Saturday, May 18, 2019

"'Balanced Liberty' – Justice Kennedy's Work in Criminal Cases"

The title of this post is the title of this new essay authored by Rory Little and available via SSRN. Here is its abstract:

During his 43 years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a cautionary tale). Below I offer four general themes that emerge from my review of Justice Kennedy’s written work in criminal cases:

(1) Perhaps surprising to some, when writing for the majority, Justice Kennedy ruled more often for a defense-side view than for the government;

(2) His expansive vision of “liberty,” as expressed in civil cases, was more “balanced” in the criminal context;

(3) His balanced-liberty approach was less defendant-friendly in habeas cases; and

(4) His work was most impactful in (obviously?) death penalty and race-focused cases, as well as plea-bargaining; and he was consistently correct about the doctrine of “willful blindness.”

In conclusion, Justice Kennedy’s 30 years of writings on the U.S. Supreme Court mark him as one of the most influential Justices of our time in shaping criminal law doctrine.

May 18, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, May 17, 2019

"Cruel State Punishments"

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

The Supreme Court has almost systematically expanded the Eighth Amendment over the past decade and a half, proscribing categorical limitations to the death penalty and juvenile life without parole.  With Justice Kennedy’s recent retirement, this expansion seems like it might be ending.  As this door is closing, however, another door may be opening for restricting excessive punishments — state constitutional analogues to the Eighth Amendment.  A close examination of such provisions reveals that some of the provisions use “or” instead of “and,” a linguistic difference that suggests many state constitutions might be broader than the Eighth Amendment.

This article explores the consequences of linguistic differences between the Eighth Amendment and its state constitutional analogues, focusing in particular on the effect of disjunctive state constitutional provisions.  Specifically, the article argues that these linguistic differences open the door to broader application of state Eighth Amendment analogues to rein in excessive punishment practices of state governments.

In Part I, the Article begins by providing an overview of Eighth Amendment doctrine and the importance of the conjunction in its application to criminal sentences.  Part II surveys the state constitutions and examines the language of the provision analogous to the Eighth Amendment, grouping these provisions into three broad categories.  In Part III, the Article advances its core claim — state constitutional prohibitions against “cruel” punishments should limit the ability of states to impose disproportionate punishments.  Part IV concludes the Article by exploring the many practical consequences of limiting the imposition of cruel punishments.

May 17, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 16, 2019

California felony murder revisions showcase, yet again, the varied challenges of giving retroactive effect to sound reforms

The Marshall Project has this notable new article about the application of California's new felony murder law under the headline "California Law Says This Man Isn’t a Murderer. Prosecutors Disagree." Here are excerpts:

After California changed its murder laws last fall, Neko Wilson was the first man to walk free. Wilson, 37, had been facing the death penalty for a 2009 robbery that led to the deaths of a couple in Fresno County.  No one accused him of killing anyone, or even being in the family’s home that night, but prosecutors said he helped plan the break-in.  At the time, that was enough for him to be charged with felony murder, under a doctrine that holds that anyone involved in a crime is responsible if a death occurs.

But in September 2018, the legislature limited murder charges to people who actually participate in a slaying. And so in October, Wilson left the Fresno County jail, where he had spent nine years awaiting trial, subsisting largely on beans and instant noodles....

That freedom may be short-lived.  Prosecutors have moved to send Wilson back to jail, arguing that the new law that freed him violates California’s constitution and that freeing him was a mistake.  A hearing is set for May 16.

District attorneys around the state have launched similar challenges since prosecutors in Orange County successfully argued in February that the new murder law unconstitutionally clashes with anti-crime initiatives that voters approved in 1978 and 1990.  As prisoners around the state seek release, some judges have agreed with the constitutional argument and others have rejected it, setting up a fight that is likely to end up in the state’s highest court.

The cases are a sign of the broader pushback facing state lawmakers who have passed laws aimed at reducing the prison population and the cost of incarceration.  After decades of tough-on-crime laws, California now leads the nation in shrinking the number of people behind bars, while crime remains near historic lows.  But the trend has angered some prosecutors, who say lawmakers are risking public safety.

May 16, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, May 15, 2019

Prez Trump pardons Conrad Black and Pat Nolan

Prez Donald Trump has his clemency juices flowing again, and he is back to his high-profile pardon practices today with grants to two offenders whose names should be familiar to readers of this blog.  Here are the details from The Hill:

President Trump on Wednesday signed granted a full pardon to media tycoon Conrad Moffat Black and Patrick Nolan, former Republican leader of the California State Assembly.

Black, a Canadian-born British citizen, served as the chief executive of Hollinger International, which published the Chicago Sun-Times, The Daily Telegraph and The Jerusalem Post.  He was convicted in 2007 on three counts of mail fraud and one count of obstruction of justice in U.S. District Court in Chicago.

The 74-year-old media mogul spent 3.5 years in prison, the White House said in a statement announcing his pardon. In its statement, the White House said the Supreme Court "largely disagreed and overturned almost all charges in his case. "Two of his three fraud convictions were later overturned, leading his sentence to be shortened. He was released from a Florida prison in May 2012 and subsequently deported from the United States.

"An entrepreneur and scholar, Lord Black has made tremendous contributions to business, as well as to political and historical thought," the White House said. Black wrote a book about the president, called “Donald Trump: A President Like No Other,” published in 2018.

Nolan, who also was pardoned Wednesday, was a California legislative leader who spent years in prison after being convicted in the 1990s in an FBI sting.  Nolan was secretly recorded accepting checks from an undercover FBI agent and was later charged with using political office to solicit illegal campaign contributions, the Los Angeles Times reported.

He later pleaded guilty on one count of racketeering and served 25 months in federal prison.

The White House characterized Nolan's choice to plead guilty as a "difficult" one. "He could defend himself against charges of public corruption and risk decades in prison, or he could plead guilty and accept a 33-month sentence," the White House said. "Determined to help his wife raise their three young children, Mr. Nolan chose to accept the plea."

"Mr. Nolan’s experiences with prosecutors and in prison changed his life. Upon his release, he became a tireless advocate for criminal justice reform and victims’ rights."

Criminal justice reform advocates know how hard Pat Nolan has worked in this space for years, and Conrad Black has been a trenchant critic of the federal criminal justice system since he got caught up with it.

A few prior related posts with a few commentary from Black and Nolan:

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"The Governor's Clemency Power: An Underused Tool to Mitigate the Impact of Measure 11 in Oregon"

The title of this post is the title of this notable new paper authored by Aliza Kaplan and Venetia Mayhew recently posted to SSRN.  Here is its abstract:

In this article, we analyze the historical use of the clemency power at both the federal and state levels; including the factors that occurred during the 20th century which resulted in both presidents and governors gradually using the power less, up until the 1980’s.  We examine how the “war on crime” and other political and legal changes, including the imposition of new mandatory minimum sentencing laws during the 1980’s and 1990’s, has led to mass-incarceration at both a national and Oregonian level.  We discuss how this new punitive sentencing and incarceration philosophy has resulted in a general souring on the use of the pardon power and is now seen as a challenge to powerful prosecutors who generally oppose clemency as an extra-judicial attack on their own policies.  In looking at the current prison population in Oregon, we argue that the current Governor should use her pardon power as tool to mitigate some of the prevalent injustice in Oregon.

May 15, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, May 14, 2019

"Individualized Executions"

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

States continue to botch lethal injection attempts.  The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents.  In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence.  Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.  The Court’s execution technique cases proscribe the imposition of punishments that create a substantial risk of inflicting pain.  As such, application of the Woodson-Lockett principle to executions would require that courts assess the imposition of such execution techniques on a case-by-case basis to determine the constitutionality of the technique — as applied to the particular inmate — prior to execution.

In Part I, the Article describes the recent epidemic of failed lethal injection executions and highlights the need for reform in this area.  Part II describes the Woodson-Lockett doctrine, and explores its prior applications.  Part III then explains why this doctrine ought to apply to execution techniques, not just the kind of punishment imposed.  Finally in Part IV, the Article argues for the adoption of this approach, highlighting its advantages both on individual and systemic levels.

May 14, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 13, 2019

Is the latest SCOTUS sparring in capital cases only likely to get worse and worse?

The question in the title of this post is prompted by today's Supreme Court developments in older capital cases, some of which I missed when just blogging here about the morning order list.   Specifically, I missed that Justice Alito penned a lenghty dissent to a stay in a capital case from Texas six week ago(!), which in turn prompted a four-page defense of the stay by Justice Kavanaugh.  (This discussion can be found at this link following the original stay.)   Adam Liptak summarizes all the action in the New York Times article headlined "Tempers Fraying, Justices Continue Debate on Executions."  Here are excerpts:

Several Supreme Court justices on Monday continued a heated debate on how to handle last-minute requests in death penalty cases, issuing a series of unusual opinions about actions the court had taken several weeks ago.

Continuing to fight those battles is an indication that feelings remain raw on a court that is increasingly divided over capital cases.

A guiding principle at the Supreme Court, Justice Stephen G. Breyer has said, is that “tomorrow is another day.” The court very rarely supplements its original rulings with later explanations and responses.

In one opinion, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., explained why they had voted in March to stay the execution of Patrick H. Murphy, a Buddhist inmate in Texas whose request that his spiritual adviser accompany him to the death chamber had been denied though Christian and Muslim chaplains were allowed....

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, responded on Monday with a statement. The inmate’s delay in asserting his claim, Justice Alito wrote, should have justified letting his execution go forward....

In a footnote, Justice Alito continued a discussion of an even older case, from February, in which the court had allowed a Muslim inmate to be executed outside the presence of his Muslim imam although Christian chaplains were allowed. At the time, Justice Elena Kagan, writing for the court’s four liberal members, said the majority was “profoundly wrong.”...

In a third opinion on Monday, Justice Thomas, joined by Justices Alito and Gorsuch, wrote to “set the record straight” about why they had voted last month to allow the execution of an Alabama inmate, Christopher Lee Price, a move that had prompted an anguished middle-of-the-night dissent from Justice Breyer.

As might be obvious by my question in the title of this post, I think this sparring could get even more heated in part because the reduced number of executions in recent years heighten the stakes (and litigation opportunities) around each execution.

May 13, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

No new grants, but lots of notable chatter on criminal cases in latest SCOTUS order list

It seems like a while since the Supreme Court has granted certiorari in an interesting criminal case, but today's SCOTUS order list has intrigue in the form of four interesting opinions regarding other dispositions in criminal cases. The opinion that will likely garner the most attention is the lengthy one by Justice Thomas, joined by Justices Alito and Gorsuch, in a capital case from Alabama, Price v. Dunn. That opinion gets started this way:

I concur in the denial of certiorari. I write separately to set the record straight regarding the Court’s earlier orders vacating the stays of execution entered by the District Court and the Court of Appeals in this case.  See Dunn v. Price, 587 U. S. ___ (2019).  In a late-night dissenting opinion accompanying one of those orders, JUSTICE BREYER asserted that petitioner’s death sentence was being “carried out in an arbitrary way” and that Members of this Court deviated from “basic principles of fairness.”  Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the circumstances leading to the now-delayed execution makes clear that petitioner’s execution was set to proceed in a procedurally unremarkable and constitutionally acceptable manner.

For First Amendment fans concerned about speech rights in prison, the next opinion on the order list may be event more interesting.  This one comes in Dahne v. Richey, and involves a dissent from the denial of cert authored by Justice Alito and is joined by Justices Thomas and Kavanaugh.  Here is the start and end of the opinion:

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard? Or may the prison insist that the prisoner rewrite the grievance to eliminate any threatening language? In this case, respondent Thomas Richey, an inmate currently serving a sentence for murder in Washington state prison, submitted a written prison grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a “fat Hispanic,” but contained language that may reasonably be construed as a threat.....

In the decision below, the Ninth Circuit doubled down on its earlier ruling, holding that prisoners have a clearly established constitutional right to use “disrespectful” language in prison grievances and that Richey was entitled to summary judgment on his First Amendment claim.

We have made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated.  See, e.g., Shaw v. Murphy, 532 U. S. 223, 229 (2001). Prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. See Turner v. Safley, 482 U. S. 78, 89–91 (1987).  Even if a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats?  I doubt it, but if the Court is uncertain, we should grant review in this case.  Perhaps there is more here than is apparent on the submissions before us, but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.

In addition, we get an opinion in an ACCA case, Myers v. US, a case which is GVRed back to the Eighth Circuit but which prompts a short statement from the Chief Justice in dissent joined by Justices Thomas, Alito, and Kavanaugh.  That opinion starts this way: 

I dissent from the Court’s decision to grant the petition, vacate the judgment, and remand the case. Nothing has changed since the Eighth Circuit held that Myers’s conviction for first-degree terroristic threatening qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U. S. C. §924(e). The Government continues to believe that classification is correct, for the same reasons that it gave to the Eighth Circuit. But the Solicitor General asks us to send the case back, and this Court obliges, because he believes the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result. He wants the hard-working judges of the Eighth Circuit to take a “fresh” look at the case, so that they may “consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious injury language sets forth an element of the crime,” and then re-enter the same judgment the Court vacates today. Brief for United States 9, 11.

I see no basis for this disposition in these circumstances.

Finally (and not noticed by me when I did this post too quickly while on the move this morning), Justice Sotomayor has a two paragraph dissent from the denial of certiorari in Abdur-Rahman v. Parker at the very end of the order list.  (Thanks to the helpful reader who made sure I caught this.)  Here is this opinion's closing paragraph: 

The Court has recently reaffirmed (and extended) the alternative-method requirement. See Bucklew v. Precythe, 587 U.S. ___, ___–___ (2019) (slip op., at 14–20).  And today, the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement. Because I continue to believe that the alternativemethod requirement is fundamentally wrong — and particularly so when compounded by secrecy laws like Tennessee’s — I dissent.

The substance of each of these opinions could merit additional commentary (and readers are urged to use the comments to do so).  But I find especially interesting which of the conservative justices are NOT among those supporting each of the opinions authored by other conservative Justices.  In the big capital case, it is the Chief and Justice Kavanaugh not signing on with Justice Thomas; the the First Amendment prisoner case, it is the Chief and Justice Gorsuch not signing on with Justice Alito; in the ACCA case, it is only Justice Gorsuch not signing on with the Chief Justice.  Hmmm.

May 13, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, May 12, 2019

Split Sixth Circuit panel finds statutory max sentence substantively unreasonable(!) for felon-in-possession with long criminal history

A helpful reader made sure I did not miss the interesting (unpublished!) ruling of a Sixth Circuit panel late last week in US v. Warren, No. 18-3141 (6th Cir. May 10, 2019) (available here). Here is how the majority opinion in Warren starts and ends:

At Davian Warren’s sentencing hearing, both Warren and the government sought a 51-to-63-month sentence — a term that was recommended in Warren’s presentence report and that fell within the applicable Sentencing Guidelines range.  Instead, the district court imposed the statutory maximum of 120 months’ imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court’s explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum.  We agree, vacate Warren’s sentence, and remand for resentencing....

To be clear, we have declined to impose a “bright-line rule” that district courts cannot rely on factors accounted for by the Guidelines in imposing a variance, Tristan-Madrigal, 601 F.3d at 636 n.1, and we have affirmed the imposition of sentences that deviate from the Guidelines to some degree based upon a defendant’s criminal history, e.g., United States v. Villarreal, 609 F. App’x 847, 850 (6th Cir. 2015) (finding that serious criminal history “warranted a slight upward variance”); United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (finding that serious criminal history warranted 42-month sentence, which was “well above [the defendant’s] advisory Guidelines range of 18 to 24 months, though considerably below the statutory maximum sentence of 60 months”).  But we have also made plain that “the greater the district court’s variance, the more compelling the evidence must be.” Stall, 581 F.3d at 281–82.  Even granting that some variance based on Warren’s criminal history was justified, we are left with the definite and firm conviction that, in this case, the trial court imposed a sentence that was “greater than necessary” in roughly doubling the recommended sentence and imposing the statutory maximum based on Warren’s criminal history without a fuller consideration of whether such a sentence avoids unwarranted sentencing disparities.  Vowell, 516 F.3d at 512.

On the record before us, the district court failed to provide a sufficiently compelling justification to impose the greatest possible upward variance under the statute.  See Gall, 552 U.S. at 50; Stall, 581 F.3d at 281–82.  We are “confident that on remand, the district court can fashion a sentence that reflects [the defendant’s] actual crime, that takes into account his dangerousness to the community, and that is sufficient, but not greater than necessary, to achieve the purposes of sentencing.” Allen, 488 F.3d at 1262.

Here is how the dissenting opinion authored by Judge Batchelder gets started:

I respectfully dissent.  The majority holds that, “Because the district court’s only discussion of whether the selected sentence avoids unwarranted sentencing disparities hinges on criminal history factors addressed by the Guidelines, the district court insufficiently distinguished Warren from other offenders in the same criminal history category,” and thus the district court’s reasoning was “insufficient to justify such a stark departure from the Guidelines.”  The majority also characterizes Warren’s criminal record as “the only reason” offered by the district court for the sentencing disparity. I must disagree.  The district court’s extensive discussion of its reasoning for an upward variance did not only “hinge on criminal history factors,” and in my view the district court did sufficiently explain how Warren was different “from other offenders in the same criminal category.”  The district court’s reasoning for imposing an above-Guidelines sentence for Warren was clear: the danger to the community posed by the unique combination of his refusal to be “deterred” by prior sentences and his “violent nature.”

I always find it heartening to see a circuit court take seriously its responsibility to review sentences for substantive reasonableness, and I wonder if this kind of rulings has become a bit more common now that there is more bipartisan concern for mass incarceration and the severity of federal sentences.  As long-time readers know, I followed reasonableness review patterns closely for a number of years after Booker, but ultimately got very discouraged by this jurisprudence due to the unwillingness of many circuits to ever find within-guideline sentences unreasonable (and their eagerness to find below-guideline sentences unreasonable).  The federal defenders have this notable list of reasonableness reversals through Nov 2017, and I think it would be a great empirical project to explore in great detail how reasonableness review has operated in the 15 years since the Booker ruling.

While excited by the Sixth Circuit panel here giving teeth to reasonableness review, I am also struck by the interesting fact that the defendant in this case was not subject to the extreme mandatory sentencing enhancement of the Armed Career Criminal Act given his extended criminal history.   Given the Sixth Circuit setting here, I am reminded of a case from five years ago, US v. Young, in which a unanimous panel upheld against a constitutional challenge the 15-year ACCA sentence for a defendant with a much more modest criminal history than Davian Warren.  Of course, Eighth Amendment claims are even harder to win (unless you are on death row) than reasonableness appeals.  But comparing these defendants and the appellate outcomes serves as another reminder of how much arbitrariness infests the federal sentencing system.

May 12, 2019 in Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Split California Court of Appeal rejects claim that second-degree felony murder provision unconstitutionally vague

A helpful reader made sure I saw an interesting and lengthy split California Court of Appeal ruling in In re White, No. E068801 (Cal. 4th App. Dist. April 30, 2019) (available here). Here is how the majority opinion gets started, along with the start of its substantive analysis:

Petitioner Gregory White challenges the constitutionality of his conviction for second degree felony murder (Pen. Code, § 187) on the basis of the United States Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson), and seeks relief via a petition for writ of habeas corpus....

As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule.  However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.  Accordingly, we will deny the petition.

Here is how the dissenting opinion authored by Judge Raphael gets started:

Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions.  The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine — in general, not in White’s case in particular — was “inherently dangerous to human life” such that it qualified as a felony murder predicate.  If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.

Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague.  The Legislature would have provided notice to the public and adequately guided the courts.  But there is no statutory list of predicate crimes for second degree felony murder.  A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent-dangerousness-to-life standard....

I conclude that under Johnson, California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.

May 12, 2019 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Friday, May 10, 2019

"4 Ways To Win A Presidential Pardon Under Trump"

The title of this post is the headline of this lengthy new HuffPost piece, which carries this subheading: "Trump’s pardon process is unorthodox. But his willingness work around a deeply flawed Justice Department system has advocates for clemency reform hopeful."   This piece is a thorough and thoughtful review of modern federal clemency realities, and I recommend it in full.  Here are excerpts from its start and finish, as well as the headings that seem to capture the "4 ways to win" described in the headline:

There’s a name rumbling through prisons around the nation: Jared Kushner.  Kushner’s father served time in federal prison, and some incarcerated people hope that experience gives President Donald Trump’s son-in-law and top adviser a better understanding of their plight ― and could lead him to look favorably on their requests for clemency.

The idea that Kushner might have some special interest in freeing prisoners has so pervaded the nation’s federal prisons that some inmates have sent copies of their clemency applications directly to his Office of American Innovation in the White House.  A few inmates have even pinned news clips of Kushner on their cell walls.

Jared Kushner, cellblock pinup, is just one of the surprising results of Trump’s unconventional approach to granting clemency.  The president has been bypassing the Office of the Pardon Attorney at the Department of Justice, which has vetted clemency applications under previous presidents, and has acted more impulsively, issuing high-profile clemencies in cases that grab his attention. So inmates and their advocates have adapted their tactics to fit the current administration.  Here’s a guide to how to win a pardon under Trump.

Send Your Application To Jared Kushner... 
Get Kim Kardashian West’s Attention....
Get Your Case On Fox News....
Don’t Expect Much From The Pardon Attorney’s Office.... 

The framers of the Constitution gave the president the pardon power to act as a backstop to an imperfect criminal justice system that too often doles out excessively harsh punishment. That’s not always how presidents have used that power. Some of Trump’s pardons appear to have more to do with political favoritism or celebrity attention than with any interest in remedying overzealous prosecution or unfair sentencing. But they’re not the product of a lengthy and conflicted bureaucratic process, either. And that might be a good thing, some clemency advocates argue....

Margaret Love, a former pardon attorney, argues that one of the biggest stumbling blocks [to a well-functioning clemency process] is the transfer of the pardon attorney’s office to the deputy attorney general’s bailiwick.  The deputy attorney general oversees all prosecutors in the many U.S. attorney’s offices around the nation — the very same prosecutors who are bringing charges against defendants that the pardon attorney is seeking to provide relief to.  He or she also has the authority to review the pardon attorney’s clemency recommendations and can ultimately reject the application.  Critics say this is exactly what happens all too frequently, as federal prosecutors have little interest in questioning or unwinding the department’s convictions. Justice Department prosecutors have become “determinedly and irreconcilably hostile” to clemency, Love wrote in a 2015 paper.

The process can be extremely difficult for prisoners and their lawyers, explained Mark Osler, a professor at the University of St. Thomas in Minneapolis and an expert on clemency. “Unlike other parts of the criminal process, with clemency there is no transparency: no sense of where the petition is in the process, what the timeline will be or even the reasoning behind a grant or denial,” Osler said.

The mystery that envelops the process is unnecessary, Osler argues.  Osler and other clemency experts, such as Rachel Barkow, a New York University law professor and a member of the U.S. Sentencing Commission from 2013 to 2018, have pushed for years to move the pardon attorney’s office out from under the Justice Department and instead situate it as an independent, bipartisan commission inside the Executive Office of the President with a diverse membership that could directly inform the president of its recommendations. That remedy could relieve the inherent conflicts of interest of DOJ oversight, allow for more voices to weigh in on an application beyond federal prosecutors, and increase transparency around clemency.

Advocates are eager for Trump to establish a formal process that is outside the Department of Justice at some point. But the unending controversies swirling around the president, including with regard to controversial pardons, may make that impossible. In the meantime, incarcerated people and their advocates will try every means available to reach Trump. “People are just desperate, and so they’re sending things to the pardon attorney, they’re sending things to the White House because there’s just no clear guidance,” explained one attorney who has worked on pardons and who requested anonymity due to the sensitivity of the ongoing process. “It’s quite disheartening. Everyone’s not going to have the celebrity touch,” the attorney said. “They’re just not.”

A few of many recent related posts: 

May 10, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, May 09, 2019

"Unusual State Capital Punishments"

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

This article argues that many of the states that retain the death penalty currently violate their own constitutions because their use of the death penalty is unusual.  Specifically, the death penalty in some states, particularly when assessed in an intra-state manner examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment.  As a result, this article explores the twenty-six capital states that proscribe unusual punishments and categorizes them based on the likelihood that their utilization of the death penalty violates their state constitution.

Part I of the article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases.  In Part II, the article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law.  Part III then examines the states that have unusual proscriptions in their state constitutions, and categorizes the states based on the likelihood that their use of the death penalty violates their state constitution.  Finally, in Part IV, the article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move.

May 9, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, May 07, 2019

Prez Trump gets back in clemency business by granting full pardon to US veteran convicted of killing Iraqi prisoner

As reported in this AP piece, "President Donald Trump has pardoned a former U.S. soldier convicted in 2009 of killing an Iraqi prisoner, the White House announced Monday." Here is more:

Trump signed an executive grant of clemency, a full pardon, for former Army 1st Lt. Michael Behenna, of Oklahoma, press secretary Sarah Sanders said. Behenna was convicted of unpremeditated murder in a combat zone after killing a suspected al-Qaida terrorist in Iraq.  He was paroled in 2014 and had been scheduled to remain on parole until 2024.

A military court had sentenced Behenna to 25 years in prison.  However, the Army's highest appellate court noted concern about how the trial court had handled Behenna's claim of self-defense, Sanders said.  The Army Clemency and Parole Board also reduced his sentence to 15 years and paroled him as soon as he was eligible.

Behenna's case attracted broad support from the military, Oklahoma elected officials and the public, Sanders said.  She added that Behenna was a model prisoner while serving his sentence, and "in light of these facts, Mr. Behenna is entirely deserving" of the pardon.  Oklahoma’s two Republican senators, James Lankford and Jim Inhofe, hailed the pardon, thanking Trump for giving Behenna “a clean slate.”

Behenna acknowledged during his trial that instead of taking the prisoner home as he was ordered, he took the man to a railroad culvert, stripped him, and then questioned him at gunpoint about a roadside bombing that had killed two members of Behenna's platoon. Behenna, a native of the Oklahoma City suburb of Edmond, said the man moved toward him and he shot him because Behenna thought he would try to take his gun.

Oklahoma’s attorney general first requested a pardon for Behenna in February 2018 and renewed his request last month. Attorney General Mike Hunter said he believed Behenna’s conviction was unjustified because of erroneous jury instructions and the failure of prosecutors to turn over evidence supporting a self-defense claim.

May 7, 2019 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 06, 2019

Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act

In prior posts, I have made much of a key provision of the FIRST STEP Act which allows federal courts to directly reduce sentences under the so-called compassionate release statutory provisions of 18 U.S.C. § 3582(C)(1)(A)This recent Reason article discussing the impact of this provision in a notable recent case from Montana.  The full title of this article serve as a summary of its contents: "A Terminally Ill, Wheelchair-Bound Inmate Applied for Compassionate Release. The Justice Department Argued He Wasn't Dying Fast Enough To Qualify. The FIRST STEP Act gives dying inmates the opportunity to appeal to a judge for compassionate release. This case shows why." Here are excerpts:

On Wednesday a judge ordered the release of federal inmate Steve Brittner, 55, under the new provisions of the FIRST STEP Act, a criminal justice bill passed late last year.  The judge ordered the release over the objections of federal prosecutors, who argued that Brittner, who is suffering from a malignant brain tumor, does not meet the "extraordinary and compelling" reasons to qualify for what's known as "compassionate release."

Brittner's case illustrates both the impact of the new law and the extraordinary hurdles terminally ill inmates and their families still face when trying to squeeze a small amount of mercy out of the federal government.

One provision of the FIRST STEP Act allows federal inmates to take their pleas to a judge if the federal Bureau of Prisons (BOP) rejects their petitions for compassionate release — a policy that is supposed to afford elderly and terminally ill inmates the opportunity to finish their lives among family and in relative peace....

"This is a very telling case," says FAMM president Kevin Ring.  "On one hand, the First Step Act's reforms to compassionate release worked as intended and this family prevailed.  On the other hand, it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life.  They'll say they were just doing their jobs, but their job is to do justice."

A few prior related posts from before and after FIRST STEP :

May 6, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Miss USA is a lawyer who blogs and seeks "reduced sentences for people who were sentenced unjustly"

17818960_1027573494011270_3870026070707142656_nI was intrigued to learned that I share some traits with the newly-crowed Miss USA, Cheslie Kryst. As detailed on this webpage, Kryst is a lawyer and a blogger and an advocate concerned with excessive sentences:

Cheslie graduated with a Juris Doctor degree (JD) and Master of Business Administration degree (MBA) from Wake Forest University. And also earned her Bachelor of Science degree (BS) in Business Administration from the Honors College at the University of South Carolina.

Cheslie is practicing complex civil litigation for a private law firm and is licensed to practice law in two states.  She also does pro bono (free legal) work to get reduced sentences for people who were sentenced unjustly.

Cheslie currently runs her own fashion blog, White Collar Glam, that focuses on workwear fashion for women. She was inspired to begin ‘White Collar Glam’ after struggling to find appropriate, affordable, and professional clothing.

And this new TMZ piece reports that Miss USA is already joining forces with high-profile folks with a track record of getting excessive sentences reduced:

Miss USA Cheslie Kryst is hard at work on a project that goes well beyond your typical beauty pageant agenda -- and it has her crossing paths with Kim Kardashian.

The new Miss USA was on "TMZ Live" Monday and told us she's working to free an inmate who's serving a life sentence for a low-level drug charge. She's working closely with Brittany K. Barnett -- the lawyer who just secured another prisoner's release ... with Kim's funding.

Cheslie, an attorney herself, tells us she and Brittany hope to do the same for someone in her home state of North Carolina by the end of this month.

As we reported ... Kim and Brittany just helped free Jeffrey Stringer, who served 22 years of a life sentence in Florida. Kim posted a celebratory shot of his family ahead of Stringer's release.  Now, Cheslie's hoping she can accomplish a similar mission close to home.

Kim's got a pretty amazing track record when it comes to this sort of thing ... helping Tennessee inmate Cyntoia Brown secure clemency, playing a key role in freeing Matthew Charles and Alice Marie Johnson, and taking her cause to the White House for a meeting with President Trump ... accomplishments Cheslie says should be celebrated.

May 6, 2019 in Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Pennsylvania Gov grants clemency to three more persons serving life sentences

I am pleased to see that, while Prez Trump and some who want his job have been talking the talk about clemency at the federal level, some notable governors have been walking the walk at the state level.  This new local article, headlined "Gov. Tom Wolf releases 8 lifers, more than any other Pa. governor in decades," reports on the record of the chief executive in the Keystone state.  Here are excerpts:

On Tuesday evening, George Trudel Jr. — heretofore known as inmate AS2262 at the State Correctional Institution Phoenix — got the news he’d been awaiting for 30 years.  Gov. Tom Wolf had granted him clemency, bringing to a close what had been a sentence of life in prison without possibility of parole....

Trudel, now 52, is one of more than a thousand lifers convicted for a role in a killing that they did not personally commit or necessarily even anticipate — lookouts for botched robberies and burglars who caused elderly victims to have heart attacks....

The reduction of Trudel’s life sentence, and those of two other men, bring to eight the number of commutations granted by Wolf. That’s more than any other governor in the last 25 years.

The politically precarious practice of commuting life sentences began to fall out of favor not long before Trudel was convicted, when Gov. Richard Thornburgh took office in 1979.  It all but ceased in 1994 — the year a lifer named Reginald McFadden was released and went on a killing spree, flipping the governor’s race away from Mark Singel, who had approved the commutation, and shifting the odds of clemency from Harvard-acceptance rare to lottery-win rare for the next 2½ decades.

As a result, Pennsylvania is now home to more than 5,000 people serving live without parole.  Today, commutations must be unanimously recommended by the state Board of Pardons before the governor can even consider them.  Many applicants are senior citizens who have spent decades in prison.

The two other men who received clemency were Adolfo Carrillo, 79, from Philadelphia, and Samuel Barlow, 68, of Pittsburgh.  Carrillo shot and killed a neighbor, Santiago Garcia, during an argument in 1976; he told police that Garcia had disrespected his wife, according to news reports.  Barlow was initially sentenced to death for serving as the lookout in a 1968 bank robbery in which his co-defendants shot and killed a customer, George Morelock.

May 6, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, May 02, 2019

Georgia completes execution after courts reject array of final appeals

As reported in this local article, "Scotty Morrow [with a]ppeals exhausted, clemency denied, ... at 9:38 p.m. .. became the first person executed by the state of Georgia this year."  Here is more about his crime and filed appeals: 

The father of two and grandfather of four said in his petition for clemency that he thought every day about what happened on Dec. 29, 1994.  Spurned over the phone by his ex-girlfriend, Barbara Ann Young, Morrow drove to her house and fatally shot her and her friend, Tonya Woods.  He shot a third woman in the face and arm but she survived. The murders were witnessed by Young’s 5-year-old son....

Morrow is the 73rd person executed by the state since the death penalty was reinstated in 1976, and the 50th by lethal injection. “Tonight, justice was carried out for the families of Tonya Woods and Barbara Ann Young and the injured LaToya Horne,” said Hall County District Attorney Lee Darragh, who witnessed the execution.

The U.S. Supreme Court had denied Morrow's final appeal to stay the execution at about 9 p.m. Thursday, two and a half hours after his defense team petitioned the nation's highest court.

Morrow was denied clemency Wednesday by the state Board of Pardons and Paroles. His attorneys argued that unplanned crimes of passion, such as the ones Morrow was convicted of, are rarely punished by death. They also pointed out that jurors in Morrow’s murder trial heard little about his traumatic childhood....

A state court judge overturned Morrow’s sentence in 2011, saying that his lawyers had not afforded him proper representation. A new trial was ordered, but the Georgia Supreme Court later reversed that decision and reinstated the death sentence.

On Tuesday, a Butts County judge dismissed a petition claiming Morrow’s death sentence was unconstitutional because it was improperly imposed. Lawyers for the Gainesville man said the judge in Morrow’s criminal trial decided which of the two murders he committed warranted the death penalty, a decision they said the U.S. Supreme Court has ruled must be made by jurors.  The Butts County judge on Wednesday agreed with attorneys for the state that those claims had already been rejected by higher courts. On Thursday, the state Supreme Court agreed in a unanimous decision. The court described Morrow’s appeal “as lacking in arguable merit” and it also denied a request from his lawyers for a stay of execution....

Prison officials testified Morrow was a model inmate who sought redemption for his crimes. His son and namesake said he was a positive influence on his four grandchildren.  Counselors told the parole board he had been fully rehabilitated. But the parole board was unswayed, denying Morrow’s last, best chance at survival.

May 2, 2019 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, May 01, 2019

Terrific vision and plans in "Beyond Guilt," a new project of the Ohio Justice & Policy Center

Cropped-bg_ojpc_gavelI am so very pleased to see the announcement of a great new project by a leading criminal justice reform group in the Buckeye State. Specifically, the Ohio Justice & Policy Center (OJPC) has just launched "Beyond Guilt," which its website says "aims to do for over-punished prisoners who admit guilt what innocence projects have for wrongfully convicted persons who claim actual innocence."  I am especially drawn to the "Strategies" discussion set out in the new project's "Our Mission" statement, which I will quote here:

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence.  Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement — freeing innocent prisoners and people convicted of low-level, non-violent offenses.  Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released.  The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release.  The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released.  Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes.  The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website.  The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws.  The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety.  Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

May 1, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, April 29, 2019

In sparring opinion surrounding en banc denial, Eleventh Circuit judges debate the metaphysics of Booker and Johnson

The full Eleventh Circuit needed only one sentence in this order in Lester v. US to deny en banc review in a case in which a pre-Booker career offender sought collateral review based on the void-for-vagueness doctrine of Johnson.  But a number of judges on that court, including the former Acting Chair of the US Sentencing Commission, Judge William Pryor, needed more than 60 pages to explain their views on the soundness of this denial.  While hard-core fans of habeas doctrines will likely enjoy all the back-and-forth within all the separate opinions, many sentencing fans might get a kick out of how Judge Rosenbaum characterizes Judge Pryor's account of the the past and present of sentencing law:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory.  Id. at 19.  That is certainly interesting on a metaphysical level.

But it ignores reality.  Back here on Earth, the laws of physics still apply.  And the Supreme Court’s invalidation of a law does not alter the space-time continuum.  Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

I am tempted to joke that I still kind of feel like it was Justice Scalia's opinion in Blakely that did, in some sense, "alter the space-time continuum."  But rather than further joke or philosophize on these matters, I will just encourage readers to check out all the sound and fury to be found in Lester.

April 29, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Saturday, April 27, 2019

Should reform advocates urge Prez Trump to embrace new proposed federal Clean Slate Act as sound Second Step?

Cleanslatecampaign-feature-2The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:

Let's begin my pitch with excerpts from the first of these pieces:

President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away."  Despite the day, Trump was not joking. But he was also not correct.

Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement.  “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.

The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark.  “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.

It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away."  A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....

“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term.  The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming).  It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act.  Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)

Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms  grow dicier.  The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC.  The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.

And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support.  Here are a few details about a federal Clean State Act proposal via the Politico article linked above:

An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year.  Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.

The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes.  “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform.  The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....

Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.

Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front.  Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.

As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space.  But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon. 

April 27, 2019 in Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, April 26, 2019

Recapping a notable week of SCOTUS criminal justice arguments

As flagged in this Monday post, the Supreme Court's final week of oral arguments for this Term, which took place this past week, included hearings on three cases involving notable criminal justice issues.  We likely should not expected written decisions in Mitchell v. Wisconsin, Rehaif v. United States or Quarles v. United States until late June, but SCOTUSblog provides a sense of where the Court might be headed in these cases through these argument analysis posts:

On Mitchell by Amy Howe, "Justices debate warrantless blood draw for unconscious drunk driver"

On Rehaif by Evan Lee, "Court leaning toward requiring the government to prove that a felon in possession knew he was a felon"

On Quarles by Rory Little, "ACCA argument becomes a broader discussion of statutory interpretation"

Interesting jurisprudential developments could emerge from all three of these cases, but the Rehaif case has an issue lurking that could possibly impact lots and lots of federal prosecutions for felon in possession of a firearm under 18 U.S.C. § 922(g).  

April 26, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 25, 2019

Maryland GOP Gov finally commutes notable life sentence (and others) following notably stingy prior Gov

Van Jones received considerable grief when he said earlier this year at CPAC that the "conservative movement ... is now the leader" on criminal justice reform. But this new story out of Maryland, headlined "Maryland Gov. Hogan commutes life sentence of 'model inmate' from Baltimore who's served 47 years in killing," provides another example of a GOP official being more progressive in the criminal justice arena than an official from the other side of the aisle. Here are the details:

Gov. Larry Hogan’s office said Wednesday the governor has commuted the life sentence of Calvin Ash, a 68-year-old Baltimore man who has spent nearly his entire adult life behind bars despite multiple recommendations from the parole commission for his release.

A spokesman for Hogan said the governor decided this week to accept an 8-0 vote of the parole commission that Ash be freed after serving 47 years for fatally shooting his wife’s boyfriend in the 1970s, when Ash was 21 years old.

Hogan also commuted sentences this week of two other inmates, but did not release their names....

Hogan’s actions mean the governor has now commuted the sentences of 15 prisoners since he took office in 2015 — including at least five inmates serving life sentences.  The previous governor, Democrat Martin O’Malley, released three prisoners through commutation during his eight years in office....

Ash has been imprisoned since he killed the boyfriend of his estranged wife on May 2, 1972.  On that day, Ash — who was an employee of Union Memorial Hospital — shot and killed Thomas Robinson, 24, inside a rowhouse in the 1800 block of N. Rosedale St. in West Baltimore.  Ash confessed to police during questioning, saying: “We were still seeing one another, but then she got on with someone else.”...

He was convicted of murder and sentenced to life in prison with the possibility of parole. David Blumberg, chairman of the state’s parole commission, said that for more than a decade, the panel has repeatedly recommended that Ash be freed....

Ash’s case has been in the news for years.  In 2004, the Maryland Parole Commission approved his release. But in 2006, O’Malley rejected the recommendation without comment.  In 2009, the commission again voted 5-2 to commute Ash’s sentence, but that, too, was rejected....

Maryland governors over time have adopted different stances on their power to commute sentences. In the mid-1990s, Democratic Gov. Parris Glendening, issued a so-called “life means life" edict — giving out zero commutations — as he attempted to negotiate an end to the death penalty in the state.  Glendening has since disavowed that approach.

Republican Gov. Robert Ehlirch, who served between 2003 and 2007, considered parole on a case-by-case basis.  He commuted 18 sentences, including those of five lifers.

O'Malley fought to repeal the death penalty and he commuted the sentences of Maryland’s four remaining death-row inmates to life without parole.  But when it came to releasing prisoners sentenced to life with the possibility of parole, he took a hard line.  He granted clemency to three in 2012, but approved no non-medical paroles.

Hogan has presided over a decline in Maryland’s prison population.  Maryland’s inmate census has fallen below 18,000 for the first time in nearly three decades....  The 2016 Justice Reinvestment Act is often credited for helping to reduce Maryland’s prison population.  The landmark legislation sought to divert nonviolent offenders from prison into drug treatment and other programs and included changes to mandatory minimum drug penalties.  It went into effect in October 2017.

April 25, 2019 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, April 24, 2019

Judge Jack Weinstein provides thorough explanation for FIRST STEP Act crack retroactivity sentence reduction

A few weeks ago, as noted here, the Justice Department issues a press release discussing the implementation of the FIRST STEP Act in which it reported that the "Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases."  These numbers are encouraging, though the US Sentencing Commission is this impact analysis reported that there were "2,660 eligible offenders ... in BOP custody as of May 26, 2018" who should benefit from Section 404 of the FIRST STEP Act making the Fair Sentencing Act of 2010 retroactive.  So we may be only a third of the way toward fully implementing just this one section of the new law.

Notably, a judicial legend has now added to the number of federal offenders benefiting directly from the FIRST STEP Act, as earlier this week Judge Jack Weinstein issued this extended opinion explaining the legal basis and justifications for reducing by eight months a sentence being served for a crack offense imposed back in 2009.  I recommend the 15-page opinion in full because it is a clear and effective explanation of the import and impact of the FIRST STEP Act, and here is an excerpt from the start of the opinion:

Defendant Cheyenne Simons was sentenced over a decade ago to a twelve-year term of imprisonment for his role in a criminal conspiracy to distribute crack cocaine.  He now moves to have his sentence reduced pursuant to Section 404 of the First Step Act.  The Act permits courts to retroactively lower the sentence of a defendant convicted of certain Controlled Substances Act violations involving crack cocaine.

The United States concedes that Simons is eligible for resentencing but argues that the court should decline to revisit its original sentence.  “Nothing in the First Step Act,” it contends, “changes the court’s original assessment of the Section 3553(a) factors or suggests that a sentence should be arbitrarily reduced.” Gov’t Letter 5, ECF No. 754, Mar. 27, 2019.

The government is mistaken.  We now have two well-considered statements of federal policy by Congress since the defendant was originally sentenced — the First Step Act and the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (2010) (“the Fair Sentencing Act”).  Both favor sending fewer people to prison, imposing shorter sentences for drug crimes, and reducing the sentencing disparity between crack and powder cocaine offenses.  The court must consider this new governmental policy when deciding whether a reduction of defendant’s sentence is warranted.  See Sent. Hr’g Tr., Apr. 22, 2019, passim.

An extra year, day, or moment of freedom from prison, when warranted, is worth pursuing by a prisoner, and, if justified by the law, should be granted by the court.

Defendant’s motion is granted.  His sentence is reduced to time served.  An amended judgment and conviction shall be filed forthwith.

After serving more than 136 months of his 144-month original sentence, Simons is now eligible for immediate release.  While this decision does not substantially shorten his sentence, justice favors freedom over unnecessary incarceration.  Every day of imprisonment that can be appropriately shortened in a case like this should be.  See Shaila Dewan & Alan Binder, Just How Much of an Overhaul Is This Overhaul of the Nation’s Criminal Justice System?  N.Y.Times, Nov. 16, 2018 (“One day makes a difference because you don’t know what that one day can bring about in a person’s life,” was declared by a former inmate properly released early from federal custody after serving more than 21 years for her involvement in a crack cocaine ring).

April 24, 2019 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 23, 2019

Relying on post-Miller legislation, Illinois Supreme Court rules any juve sentence over 40 years constitutes de facto life sentence

I just saw an interesting ruling handed down last week by the Illinois Supreme Court, Illinois v. Buffer, 2019 IL 122327 (Ill. April 18, 2019) (available here), which concerns what length of sentence should be considered a de facto life sentence triggering the Eighth Amendment sentencing limitations articulated by the Supreme Court in Miller and Montgomery.  For folks following closely debates over the reach and application of the Eighth Amendment to juvenile term-of-year sentences, all of Buffer is worth reading (including the extended concurrence). Here is a key passage from the court's opinion:

[In a legislative response to Miller,] the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.  The legislature evidently believed that this 40-year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller.

In determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.  This specific number does not originate in court decisions, legal literature, or statistical data.  It is not drawn from a hat.  Rather, this number finds its origin in the entity best suited to make such a determination — the legislature.  The Supreme Court has made clear that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with eighth amendment mandates pertaining to juvenile sentencing.  Graham, 560 U.S. at 75.  As this court recognized long ago, “‘[g]reat constitutional provisions must be administered with caution. *** It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” People ex rel. Douglas v. Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904)).

Extrapolating from this legislative determination, a prison sentence of 40 years or less imposed on a juvenile offender provides “‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).  We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.

April 23, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, April 22, 2019

No new criminal law cert grants, but still possibilities for a notable SCOTUS week ahead

The Supreme Court granted cert on some notable cases via this order list list morning, the most notable involving questions of how federal employment discrimination laws apply to LGBT employees.  But, for the second Monday in a row, there is little of interest on this list for those of us who obsess over (just) criminal law matters.  However, all is not lost for the week as the Court has on tap for oral argument three criminal justice cases over the next two days.  Via SCOTUSblog:

On Tuesday, the justices hear oral argument in Mitchell v. Wisconsin and Rehaif v. United States.

On Wednesday, the justices hear oral argument in Quarles v. United States.

Of course, the SCOTUS oral argument on census questions scheduled for tomorrow will be sure to overshadow everything else on the docket this week. But, importantly, the Court has also indicated that it will be releasing opinions tomorrow morning, and that means we might get the long-awaited ruling in Gundy v. US concerning federal SORNA and the application of the nondelegation doctrine in this context.  The long wait for Gundy has me thinking something big is afoot in that case (though that might also mean we do not get the opinion for still a few more months).

April 22, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, April 18, 2019

Can and will Kentucky's Gov pioneer a (terrific) new institution by creating a "sentencing integrity unit"?

The question in the title of this post is promoted by this interesting local AP article headlined "Tennessee, Kentucky govs talk up criminal justice reform."  Here is the portion of the piece prompted the post:

Tennessee Gov. Bill Lee said Wednesday that he has started evaluating his first clemency plea from a death row inmate, who is slated for execution next month.  Lee made the comments at a forum alongside fellow Republican Gov. Matt Bevin of Kentucky about criminal justice reform at Belmont University's College of Law....

Kentucky hasn't executed any inmates in more than a decade, well before Bevin took office.  But the first-term governor says he has seen no need to wait until he's leaving office to grant pardons to prisoners, as is often customary for governors.  "I think if a person is worthy of being pardoned now, why should they have to wait four years?" Bevin said.  "To me, that's crazy."

Both governors outlined criminal justice priorities and initiatives in an event co-hosted by Men of Valor and Right on Crime.  Bevin said he plans to create a sentencing integrity unit, saying mistakes just get made in sentencing.

He wondered out loud whether to grant prisoners re-entering society a one-year free pass for public transportation.  "I'm convinced something like that could work and that would go a long way at no real cost to anybody to fixing a problem that is a real problem," Bevin said.

For a host of reasons, effective sentencing reform requires structural changes to our criminal justice system as well as substantive ones. And the idea of a "sentencing integrity unit," committed institutionally to identifying and seeking to remedy the "mistakes [that] get made in sentencing," seems to be a terrific structural change. The name suggested for this unit suggests it would be modeled on the many dozens of "conviction integrity units" now in operation around the nation doing critical work seeking to remedy wrongful convictions. (The National Registry of Exoneration has lots of good information on conviction integrity units at this link.).

I sincerely hope Gov Bevin creates a sentencing integrity unit ASAP and that it gets all the political and practical support it will need to be maximally effective.  I also hope Gov Bevin will promote this great idea to other chief executives and other criminal justice officials.  Notably, a number of local prosecutors have done pioneering work in the development of conviction integrity units, and they can have an important comparable role here.  And, as noted in this post last year, Philly DA Larry Kraser and other new prosecutors have been taking an active role reviewing old sentences in various ways.  As I see it, Governors and prosecutors and sentencing commissions and every other official sworn to help achieve justice in a jurisdiction ought to devote at least some portion of time and resources double-checking to make sure past sentences still being served do not become a marker and source of injustice. 

April 18, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 17, 2019

Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference: 

Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness....  [T]he now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”... 

And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  That brings us to DavisDavis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b).  Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.”

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way?  In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points.  None of them completely distinguish the two provisions.  For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional.  That argument also applied to Section 16(b) in Dimaya.  The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it.  Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b)....  There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach.  In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results.  Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

Another preview of this case and today's argument is available here from Jordan Rubin at Bloomberg Law under the headline "Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute."

Because Justice Gorsuch was the key swing vote in Dimaya, these previews sensibly highlight his importance in the resolution in Davis. But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson. But you never know how his extended history as a circuit judge might shape his views on these kinds of cases.

April 17, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Tuesday, April 16, 2019

Spotlighting how reduced support for the death penalty is now a bipartisan reality

Alan Greenblatt has this notable lengthy new piece at Governing under the headline "Why the Death Penalty Has Lost Support From Both Parties."  I recommend the piece in full and here are excerpts:

Twenty years ago, most politicians in both parties supported the death penalty.  But today, opposition to it has become increasingly bipartisan.  Democrats have always been more wary, but now more conservatives have also become convinced that capital punishment is another failed government program.  In part, that's because the legal process for such cases is enormously expensive, even though few executions are ever carried out.

“When you look at how much money we’re spending, no one looks at that and thinks the death penalty works fine,” says Hannah Cox, national manager for Conservatives Concerned About the Death Penalty, a pro-abolition group.  “We’re seeing a real escalation as far as the number of Republican legislators who are sponsoring repeal bills.”...

Lately, the spotlight has shifted to New Hampshire, where last week the legislature sent the governor a bill to repeal the death penalty.  Both chambers passed the bill by veto-proof margins, with bipartisan support.  Once the legislature overrides GOP Gov. Chris Sununu’s expected veto, New Hampshire will be the 21st state to outlaw capital punishment.  Colorado and Nevada could be next -- both have repeal bills currently pending.

For the first time since the death penalty was put back into practice during the 1970s, a majority of Americans now live in states that have abolished the practice or imposed a moratorium on it, according to the Death Penalty Information Center, which researches the issue.  Still, support for capital punishment has not vanished.  Polls show that a majority of Americans continue to back it....

“When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle,” Chad McCoy, the Kentucky House Republican whip and sponsor of an abolition bill, told The Hill. “Mine is purely economics.”...

It’s not only lawmakers who have grown more skeptical about capital punishment.  Prosecutors have, too. In part due to the costs associated with capital cases, the death penalty has essentially disappeared from rural counties, says [Prof Brandon] Garrett, author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.  Fewer than 2 percent of the counties in the nation are responsible for half the death row convictions, according to the Death Penalty Information Center.

Not long ago, jurisdictions like Philadelphia County, Los Angeles County and Harris County, which includes Houston, were imposing 10 or more death sentences apiece per year.....  But there’s been a changing of the guard in many large counties over the past two or three years, including Harris and Philadelphia.  Voters are electing reform-minded prosecutors who are less likely -- or completely unwilling -- to seek execution as a punishment. 

Last year, no county in the United States imposed more than two death sentences.  During the mid-1990s, there were more than 300 death sentences imposed annually for three years running. Last year, the total was 42.  There hasn’t been more than 100 since 2010....

In 2016, the same year Trump was elected, Nebraska voters overturned a death penalty repeal that had been passed by the legislature, while California voters rejected a ballot measure to end capital punishment.  But if 2016 seemed to signal a shift back in favor of capital punishment, the momentum hasn't been sustained.  Under Trump, just three federal prisoners have been sentenced to die.  In last year’s elections, two governors who imposed moratoriums on the death penalty -- Democrats Kate Brown of Oregon and Tom Wolf of Pennsylvania -- both won reelection.  Conversely, two governors who vetoed abolition bills -- Republicans Pete Ricketts of Nebraska and Chris Sununu of New Hampshire -- also won reelection....

If crime rates increase, support for the death penalty could make a comeback. And many politicians and prosecutors want to keep execution available for punishing the “worst of the worst.”  In Florida, for example, prosecutors are seeking the death penalty for the alleged shooter in last year’s Parkland high school massacre.

Death penalty experts agree that the practice will not be completely abolished anytime in the foreseeable future.  But both the use of the death penalty and political support for it has declined markedly since the 1990s, when it was a wedge issue that moved many voters.  The list of states abolishing the death penalty continues to grow.  “I see the death penalty ending with a whimper, not a bang,” Garrett says. “It may be that the best thing is to allow states and communities to decide what’s best for them.”

This effectively review of the state of the capital mood in the United States will be interesting to revisit as we move into the 2020 election cycle. It seems quite possible that advocates and perhaps the base of the Democratic party will seek a Prez nominee who will actively embrace death penalty abolition. Prez Trump, who clearly likes to talk up his support for the death penalty, might well be eager to turn capital punishment into a wedge issue once again.

April 16, 2019 in Criminal justice in the Trump Administration, Data on sentencing, Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable account of similar states now having different approaches to parole and sentencing reforms

Thanks the the Marshall Project, I just saw this recent local article headlined "As Alabama slowed early paroles, it was slapped for its overcrowded prisons."  The piece is notable in the wake of the recent awful Justice Department report, noted here, about the horrible condition of Alabama's prisons.  And I found particularly interesting the lengthy article's contrasting account of parole and sentencing reform practices in a neighboring state:

Mississippi, according to the Sentencing Project, took several steps highlighted in the Sentencing Project report, some which Alabama has yet to consider: It scaled back sentencing guidelines for nonviolent convictions and applied them retroactively, leading to a substantial increase in paroles and accounting for two-thirds of the population reduction.

Alabama, by contrast, did not apply its 2015 prison reform legislation retroactively and the Justice Department, in its scathing review of Alabama’s prison system, has taken note: “In an effort to decrease the prison population, the law created a new class for felonies for low-level drug and property crimes and reformed parole boards. However, it did not apply retroactively, and the effect on Alabama’s prison population has been minimal.”

Bennett Wright, executive director with the Alabama Sentencing Commission, said there “is a lot of discussion” in Montgomery toward possible retroactive considerations toward leniency. “I haven’t heard a legislator stand up and definitively say that, but there has been a lot of conversation about it,” said Wright. “That’s where our immediate future is in evaluating the possible effects and possible reforms on Alabama’s existing (prison) population and population moving forward.”

Mississippi adopted a risk assessment instrument that contributed to doubling of parole approval rate to more than 50 percent. The measures retroactively allowed consideration for parole for more types of crimes where certain “aggravating circumstances” had previously disqualified inmates from consideration.  Also, individuals deemed “nonviolent habitual offender” were allowed to petition for parole consideration.  The changes also allowed parole consideration for people ages 60 and up and who had served at least 10 years and were parolable under other provisions of the law.

Alabama, by contrast, does not have detailed risk assessment measurements, although the Board of Pardons and Paroles considers factors like family ties and employment prospects when considering early parole applications.  

A few decades ago it often seemed states were competing to see who could be tougher on crime.  Encouragingly (though still not consistently), modern politics and practical realities make it essential for states to try be ever smarter on crime.

April 16, 2019 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Saturday, April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Friday, April 12, 2019

Via 5-4 vote, SCOTUS reverses lower court stay of Alabama execution ... but does so too late for Alabama to carry out execution

As reported in this local article from Alabama, headlined "Execution called off for Christopher Price; SCOTUS decision allowing it came too late," five members of the Supreme Court tried again to enable a state to go forward with a scheduled execution, but its decision was later than it needed to be to allow the execution to go forward last night.  Here is the story:

Christopher Price was set to be executed at 6 p.m. Thursday for the 1991 killing of a minister in Fayette County, but the execution was called off about half an hour before Price’s death warrant expired at midnight.  An order from the U.S. Supreme Court that says the execution could go forward was issued shortly before 2 a.m. Friday, but it was too late for the state to carry it out because of the expired death warrant.  The state will now have to set a new execution date.

In a 5-4 decision the U.S. Supreme Court denied Price’s request for a review of his appeal and for the stay of execution.  Justice Stephen Breyer wrote a dissent, joined by three other justices, objecting to the overruling of decisions by a federal judge and the 11th U.S. Circuit Court of Appeals to stay the execution.

The order came after several appeals Thursday, beginning with Price’s attorneys filing an emergency motion for a preliminary injunction to a federal judge in Mobile asking her to halt the execution around 1 p.m.  Just before 4 p.m. Thursday U.S. Southern District Court Judge Kristi DuBose stayed the execution for 60 days.  She wrote the state had until May 10 to submit evidence in contradiction to Price’s contention that the three-drug execution protocol will cause or is likely to cause him severe pain and that execution by the new method — nitrogen hypoxia — will significantly reduce the substantial risk of severe pain.

The AG’s Office appealed to the U.S. 11th Circuit Court of Appeals, which affirmed DuBose’s ruling and kept the stay in place.  The Attorney General’s Office on Thursday night then appealed to the U.S. Supreme Court, saying in part that Price had not met a deadline for signing up for the new execution method.

The U.S. Supreme Court agreed with the Alabama Attorney General’s Office in its order issued Friday morning.  The majority opinion stated that Price essentially waited too late. “In June 2018, death-row inmates in Alabama whose convictions were final before June 1, 2018, had 30 days to elect to be executed via nitrogen hypoxia ... Price, whose conviction became final in 1999, did not do so, even though the record indicates that all death-row inmates were provided a written election form, and 48 other death-row inmates elected nitrogen hypoxia.  He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time.”

At 11:34 p.m. — when the nation’s highest court had yet to rule — the state called off the execution. A statement from the ADOC said, “As a practical matter, the time remaining before the expiration of the death warrant does not permit sufficient time to accomplish the execution in accordance with established procedures."

Alabama Attorney General Steve Marshall released a statement after the announcement was made.  “Tonight, in the middle of National Crime Victims’ Rights Week, the family of Pastor Bill Lynn was deprived of justice.  They were, in effect, re-victimized by a killer trying to evade his just punishment. This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice.  Indeed, it has inflicted the opposite — injustice, in the form of justice delayed."...

Samantha Banks, an ADOC spokesperson, said Price’s last request was to be married to his fiancée.  He was married Wednesday in the visitation yard at Holman.  Price was visited by his wife, an aunt, and an uncle on Thursday. Wednesday, he made four phone calls to attorneys, one to his wife, and one to an aunt....

Lynn, a minister at Natural Springs Church of Christ, was fatally stabbed with a knife and sword outside his home in the Bazemore community three days before Christmas in 1991. Court records state Lynn was putting together Christmas presents for his grandchildren, when the power went out.  He walked outside to check the power box when he was attacked. Records state Lynn suffered 38 cuts, lacerations, and stab wounds, and one of his arms was almost severed.  He died en route to a local hospital.  His wife, Bessie Lynn, was wounded in the attack but survived her injuries.

Price, of Winfield, was 19 at the time and was arrested in Tennessee several days after the slaying. He was convicted in 1993.

The short order from the Supreme Court and the lengthy dissenting opinion authored by Justice Breyer and joined by three other justices is available at this link.  Because the key line of the Court's order is reprinted above, I will quote here the last paragraph of Justice Breyer's six-page dissent:

Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering.  It can do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative, as this Court has recently required inmates to do.  Instead, Alabama can subject him to that death due to a minor oversight (the submission of a “preliminary” version of a final report) and a significant mistake of law by the Court of Appeals (the suggestion that a report marked “preliminary” carries no evidentiary value).  These mistakes could be easily remedied by simply allowing the lower courts to consider the final version of the report.  Yet instead of allowing the lower courts to do just that, the Court steps in and vacates the stays that both courts have exercised their discretion to enter.  To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.  To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

April 12, 2019 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 11, 2019

After veto-proof vote, New Hampshire appears poised to be first state to repeal death penalty legislatively since 2013

For a number of years not too long ago, a number of state legislatures got in the habit of repealing the (usually dormant) death penalty in their states.  Specifically, legislatures in five states over a span of six years led death penalty repeal efforts that become the law in New Jersey (2007), New Mexico (2009), Illinois (2011), Connecticut (2012), and Maryland (2013).  But thanks in part to a voter referendum rejecting a legislative repeal in Nebraska in 2016, it has been a full six years since a state legislature initiated a successful repeal of a state death penalty system.

But today, as reported in this local article, headlined "Death penalty repeal passes NH Senate with veto-proof majority," it looks like New Hampshire might soon be added to the list of states to repeal the death penalty legislatively during the modern era. Here are the details:

A bill to repeal the death penalty in New Hampshire cleared the state Senate with a veto-proof, 17-6, two-thirds margin Thursday, setting the stage for the end of capital punishment in a state that hasn’t executed anyone since 1939.  The House passed the repeal measure, HB 455, on March 3, also by a veto-proof vote of 279-88....

Gov. Chris Sununu has promised to veto the bill, but the votes in the House and Senate signal he most likely will be powerless to stop the repeal from taking effect unless two senators change their minds for the override vote.

The bill revokes the existing capital punishment statute and replaces it with a penalty of life in prison without the possibility of parole for murder of a police officer or other capital offenses.

New Hampshire currently has one person on death row — Michael Addison — who was sentenced to death for the 2006 killing of Manchester police Officer Michael Briggs. Opponents of death penalty repeal argued that Addison will never be executed if capital punishment is repealed, while supporters of the repeal said the law would not be applied retroactively.

Because I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, I am also pretty sure that it could soon become very unlikely that Michael Addison will be executed for the 2006 killing of Manchester police officer.

April 11, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, April 07, 2019

Shouldn't every criminal justice institution include leaders with past criminal justice involvement?

XO63XMY22BDO5P3YXLAZM4LLDMIn his landmark book, "Criminal Sentences: Law Without Order," Judge Marvin Frankel famously urged the creation of a "Commission on Sentencing" which would include "lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates."  As Judge Frankel goes on to explain, having such persons on a sentencing commission "merely recognizes what took too long to become obvious — that the recipients of penal 'treatment' must have relevant things to say about it."

Judge Frankel's astute comments from nearly half a century ago came to mind (along with the question that is the title of this post) on a lovely Sunday morning when I saw this lovely local article headlined "Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board."  Here are excerpts:

This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood — a bow-tied, bespectacled policy wonk with sartorial flair — as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds.  Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun.

But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons  — anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon.  What makes Flood’s appointment even more remarkable is that — to steal a phrase from TV infomercial lore — he’s not just Pennsylvania’s new top pardons administrator, he’s also a client.  Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary.

Taking a break last Monday during his first day on the job for a sit-down interview, the soft-spoken Flood said a number of new initiatives — to not only call attention to Pennsylvania’s pardon process but also to make it easier to apply for one — will hopefully show former inmates that the state is more focused on rewarding good post-prison behavior.  “If they see this [a pardon] as a viable option, they will continue to be productive citizens,” Flood said, who plans to use his own story as a powerful example of that. “They will see there’s a light at the end of the tunnel.”

Flood’s hiring was the brainchild of Pennsylvania’s new lieutenant governor, John Fetterman.  Policy-oriented, progressive and looking for areas where he can make a difference in the oft-neglected No. 2 slot, the burly, black-shirted Braddock ex-mayor has honed in on his designated role as chairman of the Board of Pardons.  Fetterman told me that Flood is “a singularly unique person to have in order help remake the process ... which is only the only remedy for anyone in Pennsylvania who wants to move forward with their lives in this way.”

Flood’s arrival helps mark the beginning of one era in Pennsylvania criminal justice and arguably the end of another.  It was exactly 25 years ago that a convicted murderer named Reginald McFadden was granted his freedom by a Board of Pardons led by then-Democratic Lt. Gov. Mark Singel, who was also running for governor that year.  McFadden almost immediately killed two people and raped a third, and the case, with its overtones of the infamous Willie Horton affair, was cited by experts as a reason for Singel’s defeat that fall.  The political fallout dramatically changed Pennsylvania’s pardon math. Critics (including the man Fetterman ousted in a 2018 primary, ex-Lt. Gov. Mike Stack) came to say that the state’s pardon system was “broken” in an era of skyrocketing mass incarceration.  Commutations of life sentences ground to a virtual halt, post-McFadden, while pardons for lesser crimes slowed as long backlogs and a confusing process discouraged applicants....

For Fetterman, who hails his close working relationship with Wolf on criminal justice reform, Flood’s hiring is symbolic of both down-to-earth pardon reforms — a $63 application fee was eliminated last month, and the board is looking to digitize the application process and possibly open satellite offices in Philadelphia and Pittsburgh and eventually elsewhere — and a bold new attitude.  In December, Wolf granted board-recommended clemency to three life-sentenced inmates — after only signing two in his first 47 months in office.  Fetterman, who’s currently on an all-67-county tour to discuss the possibility of legalizing marijuana, also said he wants a task force to look at granting widespread pardons for past pot-related convictions. “These are simple charges that are damning people’s career possibilities,” he said.

I am so very pleased to see these developments in the Keystone State, especially because I think having a robust parole, commutation and pardon system can play a key role in encouraging persons to return to a law-abiding life after a run-in with the law. Moreover, beyond whatever reforms or actions are led by Brandon Flood, his very appointment to this position serves as an important symbol of redemption and potential.

In line with this state development and with the question in the title of this post, it dawns on me that the US Sentencing Commission has likely never had, over its now 35-year history, any commissioners with any personal history with the criminal justice system. (I am not entirely certain of this assertion, as I do not know everything about the past of the 30 persons here listed as former commissioners.)  Judge Frankel's astute staffing suggestions have not been followed in various ways in the federal system — e.g., I cannot recall any business people or artists on the USSC — but I think the absence of a former offender is especially glaring.

With five(!) open spots on the USSC, and with Prez Trump talking up the importance of "successful reentry and reduced unemployment for Americans with past criminal records... starting right away," now would seem to be an especially opportune time for a USSC appointment of someone with a "past criminal record" in the federal system.  Names like Matthew Charles and Shon Hopwood and Alice Johnson and Kevin Ring immediately come (alphabetically) to mind, but I am sure there are many others who could serve admirably in this role as "recipients of penal 'treatment' [with] relevant things to say about it."  

April 7, 2019 in Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, April 06, 2019

US District Court declares unconstitutional Illinois host-site rules that has led to indefinite detention of hundreds of sex offenders

Via the always terrific Marshall Project, I came across a notable opinion by US District Judge Virginia Kendall finding constitutionally problematic a remarkable set of rules used to restrict the release of sex offenders from prison in Illinois.  This local press report on this ruling provides these basics:

A federal judge in Chicago has found the Illinois Department of Corrections is violating the constitutional rights of prisoners convicted of certain sex crimes by making the restrictions on where they can live so stringent that inmates are often locked up long beyond their sentences.

In a ruling issued Sunday, Judge Virginia Kendall wrote that hundreds of offenders in the state’s prison system successfully complete their entire court-ordered sentences yet remain behind bars indefinitely.  Kendall found the corrections department is depriving them of fundamental rights, and if they had money and support, they’d be able to leave and begin serving out what’s called “mandatory supervised release.”

Mark Weinberg, an attorney for the plaintiffs, said the decision could mean relief for hundreds of people who have been in prison even though they’ve served their time.... Prisoners call the time they serve beyond their sentences — often many years — “dead time.”...

Will Mingus, executive director of the nonprofit Illinois Voice for Reform which advocates for more effective sex offender policies, says the state’s laws are counterproductive — they actually keep these prisoners from receiving the support that research shows will help them rehabilitate.  “The laws [the legislature is] creating are not solving the problem, they’re not creating safety, they’re creating the illusion of safety,” Mingus said. “Studies that have been done for years now you’ll see that having stable housing, having a job, having social support, those are the things that help people reintegrate into society and help reduce recidivism.”  Mingus said he understands it is difficult to have practical conversations around paroling and rehabilitating sex offenders, but he thinks the judge’s ruling is common sense.  “I think it’ll be a win for the people currently sitting in prison long past their out date because they simply cannot find a place to parole to,” Mingus said. 

Adele Nicholas, an attorney for the plaintiffs, says there are a couple of potential solutions the department of corrections could implement.  “One would be making available different forms of free housing that people who can’t afford a place to live could go to,” Nicholas said.  “Whether that’s allowing people to parole to homeless shelters, or making it so there are halfway houses people could live in, or work release.”  Currently, there are no halfway houses in Illinois that will accept someone convicted of a sex offense.

Kendall wasn’t clear on exactly what the solution will be to get the men released from prison quickly. She expects to hold a hearing April 22 to begin determining that, she wrote.

The full 61-page ruling in Murphy v. Raoul, No. 16 C 11471 (N.D. Ill. March 31, 2019), is available at this link.  Here is how it starts and ends:

The Paul Murphy is indigent and homeless.  He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation.  Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. 

Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release.  Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty.  Most supervised release terms are determinate, but some — including those that apply to several sex offenses — are indeterminate, meaning they range from three years to natural life.  The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them.  Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.

The question presented is whether this practice violates the Constitution.  The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections.  Both parties moved for summary judgment.  The Court now grants the plaintiffs’ motion in part, denies it in part, and denies the defendants’ cross-motion in full.   At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree.  The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States....

Sex offenders are criminals, plain and simple.  Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).

The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison.  The Constitution thus entitles them to the same conditional liberty that all other releasees receive.  Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights.  The Court accordingly grants the plaintiffs’ motion for summary judgment as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full.

Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs.  The Court sets a status hearing for 4/22/2019 at 9:00 a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

April 6, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5)

Friday, April 05, 2019

Split Sixth Circuit panel debates status of lawsuit over Tennessee judicial order that gave reduced jail time to inmates agreeing to sterilization

Regular readers may recall (but still may not believe) prior posts here and here a few years ago about the Tennessee judge who had a standing court order offering 30 days off a defendant's jail time for "voluntarily" agreeing to have a vasectomy or birth control implant.  A lawsuit over this order in federal court made it to the Sixth Circuit and resulted in a split decision yesterday in Sullivan v. Benningfield, No. 18-5643 (6th Cir. April 4, 2019) (available here).  Here is how the majority opinion gets started:

In May 2017, Judge Sam Benningfield issued an order offering a 30-day sentencing credit to inmates in White County, Tennessee.  There was one condition: to obtain the credit, inmates had to submit to sterilization.  After public outcry about the sterilization-for-sentencing-credits program, Judge Benningfield issued a second order declaring that inmates could no longer enroll in the program, followed by a third order clarifying which of the inmates who initially enrolled could still receive the sentencing credit.  Within months, the Tennessee Legislature passed Senate Bill 2133, which made it illegal for courts to make sentencing determinations based on a defendant’s willingness to consent to sterilization.

Christopher Sullivan, Nathan Haskell, and William Gentry — inmates who refused to submit to a vasectomy and were consequently denied the sentencing credit that was awarded to inmates who underwent sterilization — challenged Judge Benningfield’s orders under the Equal Protection Clause, arguing that the orders subjected inmates to differential treatment on the basis of their procreative rights and their sex.  The district court found that the claims were moot in light of the passage of Senate Bill 2133 and Judge Benningfield’s second and third orders.  Because none of those subsequent developments in the law ended the differential treatment that plaintiffs challenge, we reverse and remand for consideration of plaintiffs’ claims on the merits.

Here is the start of the dissenting opinion:

None of the Plaintiffs suffered any injury in this case.  Plaintiffs’ sentences were not increased; rather they served their sentences as originally ordered.  Being offered contraceptive services, even being encouraged to accept free contraceptive services, is not an injury in fact for purposes of standing.  Plaintiffs did not receive the vasectomies and their right to procreate has not been hindered in any way.  Cf. Harris v. McRae, 448 U.S. 297 (1980) (explaining that even when the government favors childbirth over abortion by subsidizing one decision over the other; such regulation does not impinge on the constitutional freedom to make those decisions because it imposed no restrictions on access to abortions); Maher v. Roe, 432 U.S. 464, 474 (1977) (“The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.”).

Plaintiffs also did not suffer any “differential treatment.”  See Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (“The threshold element of an equal protection claim is disparate treatment....”).  Every inmate was received the same offer.  The fact that two of the three Plaintiffs exercised their right to refuse the offer and preserve their right to procreate actually underscores the point.  Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978) (criminal defendants who refused plea deals to protect their right to trial by jury thereby facing a mandatory life sentence if convicted, rather than pleading guilty in return for a lesser sentence, were not denied equal protection because “[a]ll ... defendants [were] given the same choice”).  For these reasons, I would affirm the district court’s conclusion that the Plaintiffs’ lacked standing.  I therefore respectfully dissent.

Prior related post:

April 5, 2019 in Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 03, 2019

Fourth Circuit panel rejects claim that Virginia Parole Board must consider age-related characteristics for juve lifer

A helpful reader alerted me to an interesting new Fourth Circuit panel ruling handed down yesterday in Bowling v. Director, Virginia Dep't of Corrections, No. 18-6170 (4th Cir. April 2, 2019) (available here).  The start of the Bowling opinion provide a flavor for the constitutional arguments framed by the defendant which did not strike a chord with the panel:

This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated denial of parole to Thomas Franklin Bowling (“Appellant”).  Appellant was sentenced to life with parole when he was 17 years old.  He first became eligible for parole on April 26, 2005.  The Parole Board has considered his eligibility and denied him parole annually ever since. Appellant alleges that, because the Parole Board was not specifically required to consider age-related characteristics unique to juvenile offenders when it has processed his parole applications, the Parole Board’s repeated denial of his applications violated his Eighth and Fourteenth Amendment rights.

On that ground, Appellant initiated this action against the Director of the Virginia Department of Corrections (“Appellee”).  Appellee moved to dismiss Appellant’s complaint, and the district court granted Appellee’s motion to dismiss.  Regarding Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections do not apply to Appellant because he was sentenced to life with parole.  Regarding Appellant’s Fourteenth Amendment claims, the district court held that the Parole Board procedures satisfy procedural due process requirements.  For the reasons stated below, we affirm the decision of the district court.

Here is a spare paragraph from the heart of the opinion:

Appellant asks this court to extend the Supreme Court’s Eighth Amendment jurisprudence to juvenile parole proceedings and find that it is cruel and unusual punishment for a parole board to deny juvenile offenders parole without specifically considering age-related mitigating characteristics as a separate factor in the decisionmaking process.  Granting that request would require us to extend the legacy of Roper, Graham, and Miller in two ways.  First, we would have to find that juvenile-specific Eighth Amendment protections extend to juvenile homicide offenders sentenced to life with parole.  And second, we would have to find that those protections extend beyond sentencing proceedings.  We decline to go so far.

April 3, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

"Ghastly Signs and Tokens: A Constitutional Challenge to Solitary Confinement"

The title of this post is the title of this new paper authored by Christopher Logel recently posted to SSRN.  Here is its abstract:

Since its popular reemergence in the 1980s, courts have not placed significant restrictions on the use of solitary confinement.  One small exception has appeared.  Lower courts have held that placing prisoners with preexisting severe mental illness in solitary confinement violates the Cruel and Unusual Punishment Clause.  Can this relatively limited rule be expanded to abolish solitary confinement altogether?

This Comment argues that it can.  A large body of diverse research demonstrates that prolonged solitary confinement causes severe mental illness in most prisoners, regardless of their medical history.  And because there is no principled basis — in law or in fact — for distinguishing between preexisting and confinement-induced mental illness, solitary confinement must end for all prisoners.

April 3, 2019 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, April 02, 2019

Unsurprisingly divided reactions to Supreme Court's latest divided ruling on lethal injection methods

The Supreme Court yesterday split 5-4 in favor of the state of Missouri in yesterday's execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here, basics here).  Capital cases have a way of not only revealing deep splits among the Justices, but also revealing how differently commentators for and against the death penalty view the Court's work.  Unsurprisingly, supporters of the death penalty have notable praise for the Court's work in Bucklew (with modest titles for their commentary):

From Paul Cassell, "The Supreme Court Recognizes Victims' Rights in Death Penalty Cases"

From Kent Scheidegger, "The Opinion of the Court in the Bucklew Case"

In contrast, opponents of the death penalty have notable criticism of the Court's work in Bucklew (with more extreme titles for their commentary):

From Scott Lemieux, "The Supreme Court ruled that 'cruel and unusual punishment' no longer preclude unusually cruel punishments"

From Ian Millhiser,"Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion of the modern era"

From Elie Mystal, "Supreme Court Draws, Quarters The Eighth Amendment"

From Mark Joseph Sterm, "The Supreme Court’s Conservatives Just Legalized Torture"

I understand why abolitionists are troubled by Bucklew because it reveals that there are now five Justices who are eager to prevent lower court judges from heavily supervising and persistently tinkering with how state wish to operate their machineries of death.  But, practically speaking, it remains to be seen if Bucklew proves to be a big deal.  Impressively, despite the fact that the Supreme Court has never found any method of execution unconstitutional, and despite seemingly "big" wins for states in both Baze and Glossip, energized and effective defense counsel have kept litigating hard and kept succeeding in gets lots and lots of scheduled executions halted (Ohio provided the latest example of this on-the-ground reality this year).

Though I am always sympathetic to commentary that urges the Supreme Court to give more force to the Eighth Amendment's limit on punishment, I sincerely wish folks so troubled by Bucklew would spend a bit more time focused on all-too-common extreme prison sentences over ever-rarer death sentences and executions.  A few weeks ago, as noted in this post, the Supreme Court denied cert in an Eighth Amendment case involving a federal sentence of over 150 years for a first offender lured into a drug deal by government agents. The entire First Circuit issued a remarkable opinion urging the Justices to take up the case, but not a single Justice was even move to say a work about a seemingly toothless Eighth Amendment jurisprudence in an era of mass incarceration.  As I noted in my prior post, the legal press and criminal justice commentators have entirely ignored this case, confirming my fears that one needs to be a murderer on death row to have your case garner attention.  Sigh.

UPDATE: John Stinneford, whose article The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation was cited in the Court's opinion, has this lengthy discussion of the ruling at The Volokh Conspiracy under the heading "What Bucklew Doesn’t Say." Here is a small snippet:

The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court.  But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause.  Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional.  In this regard, Bucklew is an admirably modest opinion.

April 2, 2019 in Baze and Glossip lethal injection cases, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 01, 2019

"Miller v. Alabama and the Problem of Prediction"

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

Beginning in 2010, the Supreme Court severely limited states’ ability to impose juvenile life without parole sentences. In a seminal case, Miller v. Alabama, the Court banned mandatory life without the possibility of parole sentences for juveniles and declared that only those juveniles that are “irreparable corrupt” should be made to spend the rest of their lives in prison.  While Miller has been the subject of much scholarly debate, there has yet to be any discussion of a core instability at the center of Miller’s mandate: By limiting life without parole sentences only to those juveniles who are “irreparably corrupt” the Court is asking sentencers to predict whether a juvenile will be a danger decades down the road and after a long prison sentence.  This Note uses legal and social science literature around the impossibility of long-term predictions about juvenile development to argue that the requirement of prediction in Miller prevents just application of the decision and argues that this instability should lead to a ban on juvenile life without parole sentences.

April 1, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Splitting 5-4 along traditional ideological lines, SCOTUS rejects Missouri inmate's challenge to lethal injection protocol

The Supreme Court this morning handed down its opinion in an execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here).  The Court split 5-4 in favor of the state of Missouri, and here is how Justice Gorsuch's opinion for the Court gets started:

Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.  He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes.  He accepts, too, that the State’s lethal injection protocol is constitutional in most applications.  But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him.  Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution.  He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments.  We can discern no lawful basis for doing so.

Justice Breyer penned the lead dissent, and it gets started this way:

The Court’s decision in this case raises three questions.  The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering.  The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him.  And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death.

I disagree with the majority’s answers to all three questions. Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.  That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering.  The majority holds that the State may execute him anyway.  In my view, that holding violates the clear command of the Eighth Amendment.

The decision includes short concurring opinions from Justices Thomas and Kavanaugh, and also a added dissenting opinion by Justice Sotomayor. I fear a busy day means I will not be able to analyze all that is being said in this case until late tonight.  But I suspect, as is always true with capital cases, lots of other folks will have lots to say about what various Justices are saying here.

April 1, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, March 30, 2019

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

6a00d83451574769e2022ad3c272a1200b-320wiI noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is drafting a series of posts on the Haymond case.  Oral argument took place last month, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he is working on a few posts on the Justices' likely votes informed by the argument.  Here is the start of his efforts:

Oral argument for United States v. Haymond is completed and the case has been submitted.  Amy Howe at SCOTUSblog observed after oral argument that the Court seems “poised to rule for [Haymond] in dispute over constitutionality of sex-offender law."  I predict that United States v. Haymond will be decided 6-3 in favor of Mr. Haymond.  This post will analyze the predicted majority and the next post will give a breakdown of the predicted dissent.

Locks

Justice Sotomayor

Justice Sotomayor may have more than tipped her hand when she opined during oral argument that to compare supervised release with parole is “to compare apples and oranges.”  If still not convinced, consider that she has stated in Alleyne v. United States, 570 U.S. 99 (2013), that “Apprendi [is] firmly rooted in our jurisprudence.”   Not so subtly did Justice Sotomayor lay the cards on the table, when she averred during oral argument that she had a “due process concern as well as a Sixth Amendment concern” with the procedures applicable in Haymond.  The government did little to propitiate Sotomayor at oral argument, and it appears safe to say that Sotomayor will not break rank from her past holdings.

Justice Thomas

Justice Thomas wrote the concurring opinion in Apprendi v. New Jersey.  He asserted that “if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime.”  Here, the 10th Circuit convicted Haymond of a violation of 3583(k) and as a result, he was subsequently exposed to “greater and additional punishment” without a jury.  Even though Justice Thomas may not believe in stare decisis and even though he did not speak during oral argument, it would seem reasonable to assume that he believes that 3583(k) is a sentencing enhancement of a sort that is based on facts that need to be submitted to a jury and proved beyond a reasonable doubt. To boot, Justice Thomas was in the majority in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 133 S. Ct. 2151 (2013) both cases extending the reach of the procedural rights recognized in Apprendi.

Likely

Justice Ginsburg

Justice Ginsburg is a soldier of criminal procedural rights as she joined the ranks of the majority in Apprendi, Blakely, and Alleyne, which all affirmed Sixth Amendment and related procedural due process rights for the criminal defendant.  And in the Haymond oral argument, Justice Ginsburg may have revealed her vote when she intimated that the imposition of 3583(k) requires a “factual finding.”  She also voiced more concern over the remedy that the defendant was seeking than the merits of the argument, which although is not conclusive, is suggestive.  But, of course, Justice Ginsburg was the key swing vote that created the advisory guideline remedy in Booker, and see authored the Court opinion limiting the reach of the Sixth Amendment in Oregon vIce, 555 U.S. 160 (2009).

Justice Kagan

Justice Kagan seems quite likely to hold for the defendant.  She was among the majority in Alleyne, and during oral argument in Haymond she also resisted the government's efforts to compare supervised release to parole.  More generally, in a variety of setting for a variety of criminal defendants, Justice Kagan has been a fairly consistent voice and vote for expanding procedural rights.  It is hard to think of too many cases in which Justice Kagan has been less willing to recognize expanded constitutional rights than her colleagues. 

On the Bubble
Justice Gorsuch and Justice Kavanaugh

Justice Kavanaugh and Justice Gorsuch do not have extensive enough records as Supreme Court Justices regarding Sixth Amendment or other procedural due process rights to predict with any confidence how they will vote, which is why I have them as on the bubble.  Notably, last year Justice Gorsuch was a key swing vote siding with the more liberal justices in a case where the Court held that a federal statute defining a "crime of violence" was unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This case seems to suggest that Justice Gorsuch is not disinclined to strike down federal statutes even to benefit criminal offenders.  Notably, during oral argument, Justice Gorsuch also resisted the government’s contention that supervised release and parole were similar, and he did not question the defendant’s counsel at all during oral argument.

Justice Kavanaugh questioned both sides during the argument in Haymond, and he focused on the intricacies of the applicable statutes and a possible remedy.  Notably, while serving on the DC Circuit, in 2015 then-Judge Kavanuagh issued a notable statement in case involving a sentence enhanced on the basis of "acquitted conduct" (available here) that included the assertion that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."   Given that statement, though Justice Kavanaugh could be a wild card here, I predict that he sides with the defendant.

Up next, the breakdown of the predicted dissenters.

Prior related posts:

March 30, 2019 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Encouraging developments in remarkable federal case that threatened old prison term after obvious rehabilitation

Download (13)I had been meaning to blog about this remarkable story first reported in the New Haven Independent under the headline "Glitch May Return Rehab’d Man To Prison." Here is the backstory from that piece: 

Jermaine Demetrius Anderson may have to leave his two jobs, his condo in Westville, his local “church family,” and the stable, crime-free life he has built for himself in the Elm City — and go to prison. All because of an apparent miscommunication over a decade ago between the Connecticut state judicial system and the federal court in Philadelphia.

His hope now is the federal government — maybe even President Donald Trump — will cut him a break.

On Feb. 28, Paul Diamond, a judge with the U.S. District Court for the Eastern District of Pennsylvania, signed a warrant for Anderson’s arrest for his failure to serve an outstanding 16-month federal sentence. The sentence dates to a crime that occurred 16 years ago.

The federal court issued that sentence to Anderson, now a 43-year-old employee for the city’s parks department, in 2005 after he pleaded guilty to two felony counts of possessing and passing counterfeit currency and one count of identity theft while living in Pennsylvania. He committed the crimes in 2003.

Anderson never served that federal sentence. Even though he thought he had. That’s because he spent three years in state prison in Connecticut after pleading guilty to similar but separate counterfeit currency charges in New Haven in 2003. He said he believed he was serving his state and federal sentences concurrently while locked up in Webster Correctional Institution in Cheshire.

After finishing that state sentence in November 2006, the state judicial system didn’t remand him to federal custody in Philadelphia. He said no one reached out to him and said he had to report to the Eastern District of Pennsylvania to serve more time for the federal offense. He thought he had done his time. He set about rebuilding his life in New Haven.

Thirteen years later, U.S. marshals came pounding on his door in New Haven last week, claiming that he had evaded arrest and demanding that he report back to Pennsylvania to serve 16 months in federal prison.

Local attorney Michael Dolan said he has been in touch with Philadelphia federal attorneys, and has urged them to reconsider requiring Anderson to serve federal time so long after he was sentenced and so long after he served time in state prison on similar charges. “It would appear that the goals of the criminal justice system have been met,” he said about his thoroughly rehabilitated client....

Robert Clark, a spokesman for the U.S. Marshals Service, Eastern District of Pennsylvania, told the Independent that the marshals unearthed Anderson’s outstanding federal sentence and the slip-up between the Connecticut state judicial system and the Pennsylvania federal district court during a routine audit.

“During an internal audit of custody detainers by the U.S. Marshals in the Eastern District of Pennsylvania,” he said, “a case dating back to 2005 was found in which a sentenced man, Jermaine Demetrius Anderson, had been sent to Connecticut to face state charges. After a conviction and sentence served in Connecticut, Anderson should have been held for transfer back to federal custody; instead, he was mistakenly released. Upon the Marshals providing this information to a federal judge, the court issued a bench warrant for Anderson for failure to serve an outstanding federal sentence. Anderson was arrested in Connecticut March 20, released on bond and ordered to appear in U.S. district court in Philadelphia April 4. As the enforcement arm of the federal courts, the Marshals ensure that individuals with federal warrants are brought to face justice. Ultimately, the federal court system will make a determination on Anderson’s outstanding federal sentence.”

Dolan called Anderson’s case a prime example of someone who committed a crime, took responsibility by pleading guilty, served time in prison, and has subsequently successfully rehabilitated himself. “He’s been crime free, drug free, has employment,” Dolan said. “And now they want to take him back into custody.”

“It’s called corrections,” Anderson said. “I corrected myself. I don’t want pity. I just want people to be ethical.”

“I wasn’t evading,” he continued. “I wasn’t on the run.”

Encouragingly, this new CNN piece suggests an ethical outcome to this case may be in the works. The piece is headlined "Man who feared feds would finally impose sentence may have deal to avoid more prison," and here are the new developments:

A judge issued a bench warrant and Anderson was due back in court April 4, when it's possible he could be detained and sent to federal prison.

That apparently won't happen now after his lawyer said he reached a verbal agreement with prosecutors and the Bureau of Prisons to give Anderson credit for time "at liberty."

"I'm overjoyed but waiting for official paperwork," Anderson said, adding, "it's a blessing, but I want the blessing to be official. My heart is back in my chest where it should be." Attorney Michael Dolan said Friday he does not have an official agreement in writing.

CNN's efforts to reach the US attorney's office and the office of the federal judge overseeing the case were not immediately successful....

Dolan helped get Anderson released the day the marshals detained him, and he has been working with federal public defenders to keep his client from going to prison again.

"I certainly think it is cruel and unusual punishment," Dolan said Thursday.

I am pleased to see from this CNN piece that Anderson's attorney was apparently ready to argue that it would be unconstitutional to send him back to prison now under the Eighth Amendment. I do not think anyone would question a claim that this case is "unusual" and the facts described above certainly lead me to think it also "cruel" to require Anderson's imprisonment now under these circumstances. If a court were not prepared to rule that Anderson's reimprisonment was a violation of the Eighth Amendment, this case might alternatively be another setting for developing jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).  This case certainly seems extraordinary and compelling to me, and modifying Anderson's federal sentence now certain seems in keeping with the "factors set forth in section 3553(a)." 

March 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, March 29, 2019

Notable judicial hand-wringing from California Supreme Court justices about "expensive and dysfunctional [capital] system that does not deliver justice or closure"

A helpful colleague made sure I did not miss the notable short concurring opinion at the end of this long decision by the Supreme Court of California affirming a death sentence. The concurring opinion was authored by Justice Goodwin Liu and joined by Justice Mariano-Florentino Cuéllar. Here is how it gets started:

Today’s decision is our first to affirm a death judgment since Governor Newsom signed Executive Order N-09-19 effecting a moratorium on capital punishment in California. Neither defendant nor the Attorney General has suggested that the Executive Order raises any new issues bearing on this appeal. We thus decide this case on the claims and arguments as submitted.

And yet, as the Executive Order underscores, our decision affirming the judgment does not alter a fundamental reality: A death sentence in California has only a remote possibility of ever being carried out.  As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed.  As a result, California’s death penalty is an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.

The opinion goes on to highlight various reasons why the California death penalty system is such a mess and why the reform initiative in 2016, Proposition 66, "did not enact or put to the voters the key reforms that leading authorities consider fundamental to a workable death penalty system."  The eight-page opinion then concludes with this paragraph:

I express no view here on the morality or constitutionality of the death penalty.  Since joining this court, I have voted to affirm scores of death judgments, and I will continue to do so when the law requires.  It is impossible to review these cases without feeling tremendous compassion for the victims and their families, who have suffered unimaginable heartbreak and loss.  But the promise of justice in our death penalty system is a promise that California has been unable to keep. We are overdue for what our Chief Justice has called “a merit-based discussion on [the death penalty’s] effectiveness and costs.” (Dolan, [California Chief Justice Urges Reevaluating Death Penalty, L.A. Times (Dec. 24, 2011)].)  In the meantime, the judiciary will continue to do its duty under the law, leaving it to the voters and our elected representatives to decide whether California should double down on the current system or chart a new course.

Because Justice Liu was a law professor before he became a Justice, I fully understand his inclination to speak his mind on this issue and his decision to do so through the medium readily available to him (namely, a judicial opinion).  But, candidly, I was hoping for a little bit more of a formal legal payoff from this formal legal opinion, perhaps in the form of a call for briefing on whether Executive Order N-09-19 impacts the legal status of death penalty cases in California or whether state judges might exercise discretion not to continue adjudicating pending capital cases while the moratorium is in place.   

March 29, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, March 27, 2019

Noticing Gov Newsom's not-so-progressive approach to parole so far

The Los Angeles Times has this notable new piece which reports on the notable reality that it seems only the serious offenders sent by juries to California's death row are getting grace from California's new governor.  The piece, headlined "Newsom seeks to halt parole for some murderers and serious offenders. What does that signal?," includes these passages:

Trenton Veches liked to suck on the toes of young boys and has spent the last 16 years in prison because of it. A jury convicted him in 2003 at age 32 in a case that shook Newport Beach, where he was a supervisor in the city’s youth recreation program. He was tried on multiple counts of child molestation and sentenced to two concurrent life terms after being caught in the act by a co-worker.

Last week — despite an attempt by Gov. Gavin Newsom to stop it — Veches won parole.

Veches’ impending release is one of 33 cases in which Newsom, since taking office, has attempted to stop a serious offender from receiving parole, according to documents provided by the governor’s office. Parole hearings usually take place in front of a two-person panel. The governor can’t revoke these paroles but can ask the state’s 15-member Board of Parole Hearings to review them.

Newsom also has stopped 46 paroles for murderers, a different process that allows him to act unilaterally through executive powers. Brian Ferguson, a spokesman for Newsom, said, “Each case that comes before the governor is evaluated on its own merits and receives careful review and consideration.”

The interventions mark a steep increase from those undertaken by former Gov. Jerry Brown and are a departure from the progressive criminal justice reform stance that Newsom has championed, including his recent moratorium on the death penalty.

In 2018, the parole board reviewed seven cases at Brown’s request and Brown reversed 28 paroles for murderers, a steady decline from his peak of 133 reversals in 2014. Newsom has more than quadrupled requests for reviews of serious offenders in three months in office and is on pace to match Brown’s peak year of reversals for murder cases.

Newsom’s spike in parole interventions has some wondering whether he is trying to keep more serious offenders in prison or just taking a cautious approach to a dicey issue. “The governor’s reversal rate [on paroles] has dramatically increased over Brown,” said Charles Carbone, Veches’ attorney and a specialist in parole hearings. “The question now becomes: Is it a matter of a new policy?”

Newsom’s active role in opposing releases might point to a growing political problem for him within the state’s parole system: rising numbers of offenders eligible for release because of criminal justice reforms, including Proposition 57, a measure championed by Brown. More so than any of his predecessors, California’s new governor likely will be responsible for overseeing tough decisions on whether certain sex offenders and criminals with multiple felonies should be freed.

California holds between 4,000 to 5,300 parole hearings each year, according to a recent legislative report. Next year, that is expected to jump to 7,200 and rise again to 8,300 the following year — changes wrought by Proposition 57 alone could add up to 4,000 new hearings, according to Michael Romano, head of the Three Strikes Project at Stanford Law School. There are currently 34,136 California inmates serving life sentences with the possibility of parole, according to the California Department of Corrections and Rehabilitation. “There is an incredible backlog and bottleneck,” Romano said....

While some governors, such as Gray Davis, took a hard line on parole, Brown and Republican Arnold Schwarzenegger allowed an increase in releases, said Keith Wattley, executive director of an Oakland legal nonprofit that specializes in prisoners’ rights. Brown dramatically decreased the number of both reversed murder paroles and non-murder cases flagged by the governor’s office during his terms.

Jack Pitney, a professor of politics at Claremont McKenna College, said Newsom is keenly aware of the potential for political danger after his controversial decision to halt executions. Many criticized Newsom for ignoring the will of California voters, who rejected a ballot measure to abolish the death penalty and approved another to speed up executions in 2016. “The thing that keeps governors awake at night is the prospect that a bad person will be let out and go on to commit heinous crimes and the governor will be held responsible,” Pitney said. “After the death penalty reprieves, he is very sensitive to that risk and does not want to be the next Michael Dukakis.”...

Newsom’s efforts to prevent the release of criminals poses little downside, Pitney said. “I think he can make a case that he’s being consistent: We should be careful of releasing prisoners and careful about the punishments we impose,” Pitney said.

Romano said some of the interventions might be leftovers from Brown’s time in office and are too few in number to judge. Wattley, head of the nonprofit that specializes in prisoners’ rights, agreed it was “too early to know … how alarmed to be,” but the possibility of parole raised by Brown gave inmates hope and created an incentive for rehabilitation. Newsom’s interventions, if ongoing, could undo that, he said.  Wattley said paroling serious offenders is necessary to decrease the number of people incarcerated, a key component of criminal justice reform.  “You can’t do that unless you find a pathway home for people convicted of serious or violent crimes,” he said.

Sex offenders in particular are politically perilous candidates for parole.  Proposition 57 backers promised it wouldn’t free sex offenders, and state prison officials wrote rules for its implementation that excluded them. But a state court ruled last year that the wording of Proposition 57 didn’t give leeway for a blanket prohibition, particularly for inmates with past sex offenses currently incarcerated on other charges.

Fifteen of the cases Newsom has flagged for reconsideration involve inmates with current or past sex offenses, according to the CDCR.  Sonya Shah, executive director of a Bay Area nonprofit that works with sex offenders, said sex crimes are left out of criminal justice reform and often lumped together in public perception despite encompassing a “spectrum of harms” to victims.  “We are not willing to have the nuance with sexual crime,” Shah said. “The way [sex offenders] are painted, they are monsters.”

March 27, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, March 26, 2019

Spotlighting what the California AG could do to really change capital course in California

John Mills has this notable new Daily Journal commentary following up on recent California capital developments.  The main headline of the piece is "Newsom may have halted executions, but the machine keeps on ticking." And the subheadline carries forward the theme: "Gov. Gavin Newsom made history by declaring a moratorium on executions in California and even tweeting out images of the execution chamber being dismantled. Although I was in Sacramento, I missed the announcement. I was in court on one of my death penalty cases."

The full commentary give particular attention to what California's Attorney General might now do to really change the course of capital punishment in the state.  I recommend the full piece, and here are excerpts:

Attorney General Xavier Becerra is uniquely positioned to help bring it to a halt.  He has called Newsom's reprieve "a bold, new direction in California's march toward perfecting our search for justice."  I agree.

But Becerra's statement is remarkable because there is so much that more he could do, large and small, to support that effort beyond defending the governor's decree.  Taking up any one of them would be a much better use of state resources than defending hundreds of death sentences that will almost certainly never be carried out.

In the death penalty cases Becerra is currently defending, he could admit in court what Newsom acknowledged in his executive order: California "death sentences are unevenly and unfairly applied to people of color."  Supporters and opponents of the death penalty agree that the most obvious impact of race on death sentencing is the race of the victim. This effect is greatest when the defendant is black, and where a crime is committed is a much better predictor of a death sentence than the culpability of the perpetrator.  Tragically, we as a state have failed to divorce our country's racist history from our harshest penalties in the present.  Admitting as much would clear the way for the courts to hold that California's death penalty is inconsistent with our state's constitutional commitments to equal protection under the law.

Becerra could also confess other defects, any one of which would acknowledge the unconstitutionality of California's death penalty regime.  For example, by design, California's death sentencing statute reaches virtually every murder, as studies by preeminent experts have confirmed....

He could admit to other systemic problems, such as the inherent cruelty of languishing under a sentence of death for decades, the lack of required jury findings for aggravating circumstances, and arbitrariness in the process by which a person becomes eligible for execution.  Any one of these admissions would be well supported and, if also endorsed by the courts, would bring California's experiment with the death penalty to an end.

He could also take a more case-by-case approach.  The commentary in opposition to Newsom's moratorium has suggested that California is special, that whatever problems may be present with the death penalty in other states, just don't affect us.  That's a lie....

Even taking the modest steps of not appealing a grant of relief from a death sentence, waiving procedural defenses to claims challenging the legality of a sentence, or asking for an evidentiary hearing in cases where there are troubling claims about sentences of death would each be a leap towards ensuring that justice is done where the stakes are highest.

So far, Becerra has not taken that tack.  He has, instead, consistently opposed relief, invoked procedural barriers to reviewing the merits of constitutional claims, and failed to take steps that would expedite, rather than block the delivery of justice.

There are many other actors who could do many other things to mitigate the excesses and arbitrariness inherent to the use of the death penalty.  But the reforms proposed here could be accomplished with little or no cost and would demonstrate an executive branch unified in its determination to put justice first.  It is time for a bold new direction from the attorney general.

Prior related posts:

March 26, 2019 in Detailed sentencing data, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 21, 2019

"Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21"

The title of this post is the title of this notable new paper authored by John Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz.  Here is its abstract:

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience.  In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience.  These changes beg the question: Why 18?  Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21.  It does so by applying the Supreme Court’s evolving-standards-of-decency methodology.  Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge.  First, there is a national consensus against executing people under 21.  This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains.  Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants.  The role of race is amplified when the victim is white.  These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

March 21, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (5)

Wednesday, March 20, 2019

Post-Johnson litigation creates intricate procedural debates in Eleventh Circuit

Thanks to this post at How Appealing, I just saw that the Eleventh Circuit yesterday needed just one sentence to deny rehearing en banc in US v. St. Hubert, a case concerning vagueness challenges to two federal firearm convictions under 18 U.S.C. § 924(c).  But judges of the court had a lot to say thanks to the enduring constitutional and procedural mess created by the Johnson case and its progeny and their potential impact on federal prisoners serving all sorts of lengthy mandatory minimum sentences. 

The six distinct opinions concurring and dissenting from the en banc denial, which collective run 88 pages, defy easy summary.  But if anyone thinks they are really, really, really interested in post-Johnson litigation and all its echoes and challenges (both substantively and procedurally), the Eleventh Circuit has provided an extra law-nerd slice of March Madness with St. Hubert.

March 20, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Rounding-up some news and commentary as SCOTUS hears argument on latest round of capital insanity

InsanityAlbert Einstein is generally credited with the aphorism that "the definition of insanity is doing the same thing over and over again, but expecting different results." That quote came to mind as I was thinking about the Supreme Court's consideration this morning of a Batson claim in Flowers v. Mississippi. Here is a brief accounting of just some of the backstory of this case (with emphasis added) from this SCOTUSblog post when cert was granted:

[T]he justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi.  Flowers was tried six times.  During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials.  Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors. 

Reviewing my blog archives, I noticed that it was nine years ago(!) that I blogged here about a local article and asked "Will sixth time be the charm in capital trial(s) of Curtis Flowers?"

Here are a few up-to-date discussions of and commentary on the case as it now comes before the US Supreme Court on the issue of whether the Mississippi Supreme Court properly applied Batson v. Kentucky in this version of the case:

March 20, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, March 19, 2019

"Misdemeanor Appeals"

The title of this post is the title of this notable new empirical article authored by Nancy King and Michael Heise. Here is its abstract:

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one.  Yet very little empirical information exists on many aspects of misdemeanor prosecutions.  This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide.  It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments.  This level of oversight is much lower than that for felony cases, for reasons we explain.  To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)