Thursday, May 13, 2021

Fascinating compassionate release ruling based on clear sentencing error without other means of remedy

Regular readers are likely familiar with many of my (pre-COVID) prior posts making much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds.  A helpful reader alerted me to an especially interesting example of the granting of a sentencing reduction in US v. Trenkler, Cr. No. 92-10369 (D. Mass. May 6, 2021) (available for download below).

Trenkler is a fascinating case and opinion for many reasons, and the discussion of the case particulars and compassionate release jurisprudence more generally make Trenkler a must-read for anyone working in this space.  Here are some small snippets from the start and heart of the 50+ page opinion to encourage downloads:

Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer.  On November 29, 1993, a jury convicted Trenkler of illegal receipt and use of explosive materials and attempted malicious destruction of property by means of explosives, in violation of 18 U.S.C. §§ 844(d), 844(i) (Counts 2 and 3), and conspiracy, in violation of 18 U.S.C. § 371 (Count 1). See Jury Verdict, ECF No. 487. Trenkler is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”).  Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence....  The Court reduces Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years... 

In addition to the risks associated with the COVID-19 pandemic, Trenkler urges the Court to reduce his sentence to time served in light of the “unique circumstances” surrounding his case.  Those unique circumstances, in Trenkler’s view, include questions surrounding his guilt and the fundamental unfairness of his conviction; the disproportionality of his sentence as compared to Shay, Jr.’s sentence; and his unlawfully imposed life sentence.

[Despite limits in AEDPA concerning habeas petitions,] now Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction....  [A series of discussed] cases — and others like them — leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case....

Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.

Download Trenkler CR opinion

May 13, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Representing juvenile lifers: do attorneys in parole hearings matter?"

The title of this post is the title of this new article authored by Stuti Kokkalera and just published online in the Journal of Crime and Justice.  Here is its abstract:

Courts and scholars have advocated for the right to legal representation in the parole process. The state examined in this study qualified that juvenile lifer parole candidates have the right to an attorney at their initial parole board hearing.  Data drawn from written decisions issued by the state parole board were analyzed to determine the association between having an attorney and type of legal representation on two parole outcomes: (1) whether a candidate was granted or denied parole, and (2) length of interval terms, that is, number of years that a candidate waits for another hearing.  While having an attorney at the hearing was not related to both outcomes, type of representation was associated with interval terms.  Hearings with appointed (non-retained) attorneys were associated with reduced odds of a maximum interval term, while having retained attorneys was related to higher odds of a maximum interval term.  Hence, state efforts to provide counsel are necessary since their presence is significantly associated with the ultimate time served by juvenile lifer candidates.  Findings support the need for more comparative research across states as well as the inclusion of other parole-eligible populations.

May 13, 2021 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 12, 2021

The Sentencing Project releases new report urging "A Second Look at Injustice"

Long-time readers know that I have long been a supporter of laws and practices that facilitate taking a second look at long sentences (see links below).  I continue to be pleased to see more and more advocacy for second look sentencing efforts, and I am especially pleased to see this new 50-page report from The Sentencing Project titled " " Here is the start of its Executive Summary:

Lawmakers and prosecutors have begun pursuing criminal justice reforms that reflect a key fact: ending mass incarceration and tackling its racial disparities require taking a second look at long sentences.

Over 200,000 people in U.S. prisons were serving life sentences in 2020 — more people than were in prison with any sentence in 1970. Nearly half of the life-sentenced population is African American.  Nearly one-third is age 55 or older.

“There comes a point,” Senator Cory Booker has explained, “where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long.”  He and Representative Karen Bass introduced the Second Look Act in 2019 to enable people who have spent at least 10 years in federal prison to petition a court for resentencing.

Legislators in 25 states, including Minnesota, Vermont, West Virginia, and Florida, have recently introduced second look bills.  A federal bill allowing resentencing for youth crimes has bipartisan support.  And, over 60 elected prosecutors and law enforcement leaders have called for second look legislation, with several prosecutors’ offices having launched sentence review units.

This report begins by examining the evidence supporting these reforms.  Specifically:

•  Legal experts recommend taking a second look at prison sentences after people have served 10 to 15 years, to ensure that sentences reflect society’s evolving norms and knowledge.  The Model Penal Code recommends a judicial review after 15 years of imprisonment for adult crimes, and after 10 years for youth crimes.  National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have recommended a second look for all after 10 years of imprisonment — a timeframe that corresponds with what criminological research has found to be the duration of most “criminal careers.”

•  Criminological research has established that long prison sentences are counterproductive to public safety.  Many people serving long sentences, including for a violent crime, no longer pose a public safety risk when they have aged out of crime.  Long sentences are of limited deterrent value and are costly, because of the higher cost of imprisoning the elderly.  These sentences also put upward pressure on the entire sentencing structure, diverting resources from better investments to promote public safety.

•  Crime survivors are not of one mind and many have unmet needs that go beyond perpetual punishment.  Ultimately, a survivor’s desire for punishment must be balanced with societal goals of advancing safety, achieving justice, and protecting human dignity.

A few on many recent prior posts on second-look topics:

A sampling of my prior writing on this front through the years:

May 12, 2021 in Examples of "over-punishment", Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Old law" federal prisoners provide new reminder that parole does not cure all ills

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which lamented the federal sentencing system's decision to abolish parole back in 1984.  Among other points, in this piece I suggested that "parole could have been, and perhaps should now become, a bulwark against the kind of impersonalized severity that has come to define much of the modern federal sentencing experience."  I realized while working on that piece that there was a bit of "grass is always greener" thinking driving my modern "ivory tower" affinity for part of a sentencing scheme that has long been beset with problems in practice. 

Today, the imperfect realities of parole is highlighted in this new NPR piece a helpful reader made sure I saw headlined "Forgetting And Forgotten: Older Prisoners Seek Release But Fall Through The Cracks."  I recommend the full piece, and here is how it starts and a few other passages:

Davon-Marie Grimmer has been struggling to get help for more than year for her cousin, Kent Clark. Sometimes, when he calls from prison, he asks to speak with relatives who are no longer alive. Sometimes, he forgets the name of his cell mate. "As far as I know, he hasn't received any medical attention for the dementia, and he's just so vulnerable in there," Grimmer said. "He's 66 years old. He can't take care of himself."

Clark is one of about 150 people in federal prison who time mostly forgot. This group of "old law" prisoners committed crimes before November 1987, when the law changed to remove the possibility of parole. But even with the grandfathered-in chance for parole — and despite a push to reduce prison populations — dozens of men in their 60s, 70s and 80s still have little hope of release.

When Congress tweaked the law three years ago to allow sick and elderly people behind bars to apply to a judge for compassionate release, that change didn't apply to the "old law" prisoners. They're easy to overlook.

"They are the oldest and most vulnerable cohort of people within the federal prison system today," said Chuck Weisselberg, a law professor at the University of California, Berkeley. "I mean, their only path for release is through the parole commission, an agency that's been dying for decades."

A bipartisan group of senators has introduced legislation that would give "old law" prisoners the chance to petition judges for release based on their age and poor health, but it's awaiting action in Congress....

As for Kent Clark, the U.S. Parole Commission reviewed his case last year.  According to written records, Clark's case manager told the commission that Clark is showing signs of dementia.  He pointed out that as a young man, Clark was a boxer who may have a history of head injuries.

But the parole examiner denied Clark's bid for release.  The examiner wrote that if Clark can't remember what he did, "how can the Commission be certain he has learned something from his mistakes and/or that he has developed the skills to avoid engaging in the same behavior?"

May 11, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, May 09, 2021

Split Eleventh Circuit panel creates circuit split over compassionate relief criteria after FIRST STEP Act

I have blogged in recent months about a significant number of significant circuit rulings addressing the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine "extraordinary and compelling" reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below). 

But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits.  The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021) (available here), gets started this way:

Thomas Bryant is a corrupt former police officer who was sentenced to prison for running drugs and guns. He filed a motion seeking a reduction in his sentence under 18 U.S.C. § 3582(c)(1)(A), and the district court denied that motion based on the Sentencing Commission’s policy statement found at U.S.S.G. § 1B1.13.  In resolving Bryant’s appeal, we must answer two questions about the relationship between Section 3582(c)(1)(A) and 1B1.13.

First, we must decide whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement.  Under Section 3582(c)(1)(A), a court can reduce an otherwise final sentence for “extraordinary and compelling reasons,” as long as the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”  The statute commands the Commission to publish a policy statement that defines “extraordinary and compelling reasons,” 28 U.S.C. § 994(t), and the Commission did: 1B1.13, which is entitled “Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A).”  At the time, the statute required all motions to be filed by the BOP.  The policy statement repeats that then-existing statutory language and, in its application notes, lists several circumstances that are “extraordinary and compelling reasons” that justify a sentence reduction.

So far, so good.  But after Congress changed the statute to allow defendants to file motions in addition to the BOP, several of our sister circuits have held that 1B1.13 is not an “applicable policy statement[]” for those defendant-filed motions.  This is so, they say, because the policy statement, quoting the pre-existing statute’s language, begins with the following phrase: “Upon motion of the Director of the Bureau of Prisons.”  Based mostly on that language, our sister circuits have held that this policy statement is not an “applicable policy statement” that binds judicial discretion as to defendant-filed motions.

We disagree with that reasoning.  The statute’s procedural change does not affect the statute’s or 1B1.13’s substantive standards, specifically the definition of “extraordinary and compelling reasons.”  The Commission’s standards are still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant.  And the structure of the Guidelines, our caselaw’s interpretation of “applicable policy statement,” and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.

Second, because we conclude that 1B1.13 is an applicable policy statement, we must determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A).  Bryant argues that Application Note 1(D) of 1B1.13 conflicts with the statute’s recent amendment.  As a catch-all provision, Application Note 1(D) says that a court may grant a motion if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”  Bryant argues that, because the statute now allows for defendant-filed motions, we should replace “as determined by the [BOP]” with “as determined by the [court].”  This alteration to the policy statement would give courts effectively unlimited discretion to grant or deny motions under Application Note 1(D).

But we cannot do that. Application Note 1(D) is not inconsistent with the procedural change in the statute that allows defendants to file motions.  Because we can apply both the amended Section 3582(c)(1)(A) and Application Note 1(D), we must apply both.

In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop “other reasons” that might justify a reduction in a defendant’s sentence. Accordingly, we affirm.

Judge Martin's dissent gets started this way:

Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”).  Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act.  And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.  The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement.  Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it.  With all respect due, I dissent.

A few of many, many prior related posts:

May 9, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

How about Prez Biden and lots of Governors starting a tradition of granting lots of clemencies around Mother's Day?

The question in the title of this post is prompted by my persistent eagerness to see a lot more clemency activity from chief executives and also by this new story out of Illinois headlined "Protesters deliver Mother’s Day card to Pritzker’s house, demand release of incarcerated loved ones."  Here are excerpts:

Against a backdrop of bright pink tulips, protesters stood outside Gov. J.B. Pritzker’s Gold Coast home on Friday with flowers, signs and a painted piece of cardboard that read, “Dear J.B., on this Mother’s Day, set our loved ones free.” That oversized Mother’s Day card included demands that Pritzker sign clemency petitions to for prisoners they say have been wrongfully incarcerated and that he stop construction of a new youth prison at the Lincoln Developmental Center.

Denice Bronis, an Elgin resident and member of Mamas Activating Movements for Abolition and Solidarity, said her son Matthew Echevarria, in prison for 22 years after being convicted of murder, contracted COVID-19 at Menard Correctional Center and still exhibits long-term symptoms. “Mother’s Day is just as much a day of love as it is a day of pain, especially for those who have experienced forced separation from our children, our loved ones, by the state,” Bronis said....

Kiah Sandler, a Bronzeville resident with the End IL Prison Lockdown Coalition, said although the group’s demands have shifted since Pritzker signed a sweeping criminal justice reform bill, there is still work to be done by the governor. Sandler said the coalition is asking Pritzker to lift that ban on personal contact during in-person visits, and also to grant more clemency requests to “set loved ones free with the stroke of a pen.”...

A Pritzker spokesperson later sent an email stating Pritzker has granted clemency requests throughout the pandemic and the state prison population is at its lowest level in years — down 28% since 2019, including a 43% drop in female inmates.

Holly Krig, a member of Moms United Against Violence and Incarceration, said it is “horrific and cruelly unnecessary,” that visitors and incarcerated people are not allowed to touch and also that visitors must be vaccinated; that means children under 16 — who can’t be vaccinated yet — can’t visit. She said for younger children and newborns to maintain a relationship with incarcerated mothers, contact is essential. “People can be released, people should be released and they should be released immediately,” Krig said. “We need to bring our people home.”

As highlighted by recent polling discussed here, granting clemency to various groups of persons has considerable public support across the political spectrum.  Focusing particularly on reuniting families though commutations and restoring rights through pardons on Mother's Day could be a big political winner.

A few prior recent related posts:

May 9, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, May 07, 2021

Notably advocacy for Prez Biden to use his clemency power to ensure those released into home confinement need not return to prison

Alice Marie Johnson and Ja’Ron Smith have this notable new USA Today opinion piece headlined "COVID-19 concerns sent thousands of inmates home. Give clemency to those who deserve it." The subtitle of the piece captures its themes: "Nearly 5,000 inmates may be sent back to prison. After rebuilding their lives, and being contributing members of society, how is being returned justice?". Here are excerpts (links from original):

This spring, as more Americans are able to get vaccinated, there’s hope the pandemic is nearing its end and life is slowly returning to normal.  But for 4,500 Americans, the end of the pandemic could instead mean returning to prison. 

The March 2020 CARES Act allowed the Federal Bureau of Prisons to expand the period of home confinement, which usually comes at the end of a sentence.  As a result, thousands of incarcerated individuals convicted of nonviolent crimes were released from prison – where COVID-19 swept through cramped facilities – to home confinement. Many were able to reunite with their families and find jobs.   

But earlier this year, the Justice Department ordered that individuals under home confinement due to COVID-19 must return to prison when the emergency is lifted, putting 4,500 lives in limbo, awaiting an uncertain date when their return to normalcy is taken away.  Inmates near the end of their sentence may be able to stay home if the Bureau of Prisons grants permission, according to a recent USA TODAY report.  And while the Biden administration extended the length of the COVID emergency declaration, that still might not help people with years left to serve.   

The administration could get into a legal back-and-forth over the interpretation of the CARES Act.  But a simpler path would be for President Joe Biden to grant clemency to those on home confinement who pose no threat to public safety.  Reviewing the cases will be another step toward reducing unnecessary incarceration in America, which imprisons more people than any other democratic country with no added benefit to public safety.  

The two of us experienced the justice system, and clemency in particular, up close.  One of us worked as a senior adviser to former President Donald Trump on criminal justice and other policy issues.  The other served nearly 22 years in prison for a first-time, nonviolent drug offense before returning home after Trump granted clemency, and later a pardon.  Through these experiences, we have come to know people from diverse backgrounds who have made mistakes, but still have much to offer their families and our society. That is what we are seeing with many of the individuals under home confinement due to COVID-19....

To prevent individuals like these from being sent back to prison, a congressional coalition wrote a letter to Biden, urging him to review their cases for clemency.  The letter notes that the CARES Act did not require individuals on home confinement be sent back to prison, and that the Justice Department can modify the guidance issued by the last administration.  But clemency would allow rehabilitated individuals to move on with their lives rather than serving home detention for the rest of their sentences.   

Clemency should be carefully and fairly considered.  But all the people under home confinement were released because they were determined to be safe, making them strong candidates.  The moral issue goes beyond these 4,500 Americans.  In recent years, a diverse coalition from across the political spectrum has united for criminal justice reforms. Trump signed the bipartisan First Step Act in 2018, reducing some excessive sentences and creating more opportunities for rehabilitation.  

Biden ran on a platform to build on these criminal justice reforms. As he said in a proclamation commemorating Second Chance Month, “We lift up all those who, having made mistakes, are committed to rejoining society and making meaningful contributions.”  Biden should now extend that commitment to people under home confinement.  Reviewing these cases for clemency will not only help transform the lives of thousands of Americans, but also continue the momentum toward a more sensible and fair criminal justice system. 

Some prior recent related posts:

May 7, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Split(?) Sixth Circuit panel clarifies disparity between actual sentence and sentence under current law can be proper compassionate relief factor

I have been pleased to be able to blog about a significant number of significant circuit rulings on the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Since then, there have been somewhat similar opinions from the Fourth, Fifth Sixth, Seventh, Ninth and Tenth Circuits issued generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).  And, yesterday a split(?) Sixth Circuit issued another ruling in this line of important precedents with US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), which gets started this way and thereafter makes key observations on the way to reaching its holding:

Ian Owens appeals the district court’s order denying his motion for compassionate release because it concluded that the disparity between his lengthy sentence and the sentence that he would receive following the passage of the First Step Act was not an extraordinary and compelling reason to support compassionate release.  For the reasons set forth in this opinion, we REVERSE the district court’s order and REMAND for reconsideration of Owens’s motion for compassionate release consistent with this opinion....

Many district courts across the country have taken the same approach as McGee and Maumau and have concluded that a defendant’s excessive sentence because of mandatory minimum sentences since mitigated by the First Step Act may, alongside other factors, justify compassionate release. [cites to more than a dozen notable district court rulings modifying sentences]... 

As explained above, Owens presented three factors that he asserted together warranted compassionate release.  The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.  In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings.

I keep putting a question mark next to the notation "split" with respect to this panel decision because here is the (seemingly peculiar) start to the opinion in Owens:

MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J., will deliver a separate dissenting opinion that will be appended to the majority opinion at a later time.

Until Judge Thapar appends his dissenting opinion, I am not sure if he disagrees with the main holding of the panel majority or if he has some other concern with this decision.  I presume he is dissenting on the merits, but the idea that sentencing disparities can be at least a factor in considering compassionate release motions does not seem to me to be a particularly controversial proposition since the text of the applicable statute does not expressly provide for any excluded factors concerning what can serve an "extraordinary and compelling reason" to support a sentence modification.

A few of many, many prior related posts:

May 7, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"Marijuana legalization and expungement in early 2021"

Marijuana-Record-Relief_for-socialThe title of this post is the title of this great new report authored by David Schlussel that was assisted in various ways by folks at Collateral Consequences Resource Center and Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  Here is the abstract to the report:

Early 2021 was an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana.  In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms — including the automatic expungement of an exceptionally broad array of past marijuana convictions — along with a variety of social equity provisions.

These new laws mitigate past harms of the legal system while also supporting economic and social opportunity for people with a record in several ways.  First, in all four states, expansive automatic expungement provisions will remove the burden of a criminal record from many individuals, while raising the bar on standards for marijuana record relief nationwide.  These states also incorporated more general criminal record reforms into legalization, benefiting people with different types of criminal records in their efforts to reintegrate into society.  Finally, these four states specifically addressed racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement.  This report and an accompanying infographic summarize the groundbreaking criminal reforms enacted this year as part of marijuana legalization and situate them in the national context. 

The infographic referenced here as well as other links and materials related to this topic can also be found in the report pages for both DEPC here and CCRC here.  In addition, this recent PBS News Hour piece, headlined "As more states legalize marijuana, people with drug convictions want their records cleared," discusses these issues further.

A few recent related posts from Marijuana Law, Policy & Reform:

May 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (1)

Wednesday, May 05, 2021

Might Prez Biden use his clemency power relatively soon?

The question in the title of this post is promoted by this notable new Hill article headlined "Biden set to flex clemency powers."  The headline is a bit more encouraging than the full article for those eager to see some action on this front, and here are some of the details:

White House officials are signaling that President Biden is prepared to flex his clemency powers as officials wade through a large backlog of requests behind the scenes, according to advocates with whom the White House has consulted on criminal justice reform.  The White House held a Zoom call last week to discuss criminal justice reform with advocates and formerly incarcerated people, some of whom are pressing Biden to use his powers to free people jailed on drug offenses and sick and elderly people who pose no threat to society.

While the White House did not signal any imminent moves, officials indicated that Biden will not hold off until later in his term to issue pardons or commutations.  “It was clear that they are working on something,” said Norris Henderson, founder and executive director of New Orleans-based Voice of the Experienced, who participated in the call.  “They are looking at that right now as an avenue to start doing things.”

The White House declined to comment for this report when asked about Biden’s plans for clemency grants or his timeline.  Asked at a briefing Wednesday whether the Biden administration has a timeline for pardons or commutations, White House press secretary Jen Psaki answered: “I don’t have any previewing of that to provide and probably won’t from here.”

Biden disappointed some advocates by not granting clemency to anyone in his first 100 days in office and has faced pressure to take action to reform the criminal justice system and address racial injustices.  Given Democrats’ slim majorities in Congress, the broad clemency powers afforded to the president could be an attractive way for Biden to show he is taking action on reforming the justice system.  The Justice Department faces a backlog of some 15,000 petitions for clemency.

DeAnna Hoskins, president and CEO of JustLeadershipUSA, said officials communicated on the call last week that Biden is “not waiting until the end of his presidency” to issue pardons or commutations. “It was very promising because he already, from the White House perspective, has staff working on this,” Hoskins said....  Vivian Nixon, executive director of the College & Community Fellowship, described the White House as more noncommittal, saying there was not a “promise to do anything” but that officials acknowledged “that they are looking at this issue very closely.”

Biden’s record on criminal justice is mixed.  He has faced backlash for his role in passing the 1994 crime bill that critics say contributed to mass incarceration and had a disproportionate impact on communities of color.  As part of the criminal justice platform he unveiled on the campaign trail, Biden promised to use his clemency power to “secure the release of individuals facing unduly long sentences for certain non-violent and drug crimes” if elected....

The National Council for Incarcerated and Formerly Incarcerated Women and Girls spearheaded a campaign to pressure Biden to grant clemency to 100 women in his first 100 days in office, but that milestone came and went last week without action from the White House.  The American Civil Liberties Union has petitioned Biden to grant clemency to 25,000 people as soon as possible, calling mass incarceration a “moral failure” and “racial justice crisis.”

White House officials including domestic policy adviser Susan Rice, senior adviser Cedric Richmond and counsel Dana Remus convened the call last Friday to hear criminal justice reform recommendations from advocates, and clemency was among the topics discussed....

“One thing that was very clear from the conversation was there will be a process,” Desmond Meade, president and executive director of the Florida Rights Restoration Coalition, said of Friday’s White House call. “At the end of the day, they know that there are changes that should be made, but there should be a process there that makes it fair for everyone.”...

Friday’s call was the first in what is expected to be a series of White House engagements with criminal justice reform advocates and individuals who have been directly impacted by the prison system.... Participants expressed optimism that the White House is serious about addressing criminal justice reform and giving those who have been impacted by the justice system a seat at the table.

A few of many recent related posts on Prez Biden and clemency:

May 5, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, May 04, 2021

SCOTUS argument in Terry suggests low-level crack defendant unlikely to secure resentencing based on FSA retroactivity

On Tuesday morning, the Supreme Court heard oral argument in Terry v. United States, and the full oral argument is available here via C-SPAN.  The full argument runs nearly 90 minutes and the quality of the advocacy makes it worth the full listen.  But one can get a much quicker flavor of the tenor of the discussion from just a scan of the headlines of these press accounts of the argument:

From the AP, "Supreme Court skeptical of low-level crack offender’s case"

From Bloomberg Law, "Biden Switch Unlikely to Save Crack Offenders at Supreme Court"

From Law & Crime, "Biden Administration Flip-Flopped Its Position in Case Over Crack Cocaine Sentences. SCOTUS Did Not Seem Pleased."

From Reuters, "U.S. Supreme Court skeptical of expanding crack cocaine reforms"

From USA Today, "Supreme Court skeptical of applying Trump-era criminal justice law retroactively for small drug offenses"

From the Washington Post, "Supreme Court seems skeptical that law helps all convicted of crack cocaine offenses"

All the "skeptical" questions from the Justices certainly leaves me thinking that the Supreme Court will rule that Tarahrick Terry is not entitled to resentencing under the FIRST STEP Act provision making the Fair Sentencing Act retroactive.  That may not ultimately be such a big loss for Mr. Terry since, as the Acting SG explained to SCOTUS back in March, he is already finishing up his prison sentence through home confinement and that term is to be completed in September.  I am hopeful that the relatively small number of similarly situated defendants who would be adversely impacted by a Terry loss would have some similar silver lining.

Prior related posts:

May 4, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 03, 2021

Terry v. US, the final SCOTUS argument of Term, provides yet another reminder of the persistent trauma and drama created by the 100-1 crack ratio

It was 35 years ago, amid intense media coverage of a "crack epidemic" and the overdose death of basketball star Len Bias, when Congress passed the Anti-Drug Abuse Act of 1986 with the 100-to-1 powder/crack cocaine quantity ratio defining severe mandatory minimum sentencing terms.  As the US Sentencing Commission explained in this 1995 report, Congress "dispensed with much of the typical deliberative legislative process, including committee hearings," when enacting this law, and "the abbreviated, somewhat murky legislative history simply does not provide a single, consistently cited rationale for the crack-powder cocaine penalty structure."  Though the 100-to-1 ratio lacked any sound rationale in 1986, thousands of disproportionately black persons started receiving disproportionately severe statutory and guideline sentences for crack offenses in the years that followed.

Not long thereafter, in 1991 the US Sentencing Commission detailed to Congress that "lack of uniform application [of mandatory minimums] creates unwarranted disparity in sentencing" and that data showed "differential application on the basis of race."  Giving particular attention to cocaine sentencing, in 1995 the US Sentencing Commission explained to Congress that there was considerable racial disparity resulting from the 100-1 quantity ratio and that sound research and public policy might "support somewhat higher penalties for crack versus powder cocaine, but a 100-to-1 quantity ratio cannot be recommended."  In other words, three decades ago, an expert agency told Congress that mandatory minimums were generally bad policy and created racial injustice; over a quarter century ago, that agency also told Congress that crack minimums were especially bad policy and created extreme racial injustice.

In a sound and just sentencing universe, these reports and recommendations would have prompted immediate action.  But it took Congress another full 15 years to even partially address these matters.  After tens of thousands of persons were sentenced under the 100-to-1 ratio, Congress finally in 2010 passed the Fair Sentencing Act to increase the amount of crack need to trigger extreme mandatory minimum sentences.  The FSA did not do away with any mandatory minimums, and it still provided for much smaller quantities of crack to trigger sentences as severe as larger quantities of powder, but it still bent the arc of the federal sentencing universe a bit more toward justice.  However, it did so only prospectively as Congress did not provide for retroactive application of its slightly more just crack sentencing rules in the FSA.

Eight years later, Congress finally made the Fair Sentencing Act's reforms of crack sentences retroactive through the FIRST STEP Act. But, of course, no part of this story lacks for drama and racialized trauma, as the reach of retroactivity remains contested in some cases.  So, the Supreme Court will be hearing oral argument on Tuesday, May 4 in Terry v. US to determine if Tarahrick Terry, who was sentenced in 2008 to over 15 years in prison after being convicted of possessing with intent to distribute about 4 grams of crack cocaine, can benefit from the FIRST STEP Act's provision to make the Fair Sentencing Act reforms retroactive.

All the briefing in Terry is available here at SCOTUSblog, and Ekow Yankah has a great preview here titled "In final case the court will hear this term, profound issues of race, incarceration and the war on drugs." Here is how it starts:

Academics naturally believe that even obscure cases in their field are underappreciated; each minor tax or bankruptcy case quietly frames profound issues of justice.  But, doubtful readers, rest assured that Terry v. United States — which the Supreme Court will hear on Tuesday in the final argument of its 2020-21 term — packs so many swirling issues of great importance into an absurdly little case, it can hardly be believed.  The national debate on historical racism in our criminal punishment system?  Yes.  Related questions of how we address drug use with our criminal law rather than as a public health issue?  Undoubtedly.  Redemption after committing a crime? Of course.  The ramifications of a contested presidential election?  Sure.  The consequences of hyper-technical statutory distinctions on the fate of thousands?  Goes without saying.  A guest appearance by a Kardashian?  Why not.

Henry Gass at the Christian Science Monitor has another great preview piece here under the headline "On the Supreme Court docket: Fairness, textualism, and crack cocaine."  Here is an excerpt:

Mr. Terry’s punishment followed war-on-drugs-era federal guidelines that treated a gram of crack cocaine 100 times worse than a gram of powder cocaine.  The sentencing disparity has come to be viewed, by critics spanning the political spectrum, as one of the great injustices of the war on drugs.  It’s been one of the key drivers of mass incarceration, those critics say, in particular subjecting thousands of low-level offenders — the vast majority young people of color – to long prison terms.

In the past decade Congress has reduced almost all of those sentences — all except for Mr. Terry, and thousands of low-level crack offenders like him.  It’s a deferral of justice that has brought him into an unlikely alliance with congressional leaders from both parties, as well as former federal judges, prosecutors, and, latterly, the Biden administration.

On Tuesday it will bring him to the U.S. Supreme Court, when the justices will hear arguments on whether this vestige of the tough-on-crime era should be eliminated.  His case is relatively narrow and technical, but in a country — and a Congress — that has come to roundly condemn drug policies like the crack powder sentencing disparity, it’s significant.

May 3, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 30, 2021

Great example of clemency leading to more compassion ... in the form of compassionate release thanks to FIRST STEP Act reforms

I am not sure if anyone is trying to make a comprehensive list of the wide array of factors that federal courts have referenced in granting sentence reductions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) ever since the FIRST STEP Act allowed federal courts to directly reduce sentence without awaiting a motion by the Bureau of Prisons.  Thankfully, district and circuit court have consistently recognized that, in the word of the Second Circuit in US v. Brooker, 976 F.3d 228 (2d Cir. 2020), the "First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release."  And, via this new Law360 article, headlined "Ex-Detroit Mayor Ally Released From Prison Years Early," I saw a new opinion with a particularly notable reason given for such a reduction.  Here  are the basics and context from the article:

A former contractor and co-defendant to ex-Detroit Mayor Kwame Kilpatrick on Thursday was granted compassionate release from prison after serving eight years of a 21-year sentence over a municipal bribery and kickback scheme, with the judge citing health problems and the fact Kilpatrick had his sentence commuted. U.S. District Judge Nancy Edmunds reduced the sentence for Bobby Ferguson, 52, to time served, noting his underlying medical conditions that place him at grave risk were he to contract COVID-19, and the fact that Kilpatrick — the much more culpable defendant in the case — in January was granted a reprieve by former President Donald Trump.

Judge Edmunds said at the time of the original sentencing there were "serious differences" between Ferguson's conduct and that of Kilpatrick — the mastermind of the pay-to-play scheme to exchange city business for bribes and kickbacks.  That Ferguson is left facing a prison term more than twice as long as Kilpatrick served constitutes an "extraordinary and compelling" reason to grant Ferguson compassionate release, she said.  "He was not the driver of the bus; that was Mr. Kilpatrick, where the power resided," Judge Edmunds said.

Michigan federal prosecutors had strongly opposed granting Ferguson compassionate release, calling Kilpatrick's commutation "wrongful" and highlighting Ferguson's earlier convictions for assault and other alleged misdeeds.  The government also disputed that Ferguson's hypertension, diminished lung capacity due to an injury and high cholesterol merited an early release.   The government further argued that Ferguson had not exhausted his administrative remedies with the Bureau of Prisons, since he had only petitioned the prison warden for compassionate release based on his health issues and not the disparity in sentence that resulted from Kilpatrick's release.

However, Judge Edmunds said she was persuaded by other court decisions in finding that so-called "issue exhaustion" is not required for compassionate release. She also noted his prior violent crimes occurred decades ago, and that Ferguson hasn't displayed any such "hotheadedness" while incarcerated.

The full 11-page ruling this case is available at this link, and here is a key passage:

Defendant now faces the prospect of a period of incarceration much longer than a more culpable co-defendant.  At the time of sentencing, the Court noted there were “serious differences” between Defendant’s conduct and that of Mr. Kilpatrick. (ECF No. 493, PgID 16285.)  More specifically, Defendant was not an elected official and had been charged with and convicted of a substantially smaller number of charges. (Id.) The Court therefore concluded that Defendant deserved a shorter sentence than Mr. Kilpatrick and ultimately sentenced Defendant to a term of imprisonment 75% as long as Mr. Kilpatrick’s sentence. That Defendant now faces a period of incarceration more than twice as long as the time Mr. Kilpatrick served is both extraordinary and compelling.  See United States v. Sapp, No. 14-cr-20520, 2020 U.S. Dist. LEXIS 16491, at *5 (E.D. Mich. Jan. 31, 2020) (defining “extraordinary as beyond what is usual, customary, regular, or common” and “a compelling reason as one so great that irreparable harm or injustice would result if the relief is not granted”) (internal quotation marks and citation omitted).

The government argues that avoiding unwarranted sentence disparities, one of the § 3553(a) factors, should not be part of this step of the analysis and that taking this into account would contravene the interest in finality of sentences.  The Sixth Circuit has held, however, consistent with all other circuit courts that have addressed this issue, that district courts have “full discretion” to define extraordinary and compelling reasons. See Jones, 980 F.3d at 1109; see also Brooker, 976 F.3d at 237 (noting that “a district court’s discretion in this area — as in all sentencing matters — is broad”). The only statutory limit on what a court may consider to be extraordinary and compelling is that rehabilitation alone is not sufficient.  See 28 U.S.C. § 994(t).  That particular circumstances may also factor into the Court’s analysis under § 3553(a) has no bearing on whether they can be considered extraordinary and compelling.  And, here, the disparity only arose recently due to the unique circumstance of a co-defendant being granted a Presidential commutation.

While the finality of sentences is an important principle, the compassionate release provision of § 3582(c) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases and authorizes judges to implement that judgment.”  See United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020) (internal quotation marks and citation omitted).  The Court finds this to be an appropriate case in which to do so. Not only has Defendant served a slightly longer term of imprisonment than a more culpable co-defendant, but his motion comes during an unprecedented global pandemic and Defendant has an increased vulnerability to the virus.

April 30, 2021 in Clemency and Pardons, FIRST STEP Act and its implementation, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, April 29, 2021

New detailed polling reveals broad support for broad use of clemency power to commute sentences

Poll_03-individuals-who-served-more-600x413This interesting new report at The Lab - The Appeal details the results of interesting new polling showing broad support for clemency on behalf of a wide array of different types of persons in prison. The report is authored by Molly Greene and Sean McElwee under the headline "Poll: Use Clemency Power to Fight Mass Incarceration." I recommend clicking through to see all the details, but here is part of the narrative:

New national polling from Data for Progress and The Lab, a policy vertical of The Appeal, shows that voters support using executive clemency as a tool to reverse decades of over-incarceration, and commuting prison sentences for broad categories of people who can be safely returned to their communities.

Even after decades of excessively long and discriminatory prison sentences in the United States, and amid growing consensus that we need to dramatically reduce prison populations, executive clemency remains a largely overlooked and underused path toward reversing the punitive excesses of mass incarceration. Grants of clemency need not be rare exceptions....

While momentum for sentencing reform has grown at both the state and federal level, American prisons remain filled with people serving lengthy, decades-long sentences, including those imposed in the 1990s and the early 2000s, when the punitive zeal of prosecutors, judges, and lawmakers was at its peak.  As a result, the American prison population is aging, with growing proportions of incarcerated people in their 50s, 60s, and older who increasingly require expensive medical care and who are unlikely, if released, to commit future crimes.  People also remain imprisoned for convictions that result in far shorter terms today, meaning people are caged, separated from their families and communities, for reasons we now accept cannot be justified.

The power to commute sentences and pardon convictions — held, at the federal level, by the president, and by virtually all governors or governor-appointed boards in the states — can efficiently reduce this over-incarceration, while also redressing racial injustice that pervades the criminal legal system, including in sentencing.  Our polling shows national support for using executive clemency in precisely this way.  In particular, voters support commuting sentences of categorical groups based on age, health, time served, the nature of the offense, and as a means to reduce racial disparities and maintain consistency with current sentencing practices.

The polling results are relatively consistent no matter the specific inquiry in this poll, with roughly 50% to 70% of all respondents supporting sentence commutations for various populations and with Democrats generally supporting clemency by about 10% to 20% more than Republicans (and Independents in between). Again, I highly recommend clicking through to see all the details.  Interestingly, a question that focuses on giving retroactive relief based on new laws generated the strongest of all the responses in support of commutations:

Commutations based on time served:

  • 73 percent of likely voters, including 78 percent of Democrats, 78 percent of independents, and 65 percent of Republicans, support commuting the sentences for individuals who have already served more than what current law requires for that offense.

April 29, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 28, 2021

Is Justice Kavanaugh eager to bring proportionality review to government sanctions ... to protect speech under the First Amendment?

It comes as no suprise that a lot of attention is being given to the Supreme Court case argued today inolving a First Amendment claim brought by a young public high schooler suspended from the cheerleading squad for dropping f-bombs on his Snapchat.  This Politcio piece reviews the basics of the arguments, and I was both surprised and struck by a comment during argument by Justice Kavanaugh.  Here, via this oral argument transcript from Mahanoy Area School Dist. v. B. L., is the comment and context (with my emphasis added):

[A]s a judge and maybe as a coach and a parent too, it seems like maybe a bit of over -- overreaction by the coach.

So my reaction when I read this, she's competitive, she cares, she blew off steam like millions of other kids have when they're disappointed about being cut from the high school team or not being in the starting lineup or not making all league....

So maybe what bothers me when I read all this is that it didn't seem like the punishment was tailored to the offense given what I just said about how important it is and you know how much it means to the kids.  I mean, a year's suspension from the team just seems excessive to me.

But how does that fit into the First Amendment doctrine or does it fit in at all in a case like this?

I lack the First Amendment expertise to know if the notion of reviewing state sanctions for excessiveness or proportionality is particularly notable or novel.  But I have enough Eighth Amendment expertise to know it could be so vauabe if Justice Kavanaugh and other Justices were far more willing to question state sanctions in the form of extreme prison terms when they do not "seem like the punishment was tailored to the offense" and "just seems excessive."

Though finding notable these comments by Justice Kavanaugh about what seemed to him an excessive punishment, I doubt we should be expecting him to carry these sentiments over the the Eighth Amendment.  After all, Justice Kavanaugh's first big Eighth Amendment ruling functionally limited its protection for juvenile murderers via the Jones opinion.

April 28, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, April 27, 2021

Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

As reported in this AP piece, headlined "Juvenile lifer who set precedent sentenced to life again," a high-profile juvenile murderer was sentenced yet again to life in prison without parole despite having helped win a Supreme Court ruling reversing his original LWOP sentence. Here are the details:

Evan Miller was just 14 when he committed the slaying that sent him to prison. In reviewing his case, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles — saying judges and juries should consider the special factors of youth — a decision that eventually led to inmates across the country getting a chance at release.

But Miller will not get that chance. A judge on Tuesday handed down a second life sentence without possibility of parole.

Lawrence Circuit Judge Mark Craig ruled that Evan Miller, despite being a young teen when he committed his crime, met the legal criteria to be sentenced to life in prison without the chance of parole. Craig said the severity of Miller’s crime outweighed the mitigating factors of Miller’s age and his abuse-filled childhood that the defense argued made him deserving of an opportunity of a chance to get out of prison some day. Craig said a sentence of life without the possibility of parole was the “only just sentence” over the lesser punishment of life with a chance of parole after 30 years.

Miller was 14 in 2003 when he and another teen beat Cole Cannon with a baseball bat before setting fire to his trailer, a crime for which he was originally sentenced to a mandatory life sentence. Before handing down the sentence, Craig repeated the line that Miller was attributed with saying before he delivered a final blow to Cannon: “I am God. I’ve come to take your life.” Craig said those were some of “the most chilling words I have heard.”

Craig said he was not convinced Miller could be rehabilitated and noted that Miller was the primary aggressor in the slaying. “Had you not made the decisions that night, Mr. Cannon, in my view, would still be alive,” Craig said. “You showed cunning, not clumsy, rash thinking.”

Miller, now 32, appeared during the hearing, which was conducted virtually, by video link from an office at the Alabama prison where he is incarcerated. He did not visibly react as the sentence was read.

The Supreme Court in 2012 ruled in Miller’s case that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In the 2012 opinion in Miller’s case, justices ordered that judges and juries should consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”...

While other juvenile lifers across the country have seen their sentences reduced because of Miller’s case and a later ruling that made the decision retroactive, his own case had lingered without a decision until Tuesday. At an earlier resentencing hearing, Miller’s lawyers cited his childhood of physical abuse and neglect and argued that at 14, his brain was not fully developed....

Alabama Attorney General Steve Marshall said the judge, “restored the punishment that is fitting for Evan Miller’s wicked actions.” “When Evan Miller robbed and savagely beat his neighbor, setting fire to the man’s trailer and leaving his incapacitated victim to die a horrible death, he earned a well-deserved sentence of life in prison without parole,” Marshall said in a statement.

April 27, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Monday, April 26, 2021

After more than a decade, SCOTUS finally grants cert on big Second Amendment carry case

The Supreme Court ruled in Heller in 2008 that the Second Amendment secured the right to keep arms in the home, and then in McDonald applied this right to the states in 2010.  Most Court watchers thereafter said it was only a matter of time before the Court would need to address whether and how the Second Amendment applies to laws restricting or regulating the carrying of arms outside the home.  But for quite some time, the Supreme Court declined to take up this next big Second Amendment issue. 

But vIa this order list this morning, the Justices agreed to review New York’s concealed-carry laws through a cert grant in New York State Rifle & Pistol Association v. Corlett.  Here is how the Supreme Court framed the question presented via its cert grant:

The petition for a writ of certiorari is granted limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

There will be lots of ink spilled about this grant and lots of amici briefs sure to be filed.  But I wonder if others will think it notable how the Court rewrote the petitioner's question presented in this cert petition, which asked (emphasis added): "Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense." 

Long-time readers may know I have been wondering for a long time about the textual or jurisprudential justification for saying that the Second Amendment does not apply to all "people," but only to so-called "law-abiding" ones (see, e.g., posts here and here and here).  I have long assumed that the "law-abiding" language appeared in Heller and McDonald at the behest of Justice Anthony Kennedy.  With Justice Kennedy no longer on the Court, I cannot help but wonder if the current Justices were eager to remove that Court-invented language from the question presented.   

I bring this issue to the fore, of course, because a broadly applicable Second Amendment that protects all people, and not just the so-called "law-abiding" ones, could have all sorts of implications for all sorts of criminal law and sentencing provisions related to gun possession.  The Supreme Court already has on its docket a case, Wooden, concerning a defendant who received over 15 years in prison under federal law for mere gun possession in his home due to his prior convictions (and at issue in Wooden is just the statutory issue of whether these past convictions triggered the extreme 15-year mandatory minimum term under federal law).  If the Second Amendment is to be anything other than a second-class right, it ought to protect all people (as the language of the Amendment indicates) and not just whatever people the Supreme Court might decide are special as it creates this jurisprudence. 

April 26, 2021 in Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, April 24, 2021

Rounding up some early (mostly critical) commentary on Jones

I shared in this post yesterday some of my early thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though disappointed by the outcome, my long-standing concerns with the Supreme Court's jurisprudence in this arena (as discussed in pieces here and here) perhaps led me to be not too startled by the Court's work.  But, as evidenced by some of the commentary I have seen about Jones in the last few days, it seems many are quite aggrieved.  Here is an abdridged round up: 

From Josh Blackman, "Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings; I'm looking at you Justice Kavanaugh."

From Rory Fleming, "The Supreme Court’s Abhorrent Decision to Back Life-Without-Parole for Kids"

From Chris Geidner, "Kavanaugh just erased years of precedent to keep kids in jail forever; The Court's conservative wing will now let kids spent their lives behind bars."

From Ruth Marcus, "At the Supreme Court, a tale of two Bretts"

From John Pfaff, "It is ludicrous for the Supreme Court to say children are irredeemable"

From Mark Joseph Stern, "Brett Kavanaugh’s Opinion Restoring Juvenile Life Without Parole Is Dishonest and Barbaric"

From Elliot Williams, "Supreme Court's staggering deviation from precedent"

April 24, 2021 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 23, 2021

A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts:

1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing.  Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed  the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller.  But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states. 

2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues.  For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere).  But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over.  Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.

3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens).  Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied.  If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.

4.  Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder.  A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner.  Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice.  The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.

April 23, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 22, 2021

SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi

I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term.  I hope to comment later today.

UPDATE Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021).  Here is how Justice Kavanaugh's opinion for the Court begins

Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.  In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18.  The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller.  Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.  And Jones says that the trial judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents.  In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence.  Id., at 483.  And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument.  We affirm the judgment of the Mississippi Court of Appeals.

Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:

Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480).  Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient.  A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  Miller, 567 U.S., at 480.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).

Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11.  Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none.  Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19.  The Court is fooling no one.  Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

April 22, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, April 21, 2021

Great coverage of the success of "The Mother Teresa of Pot Prisoners"

In years past, I have tended to dislike the uptick in marijuana media coverage around 4/20 because a range of serious issues, and especially serious criminal justice issues, often seemed not to get the serious coverage that they deserved.  But with marijuana reform continuing to pick up momentum, I think the 4/20 media mania is getting a little better.  And I will always be grateful for whatever leads to media coverage of my favorite advocate of criminal justice reform in the marijuana space.  She is the focal point of this lengthy new Input piece with this great full title: "How ‘The Mother Teresa of Pot Prisoners’ saved her brother from dying behind bars: Beth Curtis’ LifeforPot.com may look janky, but it’s been amazingly effective in getting nonviolent marijuana offenders out of prison."  I recommend the piece in full, and here are snippets:

On 4/20, Craig [Cesal] will be on a fishing trip in West Palm Beach with a group of other marijuana offenders who’ve managed to have their sentences reduced. “There’s a cannabis company that’s paying to fly a bunch of us former pot lifers down,” Cesal says. “Of course, Beth is going down, because we all have ties to her.”

The “Beth” he’s referring to is 79-year-old Beth Curtis from Zanesville, Ohio, the founder of LifeforPot.com, an amateurish little site she built in 2009 to raise awareness about people like Craig — or more specifically, people like her brother, John Knock, who was sentenced to two life terms plus 20 years for a first-time nonviolent marijuana-only offense. Beth has spent more than a decade aggressively advocating for federal clemency on Knock’s and others’ behalf, earning her the nickname the Mother Teresa of Pot Prisoners.

Curtis hoped that by giving people like her brother a presence on the internet, her website would help to raise public awareness about an aspect of criminal justice sentencing most people didn’t seem to know about. “When I talked about somebody serving life for marijuana, honestly people didn’t believe it,” she says. “They’d think, ‘There has to be a dead body somewhere.’ Indeed, there do not have to be any dead bodies, or even a gun.”...

When I ask Curtis if she built the site herself, she laughs out loud. “Yes, can’t you tell?” she replies. Clunky as it is, the current version is much improved from the original, which she built using “CafePress or something” and became a running joke among her friends. When an article in the Miami New Times mentioned her “scrappy-looking site,” fellow clemency advocate Dennis Cauchon called her and said “You know, ‘scrappy’ rhymes with something,” she relates. “And that’s indeed true,” she adds.

Crappiness aside, the site’s been effective. Of the 39 people featured on Life for Pot, 24 have been granted clemency or compassionate release — including, most recently, Knock, who was granted clemency by President Trump in January.

“She did it,” Knock, 73, says of his sister. “One little lady, barely five feet tall, and she just kept pushing and pushing and pushing.” For someone as driven as Curtis, failure was not an option: “I couldn’t imagine that I would die while he was still confined behind bars. The thought sickened me.”

April 21, 2021 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 20, 2021

Mixed messages on mandatory minimums from executive branch in New Jersey witrh a retroactive kicker

In this post last month, I flagged the debate in New Jersey where the Governor was threatening to veto a bill to repeal mandatory minimums for certain non-violent crimes because it repealed too many mandatory minimum sentences.  Sure enough, that veto happened yesterday, but so too did an interesting related action from the NJ Attorney General.  This Politico piece, headlined "Murphy vetoes mandatory minimum bill as Grewal unilaterally eliminates some sentences," provides these details (with some emphasis added):

Gov. Phil Murphy on Monday vetoed a bill that would do away with mandatory minimum prison terms for non-violent crimes, excising sections that would eliminate the sentences for corruption offenses.  At the same time, Attorney General Gurbir Grewal issued a directive requiring that prosecutors make use of a provision in New Jersey law allowing them to set aside mandatory minimum sentences for drug-related crimes.

“I am particularly troubled by the notion that this bill would eliminate mandatory prison time for elected officials who abuse their office for their own benefit, such as those who take bribes.  Our representative democracy is based on the premise that our elected officials represent the interests of their constituents, not their own personal interests,” Murphy wrote in his veto message, which also took a shot at former President Donald Trump.  “I cannot sign a bill into law that would undermine that premise and further erode our residents’ trust in our democratic form of government, particularly after four years of a presidential administration whose corruption was as pervasive as it was brazen.”

The two executive actions are the culmination of an eight-month political fight between the Murphy administration and the Democrat-controlled Legislature over what began as benign legislation that followed exactly the recommendations of the New Jersey Criminal Sentencing & Disposition Commission.  The commission, in a November 2019 report, recommended eliminating mandatory sentences for a wide swath of mostly drug and property crimes with the aim of reducing racial disparities among the incarcerated.

Murphy’s conditional veto essentially returns the legislation, NJ S3456 (20R), to its initial form — which did not address corruption offenses — before state Sen. Nicholas Sacco began a successful effort to change it. Grewal’s directive may help allay the concerns of criminal justice advocates who did not want to see mandatory minimum sentences upheld over a political fight, leading some to throw their support behind the legislative effort.  The directive goes further than the legislation would have, applying retroactively to prisoners serving mandatory minimum sentences for drug offenses.  The directive does not apply to mandatory minimum sentences for non-violent property crimes, and it was not immediately clear how many inmates are serving time under those laws.

“It’s been nearly two years since I first joined with all 21 of our state’s County Prosecutors to call for an end to mandatory minimum sentences for non-violent drug crimes,” Grewal said in a statement.  “It’s been more than a year since the Governor’s bipartisan commission made the same recommendation. And yet New Jerseyans still remain behind bars for unnecessarily long drug sentences.  This outdated policy is hurting our residents, and it’s disproportionately affecting our young men of color.  We can wait no longer. It’s time to act.”

New Jersey Together, a coalition of criminal justice reform advocates, said in a statement that “ending mandatory minimum sentences for non-violent drug crimes prospectively and for those currently incarcerated will be a huge step in the right direction.” “Now, the work should begin with the governor and the Legislature to make this permanent and to end mandatory minimum sentencing as a whole,” the group said.

Amol Sinha, executive director of the ACLU-NJ, said in a statement that even though Grewal’s directive takes “significant steps to mitigate the harms of some of the most problematic mandatory minimums,” his group is “disappointed” because “our state falls short by failing to enact legislation that can promote justice for thousands of New Jerseyans.” Sinha urged the Legislature to concur with Murphy’s veto....

Grewal’s directive allows prosecutors to seek periods of parole ineligibility “when warranted to protect public safety based on the specific facts of the case.”  Advocates have long sought to repeal mandatory minimum sentences, especially those that came about as part of the “War on Drugs.”  For instance, New Jersey imposes harsh mandatory sentences for those caught selling drugs within 1,000 feet of a school, a crime far more likely to harshly punish dealers in denser urban areas and who are more likely to be Black and Hispanic.  At the time of a 2016 report by The Sentencing Project, New Jersey incarcerated white people at a rate of 94 per 100,000 compared to 1,140 for Black and 206 for Hispanic people.

A bill that mirrored the recommendations of the New Jersey Criminal Sentencing & Disposition Commission was nearing the final stages of the the legislative process when Sacco (D-Hudson) quietly requested an amendment to eliminate the mandatory minimum sentences for official misconduct.  Sacco later acknowledged to POLITICO that he requested the amendment. Walter Somick, the son of Sacco‘s longtime girlfriend, is facing several corruption-related charges, including official misconduct, over an alleged no-show job at the Department of Public Worker in North Bergen, where Sacco is mayor and runs a powerful political machine....

“I am cognizant of the fact that Attorney General‘s directives could be changed in a future administration by the stroke of a pen, and thus recognize that there is still a need to permanently codify these changes in statute,” Murphy said. “I remain hopeful that the Legislature will concur with my proposed revisions, which reflect the Commission’s evidence-based recommendations and its desire that these recommendations apply prospectively and retroactively.”

Because I generally view all mandatory minimum sentencing provisions for nonviolent offenses to be problematic, I am a bit disappointed by the veto of the legislative reform here.  But because I generally favor retroactive reforms to enable excessive prior prison terms to be addressed, the retroactive relief made possible by the NJ AG is a comforting related development.  The basics of the AG action is discussed in this official press statement and the full 11-page directive can be accessed at this link.

Prior related posts:

April 20, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Garythe court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

April 19, 2021 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS grants cert on Confrontation Clause case, and Justice Sotomayor has much to say about two criminal case denieal

The Supreme Court is back in action this morning after a short hiatus, getting started with this new order list that has most of its limited action in criminal law cases.  Specifically, the Justices granted certiorari in a single case, Hemphill v. New York20-637, which presents this criminal procedure issue:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

In addition, in Brown v. Polk County, No. 20–982, a case concerning Fourth Amendment requirements for a penetrative cavity search of a pretrial detainee, Justice Sonia Sotomayor issued this lengthy statement respecting the denial of certiorari.  And in Whatley v. Warden, Ga. Diag. & Classification Prison, No. 20–363, a case concerning defense counsel's failure to object to a capital defendant's shackling, Justice Sotomayor issued this lengthy dissent from the denial of certiorari.

April 19, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, April 16, 2021

"Virginia should roll back the punitive influence of prosecutors and victims on parole decisions"

The title of this post is the headline of this new Washington Post op-ed by Nora Demleitner.  Here are excerpts:

The Virginia Parole Board scandal gets worse by the day.  The board stands accused of disregarding state law and its own procedures to facilitate the parole release of a few incarcerated men.

A watchdog report alleges that the board failed to consider the required input from victim families and did not inform them and prosecutors of pending releases.  As some Virginia legislators demand further investigation, we should also question the role victims and their families and prosecutors should play in parole hearings in light of their outsize influence on the outcome.  Release decisions should focus on reintegration and second chances. Only rarely do victims and prosecutors have relevant knowledge on these issues. For that reason, states need to roll back their involvement in release decisions....

Currently, victims and prosecutors effectively determine the outcome of parole decisions.  All states, including Virginia, provide victims with opportunities to weigh in on impending parole releases.  When they do, their impact is substantial. That may not be surprising as victims’ rights groups and prosecutors have labeled releases over victim objections another victimization.  That means in many states, victims exercise a virtual veto over releases.

But inmates eligible for parole do not have to contend only with victims. In many states, prosecutors are explicitly invited to participate in hearings, either by providing their views in writing or in person.  At least one study demonstrates the powerful impact of their testimonials. Prosecutorial recommendations against parole tend to lead to denials. Surprisingly, the opposite does not hold.  Apparently, some boards only credit punitive prosecutors....

Victim participation in parole hearings, strongly supported by prosecutor associations, was an outgrowth of the victims’ rights movement. It promised to counteract the perceived leniency of the criminal justice system and give victims a voice.  But participation fails to provide victims with real support and instead privileges punitiveness, never-ending symbolic revenge. Many victims do not participate in parole hearings.  Their addresses may no longer be on file, or they decided to put the past behind them.  Often only those victims who insist on continued incarceration have garnered publicity and prosecutorial support.  That makes release random and largely dependent on the victim.  This practice reinforces a system marred by vast racial, class and power inequities.

Release review, in the form of parole and other mechanisms, should not re-litigate the conviction offense but rather assess whether the incarcerated person will be able to reintegrate successfully and desist from crime in the future.  It is about second chances. Prosecutors and victims, who have an opportunity to make their case at earlier stages — charging, plea bargaining or a trial and sentencing — will know little about the imprisoned person’s suitability for release, which may first come up decades after the crime.

Deaths and serious crime leave a lasting impact that cannot be undone.  Yet, when an offender becomes parole-eligible, retributive concerns should no longer play a role.  Only in cases in which they could speak to reintegration and recidivism, such as when the incarcerated person recently threatened them, for example, is victim or prosecutor testimony relevant. Otherwise, their input does not advance the assessment of an incarcerated person’s future prospects.  There are more meaningful opportunities for their participation and for society and the criminal justice system to show their support for victims.  Release decisions are the wrong moment.

In its next session, Virginia’s legislators should take another look at parole and recalibrate the focus of release hearings.  Reintegration and second chances mean rolling back the involvement of victims and prosecutors.  It is time to end this ill-guided practice of the carceral state that elevates punitive impulses above rehabilitation and second chances.

April 16, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 14, 2021

"What Is An Excessive Fine? Seven Questions to Ask After Timbs"

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

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities.  Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States — the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian — the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness.  Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness.  This emerging standard can be summarized using the familiar “five W’s (and one H).”

There are seven salient questions: Who committed what offense; when and where; what property is the government taking; how was that particular property involved in the offense; and why does the government want it?  By answering these questions based on all the evidence, courts can determine whether a fine or forfeiture is excessive.

Like the five Ws, the seven questions of excessiveness are open-ended by design.  The meaning of “excessive fine” has been open ended and fact-specific for a long time.  The Eighth Amendment’s standard can be traced through centuries of Anglo-American law.  Yet, the standard has never been reduced to strict factors, rigid formulae, or balancing tests. Instead, the “fundamental” and “deeply rooted” right against excessive economic sanctions requires courts to focus on all the circumstances of a particular offense and particular offender.  Each case is viewed holistically, considering what punishments are available, those already imposed, the effect that additional economic penalties will have on the offender and her community, the government’s motivations, examples in case law, and the historical purposes of the protection against excessive fines.  The rich history of that protection, as Timbs makes clear, is key to understanding the meaning of both the Excessive Fines Clause and the Fourteenth Amendment that makes it applicable to state and local government (like virtually all Bill of Rights protections).

Each of the seven questions is explained with reference to the excessiveness standard announced on remand in Timbs, relevant Supreme Court decisions, and examples from lower courts shedding additional light.  The result is an Eighth Amendment excessiveness standard with contours and shape but little in the way of firm boundaries.  Others have proposed a balancing test; this Article proposes an open-ended inquiry that should be allowed to develop on a case-by-case basis.  Put differently, I regard the indeterminate nature of the excessiveness inquiry as a feature, not a bug, of constitutional design.

April 14, 2021 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Sunday, April 11, 2021

New statement from prosecutors and law enforcement urging review of extreme prison sentences

The Fair and Just Prosecution folks this past week released this joint statement from "64 elected prosecutors and law enforcement leaders ... urging policymakers to create mechanisms to reduce the number of people serving lengthy sentences who pose little or no risk to public safety, including by creating second chances for many in our nation currently behind bars."  (This quoted language comes from this extended press release about the joint statement.)  Here is the start and key section of the statement:

As current and former elected prosecutors and law enforcement leaders from across the country, we know that we will not end mass incarceration until we address the substantial number of individuals serving lengthy sentences who pose little or no risk to public safety.  We call on all other leaders, lawmakers, and policymakers to take action and address our nation’s bloated prison populations.  And we urge our state legislatures and the federal government to adopt measures permitting prosecutors and judges to review and reduce extreme prison sentences imposed decades ago and in cases where returning the individual to the community is consistent with public safety and the interests of justice. Finally, we call on our colleagues to join us in adopting more humane and evidence-based sentencing and release policies and practices.  Sentencing review and compassionate release mechanisms allow us to put into practice forty years of empirical research underscoring the wisdom of a second look, acknowledge that all individuals are capable of growth and change, and are sound fiscal policies....

Therefore, we are committing to supporting, promoting and implementing the changes noted below, and calling on others to join us in this critical moment in time in advancing the following reforms:

1. Vehicles for Sentencing Review: We call on lawmakers to create vehicles for sentencing review (in those states where no mechanisms exist) that recognize people can grow and change.  These processes should enable the many middle aged and elderly individuals who have served a significant period of time behind bars (perhaps 15 years or more) to be considered for sentence modification.... We do not ask that all such persons be automatically released from custody. We ask only that there be an opportunity, where justice requires it, to modify sentences that no longer promote justice or public safety.

2. Creating Sentencing Review Units and Processes: We also urge our prosecutor colleagues to add their voices to this call for change and to create sentencing review units or other processes within their offices whereby cases can be identified for reconsideration and modification of past decades-long sentences.

3. Expanded Use of Compassionate Release: We urge elected officials, criminal justice leaders (including judges, prosecutors and corrections leaders), and others to pursue and promote pathways to compassionate release for incarcerated individuals who are eligible for such relief, including people who are elderly or terminally ill, have a disability, or who have qualifying family circumstances....

4. High Level Approval Before Prosecutors Recommend Decades-Long Sentences: Finally, we urge our prosecutor colleagues to create policies in their offices whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor. 

April 11, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, April 09, 2021

Might new "Commission on the Supreme Court" perhaps consider recommending creating a sentencing supreme court?

The question in the title of this post is my sentencing-addled reaction to this news today from the White House: "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States."

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

Long-time readers know I spend a good bit of time in this space complaining about the fact that SCOTUS does not take up enough sentencing issues (see one recent example here).  Though I seriously doubt that this new Commission will focus on the need I see for a supreme court that takes more sentencing cases, I am always serious in my view that there are many, many important sentencing issues that need more attention.

April 9, 2021 in Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

North Carolina Gov creates "Juvenile Sentence Review Board" to make clemency recommendations

This local story out of North Carolina reports on the creation of an interesting new sentencing review structure created by the state's chief executive.  The full headline of the piece provides the essentials: "Gov. Cooper announces formation of North Carolina juvenile sentence review board: The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate."  Here are more details from the article:

Governor Roy Cooper announced Thursday the formation of the North Carolina Juvenile Sentence Review Board.  The four-person advisory board, established by Executive Order 208, will review certain sentences imposed in North Carolina on individuals who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate.

“Developments in science continue to show fundamental differences between juvenile and adult minds,” said Governor Cooper. “For those who have taken significant steps to reform and rehabilitate themselves, this process can provide a meaningful opportunity for release and a life outside of prison.”

Prior to recommending clemency, commutation, or other action to the Governor, members of the Review Board will conduct a thorough and individualized review based on criteria outlined in the Executive Order, including rehabilitation and maturity demonstrated by the individual. This review will be available to qualifying individuals who have served at least 20 years of their sentence, or at least 15 years in certain instances of consecutive or "stacked" sentences.

In 2017, Governor Cooper signed Senate Bill 445 into law, reducing the wait time for criminal record expungement for first-time, non-violent offenders. Following the passage of Raise the Age legislation, the Governor also signed a proclamation recognizing the expansion of juvenile jurisdiction in North Carolina.

The North Carolina Juvenile Sentence Review Board is a recommendation of the Governor’s Task Force for Racial Equity in Criminal Justice which found that the group of people included in this Executive Order are disproportionately Black. The full report of the Task Force is available here.

The Governor appointed the following individuals to the North Carolina Juvenile Sentence Review Board: Marcia Morey of Durham as Chair. Morey is the Representative for House District 30.... Henry McKinley “Mickey” Michaux Jr. of Durham is a civil rights activist and former member of the North Carolina General Assembly.... Thomas G. Walker of Charlotte is a Partner at Alston & Bird and former U.S. Attorney for the Eastern District of North Carolina.... Allyson K. Duncan of Raleigh is a former judge on the United States Court of Appeals for the Fourth Circuit and the North Carolina Court of Appeals....

The full text of Executive Order 208 establishing the "Juvenile Sentence Review Board" is available at this link.

I noticed a thoughtful person on Twitter react to this news by wisely wondering why Prez Joe Biden has not yet created something like this (ideally for all offenders).  After all, as I have noted in prior posts, the Biden-Sanders Unity Task Force expressly talked about "establish[ing] an independent clemency board, composed and staffed by people with diverse backgrounds [and expanding] Obama-era criteria for proactive clemency initiative to address individuals serving excess sentences."  The current White House has recently called for all persons to help "ensure that America is a land of second chances and opportunity for all people," but we are still awaiting Prez Biden to go from talking the talk to walking the walk.

A few of many prior related posts on federal clemency reforms:

April 9, 2021 in Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 08, 2021

Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority

When it rains it pours, at least wih respect to compasionate release rulings these days.  In this last post, I called a Fifth CIrcuit decision handed down yesterday the latest such ruling.  But, thanks to people on Twitter smarter than me, I learned that the Ninth Circuit issues a ruling on this topic today in US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021) (available here). Here is the start and a key paragrph of the ruling:

Patricia Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an “applicable policy statement[] issued by the Sentencing Commission” for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard....

We agree with the persuasive decisions of our sister circuits and also hold that the current version of U.S.S.G. § 1B1.13 is not an “applicable policy statement[]” for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.  In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant.  The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding. See Gunn, 980 F.3d at 1180.

A few of many, many prior related posts:

April 8, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, April 06, 2021

Recommendations for needed reform to Massachusetts clemency process

Via this new Boston Globe editorial, fully headlined "State parole board, clemency process need reform: The Massachusetts Bar Association makes the case for more ‘justice’ at the end of the criminal justice pipeline," I saw that the Bay State's bar association issues an interesting new report on clemency last month. Here are some of the basics via the start of the editorial:

A good deal of attention has focused this past year on policing — the input part of the criminal justice process — but what about the other end of that pipeline? What about those already caught up in the system but looking for clemency as a way out of a long and often unjust sentence?

For them, in Massachusetts, the only exit runs through a seven-member board, a body dominated by those with law enforcement backgrounds that in the past six years has held only one commutation hearing — last October — while some 240 petitions for clemency have been pending. The state Parole Board has basically served as a traffic cop, stalling those petitions, which means that, with rare exception, they never reach the governor’s desk.

Now the Massachusetts Bar Association is putting its considerable heft behind efforts to restructure and broaden the board (also known as the Advisory Board of Pardons when it’s dealing directly with a commutation or pardon), force it to hold to reasonable time standards for acting on petitions, and modernize its guidelines to ensure a “fair, racially unbiased” process.

“In the Commonwealth of Massachusetts, the power of clemency is an under-utilized tool that should be applied on a case-by-case basis to address systemic failures, such as the racial injustice that permeates every step of our criminal legal system,” the MBA’s Clemency Task Force wrote in its recent report to the MBA House of Delegates. That body recently approved a number of resolutions aimed at guiding those reforms.

The full 16-page report of the MBA Clemency Task Force is available at this link.

April 6, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 05, 2021

SCOTUS grants cert to address circuit split over "harmlessness" in federal habeas review

The US Supreme Court's order list this morning includes one cert grant, and it is a habeas case out of the Sixth Circuit: Brown v. Davenport, No. 20-826.  Here is how Michigan's cert petition frames the issue to be considered in this case (which will likely get argued in the fall during the next SCOTUS term):

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.”  Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test.  The question presented is:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

April 5, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, April 03, 2021

"Science and the Eighth Amendment"

The title of this post is the title of this book chapter by Meghan Ryan just made available via SSRN.  Here is its abstract:

As time hurtles forward, new science constantly emerges, and many scientific fields can shed light on whether a punishment is unconstitutionally cruel and unusual, or even on whether bail or fines are unconstitutionally excessive under the Eighth Amendment.  In fact, in recent years, science has played an increasingly important role in the Court’s Eighth Amendment jurisprudence.  From the development of an offender’s brain, to the composition of lethal injection drugs, even to measurements of pain, knowledge of various scientific fields is becoming central to understanding whether a punishment is unconstitutionally cruel and unusual. 

There are a number of limits to how the Court can weave science into its decisions, though.  For example, relevant data are difficult to come by, as ethical limitations prevent a wide swath of focused research that could be useful in this arena.  Further, the Justices’ understandings of the complicated science that can help inform their Eighth Amendment decisions are limited.  This chapter examines the relevance and limitations of science — both physical and social — in Eighth Amendment analyses.

April 3, 2021 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 01, 2021

Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act

I flagged here earlier this week the notable Tenth Circuit opinion regarding compassionate release authority after the FIRST STEP Act in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  A helpful reader made sure I did not miss a similar ruling also from the Tenth Circuit today in US v. Maumau, No. 20-4056 (10th Cir. April 1, 2021) (available here).  The Maumau name may sound familiar because, as noted here, the district court ruled "that the changes in how § 924(c) sentences are calculated" after the FIRST STEP Act could help serve as a "compelling and extraordinary reason" to justify resentencing.  The Tenth Circuit today affirms that ruling today in an extended opinion that makes these points at the end of the opinion:

In its third and final issue, the government argues that, “[i]n addition to the controlling [statutory] texts, the relevant legislative history and the structure of the sentencing system also show that a court cannot use the compassionate release statute to override a mandatory sentence based on the court’s disagreement with the required length” of such a sentence.  Aplt. Br. at 39-40.  The underlying premise of this argument is that the district court in the case at hand granted relief to Maumau based upon its disagreement with the length of his statutory sentence.

We reject the government’s argument because its underlying premise is incorrect.  Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions.  Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular.  Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today, . . . would not be subject to such a long term of imprisonment.”

A few of many, many prior related posts:

April 1, 2021 in FIRST STEP Act and its implementation, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notably split Sixth Circuit panel finds way-above guideline felon-in-possession sentence to be substantively unreasonable

Earlier this week, a Sixth Circuit panel handed down a split (unpublished) opinion finding an above-guideline sentence substantively unreasonable in US v. Stanton, No. 20-5320 (6th Cir. Mar. 30, 2021) (available here).  Any and every circuit ruling that finds a sentence substantively unreasonable is quite notable because such opinions are quite rare — for example, USSC data shows only six such reversals in Fiscal Year 2019 and only eight such reversals in Fiscal Year 2020.  (Indeed, with this Sixth Circuit Stanton ruling finding an above-guideline sentence substantively unreasonable handed down on the same day that the Fourth Circuit found a within-guideline sentence substantively unreasonable in Freeman (discussed here, opinion here), one might be tempted to remember March 30, 2021 as an historic day for reasonableness review.)

The majority and dissenting opinions in Stanton are worth full reads, and here is how the majority opinion gets started and wraps up:

Dustin Stanton challenges his 108-month sentence for one count of unlawful possession of a firearm as substantively unreasonable.  Stanton argues that the district court did not provide sufficiently compelling reasons to justify nearly tripling his maximum guideline sentence of 37 months.  We agree.

In sum, based on the reasons it provided at sentencing, the district court “placed too much weight on the § 3553(a) factors concerning criminal history [and] deterrence . . . without properly considering sentencing disparities.”  See Perez-Rodriguez, 960 F.3d at 758. “By ‘relying on a problem common to all’ defendants within the same criminal history category as [Stanton]—that is, that they have an extensive criminal history — the district court did not give a sufficiently compelling reason to justify [its extreme variance].” Warren, 771 F. App’x at 642 (quoting United States v. Poynter, 495 F.3d 349, 354 (6th Cir. 2007)).  Though Stanton’s continued recidivism and his previous 84-month sentence for the same crime may ultimately warrant an upward variance, they are not — without more — sufficiently compelling justifications for nearly tripling his maximum guideline sentence for a mine-run offense.  See Boucher, 937 F.3d at 714 (vacating sentence as substantively unreasonable and noting that “after the district court reweighs the relevant § 3553(a) factors” the defendant “may or may not be entitled to a” variance).

And here is how Judge Thapar starts and ends his dissent:

District judges are not at liberty to turn a blind eye to reality at sentencing.  Instead, the sentencing factors in the United States Code require judges to consider the real-world consequences of a prison term.  Will the sentence protect the public?  Will it deter the defendant?  What does a defendant’s criminal history tell the court about his likelihood of recidivism?  Are there positive factors that might cut the other way?  The sentencing guidelines help answer these questions.  But district judges understand better than most that the guidelines are not binding for a reason: They don’t fit every case.  Especially one like Dustin Stanton’s.  Here, a conscientious district judge had a violent, repeat offender in front of him.  The last time Stanton was in federal court, Judge Waverly Crenshaw’s colleague sentenced him to 84 months.  Barely a year after his release, Stanton was back — as violent as ever, and for the same offense.  So Judge Crenshaw did what good judges do.  He balanced the sentencing factors and came up with a fair sentence: 108 months.  I respectfully dissent from making him do it again....

Fair sentencing is a key goal of our criminal justice system. The sentencing guidelines help further that goal. Still, district judges must exercise independent judgment when imposing a sentence. Sometimes the reality of a case justifies a variance downward. Sometimes, it justifies the opposite. Here, Judge Crenshaw decided that Stanton’s case called for an upward variance. That decision was reasonable. Thus, I respectfully dissent.

April 1, 2021 in Booker in district courts, Booker in the Circuits, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor

A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here).  I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case.  Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....

Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....

In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...

Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable.  To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them.  While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture.  And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.

Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:

This sad case illustrates the opioid epidemic ravaging our country.  Precias Freeman is a victim of this epidemic.  As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life.  As a fellow citizen, I am heartbroken over the toll her addiction has levied.  But Freeman chose to be a culprit too.  By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others.  Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone.  The majority vacates Freeman’s sentence for two reasons.  It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community.  One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law.  And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture.  I dissent.

For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.

March 30, 2021 in Booker in the Circuits, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act

I was pleased to see late yesterday another important circuit ruling on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts, I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have long considered this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced on a variety of grounds. 

The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts have now broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  Not long thereafter, the Fourth, Sixth, and Seventh Circuits issued somewhat similar opinions generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine whether and when "extraordinary and compelling" reasons may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion.  Yesterday, the Tenth Circuit joined the fun with its extended panel opinion in US v. McGee, No. 20-5047 (10th Cir. Mar. 29, 2021) (available here).  Here is how this opinion gets started:

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b); and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b).  Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress’s enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling reasons.”  The district court denied that motion.  McGee now appeals.  Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee’s motion.

Though there are various elements to the McGee ruling, I was especially glad to see the panel explain effectively why it was improper for the district court to decide it could not grant a sentence reduction simply because Congress has not (yet) decided to make the sentencing changes in the FIRST STEP Act fully retroactive.  Here is part of the court's discussion on this point (emphasis in the original):

The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).  But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.  Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting § 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless justify a [sentence] reduction.” Id. at 287 (emphasis in original).  Thus, the possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.

A few of many, many prior related posts:

March 30, 2021 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 29, 2021

Still considering cert, SCOTUS orders additional letter briefing in method-of-execution case out of Missouri

As noted here, the US Supreme Court had fully briefed last November a set of notable questions about how modern Eighth Amendment method-of-execution claims are to be properly resolved.  The Justices considered Johnson v. Precythe, No. 20-287, a case emerging from Missouri, at numerous conferences before today finally having this interesting direction on its order list:

JOHNSON, ERNEST V. PRECYTHE, ANNE L., ET AL.

The parties are directed to file supplemental letter briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?  Petitioner’s brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 12, 2021.

Respondents’ brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 26, 2021.

Sounds like the Court may be looking for an easy way to boot this case, but perhaps folks with more experience with this intricate universe of litigation may be able to read more (or less) into this order than just that.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

SCOTUS summarily reverses Sixth Circuit's reversal of state conviction based on ineffective assistance

The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below.  Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:

A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel.  Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel.  But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man.  In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court.  This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies “‘beyond any possibility for fair-minded disagreement.’” Shinn v. Kayer, 592 U.S. ___, ___ (2020) (per curiam) (slip op., at 1); 28 U.S.C. §2254(d).  We now reverse....

The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion.  We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals.

Notably, Justice Sonia Sotomayor dissented from this per curiam ruling, but without any opinion, so this was technically an 8-1 error correction.

March 29, 2021 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, March 28, 2021

Senators Durbin and Grassley introduce new "First Step Implementation Act"

As detailed in this press release, on Friday "U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act (FSA), introduced the bipartisan First Step Implementation Act, legislation that aims to further implement the FSA and advance its goals." Here is more from the release:

“In 2018, Congress came together to pass the most important criminal justice reform laws in a generation.  The First Step Act passed by overwhelming bipartisan majorities and was supported by a broad coalition of conservative and progressive groups alike,” Durbin said.  “I was proud to champion this landmark legislation with my friend and colleague, Senator Grassley.  Now we are committed to working together on a bipartisan basis to ensure that the First Step Act and its goals are successfully implemented.”

“Our 2018 criminal justice reforms were the most significant in a generation.  We ought to be doing all we can to ensure their proper implementation.  This new bill now also ensures we make good on the intent of the First Step Act, and further builds on the ideas that led to its passage,” Grassley said.

The First Step Implementation Act of 2021 would further the goals of the FSA by:

  • Allowing courts to apply the FSA sentencing reform provisions to reduce sentences imposed prior to the enactment of the FSA;
  • Broadening the safety valve provision to allow courts to sentence below a mandatory minimum for nonviolent controlled substance offenses, if the court finds the defendant’s criminal history over-represents the seriousness of the defendant’s criminal record and the likelihood of recidivism;
  • Allowing courts to reduce sentences imposed on juvenile offenders who have served more than 20 years;
  • Providing for the sealing or expungement of records of nonviolent juvenile offenses; and,
  • Requiring the Attorney General to establish procedures ensuring that only accurate criminal records are shared for employment-related purposes.

March 28, 2021 in FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, March 27, 2021

"Focusing Presidential Clemency Decision-Making"

The title of this post is the title of this new paper now available via SSRN authored by Paul J. Larkin, Jr. Here is its abstract:

The Article II Pardon Clause grants the President authority to grant clemency to any offender.  The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary.  The clause authorizes the President to grant clemency as he sees fit, but does not tell him when he should feel that way.

As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven.  Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s clemency process, has recommended a rigorous standard for Presidents to use when making clemency decisions.  The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship.  The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

This Article offers a way to make clemency decisions in a reasonable, orderly manner that would systematize and regularize the Pardon Attorney’s recommendation process and Presidential decision-making.  Pardons and commutations differ from each other in material ways, and Presidents should analyze them separately.  In the case of pardons, Presidents should answer a series of questions — an algorithm, if you will — that would guide them when deciding whether to forgive an offender.  In the case of commutations, Presidents should make decisions on a category-by-category basis, rather than try, in effect, to resentence each offender.  Together, those approaches would help Presidents make objectively based decisions that are consistent with longstanding rationales for punishment and the purposes of the criminal justice system.  The hope is that, in so doing, Presidents will be able act justly as well as to persuade the public that the federal clemency system is open to all, not merely to the President’s financial or political allies, cronies, supporters, or people he knows.  The focused approaches suggested here should help Presidents create the fact and appearance of objectivity in clemency decision-making.

March 27, 2021 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 22, 2021

Notable SCOTUS partners urging (unavailable) USSC to clarify a guideline point

As noted before, the big SCOTUS news today for sentencing fans was the Justices' decision to grant cert to reconsider the reversal of the federal death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  (How Appealing collects some of the major media coverage here).  But for federal guideline gurus, the SCOTUS order list also included a fascinating little statement by Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Longoria v. United States, No. 20–5715. 

For starters, though seeing Justices Sotomayor and Gorsuch together might surprise some, folks who follow non-capital sentencing jurisprudence likely know that these two often speak in harmony on these kinds of issues.  More notable is what these Justices had to say within a three-paragraph statement focused on the application of one of the few downward adjustments in the US Sentencing Guidelines.  Here are highlights:

This petition implicates an important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b).  Most Circuits have determined that a suppression hearing is not a valid basis for denying the [extra one-point acceptance of responsibility] reduction....  A minority of Circuits have concluded otherwise.  In this case, for example, the Fifth Circuit accepted the Government’s refusal to move for a reduction after it had to prepare for a 1-day suppression hearing....

The Sentencing Commission should have the opportunity to address this issue in the first instance, once it regains a quorum of voting members. [FN*]  Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  I write separately to emphasize the need for clarification from the Commission.  The effect of a one-level reduction can be substantial.  For the most serious offenses, the reduction can shift the Guidelines range by years, and even make the difference between a fixed-term and a life sentence.  The present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced. When the Commission is able, it should take steps to ensure that § 3E1.1(b) is applied fairly and uniformly.

[FN*] Currently, six of the seven voting members’ seats are vacant.  The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.  See U.S. Sentencing Commission, Organization (Mar. 18, 2021), https://www.ussc.gov/about/who-weare/organization.

I am very pleased to see a couple Justices flag this issue, and I especially like the emphasis that the "effect of a one-level reduction can be substantial."  In other words, kudos to these Justices for making the point that even a single guideline point can be a big deal. (And I suspect that this sentence alone may end up in a lot of future briefs.)  I also like a high-profile shout out to a (non-functional) Sentencing Commission to take up this matter. 

But the split noted here has been kicking around for decades, meaning that the Commission has already long been able to, and long failed to, address this issue.  Moreover, because the Sentencing Commission currently lacks a quorum, practically speaking, it will not be able to address this issue until at least 2022 even if future members are eager to do so.

For the entire history of the federal sentencing guidelines, and as explained in the 1991 SCOTUS Braxton ruling, the Supreme Court has generally left it to the Commission to resolve conflicts over guideline interpretation.  I understand the thinking behind this kind of deflection (although I flagged some concerns in a long-ago article, The Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Fed. Sent. Rep. 142 (1994)).  Now that the guidelines are "effectively advisory," there is arguably even stronger reasons for SCOTUS not to spend its limited time on the resolution of circuit conflicts over guideline interpretation.

Still, this kind of case leaves me wondering if, at some point, the Justices can and should be prepared to actually adjudicate guideline matters that have long festered and allows "similarly situated defendants [to possibly] receive substantially different sentences depending on the jurisdiction in which they are sentenced."  Moreover, here we have a guideline provision being applied to functionally punish defendants seeking to vindicate constitutional rights through a court motion, a type of guideline issue which might be especially appropriate for the Supreme Court's intervention.

March 22, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, March 21, 2021

Another deep look into the deep connections that eased the path to a clemency grant by Prez Trump

I sincerely wish the press would start focusing a lot more on compelling cases of persons who have not received clemency in our (pandemic-scarred) nation defined by mass incarceration and mass punishment.  But I suppose I understand why there is still interest and concern about how Prez Trump made clemency decisions and about who won the most recent round of the federal clemency lottery. 

Today this story is front-page news in the New York Times under this full headline: "Access, Influence and Pardons: How a Set of Allies Shaped Trump’s Choices: A loose collection of well-connected groups and individuals led by a pair of Orthodox Jewish organizations had striking success in winning clemency for white-collar criminals during the Trump presidency."  Here are excerpts from this lengthy piece:

The efforts to seek clemency for [various] wealthy or well-connected people benefited from their social, political, or financial ties to a loose collection of lawyers, lobbyists, activists and Orthodox Jewish leaders who had worked with Trump administration officials on criminal justice legislation championed by Jared Kushner.

That network revolved around a pair of influential Jewish organizations that focus on criminal justice issues — the Aleph Institute and Tzedek Association — and well-wired people working with them, including the lawyer Alan M. Dershowitz, Brett Tolman, a former U.S. attorney for Utah, and Nick Muzin, a Republican operative....

Of the 238 total pardons and commutations granted by Mr. Trump during his term, 27 went to people supported by Aleph, Tzedek and the lawyers and lobbyists who worked with them. At least six of those 27 went to people who had been denied clemency through the official Justice Department process during the Obama administration.

Over the years, at least four of those who received clemency or their families had donated to Aleph. Others or their allies and families had retained people like Mr. Dershowitz, who represented Mr. Trump in his first impeachment trial, Mr. Tolman and Mr. Muzin to press their cases before the Trump administration, often working in parallel with Aleph and Tzedek, according to public records and interviews.

The groups were not the only ones who had success with Mr. Trump. Alice Marie Johnson, an advocate for fairer sentencing who had her own drug conviction pardoned by Mr. Trump, was credited by the White House for championing 13 clemency grants, many of which went to drug offenders and African-American defendants given disproportionately long prison terms.

While Aleph worked with Ms. Johnson on some clemency cases — including for people convicted of nonviolent drug crimes — Aleph, Tzedek and their allies stood out for their success at winning clemency for white-collar offenders who had left a damaging trail of fraud in their wake. The majority of those who won clemency with their help had been convicted of financial crimes.

It was a new chapter especially for Aleph, which has long worked on behalf of people facing dire situations in the criminal justice system. Aleph has for years appealed for more lenient sentencing rules and pressed judges to reduce jail time in individual cases, while providing social and religious services to prisoners and their families. It only began seeking presidential clemencies during the Obama administration — and failed to secure any such grants until Mr. Trump took office.

The leaders of Aleph, Tzedek and their allies played a role in helping build support for a sweeping rewrite of federal sentencing laws in 2018, winning bipartisan praise and bolstering their clout in the administration.....

In the world of criminal defense lawyers and clemency seekers, Aleph, Tzedek and the people working alongside them came to be seen as among the most effective avenues to clemency, including for financial crimes of the sort that are usually less likely to garner support from criminal justice activists.

A spokesman for Aleph said the group selected candidates based on factors including humanitarian concerns, clear demonstrations of remorse and its commitment to addressing what it often sees as excessively long sentences. He acknowledged that Aleph had accepted donations from people whose clemencies its officials later supported to one degree or another, but said the group did its clemency work at no cost, and would not accept donations from people while working on their clemencies.

I am eager to note here that I have worked with a variety of folks connected to the Aleph Institute in a variety of settings for more than a decade.  I have sometimes helped in various ways in specific cases in which Aleph is advocating for a particular defendant to serve less prison time, and I have often been eager to participate in various ways in the great criminal justice reform conferences that Aleph has helped put on.

A few of many recent related posts:

March 21, 2021 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, March 20, 2021

SCOTUS appoints counsel (and delays argument) after new government position on crack sentencing retroactivity issue in Terry

As noted in this prior post, earlier this week the Acting Solicitor General informed the US Supreme Court that the government had a new (pro-defendant) position in Terry v. United States, No. 20-5904, the SCOTUS case concerning which crack offenders have a so-called "covered offense" under Section 404 of the FIRST STEP Act to allow for their retroactive resentencing.  The Supreme Court yesterday responding via this order in the Terry case:

The case is removed from the calendar for the April 2021 argument session.  Adam K. Mortara, Esquire, of Chicago, Illinois, is invited to brief and argue this case, as amicus curiae, in support of the judgment below.  The case will be rescheduled for argument this Term.

In other words, the Court appointed a lawyer to make the case against broad retroactive resentencing for certain crack offenders after the government said it no longer supported that position.  Doing so is not unusual when the parties agree on an outcome different from the decision below.  What is relatively unusual is that this appointment needed to be made long after cert was granted and briefing complete because of the Acting SG's new position on the merits.

I am pretty sure, under normal circumstances, the April argument session is the last one of a usual SCOTUS Term. But in our current a world of online arguments and disrupted timelines, perhaps the Justices can and will schedule this one argument for some time in May.  The Acting SG noted that the defendant in this case is due to finish the imprisonment portion of his sentence this September, and it would seem the Court is remains eager to resolve this matter before it takes its summer break.

Prior related posts on Terry:

March 20, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, March 19, 2021

Notable new review and accounting of COVID and federal compassionate release results

Vice News has this effective and thorough new piece bringing together a lot of notable data on federal compassionate release in the COVID era under the full headline "Prisoners Keep Dying of COVID While ‘Compassionate Releases’ Stall in Court: At least 54 federal prisoners have died from COVID-19 after having a compassionate release request denied or left pending."  Though the headline is focused on prisoner deaths, the lengthy article covers a lot of ground is worth reading in full.  Here are excerpts (with links from the original):

Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.

Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction....

But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air. “You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”

Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News.  The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom. 

Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. 

From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.

In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.

The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.

The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.

A few of many prior related posts:

March 19, 2021 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 18, 2021

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

March 18, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, March 17, 2021

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

March 17, 2021 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, March 15, 2021

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, March 13, 2021

"From Damage Caps to Decarceration: Extending Tort Law Safeguards to Criminal Sentencing"

The title of this post is the title of this new article on SSRN authored by Andrea Roth and Jane Bambauer.  Here is its abstract:

The Supreme Court has recognized a civil defendant’s substantive due process right not to be subject to grossly excessive punitive damage awards.  Such awards — even if furthering legitimate state interests in retribution and deterrence — must not be grossly disproportionate to the compensatory damages reflecting the actual harm suffered by the plaintiffs.  More concretely, the “multiplier” — the ratio of punitive to compensatory damages — cannot be too high, with anything exceeding a 10:1 ratio deemed presumptively excessive.  This Article is the first to argue that a similar test should guard against grossly excessive criminal punishments; indeed, it seems odd that large corporations committing civil wrongs enjoy greater protection against overpunishment than criminal defendants, given the devastating effects of mass incarceration, particularly on communities of color.

As we show, there are compelling constitutional, logical, and policy reasons to ensure that criminal punishments are not grossly disproportionate to the harm caused.  In turn, although criminal courts might find the task of estimating the harm caused by a crime unfamiliar, we show how this could be done through surveys measuring the prison time a would-be victim would be willing to endure to avoid the crime.  Scholars have used such error-preference surveys in other legal contexts, but not yet in determining proportionality of punishment.  We offer a survey example as proof of concept and fodder for future research, and we report initial results corroborating the intuition that some crimes routinely trigger sentences grossly disproportionate to harm caused.  Whether or not criminal courts impose due process limits on punishment, our arguments and findings can be wielded by litigants, judges, and policy advocates to argue for lower sentences in individual cases, as well as to push for critically overdue sentencing reform.

March 13, 2021 in Examples of "over-punishment", Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)