conclude we do not have jurisdiction to adjudicate Petitioner’s request and deny the petition.

Here is a key portion of the ruling:

The problem for Petitioner is the review of a motion for compassionate release is jurisdictional. “A motion to file for compassionate release can only be brought before the sentencing judge.” Ferguson v. United States, No. 1:22-cv10542, 2022 U.S. Dist. LEXIS 50986, at *2 (E.D. Mich. 21 Mar. 2022).  Yet, “[g]eneral courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved.” Witham v. United States, 355 F.3d. 501, 505 (6th Cir. 2004).  Because Petitioner’s court was dissolved after his case, and because his case is final under Article 76, UCMJ, there is no sentencing court within the military service courts in which Petitioner may bring a motion under 18 U.S.C. § 3582(c)(1)(A)(i).

However, Congress has charged federal district courts with exercising jurisdiction over habeas corpus petitioners who are imprisoned as a result of court-martial convictions. See Burns v. Wilson, 346 U.S. 137, 139 (1953); Chapman, 75 M.J. at 601; see also Gilliam v. Bureau of Prisons, No. 99-1222, 2000 U.S. App. LEXIS 3684, at *3 (8th Cir. 10 Mar. 2000) (unpub. op.).  Federal district court is also the proper venue for Petitioner’s motion. See Owens, 2020 U.S. Dist. LEXIS 61460, at *2.

May 26, 2022 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)