Sunday, May 15, 2022

Register for "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission"

In this prior post, I noted the great weekly panel series for the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is running every Tuesdays in May at 12noon ET, which means the third panel is scheduled taking place this coming Tuesday, May 17th.  This panel is titled "Sentencing Review and Reduction: Open Questions and Next Steps for the Commission," and the discussion is especially timely given Prez Biden's nomination of seven people to the US Sentencing Commission just last week.  Everyone can and should register to attend next week's session and the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this latest panel:

Elizabeth Blackwood, Counsel & Director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyer

Marisa Taney, Associate at Debevoise & Plimpton LLP, Holloway Project

I had the honor of helping to moderate the final panel, which airs next week, and it is titled Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET).

Prior related posts:

May 15, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 12, 2022

Spotlighting ever longer stays on death row before executions

NPR has this lengthy new piece headlined "U.S. inmates condemned to die are spending more time on death row." I recommend the full piece, and here are excerpts from the beginning:

After spending decades on Arizona's death row, Clarence Dixon was executed on Wednesday for the 1978 murder of Deana Bowdoin.  At 66 years old, Dixon is just the most recent example of the growing population of aging inmates on America's death row.

"We're seeing death sentences near record lows. We're seeing executions at near record lows," Robert Dunham, the executive director of the Death Penalty Information Center, told NPR. "There are fewer and fewer people on death row overall and the ones who remain on death row have been there longer."...

The average time between sentencing and execution has increased by two-thirds in the past 20 years — from 11.4 years in 2000 to 18.9 years in 2020, according to the most recent available data from the Bureau of Justice Statistics.  Experts who spoke to NPR said this trend is due, in part, to changed opinions on capital punishment in the U.S., and a lengthier appeals process that delay executions.

For victims' families and these inmates, waiting decades to see their cases resolved takes its toll.  Some experts say 20 to 40 years on death row at the literal expense of the state raises questions of fair treatment of prisoners....

As of 2020, the average age of death row inmates nationally was 52 years old, according to the Bureau of Justice Statistics.  More than 56% were white, 41% were Black. Men made up the majority of those prisoners — about 98%.

May 12, 2022 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (3)

Tuesday, May 10, 2022

Lots of notable parole stories from coast to coast

Parole is often a subject that generates headlines, and today I saw a notable number of notable stories from five states on the topic that seemed worth flagging.  In alphabetical order:

From California, "Medical Parole Got Them Out Of State Prison. Now They're In A Decertified Nursing Home"

From New Jersey, "In major reversal, N.J. Supreme Court orders parole of man convicted of murdering state trooper in 1973"

From New York, "New York’s longest serving inmate who murdered 14-year-old granted parole"

From Virginia, "Chances for Parole Go from Bad to Worse Under Virginia’s New GOP Leadership"

From Wisconsin, "Parole of killer in Wisconsin puts pressure on Evers"

May 10, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"When a Second Chance Gets a Second Chance: Reasonableness Review Reigns for Motions Under Section 404(b) of the First Step Act on Appeal"

The title of this post is the title of this new comment now available on SSRN authored by Patrick Riley. Here is its abstract: 

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine.  Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine.  In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1.  However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act.  Those already sentenced under the 100:1 ratio were left without any recourse until the First Step Act was passed in 2018.

Section 404(b) of the First Step Act applied the changes made by the Fair Sentencing Act retroactively to defendants imprisoned for crack cocaine offenses before the Fair Sentencing Act was passed in 2010.  Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

This Comment reaches the same result as the second group for two reasons: (1) This Comment applies the sentencing modification in 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), to section 404(b) of the First Step Act; and (2) this Comment interprets the text and purpose of section 404(b) as a sweeping remedy granting district courts broad discretion — like initial plenary sentencings — that must be reviewed for reasonableness.

May 10, 2022 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

May 10, 2022 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Monday, May 09, 2022

US Sentencing Commission releases latest detailed "Compassionate Release Data Report"

Cr-line-chart-2022_cropVia email, I got word that the US Sentencing Commission today published this updated compassionate release data report.  Here is the very brief accounting of the report from the email (as well as a reprinting of the graphic that appears as Figure 1 of the report):

With the advent of the COVID-19 pandemic, the courts received thousands of compassionate release motions, most filed by offenders.  This report provides an analysis of the compassionate release motions filed with the courts during the COVID-19 pandemic.

The Commission received the following information from the courts on motions decided during fiscal years 2020 and 2021 (October 1, 2019 – September 30, 2021):

  • 3,867 offenders were granted compassionate release. This represents 17.2% of motions.

  • 18,653 offenders were denied compassionate release. This represents 82.8% of motions.

There are lots and lots of interesting data points throughout this data report, including data highlighting that people sentenced long ago (and before the guidelines became advisory) had significantly higher success in getting a sentence reduction.  Also interesting is the data detailing the reasons that courts provided for granting these sentencing reduction motions, which suggests some small evolution in stated reasons from FY 2020 to FY 2021.

But most striking data are those details the dramatic variations in grant rates from various districts. As but one of many remarkable examples, consider the three districts of Georgia: the Southern District of Georgia granted only 5 out of 248 sentence reduction motions for a 2% grant rate; the Middle District of Georgia granted only 4 out of 217 sentence reduction motions for a 1.8% grant rate; but the Northern District of Georgia granted 76 out of 170 sentence reduction motions for a 44.7% grant rate.  One could also tell an island variation story, and no motions were granted (out of only six) in the Virgin Island district; but that lovely island district of Puerto Rico saw 79.2% of motions (19 of 24) granted. 

Remarkably, the District of Maryland — with a total of 211 sentencing reduction motions granted (though "only" a grant rate of 32.7% with 646 motions) — granted more of these motions that all the courts of the Fifth Circuit!  (The Fifth Circuit had the lower total circuit grant rate of 9.3% with only 204 motions granted out of 2,197 total brought.) 

May 9, 2022 in Data on sentencing, Detailed sentencing data, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, May 02, 2022

Seriously considering resentencing in high-profile Cleveland corruption case (while seriously enjoying rewatching puppet trial parody)

Article-2089091-115F2B80000005DC-234_468x273Though the initial federal sentencing of former Cleveland area county commissioner Jimmy Dimora took place a decade ago, I still recall that Dimora received one of the longest prison terms ever given for political corruption.  My 2012 post about his sentencing to 28 years in federal prison provides some background on the case, and it notes that his attorneys then argued Dimora should get less prison time due to his ailing physical condition and age.  Fast forward a decade, and this local story highlights that what's old is new again in federal sentencing for Dimora.  The article is headlined "Ex-Cuyahoga County Commissioner Jimmy Dimora’s health is failing; attorney asks for release from prison at re-sentencing," and here are excerpts:

Disgraced former Cuyahoga County Commissioner Jimmy Dimora’s health is failing, and his defense attorney asked a judge to consider releasing him from prison when Dimora is re-sentenced on corruption charges next month. Attorney Philip Kushner urged U.S. District Judge Sara Lioi to have leniency for Dimora, according to a court filing last week. Lioi must re-sentence Dimora after the judge overturned convictions on two of Dimora’s 32 charges in one of the largest corruption cases in Ohio history.

Dimora, who will turn 67 in June, has a long list of medical issues that Kushner said should result in Lioi giving Dimora significantly less prison time than the original 28-year sentence. He was convicted of engineering a pay-to-play scandal that led to an overhaul of county government in 2012. “During his 10 years of incarceration, his health has deteriorated,” Kushner wrote in the filing....

Dimora’s cohort and co-defendant, former county Auditor Frank Russo, died last month. His death came about two years after he was released from prison, in part, because of his failing health and the coronavirus pandemic.

Kushner argued for a significantly lesser sentence or release for Dimora based on his age, health and the steep punishment Lioi doled out in 2012. Dimora, he wrote, suffers from a heart defect, an intestinal disorder and an inner-ear equilibrium disease. He needs knee-replacement surgery. He suffered a stroke in prison, is diabetic and uses a wheelchair, according to the filing. Dimora contracted COVID-19 twice in prison, including once in which he became “very ill,” according to Kushner. Dimora is currently serving time in the Federal Medical Center Devens in Massachusetts, which houses seriously ill inmates.

Kushner also argued that similar felons typically serve far less time, somewhere between 12 and 15 years, not the 28 that Dimora is serving.

The 6th U.S. Circuit Court of Appeals ordered Lioi to re-examine the case in the wake of a 2016 U.S. Supreme Court decision in which the justices clarified the definition of an “official act” taken by a public official in a bribery case. The ruling meant that Lioi’s instructions to the jury were outdated and incorrect.  Lioi in March overturned two convictions that focused on contractor Nicholas Zavarella, who built an outdoor kitchen and retaining wall at Dimora’s home for free....

Federal prosecutors are expected to file their own sentencing memorandum with Lioi in the days before the hearing June 8.

Whether Dimora receives a significantly reduced federal sentence is a serious matter, perhaps even literally deadly serious for him.  But Dimora's name and his high-profile case reminded me of a not-quite-so-serious aspect of his trial.  Specifically, as this 2012 NBC News piece detailed, one news station's local coverage of the Dimora trial itself made national and international news:

It's courtroom drama crossed with "Sesame Street," as a television station barred from using cameras during a high-profile corruption trial covers the highlights with a nightly puppet show. It stars a talking squirrel "reporter" who provides the play-by-play in an exaggerated, "you won't believe this" tone.

"It's a satirical look at the trial and, again, I think we have it appropriately placed at the end of the newscast," WOIO news director Dan Salamone said Thursday. He said the puppets are in addition to the station's regular coverage of the Akron federal trial of ex-Cuyahoga County Commissioner Jimmy Dimora, the longtime Democratic power broker in Cleveland. "It's not intended in any way to replace any of the serious coverage of the trial," Salamone said.

Especially on a Monday afternoon when everyone could surely use a bit of levity, I highly recommend watching at least the first few segments of "The Puppet's Court":

Each of these segments is only about 90 seconds long, though I think there are at least 10 of them if you keep watching. I am so glad they are still on YouTube.

May 2, 2022 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Multiple Tennessee executions put on hold as Gov orders "third-party review" lethal injection process

Tennessee had multiple executions scheduled for 2022.  But, as reported in this post a few weeks ago, the first of these scheduled executions was postponed by the Gov at the last minute because of concerns with the state's lethal injection process.  Now, as reported in this local article, "Tennessee Gov. Bill Lee has paused all executions in the state through 2022." Here are the details and context:

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment over the lethal injection process.  “I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said.  “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”...

U.S. Attorney Ed Stanton will oversee the independent review for Tennessee, the release said.  The review will include an exploration into circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution, clarity of the lethal injection process manual that was last updated in 2018 and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said.  “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Three of four executions in Tennessee have been carried out by electric chair since 2019, the release said. Death row inmates are given the choice between lethal injection and the electric chair in Tennessee.  Lethal injection is the default method for execution in the state.

Smith's execution was set to be the first since February 2020 due to COVID-19 delays.  He was one of five death row inmates set to be executed in Tennessee this year.  The Tennessee Supreme Court will set new dates for the 2022 executions, the release said.

Governor Lee's official statement is available at this link.

May 2, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 01, 2022

"Donald Trump’s Clemencies: Unconventional Acts, Conventional Justifications"

The title of this post is the title of this paper now available via SSRN and authored by Austin Sarat, Laura Gottesfeld, Carolina Kettles and Olivia Ward.  Here is its abstract:

During his four years as president Donald Trump’s use of the clemency power generated considerable controversy.  Much scholarship documents the fact that he ignored the traditional procedures for reviewing and approving requests for pardons and commutations and used clemency to favor a rogues’ gallery of cronies, celebrities and those whose crimes showed particular contempt for the law.  However, few scholars have examined the justifications he offered when he granted pardons and commutations.  This paper fills that gap.  We argue that because the clemency power sits uneasily with democracy and the rule of law when presidents use this power they feel the need to supply justifications.  We report on a study of Trump’s clemency justifications that suggests that while his clemencies themselves were often controversial and his means of communicating about them unconventional, the reasons he gave for them were generally quite conventional and continuous with the justifications offered by his predecessors for their pardons and commutations.

May 1, 2022 in Clemency and Pardons, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 28, 2022

Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way

Earlier this week, a Sixth Circuit panel issued a notable ruling in In Re United States of America, No. 21-1318 (6th Cir. April 26, 2022) (available here).  At issue was the behavior of a District Judge who was unwilling to accept a plea agreement with an appeal waiver, and the panel was troubled the district court failed to provide a case-specific account for why a (somewhat limited) waiver was problematic:

What is particularly troubling is that the court’s reasoning would seemingly prohibit every plea agreement containing appeal waivers, regardless of the defendant’s case, the agreement’s charging or sentencing terms, or the parties’ reasons for negotiating those waivers.  We cannot credit the district court’s argument that it engaged in an individualized assessment simply because it inserted the phrase “the circumstances of this case” at various points in its opinion. Without more explanation from the court, such language is mere surplusage....

To summarize, a district court does not possess unrestrained discretion to reject a plea agreement.  It must, among other things, make an individualized assessment of the agreement and predicate its decision on the specific facts and circumstances presented.  Because the district court here failed to do that, this is the narrow circumstance in which the district court abused its discretion.  Accordingly, the United States has a clear and indisputable right to mandamus on this ground.

Some (now dated?) research has highlighted the "uneven practice of trading sentencing concessions for waivers" and that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review."  More generally, I generally agree with the District Court's stated policy concerns with all appeal waivers: "The court explained its belief that appeal waivers 'embargo' trial court mistakes, 'insulate' the government’s conduct 'from judicial oversight,' effectively 'coerce' guilty pleas with offers 'too good to refuse,' and 'inhibit[] the development of the Sentencing Guidelines'.” 

But, even though I think appeal waivers should be viewed as void as against public policy, circuit courts have all regularly upheld various versions of this (government labor-saving) device.  (Early on, eager to limit appeals, many circuits claimed that an appeal waiver limited their jurisdiction to consider an appeal, but eventually they moved away from this anti-textual claim.)  Upon first seeing this Sixth Circuit opinion, I was concerned this panel might assert a judge could never reject an appeal waiver (which prosecutors argued), but the message from the opinion instead is that district judges need to provide an "individualized assessment" in order to do so. 

Prof Carissa Hessick, who has written a great book on plea bargaining, calls parts of the Sixth Circuit panel opinion "bonkers" in this Twitter thread.  She hopes the "Sixth Circuit decides to hear this case en banc and to reverse this terrible panel decision," but I am not holding my breath. 

April 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (12)

Wednesday, April 27, 2022

Prison Policy Initiative publishes report on "Executive inaction: States and the federal government fail to use commutations as a release mechanism"

PPIThe main theme of this new Prison Policy Initiative report on clemency (and the lack thereof) is captured in this subtitle data point: "Our survey of eight states found an average of one commutation for every 10,000 imprisoned people each year."  Here are a few excerpts from a new data report that should be read in full:

If Biden intends to truly deliver on his promises to enact large-scale criminal justice reform, this set of commutations should merely mark the beginning of a broader initiative. In fact, nothing is holding him back: the President has the power to grant commutations to large categories of people in federal prisons independently — without any action by Congress, the Department of Justice, or another third party. Despite this broad power, most U.S. presidents in the era of mass incarceration have been hesitant to use their powers of commutation.

In 2021, at the request of advocates working on clemency reform in the northeast, we submitted records requests to eight northeastern states seeking information about their commutation processes. As our survey of these eight states finds, state executive branches also chronically underuse their commutation powers. The states in our sample reported granting just 210 commutations from 2005 through mid-2021, for a total average of 13 grants a year across the eight states. For comparison, the average total prison population across these eight states from 2005 to 2020 was about 130,000 — meaning that each year, this group of states commuted about one out of every 10,000 sentenced and imprisoned individuals. In fact, five of the states each reported granting just five commutations or fewer over the 16.5 years for which we requested data. And concerningly, almost no states in the sample increased their rate of commutations during the pandemic, at a time when reducing prison populations is critical to save lives....

Looking past the commutations granted by President Biden and at the operation of the federal clemency process more generally — it is clear that changes to the status quo are necessary. First, there is far too great a backlog in federal clemency applications. Data released on April 1, 2022 showed that approximately 18,270 applications for federal clemency are pending, nearly 15,000 of which are for a commutation of sentence. And, until April 2022, all of the 2,415 applications for clemency that had been acted on since the President took office in January 2021 had been administratively closed. This means that Biden had taken no action to either grant or deny clemency applications....

Historically, commutations were used much more frequently. In Massachusetts, for example, 218 commutations were granted in the 50s, 60s, and 70s, and 84% of them went to people serving life sentences for murder. Connecticut was still granting regular commutations even more recently: The state granted 36 commutations between 1991 and 1994.

But grants have since slowed down drastically and become exceedingly rare across the country. Massachusetts granted just 29 commutations in the 80s, 90s, 2000s, and 2010s; Connecticut reported granting five from 2016 to mid-2021. Today, commutations are often explicitly reserved for — or in practices, awarded only to — narrowly defined groups, such as people who have served at least half of their sentence or those convicted of “nonviolent” offenses.

April 27, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 26, 2022

Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations

Because I always am inclined to say better late than never, I was quite pleased to wake up to the news that President Joe Biden is finally starting to make good on his  campaign promise to "broadly use his clemency power for certain non-violent and drug crimes."  This USA Today piece, headlined "Biden to pardon three felons, commute sentences of 75 others, in first grants of clemency," provides these details:

The nation's first Black Secret Service agent on a presidential detail, now 86 years old living in Chicago, who has worked decades to clear his name for a crime he has said he didn't commit. A 51-year-old woman from Houston who served seven years in prison for attempting to transport drugs for her boyfriend and accomplice – neither of whom faced charges. And a 52-year-old man from Athens, Georgia, who partners with schools to employ youth at his cellphone repair company, two decades after he was charged for letting pot dealers use his pool hall to sell drugs.

Three convicted felons – Abraham Bolden Sr., Betty Jo Bogans and Dexter Eugene Jackson – are receiving presidential pardons from President Joe Biden, along with 75 others whose sentences the president is commuting Tuesday, in the first use of clemency power of the Biden presidency.  All of Biden's commutations target individuals serving sentences for low-level drug offenses, some of whom have served on home confinement during the COVID-19 pandemic.  Many are Black or brown, and the White House said each has displayed efforts to rehabilitate themselves.

The clemency announcements, which coincide with national "Second Chance Month," come as Biden will also announce new actions aimed at improving outcomes for felons who reenter society. That includes $145 million for a federal program to train the incarcerated for future employment and the removal of criminal history in applications for Small Business Administration grants.

"America is a nation of laws and second chances, redemption, and rehabilitation," Biden said in a statement. "Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities. During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans."...

The individuals granted clemency came at the recommendation of the Department of Justice's pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides. Biden said the three people pardoned have each "demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities."...

Nearly one-third of the 75 commutation recipients would have received lower sentences if they had been charged today under the Trump-era criminal justice law, the First Step Act, according to senior Biden administration officials. They have served an average of 10 years in prison and have "shown resilience" in seeking a productive path forward, a White House official said.

The official statement from Prez Biden on these grants is available at this link, and its start provides links to all those granted clemency and other executive action on the reentry front:

America is a nation of laws and second chances, redemption, and rehabilitation. Elected officials on both sides of the aisle, faith leaders, civil rights advocates, and law enforcement leaders agree that our criminal justice system can and should reflect these core values that enable safer and stronger communities.  During Second Chance Month, I am using my authority under the Constitution to uphold those values by pardoning and commuting the sentences of fellow Americans.

Today, I am pardoning three people who have demonstrated their commitment to rehabilitation and are striving every day to give back and contribute to their communities.  I am also commuting the sentences of 75 people who are serving long sentences for non-violent drug offenses, many of whom have been serving on home confinement during the COVID-pandemic — and many of whom would have received a lower sentence if they were charged with the same offense today, thanks to the bipartisan First Step Act.  

My Administration is also announcing new steps today to support those re-entering society after incarceration.  These actions include: a new collaboration between the U.S. Department of Justice and the U.S. Department of Labor to provide job training; new grants for workforce development programs; greater opportunities to serve in federal government; expanded access to capital for people with convictions trying to start a small business; improved reentry services for veterans; and more support for health care, housing, and educational opportunities. 

Though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms terms for drug offenses.  From a quick scan, it looks like perhaps more than a third of those who received commutations are women, which reminded me of the statements of Prez Trump clemency recipient Alice Marie Johnson that there were thousands of persons like her in prison who deserved commutation.  (BOP data show the federal prison population is comprised of less than 7% women, though I sense that much more than 7% of the most mitigated cases involve women.)

A few of many prior recent related posts:

April 26, 2022 in Clemency and Pardons, Criminal justice in the Biden Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Monday, April 25, 2022

Texas Court of Criminal Appeals stops execution and remands Melissa Lucio's case for review of her conviction

Because her case had received considerable attention and because she seemed to have a colorable claim of actual innocence, I was expecting that Melissa Lucio's scheduled execution would not go forward this week.  But I was unsure who would stop it and how.  Today we found out, as detailed in this local article headlined "Melissa Lucio’s execution halted by Texas Court of Criminal Appeals."  Here are the details:

The Texas Court of Criminal Appeals on Monday halted the scheduled Wednesday execution of Melissa Lucio, whose death sentence has drawn international outcry as more people come to doubt her guilt in her 2-year-old daughter’s death.

The court sent Lucio's case back to the Cameron County court where she was originally tried to weigh whether she is actually innocent, as well as whether the state presented false testimony at trial and hid evidence from the defense.  The court's ruling came minutes before the Texas Board of Pardons and Paroles was scheduled to vote on whether to recommend that the governor delay Lucio's execution for at least 120 days.  The board later said that it would no longer make a recommendation because of the court's ruling....

In a statement provided by her attorneys, Lucio said she was thankful for those who spoke out for her and was "grateful the Court has given me the chance to live and prove my innocence. Mariah is in my heart today and always.  I am grateful to have more days to be a mother to my children and a grandmother to my grandchildren."

Questions over Mariah Alvarez’s death and Lucio’s role in it have lingered since the now-53-year-old mother was sentenced to death in 2008.  In recent months, concerns about Lucio’s possible innocence — greatest among them whether Mariah’s fatal head trauma was caused by abuse or an accidental fall down the stairs — have only been amplified.

More than two-thirds of the Texas Senate and a majority of the Texas House of Representatives pleaded for the parole board and governor to halt Lucio’s execution. The lawmakers have been joined by an ever-growing list of people, including at least five of Lucio’s former jurors....

The admissions to child abuse, which Lucio has since recanted, were the main evidence presented at trial, where jurors found she was guilty of capital murder and worthy of a death sentence.  Lucio’s advocates have since condemned the trial judge for not letting the jury hear critical testimony from mental health professionals that could have explained why Lucio, a longtime victim of sexual abuse and domestic violence, would falsely confess.

Texas' highest criminal court sent Lucio's case back to her trial court to weigh multiple questions.  Lucio's latest appeal argued false evidence from the state — largely that jurors heard a Texas Ranger testify he could tell by Lucio's demeanor in her interrogation that she was guilty, and the medical examiner's definitive conclusions that Mariah's injuries were from child abuse — swayed the jury to wrongly convict Lucio.  Her attorneys also argue new scientific evidence has debunked claims made at trial that definitively established the marks on Mariah's back were from a bite.  They said science also now shows Lucio would be very likely to falsely confess.

Finally, the appeal argued the prosecution hid potentially helpful evidence, including interviews of Lucio's older children after Mariah's death that corroborated Lucio's statement that Mariah fell down the stairs. "It would have shocked the public’s conscience for Melissa to be put to death based on false and incomplete medical evidence for a crime that never even happened," Vanessa Potkin, Lucio's lawyer with The Innocence Project, said in a statement after Monday's ruling.

Despite the wide-ranging concerns with Lucio’s police interrogation and trial, appellate courts have previously upheld her conviction and sentence, even though a majority of judges on a conservative court found the case troublesome. 

Prior related posts:

April 25, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Arizona court rejects condemn man's petition objecting to too many law enforcement members on state Board of Clemency

This new NPR piece, headlined "In rejecting death row inmate's case, judge says law enforcement isn't a profession," reports on this interesting state court ruling from last week concerning the Arizona clemency process. Here are the details and context:

An Arizona inmate who is mere weeks away from his scheduled execution argued the state's clemency board was unfairly loaded with law enforcement. But a state judge has disagreed, saying that law enforcement does not meet the definition of a "profession."

Earlier this month, the Arizona Supreme Court issued an execution warrant – the first in eight years – for Clarence Wayne Dixon, a 66-year-old prisoner convicted of first-degree murder. But Dixon's attorneys argued Tuesday that the Arizona Board of Clemency, which is set to meet on April 28 to decide whether to stay the execution, is illegally made up of too many members who had careers in law enforcement.

This past Tuesday, Maricopa County Superior Court Judge Stephen Hopkins ruled against Dixon. "Historically, law enforcement has not been thought of as a "profession," Hopkins said in his decision. "It is not regulated as other professions are, and has little of the characteristics of what is typically considered a profession."...

Arizona law prohibits "No more than two members from the same professional discipline" from serving on the clemency board at the same time. The current board is made up of: one former superior court commissioner and assistant attorney general; a former federal agent with over 30 years' experience; a retired officer who spent 30 years with the Phoenix Police Department; and a 20-plus-year detective, also with the Phoenix PD. The fifth seat on the board is currently vacant.

Dixon was serving seven life sentences for the 1985 kidnapping, rape and assault of a Northern Arizona University student, according to court documents, when investigators connected him with a murder that took place seven years earlier. In 2001, DNA evidence linked Dixon to the January 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University. She was found dead in her apartment, having been strangled and stabbed. A jury sentenced Dixon to death in 2008....

Dixon's execution, which appears all but certain at this time, will be the first to be carried out in Arizona since the botched execution of Joseph Rudolph Wood in 2014. Wood's execution should have taken a matter of minutes, NPR previously reported, but instead, the prisoner took more than two hours to die.

Based on the ruling, it seems that Dixon also asserted a due process violation, perhaps based only on the statutory requirement or maybe independently.  The court address that issue this way: "To be sure, courts have recognized due process rights in connections with boards of parole, pardon, or clemency.  See generally Chapter Three, The Law of Probation and Parole.  However, to the Court’s knowledge no case anywhere has recognized a due process right in the particular makeup of such a board."

April 25, 2022 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Supreme Court grants cert on procedural issue relating to federal suits seeking DNA testing of crime-scene evidence

For the first time in what seems like a while, the US Supreme Court granted certiorari in a couple of new cases this morning.  The two cert grants in this order list has one civil matter and on criminal matter. The criminal case is Reed v. Goertz, No. 21-442, and here is its question presented via SCOTUSblog:

Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

April 25, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 24, 2022

Though executions are declining, questions about methods and how to litigate them persist

From 1995 to 2005, there were nearly 750 executions in the United States (747 to be exact, an average of 68 per year), almost all of which were by lethal injection, and relatively few of which were significantly delayed by uncertainty or litigation over execution methods.  But by the mid 2000s, litigation challenging the constitutionality of lethal injection began to pick up steam and the Supreme Court began to take up a number of different matters relating to this litigation.  (I blogged, somewhat cheekily, about all the lethal injection "scrummages" during this period.)

Fast forward another 16 years, and there have been "only" another 540 executions in the US from 2006 until today (an average of 34 per year), and there have been fewer executions in the last five years than in a number of single years in the 1995-2005 period.  The considerable amount of litigation over lethal injection is surely part of the reason for the modern decline, even with the Supreme Court repeatedly upholding lethal injection as a method of execution in landmark cases like Baze v. Kentucky (2008) and Glossip v. Gross (2015).

I provide all this background as a mini preview and prelude to the execution method litigation that SCOTUS will be hearing oral argument on Monday.  Nance v. Ward is about what procedural means condemned prisoners must use to challenge execution methods, and I suspect the history just recounted could impacting how various Justices approach this case.  Still, as discussed in the  SCOTUSblog preview post here authored by Lee Kovarsky, complicated procedural precedents may make this matter hard to predict.  That post concludes this way:

Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method-of-execution claims, which it generally views as legalistic ploys to delay imposition of valid death sentences.  If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states.  The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.

April 24, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 21, 2022

Interesting example of federal judge rejecting white-collar plea deal as too lenient

A story this week out of Utah provides a reminder that federal judges can still have control over sentencing outcomes even in our plea bbargained justice system of pleas.  The headline of this local article captures the essence of the story: "Judge demands harsh sentence for ex-attorney accused of embezzling millions from Utah clients: Former Salt Lake City attorney Calvin Curtis faced about six years in prison as part of a plea agreement. The judge insisted on more prison time."  Here are some of the details:

A federal judge in Utah tossed out a sentencing proposal Tuesday for former Salt Lake City estate attorney Calvin Curtis, demanding that the man accused of defrauding his clients out of millions receive a harsher prison sentence.

The proposal of about six years in prison had been agreed upon by federal prosecutors and Curtis’ defense attorney ahead of the hearing. U.S. District Judge David Barlow was expected to take it into consideration before imposing a sentence.

Instead, rejecting the proposal altogether, Barlow said that as Curtis allegedly stole $12.7 million from 26 of his clients — all elderly, disabled or incapacitated — over about 13 years, the suspected fraud was “cold-blooded, premeditated and repeated.” Curtis “perverted” the law, Barlow continued, and “enriched himself on the backs of those who needed his help.”

Prosecutors have argued Curtis used that money to fund a “lavish lifestyle,” which included frequent travel, expensive gifts, tickets to basketball and football games, and pricey renovations and mortgage payments on his former mansion home and office on South Temple.  Assistant U.S. attorney Ruth Hackford-Peer said in Tuesday’s hearing that the proposed sentence of 73 months in prison was not a perfect resolution, “but it’s a good one.”

Several of Curtis’ victims attended the hearing, filling the courtroom along with family members and caregivers.... As the victims shared their stories of how devastating it has been to lose money that they would have used for various needs such as food, clothing, medicine and health care, a common refrain was for Barlow to impose the maximum sentence. “I don’t think Calvin is human,” one woman said quietly. “I feel that he’s the devil.”...

When it came time for Barlow to announce a decision, he said the proposed prison sentence — plus a restitution judgment of $12.7 million and supervised release for three years as part of Curtis’ plea agreement — was not harsh enough.  Since Curtis’ crimes were “so heinous,” Barlow said, he should receive a prison sentence at the higher end of the range that is customary in such a case, which is 10 years. The judge added that he is “not convinced” that Curtis — who is charged with wire fraud and money laundering — takes responsibility for his actions or feels remorse.

Barlow asked the attorneys for both sides to negotiate again and come up with a new sentencing proposal. A new hearing date was not immediately set....

Laura Milliken Gray, an attorney for a woman with Alzheimer’s disease from whom Curtis has admitted to embezzling more than $9 million, called Barlow’s decision a “surprise.”  Her client’s daughter-in-law, Sherry McConkey, said she is “excited” at the prospect of Curtis getting more time in prison than expected. But she added that it’s “hard” the case will go on longer, “because I just want it to be over and done with.”

April 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (44)

Ruling 6-3, SCOTUS sets out added requirements for federal habeas petitioners

The Supreme Court this morning handed down an opinion in Brown v. Davenport, No. 20–826 (S. Ct. April 21, 2022) (available here), that perhaps only a fed courts junkie could love. The opinion produced a familiar ideological split and here is how Justice Gorsuch's opinion for the Court starts:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U.S. 619 (1993)?  Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)? The Sixth Circuit ruled that an individual who satisfies Brecht alone is entitled to habeas relief.  This was mistaken.  When a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.

Justice Kagan authored the dissent, which starts this way:

Twice in recent years, this Court has addressed how a federal habeas court is to evaluate whether a state trial error was harmless.  See Fry v. Pliler, 551 U.S. 112, 119–120 (2007); Davis v. Ayala, 576 U.S. 257, 267–270 (2015).  And twice, we have made clear that the habeas court need apply only the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993); it need not also run through the test set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is because, we have both times explained, the Brecht standard “obviously subsumes” the “more liberal” AEDPA one: If a defendant meets the former, he will “necessarily” meet the latter too.  Fry, 551 U.S., at 120; Ayala, 576 U.S., at 270.

Today, the Court discards those crystal-clear statements, subscribed to on each occasion by every Justice.  The majority reverses the Court of Appeals for following our prior guidance, allowing the use of the Brecht test alone.  And in declaring Brecht insufficient, the majority consigns future habeas courts to a regimen of make-work.  Now those courts will have to jump through AEDPA’s hoops as well, even though that extra analysis will never lead to a different result.  I respectfully dissent from that pointless demand.

April 21, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Firing squad execution stayed, while another execution date set, by South Carolina Supreme Court

Notable capital developments in South Carolina are covered in the CNN piece, which starts this way: "South Carolina's Supreme Court issued a temporary stay of execution Wednesday for Richard Bernard Moore, who was scheduled to be the first person executed by firing squad in the state." Here is more:

Lindsey Vann, one of Moore's attorneys, told CNN last week that they asked the state's highest court to put the execution on hold in order to give them time to appeal his conviction to the US Supreme Court.

Moore, who was sentenced to death for the 1999 murder of a convenience store clerk, was scheduled to be executed April 29. In a court filing last week, he chose firing squad over the electric chair.. He did not have the option of choosing lethal injection, as South Carolina does not have the necessary drugs, according to the filing. The state Department of Corrections previously told CNN it has not been in possession of a usable dose of lethal injection drugs since 2013.

Moore chose to die by firing squad but added in a statement he will not lose hope in two pending court challenges to the constitutionality of the state's death penalty method. "I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election," he said in the statement.

He chose firing squad, as required 14 days before the date of his execution, because "I more strongly oppose death by electrocution," he wrote. Moore, 57, would be the first person executed in South Carolina in more than a decade.

Last year, the state Legislature passed a law that made electrocution the state's primary execution method, though death row prisoners have the option to choose a firing squad or lethal injection instead if the options are available....

Also Wednesday, the state set an execution date for Brad Keith Sigmon, who was sentenced in 2002 for two murders. Sigmon, who had a stay of execution last year, is scheduled to die May 13.

As I understand matters, Sigmon will now need to select between electrocution and a firing squad as his method of execution by the end of next week.  So it may still only be a matter of weeks before South Carolina conducts an "old school" execution.

April 21, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 19, 2022

Wouldn't a few marijuana offenders be a "light lift" for Prez Biden's first clemency grants?

The question in the title of this post is prompted by this lengthy New York Post article headlined "Ahead of 4/20, pot prisoners push Biden to honor campaign pledge to free them." I recommend the piece in full, and here are excerpts:

On the eve of the 4/20 cannabis holiday, federal inmates again are wondering if and when President Biden will make good on his 2020 campaign pledge to free “everyone” locked up on marijuana charges.  About 2,700 inmates are behind federal bars on pot-related charges — even though 18 states and DC now allow recreational use of the drug and two-thirds of Americans support legalization.

They include Pedro Moreno, 62, who is serving a life sentence after pleading guilty to distributing weed imported from Mexico from 1986 to 1996. “I will die in prison for marijuana unless I receive executive clemency,” Moreno told The Post....

Clemency advocates recently met with White House staff and believe Biden may eventually intervene.  But that it may not happen anytime soon as other initiatives take priority, such as commuting the sentences of people released temporarily from prison due to the COVID-19 pandemic....

Luke Scarmazzo, 41, has served 14 years of a 22-year sentence for running a medical marijuana operation in California and told The Post that he’s also struggling to maintain hope.  “When President Biden made those statements on the campaign trail, my family and I were very hopeful that our nightmare was finally coming to an end,” Scarmazzo said. “We are now nearly two years into President Biden’s term and we’re wondering when he will make good on his promise.”

Donald Fugitt, 37, noted how the country has changed in the decade since he was arrested in 2013.  “Another 4/20 and everybody is smoking and making money, but I’m still in a COVID-19-infested prison,” said Fugitt, a North Texas native who gets out in 2024 unless Biden reduces his sentence.  “I’ve accepted responsibility for my participation in a marijuana conspiracy. Everyone on my case is home except me. This was my first offense.”

Federal pot inmates include Lance Gloor, 43, who has two years left of a 10-year sentence for running dispensaries in Washington that he says sold state-legal medical marijuana, though federal prosecutors disagreed.  Gloor’s mother, Tracie Gloor Pike, says he had a severe case of COVID-19 last year and suffers rare complications....

Biden said on a debate stage in 2019: “I think we should decriminalize marijuana, period.  And I think everyone — anyone who has a record — should be let out of jail, their records expunged, be completely zeroed out.” But Biden hasn’t yet used his clemency powers to release anyone from prison....

Weldon Angelos, a former federal marijuana inmate and co-founder of the group Mission Green, helped craft a rubric that would ensure only non-violent prisoners are released and told The Post he has been involved in talks with the White House. “Candidate Biden promised to use his pardon power to free those still incarcerated federally for cannabis offenses, which gave a lot of hope to many,” Angelos said. “We have had a number of conversations with the White House of this topic and believe that Biden will keep his campaign promise. When that happens is another matter entirely, but we are encouraged.”...

Amy Povah, founder of the CAN-DO Foundation, which advocates for clemency for non-violent offenders, told The Post, “I’m not sure why we are still waiting for President Biden to free all the pot prisoners.” Povah said, however, that “I’m encouraged to see there is a new pardon attorney,” Elizabeth Oyer, who will vet clemency paperwork.  “[Oyer is] a former public defender. She is a refreshing choice since previous pardon attorneys have typically been prosecutors who often have a punitive mindset toward applicants,” Povah said....

In January 2021, then-President Donald Trump commuted the sentences of seven people serving life terms for marijuana — including two men who were given life without parole under the three-strikes provision of the Biden-authored 1994 crime law.

Michael Pelletier, a 65-year-old wheelchair-bound paraplegic, was among those released by Trump. He had a life sentence for smuggling Canadian pot into Maine before both legalized recreational markets.

“I thank President Trump every day that I wake up in a comfortable bed in a beautiful home in Florida surrounded by loving family, rather than the screeching sound of the PA system announcing another lock down due to violence,” Pelletier said. “It breaks my heart knowing there are still people serving life without parole for cannabis. I hope Biden will free all pot prisoners because I personally know several people who voted for him based on that campaign promise alone.”

A few on many prior recent related posts:

April 19, 2022 in Clemency and Pardons, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 18, 2022

Notable dissent from three Justices on consideration of racial bias in capital case jury selection

This morning's SCOTUS order list had a lot of denials of cert, along with one dissent that generated a somewhat lengthy opinion.  The opinion in Love v. Texas, No. 21–5050, was technically a dissent from the denial of summary vacatur; Justice Sonia Sotomayor authored this seven-page dissent, which Justices Breyer and Kagan joined. This opinion started and ended this way:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.”  Buck v. Davis, 580 U.S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted).  When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid.  The seating of a racially biased juror, therefore, can never be harmless.  As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed, “the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U.S. 719, 729 (1992).

In this case, petitioner Kristopher Love, a Black man, claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race.  29 Record 145.  The Texas Court of Criminal Appeals never considered Love’s claim on the merits.  Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned.  That decision was plainly erroneous.  An already-expended peremptory strike is no cure for the seating of an allegedly biased juror.  The state court thus deprived Love of any meaningful review of his federal constitutional claim.  I would summarily vacate the judgment below and remand for proper consideration....

Over time, we have endeavored to cleanse our jury system of racial bias.  One of the most important mechanisms for doing so, questioning during voir dire, was properly employed here to identify a potential claim of bias.  Safeguards like this, however, are futile if courts do not even consider claims of racial bias that litigants bring forward.  The task of reviewing the record to determine whether a juror was fair and impartial is challenging, but it must be undertaken, especially when a person’s life is on the line.  I would ensure that Love’s claim is heard by the Court of Criminal Appeals, rather than leave these questions unanswered.  I respectfully dissent.

April 18, 2022 in Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (15)

Friday, April 15, 2022

Justice Department has new Pardon Attorney who is a former public defender ... which means ...?

I was pleased last night to see this great Twitter thread from Mark Osler spotlighting that the US Department of Justice this week officially has a new Pardon Attorney.  As this new DOJ bio details, she is Elizabeth (Liz) G. Oyer who before her Justice Department appointment served as "Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland, where she represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes."  Professor Osler, who is a leading national expert on federal clemency, has lots of good background in his thread about the appointment, and I am hopeful he does not mind my highlighting some of his key points here:

We've had "Acting" pardon attorneys for the past five or six years, so it means something that Pres. Biden has actually filled this slot. It's also significant -- and positive -- that he has given a career defender an important job in the Department of Justice.

However, this doesn't "fix" the backlog of petitions -- or promise a future fix of the backlog -- because it appears the problem there may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney (DAG & WHC)....

There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration).  It's a mess.  We just know what kind of mess, or where the mess is located.  The whole thing needs reform.

For a host of reasons, I am eager to see the federal clemency process completely removed from the Department of Justice, and so I support the FIX Clemency Act, discussed here, and other proposals to have an independent body assist the President in his exercise of his constitutional clemency authority.  But as long as the current messy structure remains in place, it is encouraging to see that an experiences defense attorney has been placed into this important role.   As ProPublica highlighted a decade ago, a DOJ Pardon Attorney eager to find reasons not to recommend clemency grants can really muck up the process in ugly ways.  I am inclined to believe a former public defender is going to be more eager to find reasons to recommend grants.

in the end, none of this means much if Prez Biden (and anyone advising him on these matters) is disinclined to make use of the constitutional clemency authority.  Of course, candidate Joe Biden promised to "broadly use his clemency power for certain non-violent and drug crimes."  But, a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation.  With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to home confinement by the Trump Administration, it ought not be that hard to find at least a handful of "non-violent and drug" offenders who deserving of clemency during Second Chance Month.  Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way.  As of now, though, it does not appear that Prez. Biden really has much of a clemency will. 

A few on many prior recent related posts:

April 15, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, April 14, 2022

"An Algorithmic Assessment of Parole Decisions"

The title of this post is the title of this new paper now on SSRN authored by Hannah Laqueur and Ryan Copus. Here is its abstract:

Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration.  Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison.  We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015.  We quantify the social welfare loss of the Board’s suboptimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions.  We also estimate the release rates that could be achieved holding arrest rates constant.  We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making.  Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform.

April 14, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"New Originalism: Arizona's Founding Progressives on Extreme Punishment"

The title of this post is the title of this interesting new article now available via SSRN authored by John Mills and Aliya Sternstein. Here is its abstract:

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike.  Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions.  Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds.  Arizona was founded in 1912 as a progressive project and the founding generation — from the convenors of the 1910 constitutional convention and the courts to the people themselves — held and acted on progressive views of punishment.  They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime.  Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

April 14, 2022 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 12, 2022

Reviewing the application of Miller and juvenile LWOP in the federal system

This AP story, headlined "Juvenile lifer seeks reprieve amid broader push for leniency," focuses on one high-profile juvenile lifer case while also discussing some of the other realities of juve LWOP in the federal system since the Supreme Court's major Eighth Amendment ruling in Miller v. Alabama a decade ago.  Here are some excerpts from a lengthy piece worth reading in full:

Shortly after Riley Briones Jr. arrived in federal prison, he cut his long, braided hair in a symbolic death of his old self. As a leader of a violent gang and just shy of 18, Briones drove the getaway car in a robbery turned deadly on the Salt River-Pima Maricopa Indian Community outside Phoenix in 1994. He was convicted of murder and given a mandatory sentence of life without parole.

In prison, he has been baptized a Christian, ministers to other inmates who call him Brother Briones, got his GED and has a spotless disciplinary record, his attorneys say in their latest bid to get the now 45-year-old’s sentence cut short. “He’s clearly on the side of the line where he should be walking free,” said his attorney, Easha Anand.

The U.S. Supreme Court opened the door for that possibility with a 2012 ruling that said only the rare, irredeemable juvenile offender should serve life in prison. Over the past decade, most of the 39 defendants in federal cases who received that sentence have gotten a reprieve and are serving far fewer years behind bars. Meanwhile, more than 60 legal experts and scholars have asked the federal government to cap sentences for juvenile offenders at 30 years, create a committee to review life sentences in the future and reconsider its stance in Briones’ case.

But the move toward greater leniency has been gradual and not without resistance. Briones is among those whose life sentences have been upheld in recent years, though he still has another chance. Prosecutors in his case have opposed a reduced term. They argue despite Briones’ improvements, he minimized his role in the gang and its crimes that terrorized Salt River amid an explosion of gang violence on Native American reservations in the 1990s....

Briones’ case became eligible for resentencing after the Supreme Court’s 2012 decision in Miller v. Alabama.  It was part of a series of cases in which the court found minors should be treated differently from adults, partly because of a lack of maturity.  The court previously eliminated the death penalty for juveniles and barred life-without-parole sentences for juveniles except in cases of murder.  A handful of the defendants in the 39 federal cases — most of whom are minorities — have been released from prison.

The Feb. 17 letter seeking reform from the Justice Department pointed to statistics that show the median sentence for adults convicted of murder in the federal system is 20 years — nearly half the median for the juvenile offenders.  “Taking a life is really, really serious, and I don’t belittle that at all,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, one of the signatories.  “But a full life in prison when you’re a juvenile and you’re talking about 40, 50, 60 years in prison is exceedingly excessive probably in almost every case and not consistent with typical sentences for homicides, even adults.”...

The California-based Criminal Justice Legal Foundation, a victims rights group, said changes in the law that continually allow juvenile offenders to get another shot at freedom are damaging for the families, communities and the criminal justice system. “Some of these crimes are just very horrible, and the impacts on the families are substantial, and they never go away,” said the group’s president, Michael Rushford.

The Campaign for the Fair Sentencing of Youth has long argued the changes a person makes once they’ve entered prison should matter, and juveniles offenders should be able to live as adults outside prison walls.  “If the facts of the crime are always going to be the overpowering force, then Miller isn’t going to be meaningfully interpreted to outweigh all this positive growth,” said Rebecca Turner, who tracks the federal cases for the group.

The federal court in Arizona has resentenced more of the juvenile offenders to life in prison than any other state. Texas has two juvenile offenders who are serving life but weren’t able to be resentenced because of how courts interpreted Miller v. Alabama. South Carolina resentenced one inmate to life.  All three federal cases in Arizona were from Native American reservations, where the federal government has jurisdiction when the suspect, victim or both are Native American for a set of major crimes, including homicide. The penalties, in general, are stricter than if the crimes happened off the reservation and the cases ended up in state court.

April 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Thursday, April 07, 2022

South Carolina Supreme Court engages in notable debate over how it engages in capital proportionality review

This local article from South Carolina, headlined "‘Our system is broken.’ SC Supreme Court justice assails death sentence in Upstate case," reports on an interesting ruling from the top court in the Palmetto State. Here are the basics and the context from the press piece:

An associate justice of the South Carolina Supreme Court issued a rare and blunt dissent Wednesday in an Upstate death penalty case about a 1999 convenience store robbery that four of the five justices agreed to uphold.

“In the nearly 13 years I have served on this Court, I have voted to affirm eleven death sentences on direct appeal and have never dissented,” Associate Justice Kaye Hearn wrote in her 14-page dissent. But the spur-of-the moment killing committed by Richard Moore in 1999 during a convenience store robbery in Spartanburg County is so different from the usual brutal premeditated slayings for which South Carolina juries give out the death penalty that condemning Moore to death is disproportional, or so far out of line, as not to be lawful, Hearn wrote.

“The death penalty should be reserved for those who commit the most heinous crimes in our society, and I do not believe Moore’s crimes rise to that level,” Hearn wrote, calling South Carolina’s system “broken.”

In Wednesday’s majority opinion, four Supreme Court justices upheld Moore’s death sentence in a case that centered on the issue of whether the sentence was proportional, or roughly the same as, other death sentences for similar crimes. The majority, in an opinion written by Chief Justice Donald Beatty, wrote that Moore’s crime had the aggravating factors set out in the law — such as killing during an armed robbery — that qualified a person for the death penalty, Moore, now 57, has been on South Carolina’s death row 21 years.

The full ruling in Moore v. Stirling, Opinion No. 28088 (S.C. April 6, 2022), is available at this link.  Here is how the majority opinion starts:

Richard Bernard Moore ("Moore") filed a petition for a writ of habeas corpus challenging the proportionality of the death sentence that was imposed for his murder conviction. The Court ordered briefing and granted Moore's motion to argue against the precedent of State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982).  In Copeland, the Court discussed the requirement in S.C. Code Ann. § 16-3-25(C)(3) (2015) that this Court undertake a comparative proportionality review of "similar cases" in death penalty matters.  After review of the record and applicable law and consideration of the parties' arguments, we clarify Copeland and note the Court is not statutorily required to restrict its proportionality review of "similar cases" to a comparison of only cases in which a sentence of death was imposed.  We conclude, however, that Moore has not established that he is entitled to habeas relief.

And here is how the dissent begins:

This Court has never found a single death sentence disproportionate dating back to 1977, the first time comparative proportionality review was required by the General Assembly. This includes the forty-three individuals who have been executed by the State of South Carolina during this modern era of capital punishment, and all of the thirty-five inmates currently housed on death row who have exhausted their direct appeal.  The State characterizes these statistics — currently, approximately zero for seventy-seven — as proof that our capital sentencing scheme functions as it should.  I write separately to express my view that our system is broken and to disagree with that part of the majority opinion which finds Petitioner Richard Moore's sentence proportionate to his crime.

April 7, 2022 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, April 05, 2022

Might Texas be on the verge of executing an innocent woman?

The question in the title of this post is prompted by this AP article discussing the case of Melissa Lucio, who is scheduled to be executed by the state of Texas in three weeks.  Here are excerpts:

During hours of relentless questioning, Melissa Lucio more than 100 times had denied fatally beating her 2-year-old daughter. But worn down from a lifetime of abuse and the grief of losing her daughter Mariah, her lawyers say, the Texas woman finally acquiesced to investigators. “I guess I did it,” Lucio responded when asked if she was responsible for some of Mariah's injuries.

Her lawyers say that statement was wrongly interpreted by prosecutors as a murder confession — tainting the rest of the investigation into Mariah’s 2007 death, with evidence gathered only to prove that conclusion, and helping lead to her capital murder conviction. They contend Mariah died from injuries from a fall down the 14 steps of a steep staircase outside the family’s apartment in the South Texas city of Harlingen.

As her April 27 execution date nears, Lucio’s lawyers are hopeful that new evidence, along with growing public support — including from jurors who now doubt the conviction and from more than half the Texas House of Representatives — will persuade the state’s Board of Pardons and Paroles and Gov. Greg Abbott to grant an execution reprieve or commute her sentence....

Lucio's lawyers say jurors never heard forensic evidence that would have explained that Mariah's various injuries were actually caused by a fall days earlier. They also say Lucio wasn't allowed to present evidence questioning the validity of her confession.

The Texas Attorney General’s Office maintains evidence shows Mariah suffered the “absolute worst” case of child abuse her emergency room doctor had seen in 30 years. “Lucio still advances no evidence that is reliable and supportive of her acquittal,” the office wrote in court documents last month....

Lucio, 53, would be the first Latina executed by Texas and the first woman since 2014. Only 17 women have been executed in the U.S. since the Supreme Court lifted its ban on the death penalty in 1976, most recently in January 2021.

In their clemency petition, Lucio’s lawyers say that while she had used drugs, leading her to temporarily lose custody of her children, she was a loving mother who worked to remain drug-free and provide for her family. Lucio has 14 children and was pregnant with the youngest two when Mariah died....

In 2019, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Lucio’s conviction, ruling she was deprived of “her constitutional right to present a meaningful defense.” However, the full court in 2021 said the conviction had to be upheld for procedural reasons, “despite the difficult issue of the exclusion of testimony that might have cast doubt on the credibility of Lucio’s confession.”

Three jurors and one alternate in Lucio’s trial have signed affidavits expressing doubts about her conviction. “She was not evil. She was just struggling. ... If we had heard passionately from the defense defending her in some way, we might have reached a different decision,” juror Johnny Galvan wrote in an affidavit.

In a letter last month to the Board of Pardons and Paroles and to Abbott, 83 Texas House members said executing Lucio would be “a miscarriage of justice.”...

Abbott can grant a one-time, 30-day reprieve. He can grant clemency if a majority of the paroles board recommends it. The board plans to vote on Lucio’s clemency petition two days before the scheduled execution, Rachel Alderete, the board’s director of support operations, said in an email. A spokeswoman for Abbott’s office did not return an email seeking comment.

Abbott has granted clemency to only one death row inmate, Thomas Whitaker, since taking office in 2015. Whitaker was convicted of masterminding the fatal shootings of his mother and brother. His father, who survived, led the effort to save Whitaker, saying he would be victimized again if his son was executed. Lucio’s supporters have said her clemency request is similar in that her family would be retraumatized if she’s executed.

April 5, 2022 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 04, 2022

No new SCOTUS cert grants, though three Wooden GVRs highlights ACCA's remaining wackiness

Based on a notable number of criminal law relists flagged here at SCOTUSblog by John Elwood, I was hoping there might be something interesting for sentencing fans on this morning's Supreme Court order list.  But the Justices today added no new cases to the SCOTUS docket. 

The Justices did GVR (grant, vacate, remand) three cases based on Wooden v. US (basics here, analysis here), which I suppose serves as a reminder that all federal courts will continue to struggle with how to apply the the Armed Career Criminal Act (ACCA) for the foreseeable future.  Sigh.  (A comment over at SCOTUSblog amusingly asked "Does sending back 3 cases for Wooden in the same order list count as one incident?"  The lawprof in me wants to correct the question to say "one occasion," but anyone who read this far likely gets the ACCA joke.)

April 4, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 01, 2022

A second chance for Prez Biden to follow his proclamation about Second Chance Month with some clemency grants

In this post last year, I highlighted some language from the White House's "Proclamation on Second Chance Month, 2021" while stressing that Prez Biden has one particularly important second chance power, namely his historic constitutional clemency authority.  But, a year later, we are sadly still without a single clemency grant from Prez Biden — we had three from Prez Trump by this point in his term — and yet we do now have another White House second chance proclamation.  Here are some passages (and my added emphasis):

April marks Second Chance Month, when we reaffirm the importance of helping people who were formerly incarcerated reenter society. America is a Nation of second chances, and it is critical that our criminal and juvenile justice systems provide meaningful opportunities for rehabilitation and redemption.  It is also vital that we address both the root causes of crime and the underlying needs of returning citizens using resources devoted to prevention, diversion, reentry, trauma-informed care, culturally-specific services, and social support.  By supporting people who are committed to rectifying their mistakes, redefining themselves, and making meaningful contributions to society, we help reduce recidivism and build safer communities.

Every year, over 640,000 people are released from State and Federal prisons.  More than 70 million Americans have a criminal record that creates significant barriers to employment, economic stability, and successful reentry into society.  Thousands of legal and regulatory restrictions prevent these individuals from accessing employment, housing, voting, education, business licensing, and other basic opportunities.  Because of these barriers, nearly 75 percent of people who were formerly incarcerated are still unemployed a year after being released.

We must rethink the existing criminal justice system and whom we send to prison and for how long; how unaddressed trauma and abuse create pipelines to incarceration; how people are treated while incarcerated; how prepared they are to reenter society once they have served their time; and how the racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups.

My Administration recognizes that making the criminal and juvenile justice systems more equitable, just, and effective requires a holistic approach.  It requires eliminating exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be. It requires quality job training and educational opportunities during incarceration. It requires providing formerly incarcerated individuals with opportunities to enter the workforce, reunite with their families, find stable and safe homes, and access health care.  It requires expunging and sealing certain criminal records so that people’s futures are not defined by their past....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2022 as Second Chance Month.  I call upon all government officials, educators, volunteers, and all the people of the United States to observe the month with appropriate programs, ceremonies, and activities.

I like the all the sentiments in this proclamation, but Prez Biden has to start "walking the walk" instead of just "talking the talk."  The federal sentencing system has many individuals serving "exceedingly long sentences and mandatory minimums that keep people incarcerated longer than they should be."  As one detailed example, this terrific recent research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center, documents the thousands of persons subject to federal life sentences for drug offenses.   Prez Biden can and should, today and tomorrow and every day he is in office, use his clemency pen to begin the process of "eliminating exceedingly long sentences" in the federal system.  To its credit, this proclamation notes that " racial inequities that lead to disproportionate numbers of incarcerated people of color and other underserved groups."  Dr. Fraga's report highlights this reality in one context, as she details at lengthy just how "racial disparity in the imposition of life or de facto life sentences in the federal system for drug offenses is glaring."  Again, Prez Biden can take direct action to start to remedy these problems with some commutation grants.

Turning to the discussion of re-entry, the proclamation rightly call for more "expunging and sealing [of] certain criminal records so that people’s futures are not defined by their past."  However, in the federal criminal justice system, there is currently no statutory mechanism for expunging or sealing of any federal criminal records, and thus only the pardon power can eliminate a federal criminal record creating "significant barriers to employment, economic stability, and successful reentry into society."  Of course, since millions of Americans labor with federal criminal records, it would be unrealistic to expect Prez Biden or any president to conduct mass pardoning.  But it would still be quite important and impactful, while preaching about second chances, to at least do some pardoning of at least a few who obviously deserve this kind of second chance.  And, to be potentially more effective in this context and others, Prez Biden should be urging Congress to enact federal statutory tools for expungement and record sealing comparable to what exists (and is often getting expanded) in every single state across our great nation.  

I could go on and on, but I will close simply by asserting that it feels a bit like an April Fool's joke for the President to "call upon all government officials, educators, volunteers, and all the people of the United States to observe the [Second Chance] month with appropriate programs, ceremonies, and activities" when he himself so far has done so little direct second chance work.  Sigh.

Prior related post from last year:

April 1, 2022 in Clemency and Pardons, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"Releasing Older Prisoners Convicted of Violent Crimes: The Unger Story"

The title of this post is the title of this new article now available via SSRN and authored by Michael Millemann, Jennifer Chapman and Samuel Feder. Here is its abstract:

This article is a retrospective analysis of the significant Maryland decision, Unger v. State, which resulted in one of the most interesting and important unplanned criminal justice experiments in Maryland and national history.  On May 24, 2012, Maryland’s highest court released a decision that shocked the Maryland legal world and gave older life-sentenced Maryland prisoners their first real hope of release in decades.  In Unger v. State, the Maryland Court of Appeals made retroactive a 1980 decision that had invalidated a historic instruction that Maryland judges had given juries in criminal cases for over 150 years.  In that instruction, judges told the lay jurors that they, not the judge, were the ultimate judges of the law, and what the judge said was advisory only. 

A fair reading of the Unger decision was that all prisoners convicted before 1981 were entitled to new trials.  Subsequent decisions confirmed this reading.  Over six years, 200 of these older prisoners impacted by the Unger decision were released on probation.  This article examines the jury-determines-the-law instruction, the Unger decision, and the implementation of Unger, largely through the releases of older prisoners convicted of violent crimes.  In this article, we identify what we believe is important about the Unger story, not just in Maryland but also nationally, including the impact of race in criminal justice, the ability to release older prisoners with appropriate support, and how the lessons learned from the Unger decision can provide a model for reentry programs.

April 1, 2022 in Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Monday, March 28, 2022

SCOTUS grants cert in Arizona capital case to address state limits on collateral review

The US Supreme Court granted cert in three cases this morning, and one involved a cert petition from a defendant on Arizona's death row.  However, the issue on which SCOTUS granted cert in Cruz v. Arizona is likely only to excite collateral review and habeas fans:

Issue: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

But while this statement of the issue may not seem all that exciting, these paragraphs from this amicus brief in support of cert from Habeas Scholars suggests a lot is at stake here:

Amici urge this Court to grant certiorari — or summarily reverse — to stop Arizona’s use of collateral procedure to discriminate against established constitutional rights.  “[S]tate courts have the solemn responsibility, equally with the federal courts ‘to guard, enforce, and protect every right granted or secured by the constitution of the United States.…’” Steffel v. Thompson, 415 U.S. 452, 460-61 (1974) (quoting Robb v. Connolly, 111 U.S. 624, 637 (1884)). They cannot selectively disregard particular constitutional rights....

This Court’s intervention is both necessary and appropriate.  The Arizona decision results in the clear violation of a federal right, and the Arizona Supreme Court’s violation of the Supremacy Clause itself merits this Court’s intervention. Moreover, there is jurisdiction to review the judgment because the state ground is neither adequate to bar review nor independent of federal law. And because Arizona appears to be a singular outlier in its treatment on collateral review of the federal rights at issue here, correction of this error would not affect the practices of other states. Instead of being disruptive, reversal here would restore the appropriate federal-state balance, in accord with this Court’s Supremacy Clause precedents.

March 28, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

March 28, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Thursday, March 24, 2022

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

March 24, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (26)

Tuesday, March 22, 2022

Right on Crime highlights "Second Look for conservative justice and cost-savings"

ROC-Thumbnails-18The folks at Right on Crime has this interesting new coverage of "Second Look in Texas."  This one-pager, produced by Nikki Pressley, carries the title that is quoted in this title of this post, and here is the main text (along with the interesting graphic I have reprinted):

Texas has the harshest parole eligibility guidelines for juvenile offenders of any state, allowing some to be imprisoned without the possibility of parole for 40 years. Even worse, many of these youth are convicted through the Law of Parties, meaning they were merely an accessory to the actual crime and never pulled the trigger.  Science proves that continued brain development allows a healthy brain to mature and make more logical decisions far before someone completes a 40-year sentence, and recidivism rates for these offenders is extremely low.

Second Look legislation would lower the time until parole eligibility for juvenile offenders from 40 years to 20 years.  This change should also be retroactive, allowing adults currently serving time in prison for a crime committed as a juvenile to also have the opportunity for earlier parole.  Proving to be little or no threat to public safety and simultaneously saving hundred of thousands of taxpayer dollars, Second Look legislation is a win-win reform.

And here are "key points" stressed:

March 22, 2022 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Saturday, March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, March 11, 2022

North Carolina Gov, following recommendation of state Juvenile Sentence Review Board, commutes sentence of three convicted of murder as teens

As detailed in this North Carolina Gov press release, "Governor Cooper has commuted the sentences of three people who were convicted for crimes committed when they were teenagers. The commutations follow an intensive review of their cases, including the length of their sentences, their records in prison, and their readiness to succeed outside of prison." Here is more from the press release (with links from the original):

The commutations are the first recommended to the Governor by the Juvenile Sentence Review Board which he established by Executive Order last year. The commutation applications were thoroughly reviewed by the Office of Executive Clemency, the Office of the General Counsel and the Governor.  These commutations end prison sentences on time served.

The creation of the Review Board followed the change in North Carolina law which raised the age of juvenile jurisdiction to include 16- and 17-year-olds, making North Carolina the last state in the nation to do so.  Studies of brain development and psychology show fundamental differences between juvenile and adult minds and behavior, and state and federal law treat children differently from adults for the purpose of sentencing.

The Review Board was also part of a series of recommendations from the Governor’s Task Force for Racial Equity in Criminal Justice (TREC) that has worked to rectify racial disparities in the criminal justice system. More than 80 percent of people committed to North Carolina prisons for crimes they committed as juveniles are people of color.

“North Carolina law continues to change to recognize that science is even more clear about immature brain development and decision making in younger people,” Cooper said. “As people become adults, they can change, turn their lives around, and engage as productive members of society.”

The three people whose sentences were commuted are:

  • April Leigh Barber, 46, who has served 30 years in prison for her role at age 15 in the murders of her grandparents, Lillie and Aaron Barber, in Wilkes County. While incarcerated, Ms. Barber has been consistently employed and has participated in significant programming, including earning her G.E.D. and paralegal certificate. Link to commutation.
  • Joshua McKay, 37, who has served 20 years in prison for the murder at age 17 of Mary Catherine Young in Richmond County. While incarcerated, Mr. McKay has been consistently employed, including as a carpenter and welder. Mr. McKay’s projected release date absent this commutation would have been in November 2022. Link to commutation.
  • Anthony Willis, 42, who has served 26 years in prison for the murder at age 16 of Benjamin Franklin Miller in Cumberland County. While incarcerated, Mr. Willis has been consistently employed and has completed five college degrees. Link to commutation.

The three people will be subject to post-release supervision by Community Corrections at the North Carolina Department of Public Safety to help them succeed and avoid missteps when they return to their communities.  “Most of the individuals who enter prisons will return to their communities one day. Providing high quality, evidenced based treatment and programming is a top priority for our prison system,” said Department of Public Safety Secretary Eddie Buffaloe. “These commutations should inspire individuals who are incarcerated to use all available resources to better themselves and prepare for a successful return to society.”

The Review Board continues to review petitions from those who were incarcerated for crimes committed as juveniles, and looks at many factors in its review, including rehabilitation and maturity demonstrated by the individual, record of education or other work while incarcerated, record of good behavior or infractions, input from the victim or members of the victim’s family, and more.

March 11, 2022 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, March 10, 2022

US Sentencing Commission releases big new report titled "Compassionate Release: The Impact of the First Step Act & COVID-19 Pandemic"

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The US Sentencing Commission indicated that is was working on a big new compassionate release report, and I am pleased to see from my email inbox that it was released today.  Here is the text about the report that was in the email I received:

The United States Sentencing Commission (“Commission”) today released a new report that examines trends in compassionate release during fiscal year 2020 in light of the enactment of the First Step Act of 2018, and the COVID-19 pandemic.

Senior U.S. District Judge Charles R. Breyer, Acting Chair of the Commission, stated “I am pleased that the Commission has issued this comprehensive report on compassionate release trends in fiscal year 2020. This report builds on the Commission’s significant work in this area, including a report on the first year of implementation of the First Step Act and the Commission’s previously released quarterly data reports analyzing motions for compassionate release.”

Acting Chair Breyer noted, “Prior to the enactment of the First Step Act, only the Director of the Bureau of Prisons could file compassionate release motions. The First Step Act enables defendants to file these motions directly in federal court after exhausting administrative requirements. These changes, coupled with the pandemic, resulted predictably in a dramatic increase in both motions for and grants of compassionate release.”

According to the report, in fiscal year 2020, courts decided 7,014 compassionate release motions, granting compassionate release to one-quarter (25.7%) of those offenders. The number of offenders granted relief increased more than twelvefold compared to 2019 — the year immediately following passage of the First Step Act. Courts cited health risks associated with COVID-19 as at least one reason for relief in 71.5% of grants.

“Unfortunately, in the intervening time between enactment of the First Step Act and the COVID-19 pandemic, the Commission lost its quorum, rendering it unable to amend the compassionate release policy statement. The absence of this guidance has resulted in a lack of uniformity in how compassionate release motions are considered and applied across the country,” said Judge Breyer. The Report identified considerable variability in the application of compassionate release across the country among those offenders in the study group—ranging from a grant-rate high of 47.5% in the First Circuit to a low of 13.7% in the Fifth Circuit.

“This report underscores why it is crucial for the Commission to regain a quorum to again have the ability to address important policy issues in the criminal justice system, such as compassionate release,” added Breyer. “Nevertheless, I am proud of the extensive work the Commission did to compile this insightful data. I believe this report will provide valuable information to lawmakers, the Courts, advocacy organizations, and the American public.”

This full USSC report, available here, runs 86 pages and I hope to find time in the coming days to highlight a variety of findings from the report. The USSC has created this two-page infographic about the report with a few data highlights, and this USSC webpage provides an overview and an extended list of "key findings."

Though I am VERY excited to dig into this report and look forward to exploring what lessons these data may have for any possible revision of guidelines and practices related to compassionate release, I am a bit disappointed that this new USSC report only covers developments and data through September 2020.  Though these data capture the many developments through the first part of the COVID pandemic, there still had then not been any significant circuit rulings about the operation of compassionate release and other USSC data runs have detailed that there were an additional 10,000 motions and about 1500 addition compassionate release grants in just the six months after September 2020.  I fully understand why the USSC could not do this kind of detailed report on all cases up to the present, but everyone should not lose sight of the fact that this new report is already somewhat dated because it only captures data through September 2020.

March 10, 2022 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, March 08, 2022

Rounding up some accounts of the latest ACCA wackiness in Wooden

I hope to find some time in the coming days to do some original commentary about the Supreme Court's unanimous ruling in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  I see interesting, telling and problematic aspects to all the opinion in the case, but for now I need to be content here to round up some of what others are saying:

From Law360, "'Night Of Crime' Burglar Is No Career Criminal, Justices Say"

From Slate, "Why All Nine Justices Overturned a Ludicrously Cruel Prison Sentence"

From SCOTUSBlog, "Perhaps defining an “occasion” is not so difficult after all"

From The Volokh Conspiracy, "Justices Spar Over How to Interpret the Armed Career Criminal Act"

March 8, 2022 in Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

March 8, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 07, 2022

SCOTUS rules unanimously in favor of defendant in latest Armed Career Criminal Act ruling

The US Supreme Court handed down one opinion this morning, and it is a win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Here is how Justice Kagan's opinion for the Court gets started:

In the course of one evening, William Dale Wooden burglarized ten units in a single storage facility. He later pleaded guilty, for that night’s work, to ten counts of burglary — one for each storage unit he had entered. Some two decades later, the courts below concluded that those convictions were enough to subject Wooden to enhanced criminal penalties under the Armed Career Criminal Act (ACCA).  That statute mandates a 15-year minimum sentence for unlawful gun possession when the offender has three or more prior convictions for violent felonies like burglary “committed on occasions different from one another.” 18 U.S.C. §924(e)(1).  The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously.  The answer is no.  Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.

Interestingly, this ruling also generated four distinct concurrences (some quite short, some longer). Because I need to be off-line most of the rest of today, I will not have a chance to comment on these opinions right away. But I hope commenters might help me try to map out how many hundreds (thousands?) of cases this ruling could impact.

March 7, 2022 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (13)

Friday, March 04, 2022

Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev

The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here).  When the US Supreme Court back in March 2021 decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence.  Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence.  Here is how Justice Thomas's opinion for the Court gets started:

On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon.  The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds.  Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle.  Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.

A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.

Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:

In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.

I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.

Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan.  It starts this way:

During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings.  Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership.  In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence.  The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).

This Court now reverses the Court of Appeals.  In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.

March 4, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (35)

Thursday, March 03, 2022

Lots of remarkable new CCRC posts highlighting "The Many Roads From Reentry to Reintegration"

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and an array of recent postings at CCRC captures all the incredible content connected to its latest publication of a national report surveying various legal mechanisms for restoring rights titled "The Many Roads to Reintegration."   Today's post links to the main publication and sets the context:

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.” Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

In addition, over the last couple weeks, CCRC has been highlight parts of this report though these individual postings:

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Fair Chance Employment and Occupational Licensure: A National Survey

Executive Pardon: A National Survey

Judicial Diversion and Deferred Adjudication: A National Survey

March 3, 2022 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, March 02, 2022

Rounding up some reviews of SCOTUS argument in appeals by doctors convicted of opioid drug dealing

As previewed in this prior post, the Supreme Court heard oral argument in two cases on Tuesday morning, Ruan v. United States and Kahn v. United States, which explored the proper legal standards when the federal government looks to prosecute doctors as drug dealers.  I have a chance to listen to part of the argument, and it was both fascinating and frustrating for all sorts of reasons — e.g., the regular use of speeding laws as a hypothetical to explore mens rea standards for a statute in which Congress expressly requires a person to act "knowingly or intentionally" struck me as deeply misguided.  The transcript is available here, and here is a round-up of some review of the argument:

From the AP, "Justices seem to favor docs convicted in pain pill schemes"

From the Courthouse News Service, "Justices grapple with drug charges for pill-mill doctors"

From The Hill, "Supreme Court grapples with drug-dealing convictions for opioid prescribers"

From Reuters, "U.S. Supreme Court mulls 'pill mill' doctors' opioid convictions"

From SCOTUSblog, "In opioids “pill mill” case, justices grapple with physician intent"

From the portion of the oral argument that I was able to listed to, I came away with a sense that the doctor defendants have a reasonable chance of prevailing.  

March 2, 2022 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Will the US Supreme Court be interested in any issues being pressed by Charleston church shooter Dylann Roof?

The question in the title of this post was prompted by this new AP article headlined "Dylann Roof takes church shooting appeal to US Supreme Court."  Here are excerpts:

Attorneys for convicted Charleston church shooter Dylann Roof have asked the U.S. Supreme Court to decide how to handle disagreements over mental illness-related evidence between capital defendants and their attorneys, an issue that has played a role throughout his case over the 2015 racist slayings of nine members of a Black South Carolina congregation.

When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their petition, filed late last month with the high court.  Justices’ consideration is “needed to resolve a deep divide among the lower courts over who — client or lawyer — gets to decide whether mitigation evidence will be introduced at a capital penalty hearing.”

Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the death penalty — has been a constant part of his case.  During the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself.  This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”

Roof made his decision, his team argued in the petition, “after the district court told him that counsel could introduce evidence depicting him as mentally ill over his objection.” But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”

Notably, this AP article is only focused on one of three questions presented in Roof's recently filed cert petition. Here are all there issues set forth in this document:

1. When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?

2. Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone?

3. Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

A few of many prior related posts:

March 2, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Wednesday, February 23, 2022

"Waiting for Relief: A National Survey of Waiting Periods for Record Clearing"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this report's starting portion of its introduction:

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence.  Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law.  These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. 

Contents of the Report: Following this introduction, the report consists of two 50-state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table.  The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction.  The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

February 23, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, February 22, 2022

"Dead Right: A Cautionary Capital Punishment Tale"

The title of this post is the title of this intriguing new article authored by Joseph Margulies, John Blume and Sheri Lynn Johnson now available via SSRN. Here is its abstract:

At least 228 people executed in the modern era — or more than one in every seven — were right too soon.  That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late.  Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively.  But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court.  If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief.  Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them.  This resistance was particularly egregious in Texas and Florida.  In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution.  The result is a system that routinely kills people even when they are right.

February 22, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

SCOTUS continues to show very little interest in very many criminal justice issues

It is surely a sign of my own self-involvement that I now consistently find myself, upon opening a new Supreme Court order list, grousing about the fact that the Justices continue to show very little interest in addressing a wide array of important criminal justice issues (and especially sentencing issues) that have percolated for a long time in lower courts and could benefit from SCOTUS input.  Of course, this Term and other recent ones still have had a handful of notable criminal cases, though mostly about interpretation of the Armed Career Criminal Act or high-profile (and likely low-impact) death penalty administration matters.  But this latest new 29-page SCOTUS order list, which is like so many others recent ones with a long list of cert denials in criminal cases and a few certain grants on civil cases, prompts for me another round of grousing.

Of course, Justice Sotomayor remains the Justice seemingly most eager to ensure that lots of criminal justice issues do not get entirely forgotten even as cert repeatedly gets denied, and today's order list includes a seven-page statement from her in a case from New York that starts and end this way:

In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release.  Defendants classified by the State as “level three sex offenders,” however, must first assure the State that they will not reside within 1,000 feet of any school.  In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences.  Because petitioner Angel Ortiz was unable to identify any release address that satisfied the State’s requirement, he spent over two additional years incarcerated when he should have been at liberty.  Although Ortiz’s petition does not satisfy this Court’s criteria for granting certiorari, I write to emphasize that New York’s residential prohibition, as applied to New York City, raises serious constitutional concerns....

New York should not wait for this Court to resolve the question whether a State can jail someone beyond their parole eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.

As always, I remain ever grateful that Justice Sotomayor remains ever committed to shining a SCOTUS light on some of the darkest parts of our criminal justice systems.  As always, I will keep hoping more Justices will show interest in many other long-concerning aspects of our CJ systems.  And in a coming post, I may do some more "formal speculating" about why the SCOTUS criminal docket has seemed especially fallow in the last few Terms and whether a coming change in SCOTUS personnel might shake matters up in coming Terms.

But maybe I am wrong to sense that the criminal side of the SCOTUS docket is wasting away in recent years.  I welcome comments about SCOTUS work in this respect from all quarters.

February 22, 2022 in Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Monday, February 21, 2022

Taking time to celebrate the clemency power on Presidents' Day

I suppose on a President's Day we ought to celebrate all of Article II of Constitution, but regular readers will not be surprised by my eagerness to focus particularly on the last couple dozen words of Article II, Section 2, Clause 1: "The President ... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."  Much could and should be said about clemency circa 2022, but I will be mostly content here to flag a few older pieces about the clemency work of Presidents George Washington and Abraham Lincoln:

From Fox News, "Presidents Day: Newly discovered Washington, Lincoln letters delve into pardon power, clemency"

From the Smithsonian Magazine, "The First Presidential Pardon Pitted Alexander Hamilton Against George Washington"

From Friends of the Lincoln Collection, "Lincoln’s Clemency: The Policy Limits"

Of course, there is a whole lot of great new academic writing about about clemency, largely because Prez Trump's controversial use of this king-like power generated a whole lot of commentary about what he actually did and what he might do.  For those taking stock, Prez Trump granted executive clemency to 237 individuals though his full term.  As is the unfortunate modern tendency, his clemencies were bunched mostly at the end of his term: he had granted just two clemencies (one pardon, one commutation) by the time of his second Presidents' Day in office, and he had granted only about a dozen more by the end of his second year in office. 

Prez Biden, though pledging as a candidate to "broadly use his clemency power for certain non-violent and drug crimes," has yet to grant a single clemency.  But, because there has been some buzz about possible clemencies, I am hopeful Prez Biden will soon live up to his campaign promise and improve on Prez Trump's record here.  But, even if Prez Biden gets his clemency pen out soon, I strongly believe the clemency process needs to be vastly improved and I hope that the FIX Clemency Act introduced in US House late last year might start getting some attention.

And though there is much more worth saying on this front, I will close will a final bit of academic celebration through a link to a great article by Professor Mark Osler that, at least for me, can capture the spirit of the day simply through its title: "Clemency As The Soul Of The Constitution."

February 21, 2022 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, February 17, 2022

Deepening circuit split, First Circuit embraces broad view of sentence reduction authority under 3582(c)(1)(A)

I have not consistently blogged about every circuit ruling concerning the nature and scope of authority that district judges now have to reduced sentences under 18 U.S.C. § 3582(c)(1)(A) after the FIRST STEP Act.  Suffice it to say that these issues are so contested that they have created an intra-circuit splits in the Sixth Circuit as well as broader divisions across multiple circuits.  But I was moved to blog on this topic again because the First Circuit weighed in earlier this week in US v. Ruvalcaba, NO. 21-1064 (1st Cir. Feb. 15, 2022) (available here) through an opinion that effective reviews the legal landscape on its way to reaching this basic holding: 

After careful consideration, we hold that a district court — when adjudicating a prisoner-initiated motion for compassionate release — is not bound by the Sentencing Commission's current policy statement. We further hold that such a court may consider the FSA's non-retroactive changes in sentencing law on an individualized basis, grounded in a defendant's particular circumstances, to determine whether an extraordinary and compelling reason exists for compassionate release.

The second part of this holding is one that has particularly divided circuit courts, and I was pleased to see this textualist analysis from the majority opinion in support of its conclusion:

Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law like those in section 401 of the FSA. Such a prohibition cannot be deduced from section 3582(c)(1)(A)'s requirement that a court consider the section 3553(a) factors when granting a sentence reduction. No part of this requirement suggests that a district court is precluded from considering issues relevant to those sentencing factors at the separate step of determining whether an extraordinary and compelling reason exists. Were this the case, there would have been no reason for Congress to caution that rehabilitation — a relevant consideration in the section 3553(a) inquiry — could not constitute an extraordinary and compelling reason....

On the whole, given the language that Congress deliberately chose to employ, we see no textual support for concluding that such changes in the law may never constitute part of a basis for an extraordinary and compelling reason. We are, moreover, reluctant to infer that Congress intended such a categorical and unwritten exclusion in light of its specific statutory exclusion regarding rehabilitation.

In addition to the effective majority opinion, Ruvalcaba also has a notable extended dissent by Judge Barron in which he highlights another older extreme sentencing cases from the First Circuit — an remarkable case in which, as noted here, the entire First Circuit issued a remarkable opinion urging Supreme Court review while denying en banc review — which would seem to now have another chance to be addressed via 18 U.S.C. § 3582(c)(1)(A) thanks to Ruvalcaba. 

February 17, 2022 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)