Thursday, March 21, 2019

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

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

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

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

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

March 21, 2019 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, March 20, 2019

Post-Johnson litigation creates intricate procedural debates in Eleventh Circuit

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

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

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

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

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

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

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

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

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

Tuesday, March 19, 2019

"Misdemeanor Appeals"

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

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

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

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

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

Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case

I learned last night of a remarkable new four-page order entered in US v. Marks, No. 03-CR-6033 (WDNY March 14, 2019) (available for download below).  Chad Marks' case has been followed for years by clemency advocates like Amy Povah, and this CAN-DO profile page has lots of background materials about his case, his requests for clemency, and all the positive work he has done since being sentenced many years ago to 40 mandatory prison years due to extreme recidivist stacking § 924(c) firearm charges. 

As informed readers know, the FIRST STEP Act eliminated the provisions of federal law that had required multiple § 924(c) firearm mandatory-minimum sentences to be stacked to include recidivist 25-year terms.  But it did not make this change retroactively applicable to offenders like Mr. Marks' who were subject to its severe terms in prior years.  This new order by US District Judge David Larimer speaks to this reality, and here is part of what it has to say:

Although the First Step Act and the Guideline changes referenced in it benefit many, it does not appear that Marks would benefit directly because the changes to Section 924(c) do not appear to be retroactive. One option now is for those in the system to say to Mr. Marks, “too bad, the changes don’t apply to you and you must serve the lengthy remainder of your 40-year term, and perhaps die in jail.”

Chad Marks has now filed a pro se motion (Dkt. #491) requesting this Court, in part, to request the United States Attorney for the Western District of New York, James P. Kennedy, Jr., to consent to vacating one of Marks’ Section 924(c) convictions, which would, in effect, remove the draconian, mandatory 25-year consecutive sentence.

Admittedly, this is not a typical request. Marks makes this request, though, relying on several cases from other districts throughout the country where the U.S. Attorney did precisely what Marks seeks here. Marks relies principally on the case of U.S. v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). That thoughtful opinion is annexed to Marks’ motion as Exhibit A. In the Holloway case, the defendant was convicted of three Section 924(c) violations for three separate car jackings over a two-day period. He received a mandatory sentence of 57 years. In Holloway, District Judge John Gleeson remarked that such a stacking sentence “would be laughable if only there weren’t real people on the receiving end of them.”

Prosecutors spend their days seeking convictions and appropriate sentences. What is sought here is different, but in his decision in Holloway, Judge Gleeson praised the U.S. Attorney for the Eastern District of New York for agreeing to vacate a prior conviction in that particular and unusual case. He noted that prosecutors can and should use their vast power to remedy injustices in an appropriate case.

So, what to do?  Does this defendant, Chad Marks, deserve this remedy? In my more than 30 years as a district court judge, I have never known a prisoner to do more to make changes in his life while incarcerated. Marks’ acts and accomplishments while incarcerated for the last decade are truly extraordinary. Marks has obtained a college degree, participated in about 100 rehabilitative programs, has received numerous awards and citations, is engaged as a GED teacher and has mentored other inmates. Marks has recounted many of these accomplishments in his motion (Dkt. #491, page 7). The record reflects extraordinary accomplishments.

Extraordinary cases require extraordinary care and sometimes extraordinary relief.  I urge all to review Judge Gleeson’s thoughtful decision in the Holloway case. The criminal “justice” system is about justice and fairness ultimately.  Chad Marks was convicted of serious crimes, but I believe that Marks is not a danger and is not now the person convicted of these charges in 2008, which involved a rather small-scale drug case.  All of Marks’ co-defendants have completed their sentences.

I request that the United States Attorney for the Western District of New York, James P. Kennedy, Jr., carefully consider exercising his discretion to agree to an order vacating one of Marks’ two Section 924(c) convictions.  This would eliminate the mandatory 25-year term that is now contrary to the present provisions of the statute. Congress has now recognized the injustice of “stacking.”

To facilitate that review, I request that Marks’ appointed counsel, Jillian S. Harrington, Esq. provide a filing listing in detail the many, many accomplishments, awards and other matters involving Marks while he has been incarcerated. In addition, counsel should list the scores of rehabilitative programs that Marks successfully completed.  Marks has described many of his accomplishments in his pending motion, but I leave it to counsel to provide a detailed supplement to assist the U.S. Attorney’s review as well as this Court’s.

Download 3-18-19 LARIMER ORDER

I am so very pleased to see this federal judge enter this formal order urging the US Attorney to vacate a charge in order to do justice in this extraordinary and compelling case.  However, I keep using the term "extraordinary and compelling" in this post because I do not think the federal judge here has to rely on the US Attorney to do justice in this case now that the FIRST STEP Act has changed the process around judicial consideration of sentence modifications under 18 U.S.C. § 3582(C)(1)(A).

As noted in this prior post, the FIRST STEP Act now provides that an inmate can bring a request to "modify a term of imprisonment" directly to a sentencing court (rather than needing a motion made by the Bureau of Prison) based on the claim that "extraordinary and compelling reasons warrant such a reduction." This is what gets described often as the "compassionate release" provision of federal law, and most generally assume that it is only applicable to sick and dying prisoners. But, ever the textualist, I am eager to highlight to everyone that Congress only formally requires a judge to find "extraordinary and compelling reasons warrant such a reduction." As I read this new Marks order, I think Judge Larimer has already essentially made such a finding.

That all said, even though I think Judge Larimer has authority to do justice for Mr. Marks without awaiting action by the local US Attorney, I still think it strategically wise to see the prosecution's involvement in his effort to do justice. With the buy-in by the local prosecutor and vacating of a one of Mr. Marks' 924(c) convictions, there would likely be no appeal and likely no impediment to a Mr. Marks getting released in short order. If Judge Larimer were to act on his own using § 3582(C)(1)(A), however, the feds could possibly appeal and seek to block any early release.

March 19, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 18, 2019

SCOTUS takes up Miller retroactivity, unanimous juries, the insanity defense and criminal preemption in latest order list!

The Supreme Court is back in action this morning and today's order lists includes a list of four cases in which certioriari is granted.  Four criminal grants would enough to warm a chilly morning for me, but all four cases involve fairly "big ticket" concerns.  With the help of SCOTUSblog, here is the list of granted cases: 

Mathena v. Malvo18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

 

Ramos v. Louisiana18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

 

Kahler v. Kansas18-6135

IssueWhether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

 

Kansas v. Garcia, 17-834

Issue: Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

With so many Graham and Miller follow-up cases in the pipeline, I am not especially thrilled to see the Justices now decide to take up the Malvo case involving a government appeal of a (high-profile) defendant's win on a Miller retroactivity issues. Still, in the wake of the interesting mess that was Montgomery (see my little commentary, "Montgomery's Messy Trifecta), and the addition of two new Justices since then, I am grateful that these enduringly important issues are getting any at all.

Meanwhile, as the Malvo case might only cover a little issue, Ramos, Kahler and Garcia all cover big issues on a big canvas (though the result in Ramos seems easy to predict).  And, as always, I welcome reader input on what to expect or look forward to in these arenas.

March 18, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, March 13, 2019

New California Gov to order moratorium on executions in his state

As reported in this local piece, headlined "Gov. Gavin Newsom to stop death penalty in California, giving reprieves to 737 death row inmates," there is big death penalty news from the Golden State.  Here are the details:

Gov. Gavin Newsom is putting a moratorium on the death penalty in California, sparing the lives of more than 700 death-row inmates.  Newsom plans to sign an executive order Wednesday morning granting reprieves to all 737 Californians awaiting executions – a quarter of the country’s death row inmates.

His action comes three years after California voters rejected an initiative to end the death penalty, instead passing a measure to speed up executions.

Newsom says the death penalty system has discriminated against mentally ill defendants and people of color. It has not made the state safer and has wasted billions of taxpayer dollars, according to prepared remarks Newsom plans to deliver Wednesday morning when he signs the order.

“Our death penalty system has been – by any measure — a failure,” Newsom plans to say. “The intentional killing of another person is wrong. And as governor, I will not oversee the execution of any individual.”

California has not executed anyone in more than a decade because of legal challenges to the state’s execution protocol. But executions for more than 20 inmates who have exhausted their appeals could have resumed if those challenges were cleared up, and Newsom has said he worried that it could happen soon.

Newsom has been a longtime opponent of the death penalty. While campaigning for a measure to repeal the death penalty in 2016, he told The Modesto Bee editorial board he would “be accountable to the will of the voters,” if he were elected governor. “I would not get my personal opinions in the way of the public’s right to make a determination of where they want to take us” on the death penalty, he said.

The moratorium will be in place for the duration of Newsom’s time in office, the governor’s office said. After that, a future governor could decide to resume executions.

California is one of 31 states with capital punishment.  In recent years, other states have abolished the death penalty and several other governors have placed moratoriums on executions. The California Constitution gives the governor power to grant reprieves to inmates, providing he reports his reasoning to the Legislature.

But Newsom’s action will anger death penalty proponents. “The voters of the State of California support the death penalty.  That is powerfully demonstrated by their approval of Proposition 66 in 2016 to ensure the death penalty is implemented, and their rejection of measures to end the death penalty in 2016 and 2006, said Michele Hanisee, president of the Association of Deputy District Attorneys, in a statement late Tuesday.  “Governor Newsom, who supported the failed initiative to end the death penalty in 2006, is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty.”

Preventing executions through a blanket action is an abuse of the governor’s power, death-penalty supporter Kent Scheidegger told The Bee in an interview earlier this month. The governor’s clemency powers are designed to correct individual cases of injustice, said Scheidegger, legal director for the Criminal Justice Legal Foundation.  “It’s not supposed to be a weapon for blocking the enforcement of the law that the people have passed just because the governor disagrees with it,” Scheidegger said.

In addition to the moratorium, Newsom’s order will also withdraw California’s legal injection protocol and close the execution chamber at San Quentin, where all death row inmates are imprisoned.  Those on death row will remain in prison under the order.

I suspect this moratorium order may be challenged in court, but I doubt there is functionally much that can be done to undo this moratorium given that there has been de facto moratorium in place for more than a decade already.

UPDATE: Over at California Correctional Crisis, Hadar Aviram has this lengthy posting about the moratorium and its implications under the title "Moratorium!!! What Does It Mean?"

ANOTHER UPDATE: This press release from Governor Newsom's office provide a link to this official executive order which orders, inter alia, the "executive moratorium ... in the forms of a reprieve for all people sentenced to death in California."  And I have now seen that Prez Trump had this tweet about this development this morning: "Defying voters, the Governor of California will halt all death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!" 

March 13, 2019 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Thursday, March 07, 2019

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

March 7, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, March 06, 2019

Norfolk prosecutor appealing to Virginia Supreme Court after circuit judges denied effort to dismiss marijuana cases on appeal

In this post a few weeks ago, I report on an interesting tussle over low-level marijuana prosecutions in Norfolk, Virginia under the post title "Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?".  What gives this story a bit of a "man-bites-dog" quality is the fact that a local prosecutor is seeking to dismiss a bunch of marijuana possession cases, but the local judges are refusing to do so.  Consequently, we get this week's fighting news under the headline "Norfolk's top prosecutor says he's taking fight over pot cases to state Supreme Court":

The city’s chief prosecutor said he will ask the state Supreme Court to force local judges into dismissing misdemeanor marijuana cases, effectively de-criminalizing the drug in Norfolk.  Commonwealth’s Attorney Greg Underwood on Friday sent a letter to the chief judge of the city’s highest court [available here], letting him and the seven other Circuit Court judges know that Underwood would appeal their collective decision to deny motions prosecutors have made over the past two months to abandon those cases.

Two months ago, Underwood announced he would undertake several efforts to achieve what he called criminal justice reform, including no longer prosecuting misdemeanor marijuana appeals.  But since then, at least four judges have denied prosecutors’ requests to dismiss marijuana charges. The tug-of-war adds to the confusion about whether it’s OK to have a small amount of weed in the city.  Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them.

Both Underwood and the judges believe the other side is violating the state constitution’s division of powers, which mandates that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others.”

Several, including Judge Mary Jane Hall, have said they believe the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws.  In turn, Underwood said the judges are preventing him from exercising the executive power voters gave him when they elected him the city’s top prosecutor.  Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources....

Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, Underwood has said.  In 2016 and 2017, more than 1,560 people in Norfolk were charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi said during a hearing last month. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.

This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

The judge, Hall, admitted Fatehi made an “extremely compelling case” with his statistics on racial disparities, but said he should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said.  “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Until there’s a resolution, Underwood said in his letter, prosecutors will not handle misdemeanor marijuana appeals when simple possession is the only charge. Instead, the arresting officers will testify against the defendant without the guidance of a prosecutor — akin to the way traffic cases are heard.  This is a common practice in the lower District Court and something the Circuit Court judges have suggested. But circumventing the commonwealth’s attorney’s role in the long term would keep marijuana possession cases alive in Norfolk, thwarting Underwood’s criminal justice reform.

Prior related post:

March 6, 2019 in Drug Offense Sentencing, Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Notable Eighth Circuit panel ruling finds due process right of confrontation violated in revocation of supervised release

I am expecting (and hoping) that the Supreme Court thought its pending Haymond case (basics here and here) will soon be adding to the constitutional procedural protections of federal defendants when facing significant punishment based on allegations they have violated their supervised release.  A helpful reader made sure I did not miss, while we await the Supreme Court's further guidance, a notable panel opinion from the Eighth Circuit in US v. Sutton, No. 17-3195 (8th Cir. March 5, 2019) (available here). Here is how the panel opinion in Sutton gets started and a key substantive passage:

Craig Sutton appeals the revocation of his supervised release based on the allegation that he committed assault in June 2016.  At the final revocation hearing, the government introduced videos and transcripts of police interrogations of three witnesses who had a connection to the assault.  None of the three witnesses appeared at the hearing to provide live testimony, and Sutton objected that introduction of their interrogations deprived himof his right to confrontation. The district court overruled his objection. Relying almost exclusively on the interrogations, the district court concluded that Sutton more likely than not committed the assault and revoked his supervised release. We conclude that admission of the interrogations was erroneous and accordingly reverse....

A revocation hearing is not a criminal trial, and a defendant on supervised release is not entitled to the full panoply of protections afforded by the rules of evidence. Morrissey v. Brewer, 408 U.S. 471, 480 (1972); United States v. Black Bear, 542 F.3d 249, 253, 255 (8th Cir. 2008).  Federal Rule of Criminal Procedure 32.1(b)(2)(C) nonetheless gives a defendant the opportunity to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.”  See Morrissey, 408 U.S. at 488–89 (“[T]he minimum requirements of due process . . . include . . . the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”).  This rule requires the court to balance the defendant’s due process right to confront and cross-examine witnesses during such proceedings “against the grounds asserted by the government for not requiring confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986).

Under Bell, the court must evaluate two factors to determine if good cause justifies limiting the defendant’s confrontation rights in a particular case.  First, “the court should assess the explanation the government offers of why confrontation is undesirable or impractical,” such as when “live testimony would pose a danger of physical harm to a government informant.” Id. at 643.  Second, the government must establish “the reliability of the evidence which the government offers in place of live testimony.” Id. To demonstrate good cause, the government must prove both factors; only if it shows “that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable” will good cause exist. United States v. Zentgraf, 20 F.3d 906, 910 (8th Cir. 1994) (quoting Bell, 785 F.2d at 643).

Applying the Bell factors to the testimony of the three witnesses at issue in this case, we conclude that the government failed to meet its burden on either factor and that Sutton was entitled to confrontation.

As the panel explains in a footnote, according the the Eighth Circuit, "because 'a revocation of supervised release is not part of a criminal prosecution,' the right to confrontation afforded at such hearings comes from due process.  United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)."  This point and the Sutton case more generally serves as a useful reminder of how impactful, doctrinally and practically, the Supreme Court's Haymond case could prove to be.

March 6, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, March 05, 2019

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Federal judge denies request by Philly DA to vacate state death sentence

As reported in this local article, headlined "Judge denies Krasner office’s request to vacate death penalty in 1984 double murder," an effort by the current Philadelphia District Attorney to undo some work by prior DAs hit a federal snag. Here are the interesting details:

A federal judge on Monday denied a request by the Philadelphia District Attorney’s Office to vacate the death penalty for a Philadelphia man convicted of the 1984 strangulation and drowning deaths of a prominent pastor’s son and daughter-in-law in their East Mount Airy home.

U.S. District Judge Mitchell Goldberg wrote that for three decades, the DA’s Office had “consistently and zealously opposed” inmate Robert Wharton’s efforts to overturn his conviction and death sentence. Early last month, the office informed the judge it would no longer fight the appeal. Max Cooper Kaufman, supervisor of the federal litigation unit under District Attorney Larry Krasner, wrote that the decision came after the office reexamined the case and communicated with the victims’ family.

In his written opinion, Goldberg described the deaths of Bradley Hart, 26, and his wife, Ferne, 31, as “particularly horrific” and noted the DA’s Office didn’t explain the reason behind what he called "this complete reversal of course.” He ordered both parties to submit briefs explaining their positions.

Krasner, a former criminal defense lawyer who took office last year, campaigned on a platform of never seeking the death penalty. His spokesperson, Ben Waxman, said by email Monday that the office had no comment on Goldberg’s ruling “except to say that we are reviewing the opinion and considering next steps in the case." The Federal Community Defender Office, which is representing Wharton, did not immediately respond to a request for comment.

Wharton’s co-defendant, Eric Mason, was sentenced to life in prison. Both men, construction workers from Germantown, were 20 at the time of the murders. Now 56, Wharton is on death row at the State Correctional Institution-Phoenix in Montgomery County.

According to evidence in the case, on the night of Jan. 30, 1984, Wharton and Mason went to the Harts’ home, tied up the couple, and separated them. Wharton choked Ferne Hart with a necktie and drowned her in a bathtub. Mason denied killing anyone, but was accused by Wharton of killing Bradley Hart by forcing his face in water and strangling him with an electrical cord....

In April 1992, the Pennsylvania Supreme Court partially granted Wharton’s appeal, ordering a new sentencing hearing. That December, a second Philadelphia jury reimposed the double-death sentence for Wharton. In December 2002, then-Gov. Mark Schweiker signed his death warrant, but the execution was stayed after Wharton appealed to federal court.

Goldberg in 2012 denied his petition, but an appellate court sent it back to the district judge on just one claim — whether his lawyer was ineffective for failing to tell the jury about Wharton’s adjustment to prison. That was the claim the District Attorney’s Office last month said it would not fight. The DA’s Office also asked the judge to grant summary relief by taking the death penalty off the table and said that if the judge did so, prosecutors wouldn’t seek a new death sentence in state court.

Krasner has received pushback by the judiciary in at least one other case in which his office tried to throw out a death sentence. In October, Pennsylvania Supreme Court Justice Christine Donohue wrote in a majority opinion that a jury had approved the death penalty for Lavar Brown, and the DA’s Office couldn’t change that result “based upon the differing views of the current office holder.”

Pennsylvania’s death penalty has been used just three times since it was reinstated by the state in 1978. Gov. Tom Wolf imposed a moratorium on its use in 2015. Wolf’s spokesperson said Monday that the governor believes the moratorium should continue in light of a June 2018 report by a bipartisan legislative task force and advisory committee, which found various problems concerning the death penalty.

Because I have not yet had time to find Judge Goldberg's opinion, I am disinclined to comment on the specifics yet. But the case presents a fascinating set of issues concerning finality, prosecutorial discretion and the interplay of federal and state authority over capital prosecutions. And, as it always the case when I learn about long-running capital cases, I cannot help but wonder what litigation over the death penalty has cost (and will continue to cost) state and federal taxpayers here.

March 5, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, February 27, 2019

SCOTUS, ruling 6-3, refuses to let appeal waivers impact ineffectiveness claims when attorney improperly fails to appeal

The Supreme Court this morning handed down an opinion in Garza v. Idaho, No. 17-1026 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Sixth Amendment jurisprudence addressing whether defense counsel has been constitutionally deficient when failing to appeal upon a defendant's instructions.  The ruling in the case is 6-3, with Justice Sotomayor delivering the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer, Kagan and Kavanaugh.  Here is how the opinion gets started:

In Roe v. Flores-Ortega, 528 U.S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver” — that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.

Justice Thomas filed a dissenting opinion, which Justices Gorsuch joined in full and Justice Alito joined in part. (The last part of the dissent reviews originalist approaches to the Sixth Amendment, and only Justice Gorsuch joined that part). The dissent starts this way:

Petitioner Gilberto Garza avoided a potential life sentence by negotiating with the State of Idaho for reduced charges and a 10-year sentence. In exchange, Garza waived several constitutional and statutory rights, including “his right to appeal.” App. to Pet. for Cert. 44a, 49a.  Despite this express waiver, Garza asked his attorney to challenge on appeal the very sentence for which he had bargained.  Garza’s counsel quite reasonably declined to file an appeal for that purpose, recognizing that his client had waived this right and that filing an appeal would potentially jeopardize his plea bargain. Yet, the majority finds Garza’s counsel constitutionally ineffective, holding that an attorney’s performance is per se deficient and per se prejudicial any time the attorney declines a criminal defendant’s request to appeal an issue that the defendant has waived.  In effect, this results in a “defendant-always-wins” rule that has no basis in Roe v. Flores-Ortega, 528 U.S. 470 (2000), or our other ineffective-assistance precedents, and certainly no basis in the original meaning of the Sixth Amendment. I respectfully dissent.

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

SCOTUS, ruling 5-3, clarifies execution competency standards and remands in Madison v. Alabama

The Supreme Court this morning handed down an opinion in Madison v. Alabama, 17-7505 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Eighth Amendment jurisprudence addressing whether a defendant is competent to be executed.  The ruling in the case is 5-3, as Justice Kavanaugh had not yet joined the Court at the time the case was argued.  Justice Kagan delivered the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer and Sotomayor.  Here is how the opinion gets started:

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief.  We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court.  First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime?  We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions?  We (and, now, the parties) think so, because either condition may — or, then again, may not — impede the requisite comprehension of his punishment.  The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution.  We direct that issue to the state court for further consideration in light of this opinion.

Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined, and starts with these pointed passages:

What the Court has done in this case makes a mockery of our Rules.

Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim.  See Brief for Petitioner 16.

This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition — not even a hint. Nor is this question fairly included within those on which the Court granted review.  On the contrary, it is an entirely discrete and independent question.

Counsel’s tactics flagrantly flouted our Rules.  Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”).  Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted.  See, e.g., Visa, Inc. v. Osborn, 580 U.S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015). We should do that here.

Instead, the majority rewards counsel’s trick.  It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief.  But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.

As all Court watchers know, "death is different" not only for Eighth Amendment jurisprudence but also for how the Justices approach these cases procedurally. I suspect Justice Alito is not surprised that some fellow Justices are approaching a capital case in a unique way, but I wonder if he is surprised that the Chief Justice provides the key swing vote for the defendant here.

February 27, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"Failure should not be an option: Grading the parole systems of all 50 states"

The title of this post is the title of this new report from the Prison Policy Initiative.  Here is how this report gets started:

From arrest to sentencing, the process of sending someone to prison in America is full of rules and standards meant to guarantee fairness and predictability.  An incredible amount of attention is given to the process, and rightly so.  But in sharp contrast, the processes for releasing people from prison are relatively ignored by the public and by the law.  State paroling systems vary so much that it is almost impossible to compare them.

Sixteen states have abolished discretionary parole, and the remaining states range from a system of presumptive parole — where when certain conditions are met, release on parole is guaranteed — to having policies and practices that make earning release almost impossible.

Parole systems should give every incarcerated person ample opportunity to earn release and have a fair, transparent process for deciding whether to grant it.  A growing number of organizations and academics have called for states to adopt policies that would ensure consistency and fairness in how they identify who should receive parole, when those individuals should be reviewed and released, and what parole conditions should be attached to those individuals.  In this report, I take the best of those suggestions, assign them point values, and grade the parole systems of each state.

Sadly, most states show lots of room for improvement.  Only one state gets a B, five states get Cs, seven states get Ds, and the rest either get an F for having few of the elements of a fair and equitable parole system or a zero — for having passed laws to eliminate the option of release on parole.

February 27, 2019 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 26, 2019

Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations

Though I have not yet had time to read the full transcript of oral argument in United States v. Haymond, which is now available here, reading Amy Howe's argument analysis at SCOTUSblog suggests the tea-leaves are easy to read after the oral argument. The posting is titled "Court poised to rule for challenger in dispute over constitutionality of sex-offender law," and here are snippets:

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today the justices seemed overwhelmingly likely to agree with him, even if it was not entirely clear how they will remedy the constitutional violation....

Eric Feigin, an assistant to the U.S. solicitor general, defended the law on behalf of the federal government. But he was quickly interrupted by a skeptical Justice Sonia Sotomayor, who asked him whether there was any other area of the law in which the United States allows a defendant to be sent to prison based on the preponderance-of-the-evidence standard.

Feigin responded that both parole and probation operate in a similar way, but Sotomayor dismissed that analogy as comparing “apples and oranges.” With parole, she stressed, the state gives a benefit by cutting a sentence short. Where do we allow more prison time based on the preponderance of the evidence, she repeated?

Justice Brett Kavanaugh echoed Sotomayor’s thinking toward the end of Feigin’s initial stint at the lectern. When the government revokes an inmate’s parole, Kavanaugh suggested, it is simply denying a benefit. But when the government revokes an individual’s supervised release, he continued, that’s more like a penalty: The government is “adding a chunk of time on.”

Several justices also questioned the government’s contention that a jury was not required to find the facts leading to the conclusion that Haymond had violated the terms of his supervised release and the imposition of the new five-year sentence....

Only Justice Samuel Alito seemed to be squarely on the government’s side, warning that a ruling for Haymond could potentially “bring down the entire supervised release system.” As a result, much of the second half of the oral argument focused less on whether the law was unconstitutional and more on what should happen next.

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakely rights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Some prior related posts:

February 26, 2019 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New letter urges Prez Trump "to make lasting reforms to the clemency process by removing its administration from the Department of Justice"

A number of notable folks signed on to this new letter urging Prez Trump to make changes to the federal clemency process.  Here are excerpts from the letter:

Last year, you achieved a historic accomplishment when you signed the First Step Act into law.  This new law will reduce the imposition of unjust sentences for thousands of Americans, allowing people who make a mistake the opportunity to make amends and turn their lives around.

The law primarily addresses future sentencing, however, and does little to correct the unjust nature of past sentences that have left many behind bars for far longer than their crimes warranted.  But you can deliver justice for those Americans by making full use of the pardon power for as many deserving individuals as possible and by reforming the structure of the federal clemency process to improve presidential exercise of this important constitutional authority.

During the last administration, former law enforcement officials and criminal justice reform advocates urged President Barack Obama to use his pardon power aggressively.  While President Obama's clemency initiative did lead to hundreds of deserving individuals receiving commutations, he left thousands more behind when he left office.  When President Obama’s term expired, approximately 9,400 clemency petitions remained pending.  Thousands of other individuals saw their petitions denied, despite many of them meeting most or all of the conditions the Obama administration laid out for clemency eligibility.  Furthermore, his administration never even fully considered granting sweeping clemency to broad categories of people who also deserved clemency but may not have known how to obtain an attorney or petition for relief....

[W]e urge you to make lasting reforms to the clemency process by removing its administration from the Department of Justice.  The Constitution grants the clemency power solely to the president.  There is no constitutional or legal requirement that it be overseen by DOJ.  While DOJ should be able to comment on clemency petitions, there is an obvious conflict of interest when the same agency responsible for prosecuting individuals is asked to supervise their petitions for clemency.  By changing the management of the clemency process, you could improve a process not only for your time in office, but also for your successors.  President Obama failed to fix the clemency process and instead opted to for an ad hoc approach, leaving behind thousands of people who otherwise met the stated criteria.  You can succeed where he did not and leave a lasting legacy in this area.

February 26, 2019 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences?

Intrepid readers may realize that I have paid close attention to a case out of the First Circuit, US v. Rivera–Ruperto, because I thought it involved extraordinarily facts that made for a compelling Cruel and Unusual Punishments argument if that clause was to function as even the most minimal check on the imposition of extreme prison sentences on adult offenders.  But, frustratingly, today's Supreme Court order list has under a long list of cert denials "18-5384  Rivera-Ruperto, Wendell v. United States."  Grrrr.

Of course, I was not the only one who thought this was was exceptional: as noted here, the entire First Circuit issued a remarkable opinion last year while denying en banc review (available here) in which Judge Barron spoke for all his colleagues in urging the Justices to take up the Rivera-Ruperto to reconsider its Eighth Amendment jurisprudence.  I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

I still want to hope that maybe a district court or the First Circuit could find a way to do better in this case when Wendell Rivera-Ruperto eventually brings a 2255 claim (which could now juice an Eighth Amendment argument, as I suggested here, on the fact that the FIRST STEP Act has changed the federal law that lead to his 130 years of mandatory-minimum prison time).  But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh. 

A few prior related posts:

February 25, 2019 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, February 24, 2019

After special favors and CVRA violation, what should happen to Jeffrey Epstein and his problem prosecutors?

The Miami Herald has done extraordinary work looking behind Jeffrey Epstein too-sweet deal, and it reports effectively here on the significant federal court ruling last week that prompts the question in the title of this post.  Here are the details:

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday [available here].

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case.  He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

"As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators," said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

Earlier this month, the Department of Justice announced it was opening a probe of the case in response to calls from three dozen members of Congress. Nebraska Sen. Ben Sasse, the Republican chairman of the Senate Judiciary Oversight Subcommittee, on Thursday asked the DOJ to re-open Epstein’s plea deal. "The fact that it’s taken this long to get this far is heartbreaking and infuriating," said Sasse. "The Department of Justice should use this opportunity to reopen its non-prosecution agreement so that Epstein and anyone else who abused these children are held accountable."...

Brad Edwards, who represents Courtney Wild — Jane Doe No. 1 in the case — said he was elated at the judge’s ruling, but admitted he is troubled that it took 11 years to litigate. He blamed federal prosecutors for needlessly dragging it out when they could have remedied their error after it was brought to their attention in 2008. "The government aligned themselves with Epstein, working against his victims, for 11 years,’’ Edwards said. "Yes, this is a huge victory, but to make his victims suffer for 11 years, this should not have happened. Instead of admitting what they did, and doing the right thing, they spent 11 years fighting these girls."

Marra, in a 33-page opinion, said prosecutors not only violated the Crime Victims’ Rights Act by not informing the victims, they also misled the girls into believing that the FBI’s sex trafficking case against Epstein was still ongoing — when in fact, prosecutors had secretly closed it after sealing the plea bargain from the public record.

The decision follows a three-part series published by the Miami Herald in November, "Perversion of Justice," which detailed how federal prosecutors collaborated with Epstein’s lawyers to arrange the deal, then hid it from his victims and the public so that no one would know the full scope of Epstein’s crimes and who else was involved.

The 66-year-old mogul lured scores of teenage girls from troubled homes — some as young as 13 — as part of a cult-like scheme to sexually abuse them by offering them money to give him massages and promising some of them he would send them to college or help them find careers. Future president Donald Trump, former president Bill Clinton, lawyer Alan Dershowitz, Prince Andrew and other world leaders, scientists and academics were friends with Epstein, who also owns a vast home in Manhattan, a private jet, and an island in the U.S. Virgin Islands, where he now lives....

Instead of prosecuting Epstein under federal sex trafficking laws, Acosta allowed Epstein to quietly plead guilty in state court to two prostitution charges and he served just 13 months in the Palm Beach County jail. His accomplices, some of whom have never been identified, were not charged.

Epstein’s victims were not told the case was closed until it was too late for them to appear at his sentencing and possibly upend the deal. Two of them filed a lawsuit in the U.S. District Court for the Southern District of Florida in 2008, claiming that prosecutors violated the Crime Victims’ Rights Act, which grants victims of federal crimes a series of rights, including the ability to confer with prosecutors about a possible plea deal....

Acosta, who was nominated as labor secretary in 2017, issued a written statement through a spokesman: “For more than a decade, the actions of the U.S. Attorney’s Office for the Southern District of Florida in this case have been defended by the Department of Justice in litigation across three administrations and several attorneys general. The office’s decisions were approved by departmental leadership and followed departmental procedures. This matter remains in litigation and, thus, for any further comment we refer you to the Department of Justice.”

Michelle Licata, who was molested by Epstein when she was 14, said the judge’s decision was "a step for justice." But she still questions why federal authorities have failed to open a new case against Epstein, given that more victims and evidence has come to light in recent years. "They should see if they can prosecute him for something. I mean, really prosecute him — instead of giving him 13 months where he was allowed to come and go as he pleased. I just want to see him face some consequences for what he did."

Francey Hakes, a former federal prosecutor, said the Crime Victims’ Rights Act doesn’t spell out any punishment for violating its terms, so it would set a precedent to re-open Epstein’s agreement. "Epstein will surely argue he complied with the agreement, relied upon it, and plead guilty under it so it can’t be overturned in fairness to him," she said. "I will be very interested to see what the parties say the remedy for the violation should be. Ultimately, it is simply shocking the Government went to the lengths they did to keep the victims in the dark in order to make a serious predator’s high priced defense team happy. Justice should not, and does not, look like this."

This commentary by two former federal prosecutors asserts that there should be lots of consequences from the new ruling in this matter:

Outside of the Justice Department, it also seems untenable for Acosta to be allowed to remain in his position as head of the Department of Labor — a federal agency with significant role to play in combating and prosecuting human trafficking cases and protecting the rights of minors. He should be fired or resign.

Most significantly, Epstein and anyone else involved in this crime need to be held fully accountable and the rights of the victims fully vindicated. Judge Marra has already ruled that the CVRA authorizes “the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute.” Judge Marra seems to be suggesting that Epstein’s agreement be voided and the federal investigation reopened. (Sen. Ben Sasse, R-Neb., has called for DOJ to do just that.)

It is always tricky to Monday morning quarterback another prosecutor’s decision: There are often facts and circumstances known only to the prosecutors that factor into whether to proceed with charges, take a case to trial or even enter into an NPA. However, given the many deficiencies in the NPA — most notably the systematic exclusion of victims from the resolution of this case, DOJ should reopen the investigation, and assign it to another U.S. attorney’s office or an arm of the DOJ.

The only way to preserve the integrity of this case is for a clean set of eyes to review the facts and ensure that justice is done.

UPDATE: For some additional commentary on this case and the latest CVRA opinion, check out Paul Cassell's posting at The Volokh Conspiracy, "Prosecutors Violated the Rights of Jeffrey Epstein's Victims" and Kent Scheidegger's posting at Crime and Consequences, "The Crime Victims Rights Act and the Epstein Case."

February 24, 2019 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Another reminder that substantive reasonableness review has very little bite

A helpful reader made sure I saw a notable little federal sentencing ruling handed down by an Eighth Circuit panel in US v. Johnson, No. 17-2572 (8th Cir. Feb 22, 2019) (available here). The start of the main opinion sets out the basics for the reasonableness review discussion that follows:

Michael Johnson pleaded guilty in 2016 to possession with intent to distribute cocaine base.  Police arrested Johnson after a traffic stop and found him in possession of two baggies that contained rocks of crack cocaine.  A search of Johnson’s pocket discovered 22.9 grams of cocaine base and $895 in cash.

At sentencing, the district court calculated an advisory guideline range of 57 to 71 months’ imprisonment, but concluded that several factors justified an upward variance from the advisory range and imposed a sentence of 204 months.

The panel ultimately rejects the defendant's various claims that his sentence is unreasonable, but Judge Grasz write separately to lament the conclusion.  Here are excerpts from a short opinion worth reading in full:

While I believe the sentence here was excessive, I cannot conclude it is reversible error under the standard of review mandated by Supreme Court precedent.  This precedent makes the substantive reasonableness of a sentence nearly unassailable on appeal and renders the role of this court in that regard somewhat akin to a rubber stamp in all but the rarest cases....

So, what is left for appellate courts to review in terms of substantive reasonableness in sentencing when they cannot meaningfully police compliance with the Guidelines? Of course, sentences must still comply with the sentencing factors in 18 U.S.C. § 3553(a), but these “sentencing factors . . . are so broad that they impose few real restraints on sentencing judges.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  Thus, appellate review of substantive reasonableness is usually an exercise in futility.

There is no doubt that maximizing sentencing court discretion has its benefits.  See, e.g.,Kimbrough, 552 U.S. at 101–05 (allowing sentencing courts to depart based on a disagreement with the Guidelines’ unjustified disparity in treatment of powder and crack cocaine).  But the downside, in other contexts, is the resulting disparities and inconsistencies in sentencing. In the Sentencing Reform Act, Congress sought to reduce sentencing disparities by placing some limitations on the discretion of sentencing courts by means of the mandatory Guidelines.  However, “[i]t is unrealistic to think [the goal of reducing sentencing disparities] can be achieved over the long term if sentencing judges need only give lipservice to the Guidelines.” Gall, 552 U.S. at 63 (Alito, J., dissenting).  In reality, the result of Gall and Kimbrough is that “district judges have regained most of the unconstrained discretion that Congress eliminated in 1984.” Feemster, 572 F.3d at 470 (Colloton, J., concurring).

February 24, 2019 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, February 22, 2019

Why I am certainly hoping, but not really expecting, Timbs to end up being a big deal

As reported here, on Wednesday the US Supreme Court has handed down its opinion in Timbs v. Indiana.  I was not at all surprised that the Justices decided unanimously that the Excessive Fines Clause of Eighth Amendment applies to the states, but I have since been surprised that some press coverage suggests that this ruling in a very big deal.  For example, consider this piece from Slate by Mark Joseph Stern, headlined "The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit."  The piece's first paragraph seems to reflect way too much excitement as a result of a small and expected decision:

The Supreme Court struck an extraordinary blow for criminal justice reform on Wednesday, placing real limitations on policing for profit across the country.  Its unanimous decision for the first time prohibits all 50 states from imposing excessive fines, including the seizure of property, on people accused or convicted of a crime.  Rarely does the court hand down a ruling of such constitutional magnitude — and seldom do all nine justices agree to restrict the power that police and prosecutors exert over individuals.  The landmark decision represents a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far.

This paragraph strikes me as off in both spirit and particulars.  For starters, there is nothing really "extraordinary" about the Supreme Court deciding that the states are subject to the Excessive Fines Clause of Eighth Amendment given that just about every other significant provision of the Bill of Rights applies to the states.  Moreover, even before Timbs, all 50 states were in various ways already prohibited from imposing excessive fines given that, as the Timbs opinion notes, "all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality." 

Had the Justices gone on to clearly and directly rule that seizure of Tyson Timbs' Land Rover SUV constituted an excessive fine for his low-level drug dealing (as lower courts in Indiana had found), then I would agree that Timbs is a rare "ruling of such constitutional magnitude."  But the Justices in Timbs spoke only to the threshold incorporation issue, and so I do not see the ruling to "represent a broad agreement on the Supreme Court that law enforcement’s legalized theft has gone too far."  That said, the widespread praise the opinion has received from across the political spectrum does make me hopeful that lower courts over time will be emboldened by Timbs to find more economic sanctions excessive.  But this other reporting on the opinion, headlined "Court Decision Doesn’t Guarantee Radical Changes to Fines and Property Seizures," better captures my sense that Timbs is as much as an opportunity missed as a "landmark decision."

In this context, it bears here noting a comment from LawProf Michael Mannheimer on Facebook: "Remember that they held the Cruel and Unusual Punishments Clause to be incorporated nearly sixty years ago.  And they've held how many non-capital sentences to be cruel and unusual?"  The answer is, of course, only a couple of hundreds of millions of non-capital sentences have been found unconstitutional in the era of mass incarceration. Recall that in Harmelin v. Michigan in 1991, the Supreme Court upheld a mandatory life without parole sentence for mere possession of a large quantity or drugs.  During oral argument in Timbs, some Justices seemed to struggle with the notion its jurisprudence might say forfeiture of an SUV violates the Eighth Amendment for selling drugs, but forfeiture of a lifetime of liberty for possessing drugs does not.

I sincerely hope and want to believe it is possible future Excessive Fines Clause jurisprudence is not as toothless as the Cruel and Unusual Punishments Clause has been for prison terms. Indeed, I hope that Timbs prompts the Justices to be thinking more about the importance of the Eighth Amendment's role in checking government excess in punishment, and that this thinking prompts them to grant cert in US v. Rivera–Ruperto, the extraordinarily compelling Cruel and Unusual Punishments case now before the Court which presents the Justices with an extraordinary opportunity to consider overruling Harmelin.

A few prior related posts:

February 22, 2019 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, February 20, 2019

Supreme Court rules unanimously in Timbs that Excessive Fines Clause of Eighth Amendment applies to the states (and says little else)

The Supreme Court this morning made quick work of the contention by the state of Indiana in Timbs v. Indiana, No. 17-1091 (S. Ct. Feb 20, 2019) (available here), that it is not bound by the Excessive Fines Clause of the Eighth Amendment.  In a short unanimous ruling authored by Justice Ginsburg explains why "the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming."  Here is a key passage from the start of he Timbs opinion:

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?  Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminallaw-enforcement authority.  This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted).  The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Notably, the Court in Timbs does not address the subsequent issue of whether seizure of Tyson Timbs' Land Rover SUV Timbs constituted an excessive fine (as lower courts in Indiana had found). The Supreme Court was just content to resolve this incorporation issue.

Notably, Justice Gorsuch issued a concurring opinion and Justice Clarence Thomas issued an opinion concurring in the judgment in Timbs, and they are both writing separately to engage the issue of just how the Excessive Fines Clause should be incorporated against the states.  Justice Thomas makes, through an extended opinion, this fundamental incorporation point that he has raised before: "Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with 'process,' I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."  Justice Gorsuch engages in a short opinion stating "As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. " 

February 20, 2019 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

February 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 19, 2019

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

February 19, 2019 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, February 18, 2019

"A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty"

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

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process — in many ways, the most scandalous — is the inadequacy of counsel so often provided to defendants facing execution.  By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients.  This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation.  Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled — either by serious mental illness or by intellectual disability.  Some of the decisions in these cases — rejecting Strickland-based appeals — have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has — prior to this article — undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities.  We do this here.  In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland).  As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way.  First, we discuss the background of the development of counsel adequacy in death penalty cases.  Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear — on the surface — to bolster it in this context.  We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning.  Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.”  Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

February 18, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 in FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, February 17, 2019

Can judges, legally or functionally, actually refuse to allow a prosecutor to drop or dismiss charges as an exercise of discretion?

The question in the title of this post is prompted by an interesting on-going story out of Norfolk, Virginia which I have blogged about over here at my marijuana blog.  This recent local article reports on these particulars:

The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.

On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.

For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.

The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....

Underwood’s change on marijuana possession is part of his larger effort to bring what he calls criminal justice reform to Norfolk. In a Jan. 3 letter to judges, the police chief and other public safety officials, he announced he would support ending cash bail in many cases and seeking more equal sentences between prostitutes and their clients.

In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black. This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”

On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.

Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.

Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond. “I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”

Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.

Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.

It seems like an indisputable given that a judge cannot legally make a prosecutor bring a charge.  But once a charge has been brought, and perhaps especially once a conviction has been obtained, I can envision plausible bases for wanting to preserve some formal judicial authority to refuse to allow charges to be dropped or dismissed in some extreme circumstance.  For example, refusing dismissal could seem justified if a judge had a reasonable basis to believe that the prosecutor had been bribed to dismiss certain charges or if a judge concluded that dismissals were driven by some kind of unconstitutional motive.  The judges here are arguably asserting that these dismissals are constitutionally suspect, but that seems like a stretch on these facts. (Indeed, I wonder if Commonwealth’s Attorney Underwood might try to defend his dismissals by saying he is worried about constitutional infirmities concerning who gets arrested and charged by police for marijuana offenses.  Surely a prosecutor must have broad authority to seek dismissal of charges that he believes may be infected with constitutional problems.)

Whatever one thinks of the legal basis for judges refusing dismissals here, I also wonder how this will continue to play out practically.  Will judges in this jurisdiction seek to appoint another prosecutor to pursue charges that the local prosecutor seeks dismissed?  Do they have authority to do so and is there any other way for these cases to proceed absent such an appointment? If and when these cases are on appeal, might the defendants seek amicus support from Commonwealth’s Attorney Greg Underwood or at least a formal statement from him saying he believes the cases should no longer proceed?

February 17, 2019 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Saturday, February 16, 2019

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 15, 2019

Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act

Though the (clumsy) increase in good-time credits has received considerable attention since the passage of the FIRST STEP Act (see prior posts here and here and here and here), I find the change to the administration of so-called compassionate release rules to be among the most fascinating elements of the new legislation.  If legislative enactments can have "sleeper provisions," I would call the compassionate release changes the sleeper provisions of FIRST STEP.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now,"  reviews some basics of the changes made by the FIRST STEP Act for those eager for a short accounting of before and after.

Today's New York Times covers this issue through one particular sad story under the headline "A New Law Made Him a ‘Free Man on Paper,’ but He Died Behind Bars." This article is worth reading in full, and here are excerpts:

At a federal courthouse in Tennessee, a judge signed an order allowing an ailing inmate to go home. But he died in a prison hospice before he heard the news.

At his wife’s home in Indiana, as she was getting a wheelchair, bedpans and other medical equipment ready for his arrival, the phone rang. “It was the chaplain,” said the wife, Marie Dianne Cheatham. “He said, ‘I’m sorry to have to tell you.’ And my heart fell through the floor. I knew what he was going to say.”

For years, terminally ill federal prisoners like Ms. Cheatham’s husband, Steve, have in theory had the option of what is called compassionate release. But in practice, the Bureau of Prisons would often decline to grant it, allowing hundreds of petitioners to die in custody. One of the provisions of the new criminal justice law, signed by President Trump on Dec. 21, sought to change that, giving inmates the ability to appeal directly to the courts.

Mr. Cheatham, 59, did just that, filing a petition last month so that he could leave prison in North Carolina and go home to die. He became one of the first to be granted release under the new law. But then came the harsh truth that made so many families pin their hopes on the law’s passage in the first place: Days and even hours can mean the difference between dying at home or behind bars.

Created in the 1980s, compassionate release allowed the Bureau of Prisons to recommend that certain inmates who no longer posed a threat be sent home, usually when nearing death. But even as more and more Americans grew old and frail in federal penitentiaries, a multilayered bureaucracy meant that relatively few got out.

A 2013 report by a watchdog agency found that the compassionate release system was cumbersome, poorly managed and impossible to fully track. An analysis of federal data by The New York Times and The Marshall Project found that 266 inmates who had applied between 2013 and 2017 had died, either after being denied or while still waiting for a decision. During the same period the bureau approved only 6 percent of applications.  Many state penal systems, which house the majority of American inmates, have their own medical release programs with similar problems.

“It is a system that is sorely needing compassion,” said Mary Price, the general counsel for Families Against Mandatory Minimums, which advocates criminal justice reform....  The law’s passage has caused a scramble to use the new appeal process for compassionate release, said Ms. Price, whose organization has worked to arrange lawyers for some of those inmates. “There’s a road map now for this, and a way home for people that we’ve never seen before,” Ms. Price said.

Before the First Step Act passed, Ms. Cheatham followed its fortunes closely, hoping it could lead to a shortened sentence for her husband, whose health was deteriorating. Last fall, he was diagnosed with advanced-stage cancer and told he had only a few months to live. In mid-December, he applied for compassionate release, Ms. Cheatham said.

The new law requires that prisoners be told within 72 hours of a terminal diagnosis that they may apply for compassionate release, and that the Bureau of Prisons aid those who wish to apply but cannot do so on their own.  After a few weeks, Ms. Cheatham had heard nothing back.  The Bureau of Prisons declined to answer most questions about Mr. Cheatham’s case, but did say that it had not received his application for compassionate release until Jan. 11.  According to the judge’s order, the request was filed on Dec. 13.

A senator’s office said the government shutdown would make it difficult for them to provide immediate help.  Finally, she called a federal public defender in Tennessee, where her husband had been sentenced, who told her about the new process allowing an appeal after 30 days.  Within a few days, on Jan. 25, they filed a preliminary motion for immediate release.

It was to be a homecoming to a home Steve Cheatham had never seen.  The Cheathams had met and married after he was already in prison, serving a nearly 16-year sentence for a series of bank robberies in 2006.  According to an F.B.I. agent’s account, Mr. Cheatham passed notes to tellers at three banks in Tennessee, making off with about $13,000. The agent made no mention of any weapon....

On Jan. 30, the formal request for compassionate release was filed, and the next day, a judge signed the order to send Mr. Cheatham home.  Ms. Cheatham got the news shortly after 1 p.m.  “My heart just was so full of joy,” she said.  “I called everybody I could think of to tell them,” including the prison chaplain, whom she asked to deliver the good news to her husband.

Later that afternoon, the chaplain called back. Mr. Cheatham had died before he could tell him about the judge’s order.  Ms. Cheatham was devastated, but expressed her hope that on some level, Mr. Cheatham may have sensed the news.  “At least,” she wrote to a supporter, “he died a free man on paper.”

Some of many prior related posts:

February 15, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, February 14, 2019

"Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism"

The title of this post is the title of this new paper by Craig Lerner now available via SSRN. Here is its abstract:

How is an originalist judge in the common law tradition to reconcile the competing demands of the Constitution’s original meaning and an accumulating body of nonoriginalist precedents?  This Article explores the dilemma of constitutional originalism through a comprehensive review of Justice Scalia’s Eighth Amendment jurisprudence.  In this legal context the dilemma is infused with a moral dimension.  Many punishment practices common in 1791 are widely considered barbaric today.  When confronted with the choice between the Eighth Amendment’s original meaning and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

In an essay published soon after joining the Supreme Court, Justice Scalia outlined an answer to this question.  He anticipated that his Eighth Amendment opinions would be framed as arguments in the alternative — first, the Constitution, properly understood, did not foreclose a punishment; and, in the alternative, even if nonorginalist precedents were followed for the sake of argument, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.”  Almost all of his Eighth Amendment opinions proved to be of this character. 

As demonstrated in this Article, Justice Scalia’s hopeful expectation that he could achieve orginalist results through such a strategy was disappointed.  One problem is that the strategy presumes that there has been no meaningful “evolution in social attitudes” with respect to punishment since 1791.  The deeper problem is that it is not enough for the community’s “social attitudes” to remain durable.  The relevant question is whether the moral sentiments of the legal elites who ascertain these “social attitudes” remain durable.  In one of his final Eighth Amendment opinions, Justice Scalia conceded the defeat of sake-of-argument originalism.  He intimated a willingness to pursue a more heroic originalist agenda, potentially displacing mountains of nonoriginalist precedent.  This Article highlights the tension an originalist judge faces, more than two centuries after the Constitution’s ratification, between a principled adherence to original meaning, which can appear revolutionary, and a humbler originalism, which can appear opportunistic.

February 14, 2019 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Ninth Circuit going en banc to reconsider intersection of Eighth Amendment juve jurisprudence and federal sentencing guidelines

In this post back in July, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The panel opinion in Briones is available at this link, where you will find a split decision in which the Ninth Circuit affirmed the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.  The amicus brief, which is available here, argued "It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile."

I am now pleased to be able to report that, as of yesterday, the panel opinion in Briones is technically no longer good law thanks to this Feb 13, 2019 order by the Ninth Circuit:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.

Though I am not exactly sure of the timelines for en banc review in the Ninth Circuit, I presume briefing and argument will take a number of months though we might still get a new decision before the end of this year.  Meanwhile, folks who follow this area of jurisprudence closely may recall that the Third Circuit is also in the midst of en banc review of related post-Miller Eighth Amendment application issues US v. Corey Grant, No. 16-3820, as discussed in this post from a few months ago.  A helpful reader reported to me that oral argument in Grant is scheduled for next week.

I have been a bit surprised that we have not yet seen the Supreme Court take up any follow-up Eighth Amendment cases since it decided Graham and Miller in short succession in 2010 and 2012.  It is interesting to speculate if either the Briones or Grant cases might interest the Justices after (inevitable?) big split en banc circuit rulings in these cases.

February 14, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 13, 2019

Federal district judge finds Alabama sex offender license plate and internet provisions violate First Amendment

Thanks to this post by Jacob Sullum at Reason, I see some notable constitutional reasoning has brought down two extreme sex offender provisions in Alabama law.  The full title of this reason posting provides the basics: "'Sex Offenders Are Not Second-Class Citizens,' Says Judge While Nixing Alabama Rules on First Amendment Grounds: The decision rejects driver's licenses labeled "CRIMINAL SEX OFFENDER" and a broad demand for reports on internet use." Here paragraphs from the posting (with a link to the opinion):

"Sex offenders are not second-class citizens," writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. "The Constitution protects their liberty and dignity just as it protects everyone else's."

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls "the most comprehensive and debilitating sex-offender scheme in the nation," is a prime example....

On Monday, Judge Watkins ruled that Alabama's branding of registered sex offenders' identification cards is a form of compelled speech prohibited by the First Amendment. "The branded-ID requirement compels speech," he writes, "and it is not the least restrictive means of advancing a compelling state interest."  The state conceded that its ostensible purpose of alerting police officers to a sex offender's status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame.  "Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others," Watkins notes.

Another aspect of Alabama's "debilitating sex-offender scheme" is a requirement that people in the registry report "email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction."  Registrants also have to keep the authorities apprised of "any and all Internet service providers" they use.  The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

February 13, 2019 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Illinois prosecutors appealing 81-month sentence given to former Chicago cop Jason Van Dyke for murder of Laquan McDonald

In the federal system, sentencing appeals brought by prosecutors are relatively rare but not always exceptional.  My sense is that prosecutorial appeals of sentences are even rarer in most state systems, and a state sentencing appeal brought this week by Illinois prosecutors comes in a case that is exceptional for all sort of reasons.  This extended Chicago Tribune article, headlined "Attorney general, special prosecutor challenge Jason Van Dyke’s sentence in petition to state Supreme Court," provides lots of background details and here are excerpts:

Special prosecutors and the Illinois attorney general’s office want the state’s highest court to order a resentencing for Jason Van Dyke, a move that if granted could result in a much harsher prison term for the former Chicago police officer convicted in the slaying of 17-year-old Laquan McDonald.

Their petition, filed Monday, does not explicitly target the length of the 6¾-year sentence, which many activists criticized as lenient.  But Kane County State’s Attorney Joseph McMahon, appointed to handle the Van Dyke case, and Attorney General Kwame Raoul argue that Judge Vincent Gaughan sentenced Van Dyke under improper legal guidelines, and note that a significantly longer sentence would be justifiable under state law.

“I recognize that a trial judge’s discretion in sentencing is to be given great deference,” Raoul said at a news conference Monday. “However, it is in the interest of justice that we do all within our power to make sure that such exercise in discretion be applied consistent with the mandates of law, no matter who the defendant and no matter who the victim.”

In response, Van Dyke’s attorneys said the prosecutors’ motivations were plainly political. “This case has come to represent all the wrongs, perceived wrongs, of the Chicago Police Department, and it’s fallen upon Jason Van Dyke as a person,” attorney Jennifer Blagg said. “So what he represents politically is why this is happening.”...

Van Dyke, 40, was convicted last year of one count of second-degree murder and 16 counts of aggravated battery in the 2014 on-duty shooting of McDonald.  He was sentenced last month to 6¾ years in prison.  Gaughan sentenced Van Dyke only on the second-degree murder conviction, ruling that it was the more serious offense and that the aggravated battery counts should “merge” into it for purposes of sentencing....

But the prosecutors’ petition argues that Illinois law actually makes aggravated battery with a firearm the more serious offense, and therefore the state Supreme Court should order Gaughan to resentence the ex-patrol officer on those convictions instead.  The court should also direct Gaughan to determine which of the 16 gunshot wounds caused “severe bodily injury” and sentence him to consecutive prison terms for those counts, they state.

Prosecutors have argued that at least two of the wounds caused that kind of injury, which, the petition contends, would mean Van Dyke would face a minimum sentence of 18 years: six years for each of those two wounds, plus six more years for the other 14 counts.  An aggravated battery with a firearm conviction carries a sentence of six to 30 years in prison.  The range for second-degree murder is four to 20 years, but a judge can impose probation instead.

If the state Supreme Court chooses to consider the petition, there are a few potential outcomes, said longtime criminal defense attorney Mark Lyon.  “They will either have to say, ‘Judge Gaughan, you have to resentence this person,’ or they have to say (they) were wrong in the case where they said second-degree murder was always less serious than aggravated battery with a firearm,” Lyon said, referring to a previous ruling.

The court potentially could also order Gaughan to resentence Van Dyke on the aggravated battery but not make him rule on which of the 16 shots caused “severe bodily injury,” Lyon said, which would open the door for Gaughan to impose a prison term the same as the previous sentence, or slightly shorter.

But even in that scenario, Van Dyke would serve slightly more prison time.  Inmates convicted of aggravated battery with a firearm must serve at least 85 percent of their sentences — far higher than the 50 percent required by a second-degree murder conviction.  “It’s quite unlikely that Mr. Van Dyke comes out of this without some kind of upward modification of his sentence,” Lyon said. “How much, who knows.”

Van Dyke’s attorneys plan to file an objection to the prosecutors’ motion. The Supreme Court is not obligated to accept the prosecutors’ petition at all, and there is no time frame in which it must make a decision.

Prior related post:

February 13, 2019 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, February 12, 2019

Student SCOTUS preview part two: noticing the parole push in United States v. Haymond

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

As reported in this prior post, I have a great student, Jim McGibbon, who is now in the midst of drafting a series of preview posts on the \Haymond case.  Following up on this introductory post, here is his second post inspired by the briefing in the case:

In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to thirty-eight months of prison and ten years of supervised release.  In 2015, two years into his supervised release, Haymond's probation officers conducted a surprise search of his apartment and seized a password-protected cellphone.  Finding images of child pornography on the phone, the probation officers alleged Haymond violated his terms of supervised release.  The district court found by a preponderance of the evidence that Haymond had violated 18 U.S.C. § 2252 by possessing child pornography.  Based on this finding, the court revoked Haymond's supervised release and sentenced him to a mandatory five years in prison pursuant to § 3583(k) and an additional five years of supervised release.  On appeal, the Tenth Circuit held that § 3583(k) was unconstitutional in part because it unlawfully imposes heightened punishment using a preponderance of the evidence standard based on new conduct which contradicts the requirements of Apprendi and Alleyne.  And though parole was abolished in the federal system 35 years ago, its history and procedures lurk as this case now comes before the Supreme Court.

The Supreme Court in Morrissey v. Brewer stated that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation." Morrisey v. Brewer, 408 U.S. 471, 480 (1972).  Commenting on the nature of revocation, the Supreme Court theorized that "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Id.  Regarding the right to due process, the Court held that "[w]hether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.'" Id. at 481.

Morrissey is still good law, as is Gagnon v. Scarpelli, 411 U.S. 778 (1973), which ruled similarly with respect to constitutionally required procedures for revoking probation.  Predictably then, the government briefing in US v. Haymond relies heavily on these cases, as Morrissey is mentioned 21 times and Gagnon is mentioned 14 times in its main brief. Concomitantly, the government’s brief cites to "parole" a whopping 60 times in hopes that the current Court finds that a person on supervised release is afforded only the same procedural protections as a parolee or a probationer as the Burger Court found in Morrissey and Gagnon.  As the government would have it, Morrissey and Gagnon control because Andre Haymond while on supervised release has "only "conditional liberty" and "individuals in respondent’s position are differently situated from those who can claim the full extent of the constitutional protections against a deprivation of their absolute liberty."  Brief of US at 38.  In contrast, Haymond's brief contains only five references to Morrissey.  He argues, unsurprisingly, Morrissey does not apply. 

There are reasons to believe the Court will not automatically find that the procedural protections due a person on supervised release are in lock step with the procedural protection due a person on parole.  Morrissey can be distinguished due to differences between the realities of traditional parole release and parole revocation and the realities of federal supervised release and its revocation.  As Haymond's brief stresses, in this case Congress through section 3583(k) required a new five-year mandatory prison sentence upon a particular finding as the basis for supervised release revocation.  Traditional parole processes included considerable discretion, and "parole revocation penalties could not exceed reimprisonment for the remainder of the original sentence."  Brief for Respondent at 26.  Moreover, continues Haymond, supervised release is not a form of "conditional liberty” because any “defendant who began a term of supervised release completed his term of imprisonment and there was no pending term that he could resume serving (as in the case of parole) or being serving (as in the case of probation)." Brief for Respondent at 27-28.

This case could be decided on whether the discretionary parole system of the past and the mandatory supervised release system of the present are similar enough to apply Morrissey v. Brewer in Haymond's case.  However, if the Court extends Morrissey v. Brewer to be applicable to the revocation of supervised release, then Haymond was not due "the full panoply of rights" and the application of § 3583(k) is probably constitutional — although the Court could still then find that the § 3583(k)'s distinctive mandatory five-year prison sentence is a "grievous loss" for a defendant that justifies greater procedural protections under the Due Process Clause of Fifth Amendment.  Or, if the Court declines to extend Morrissey v. Brewer to the revocation of supervised release, then perhaps the Court will look to the Sixth Amendment to find that jury trial rights are implicated and applicable under the Apprendi and Blakely and Alleyne line of cases.

This case is of interest not only because of its substantive issues, but also because it will present the first major opportunity for new Justices Gorsuch and Kavanaugh to weigh in on Apprendi and its progeny.  Justice Gorsuch replaced an Apprendi progenitor in Justice Scalia, while Justice Kavanaugh replaced an Apprendi objector in Justice Kennedy.  The next post will explore what they and other Justices might have to say in this case.

Prior related posts:

February 12, 2019 in Blakely in the Supreme Court, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, February 10, 2019

Doesn't the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto?

The question in the title of this post is prompted by the interesting intersection of an important sentencing reform in the new FIRST STEP Act and an important Eighth Amendment case that I have had my eye on for some time  finally getting before the Supreme Court.  Let me explain, starting with the FIRST STEP provision.

For those particularly concerned about extreme mandatory minimum sentences, Section 403 of the FIRST STEP Act is a heartening overdue change to federal sentencing law.  This provision, described as a "clarification of Section 924(c)," now eliminates the required "stacking" of 25-year mandatory minimums for using a firearm during other crimes for those offenders without a prior record convicted of multiple 924(c) counts at the same time.  In other words, the extreme 25-year recidivism enhancement of 924(c) is now to apply only to actual recidivists.

The prior requirement of "stacking" 924(c) counts led to Weldon Angelos' extreme 55-year mandatory-minimum sentence for selling marijuana with his personal guns nearby (which is discussed at length here by Paul Cassell, the judge forced to impose the sentence).  US Sentencing Commission data here and here shows that well over 100 offenders each year have been subject to convictions for multiple 924(c) counts.  Just a few of many extreme 924(c) stacked sentences are noted in prior posts here and here and here and here.  Sadly, Congress did not make Section 403 of the FIRST STEP Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.

But there is one particular defendant with a particularly extreme stacked 924(c) sentence that I am hoping might get some indirect benefit from the new law in his on-going Eighth Amendment litigation.  Wendell Rivera–Ruperto, who was paid in 2010 by undercover FBI informants to serve as "armed security" at six faux drug deals, received a federal sentence of nearly 162 years, of which 130 years were for his six stacked convictions under 924(c).  As discussed here a year ago, in a terrific First Circuit opinion denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlights many questionable elements of the Harmelin ruling and, writing on behalf of the entire First Circuit, suggests SCOTUS take up Rivera–Ruperto to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

As of a few days ago, as revealed in this SCOTUS docket sheet, all the cert papers have been finally filled in Rivera–Ruperto, and the Justices will consider the case at their February 22 conference.  Notably, and not surprisingly, the feds now say in opposition to cert that passage of the FIRST STEP Act reduces the important of the case: "future defendants in petitioner's position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance."  But, as the title of this post is meant to suggest, the fact that the Eighth Amendment is supposed to take guidance from an "evolving standards of decency" and be responsive to a "national consensus" against a sentence, I strongly believe the enactment of the FIRST STEP Act primarily operates to make Wendell Rivera–Ruperto's constitutional claim even more substantively potent. 

As I explained here, I see Justice Anthony Kennedy's departure as creating a new window of opportunity for advocates to urge overturning (or cutting back) the terrible Eighth Amendment precedent that is Harmelin.  Thus, I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.   I am fearful the Court will remain fearful of taking on these issues and thus leave the (now-even-stronger) Eighth Amendment claim in this case to be considered anew through an inevitable 2255 motion.  Still, my fingers are crossed to support the cert chances of potentially the biggest non-capital Eighth Amendment case in a generation.

A few prior related posts:

February 10, 2019 in Drug Offense Sentencing, Examples of "over-punishment", FIRST STEP Act and its implementation, Gun policy and sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, February 09, 2019

Michigan Attorney General files amicus briefs in state Supreme Court supporting challenges to state's sex offender registry

As reported in this press release, "Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court [Friday, Feb 8] in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community."  Here is more from the release:

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 — especially geographic exclusionary zones and in-person reporting requirements — are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

The filed amicus briefs are linked here for Michigan v Snyder and here for People v Betts.  The full introductions in both briefs are the same, and that intro seems worth reprinting in full here:

The tide is changing.  For years, federal and state courts consistently held that sex offender registration and notification requirements were not punishments and therefore did not violate the Ex Post Facto Clause.  Their conclusions relied heavily on the U.S. Supreme Court’s analysis in Smith v Doe, 538 US 84 (2003), and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive.  But more recently, both state and federal courts have been rethinking the issue in light of the significant additional burdens that have been added to these statutes since Smith upheld a “first generation” registration statute.  State Supreme Courts in Alaska, California, Indiana, Kentucky, Maine, Maryland, Ohio, Oklahoma, and Pennsylvania have concluded that their registries constitute punishment and their retroactive application an ex post facto violation — either by distinguishing Smith or by relying on their state Ex Post Facto Clause.  In 2015 the Sixth Circuit reviewed Michigan’s Sex Offender Registry Act (SORA), determining that SORA was “something altogether different from and more troubling than Alaska’s first-generation registry law” and holding that its 2006 and 2011 amendments were punishment and that their retroactive application violated the federal Ex Post Facto Clause.  Does #1–5 v Snyder, 834 F3d 696, 703, 705 (CA 6, 2016), reh den (September 15, 2016), cert den Snyder v John Does #1–5, 138 S Ct 55 (2017).  The Sixth Circuit cautioned that Smith was not “a blank check to states to do whatever they please in this arena.” Id. at 705.

Smith’s rationale, which was premised on the limited nature of Alaska’s registration scheme, seems outdated with respect to modern registration schemes.  It surely is with respect to Michigan’s sex offender registry, which has changed greatly since its initial character as a tool to help law enforcement keep Michigan citizens safe from dangerous sexual predators and far exceeds the baseline federal requirements for such registries.  It has become a bloated statute whose recent amendments are out of touch with the practical ramifications of its geographic restrictions and in-person reporting requirements, with society’s evolving relationship with the Internet, with the needs of law enforcement, and with a more balanced and researched understanding of recidivism.

There are dangerous sexual predators, to be sure, and the public needs to be protected from them.  But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense.  The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

UPDATEOver at Simple Justice, Guy Hamilton-Smith has this potent guest post spotlighting some highlights from these briefs and why they their filing is so important.  I recommend the post in full, and here is an excerpt:

Reading the briefs, it is impossible not to be struck by their tone.  When the government is forced to concede a point in a filing, it is usually done in the smarmiest, most back-handed way possible.  There is no trace of that here.  There is, instead, a forceful eloquence and a vision of what effective public safety could look like when it comes to sexual harms. Instead of signing off on the idea of registries being a fundamentally good policy, weaved throughout these briefs is a strain of skepticism as to their utility at all.

To state it differently, these are some of the strongest briefs written assailing public registration as public safety. That they came out of an AG’s office is astonishing.

It is much too early to tell what the extended impact of this will be.  Now that an Attorney General, as opposed to a civil rights litigator (or even a judge) has called a spade a spade, one hopes that others will be willing to follow suit in the quest to earnestly, effectively, and humanely address the spectre of sexual harms in our society.

Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up.

February 9, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Thursday, February 07, 2019

US Supreme Court, voting 5-4, vacates Eleventh Circuit stay of execution in Alabama for Muslim death row prisoner

The Supreme Court this evening, voting 5-4 along usual ideological lines, vacated the stay of execution entered yesterday by the Eleventh Circuit to allow the court to hear an Alabama death row defendant's religious liberty claims concerning who could be present at his execution.  The opinion of the majority of the court runs these two paragraphs:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the Court, is granted.

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019.  Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.  See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

A two-page dissent, authored by Justice Kagan, and Joined by Justices Ginsburg, Breyer and Sotomayor, gets started and ends this way:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life.  Yesterday, the Eleventh Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause, and stayed Ray’s execution so it could consider his claim on its merits.  Today, this Court reverses that decision as an abuse of discretion and permits Mr. Ray’s execution to go forward. Given the gravity of the issue presented here, I think that decision profoundly wrong....

This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed.  See, e.g., Dugger v. Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., joined by Rehnquist, C. J., dissenting). Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death.  The Eleventh Circuit wanted to hear that claim in full.  Instead, this Court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the State can meet its preferred execution date. I respectfully dissent.

Prior related posts:

February 7, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Another review of the bad mess surrounding the "good time" fix in the FIRST STEP Act

I have done a few prior FIRST STEP Act implementation posts here and here focused on the problems with immediate application of its "good time" fix.  This recent Mother Jones article, fully headlined "Trump’s One Real Bipartisan Win Is Already Turning Into a Mess: Confusion and division over a provision in the First Step Act has left thousands of well-behaved inmates in limbo," effectively explains the issue and reports on the latest state of affairs. Here are excerpts:  

The law stipulates that prisoners can use these credits to shave off as many as 54 days from their sentences each year, up from 47 days previously — a change that also applies retroactively. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays. Before the measure passed, criminal justice reform advocates estimated it would allow about 4,000 people to get out of prison quickly, perhaps even in time for the winter holidays.

Lawmakers speaking in private to advocacy groups were reportedly clear that the credits would be recalculated right away — in order to take immediate effect — according to activists I spoke with who were involved in discussions about the bill on Capitol Hill and at the White House leading up to its passage. “There’s no doubt what the intent was,” says Jessica Jackson Sloan, national director of #cut50, an organization that seeks to reduce the prison population and that lobbied hard for the bill. “This stuff was debated ad nauseam publicly on the floor of the Senate,” adds Holly Harris, executive director of the Justice Action Network. “Legislative intent is very clear.”

On December 22, just one day after the First Step Act was signed, Vivek Shah, a federal prisoner in Chicago, tested that theory. He filed a habeas corpus petition in federal court seeking his immediate release from confinement because of the new rule on good-time credits. But in early January, US District Judge Sharon Johnson Coleman denied his request, saying that the law did not actually allow for his release until a later date. Technically, she wrote in her decision, the First Step Act stipulates that these extra credits can’t be doled out to inmates until after the Justice Department develops a risk and needs assessment program, a process that could take more than seven months, according to a deadline that she notes was laid out in the law.

Advocacy groups quickly shot back. The risk assessment, they argue, is specifically intended to help prisons figure out which inmates can spend extra days in halfway houses—a completely different point unrelated to determining which inmates can shave off time for good behavior. “There’s literally nothing in the good-time credits that has anything to do with the risk and needs assessment,” says Erin Haney, a policy director at #cut50. “These are people who are in good standing and have been given 47 days, and it just has to be recalculated to 54 days.”

The discrepancy in the policy’s interpretation seems to be a result of lawmakers putting the provision about good-time credits in a section that deals with the risk assessment program, a fact Judge Coleman notes in her ruling. Activists from the group FAMM, which advocates for families of incarcerated people, have suggested this was a legislative drafting error given the previous assurances about speedy recalculation of credits. “Everyone, including us, missed this mistake in the bill,” says Molly Gill, vice president of policy at FAMM. “We have notified lawmakers of the problem and asked them to fix it.”

To address the issue, lawmakers could pass a rider clarifying that good-time credits should be recalculated immediately, Gill says, or the DOJ could issue an administrative directive ordering the Bureau of Prisons not to delay the process.

But when contacted by Mother Jones, several lawmakers who co-sponsored the legislation declined to comment on the record about whether it was a drafting mistake or their intent to make well-behaved inmates wait for the risk assessment program. Taylor Foy, a spokesman for Sen. Chuck Grassley (R-Iowa), who helped craft the law and chaired the Judiciary Committee when it was passed, said it was not an error. “The text of the bill has been around for quite a while. It shouldn’t be a surprise,” Foy said, adding that Grassley hopes the risk assessment can be developed as quickly as possible. Sen. Dick Durbin (D-Ill.), one of the Democrats who championed the bill, declined to comment about his interpretation of the provision, as did Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), who were crucial in drafting the legislation.

The Bureau of Prisons appears to be on the same page as Grassley. “We know that inmates and their families are particularly interested in the changes regarding good conduct time,” it said in a statement to Mother Jones. “While this change may result in additional credit for inmates in the future, it is not effective immediately nor is it applicable to all inmates.” The agency added that it would wait until “the risk and needs assessment system is issued by the Attorney General.” It did not say whether it had provided guidance on the matter to individual prisons, but at least two facilities sent the same statement to inmates in January, according to advocacy groups.

The Bureau of Prisons is likely in a holding pattern for the near future, since any directive about the First Step Act would “need the cooperation of the attorney general, which is what makes the Barr hearing so critical,” says Harris of the Justice Action Network, referring to William Barr, Trump’s nominee for the position. During his Senate confirmation hearing, Barr said he had “no problem” reforming the prison system and would “faithfully implement the law,” but his record of tough-on-crime rhetoric raises questions about the extent to which he would intervene to help inmates get out sooner....

Matters were made even more complicated over the past month because of the record-making government shutdown. Lawmakers have largely been consumed by the impacts of the shutdown and negotiations over border security, while the Justice Department furloughed workers and delayed its development of the risk assessment program during those weeks. “So the long and short of it is that prisoners will end up waiting at least seven months, and likely longer, before they can get their sentences reduced with the extra good time promised under the First Step Act,” says Gill....

In the meantime, those 4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers. “Many inmates…are disappointed that nothing is happening,” an incarcerated man at the Federal Prison Camp in Duluth, Minnesota, wrote to me during the shutdown, speaking generally about the First Step Act’s implementation. “There’s nothing more urgent than freedom,” adds Haney.

Prior related posts:

February 7, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Tuesday, February 05, 2019

Prez Trump gives early and considerable attention to criminal justice reform in 2019 State of the Union address

As expected given the invitation of Matthew Charles and Alice Johnson to be in the audience, Prez Trump devoted considerable time to discussing criminal justice reform during the first part of his State of the Union address tonight. He spoke on these issues at length, and here is what he had to say drawn from this transcript of the full speech:

Just weeks ago, both parties united for groundbreaking Criminal Justice Reform.

Last year, I heard through friends the story of Alice Johnson.  I was deeply moved.  In 1997, Alice was sentenced to life in prison as a first-time non-violent drug offender.  Over the next two decades, she became a prison minister, inspiring others to choose a better path.  She had a big impact on that prison population — and far beyond.

Alice’s story underscores the disparities and unfairness that can exist in criminal sentencing — and the need to remedy this injustice.

She served almost 22 years and had expected to be in prison for the rest of her life.  In June, I commuted Alice’s sentence – when I saw Alice’s beautiful family greet her at the prison gates, hugging and kissing and crying and laughing, I knew I did the right thing — Alice is here with us tonight.

Alice, thank you for reminding us that we always have the power to shape our own destiny.

Inspired by stories like Alice’s, my administration worked closely with members of both parties to sign the First Step Act into law.

This legislation reformed sentencing laws that have wrongly and disproportionately harmed the African-American community.

The First Step Act gives non-violent offenders the chance to re-enter society as productive, law-abiding citizens.  Now, states across the country are following our lead. America is a nation that believes in redemption.

We are also joined tonight by Matthew Charlesfrom Tennessee.  In 1996, at age 30, Matthew was sentenced to 35 years for selling drugs and related offenses.

Over the next two decades, he completed more than 30 Bible studies, became a law clerk, and mentored fellow inmates.

Now, Matthew is the very first person to be released from prison under the First Step Act.  Matthew, on behalf of All Americans: WELCOME HOME.

February 5, 2019 in Clemency and Pardons, Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Jerry Sandusky convictions affirmed on post-conviction review, but resentencing ordered (on a Blakely/Alleyne issue)

This USA Today article, headlined "Court rules Jerry Sandusky should be resentenced after turning down his appeal," reports on the result of a high-profile (and lengthy) intermediate state-court ruling.  Here are the details:

Jerry Sandusky lost a bid for a new trial Tuesday but a Pennsylvania appeals court ordered him to be re-sentenced for a 45-count child molestation conviction. The former Penn State assistant football coach was sentenced in 2012 to 30 to 60 years, but a Superior Court panel said that included the improper application of mandatory minimums.

In a 119-page opinion , the appeals panel struck down argument after argument that lawyers for Sandusky, 75, had made in seeking a new trial. His defense lawyer, Al Lindsay, said he was disappointed but will ask the state’s highest court to reconsider.

Lindsay said he was unsure if the new sentencing is likely to result in a substantially different sentence. “I suppose it depends on the judge and what happens before the sentencing and after the sentencing,” Lindsay said.

The U.S. Supreme Court has indicated that jurors must consider anything that could result in a longer sentence, and such elements must be proven beyond a reasonable doubt. A judge, not jury, sentenced Sandusky.

The state attorney general’s office said it was pleased that Sandusky’s convictions remained intact. “The Superior Court has agreed with our office that it was proper for the court below to reject Sandusky’s claims,” said Joe Grace, a spokesman for the prosecutors. “We look forward to appearing for the new sentencing proceedings and arguing to the court as to why this convicted sex offender should remain behind bars for a long time.”

This description of the basis of the ruling suggests our old pal, the Sixth Amendment, played a role in the sentencing outcome.

A few prior related posts:

UPDATE: I just came across this link to the full 119-page opinion in this appeal, and on page 118 one can find these sentences:

Appellant is entitled to application of Alleyne, notwithstanding his failure to raise this claim in the PCRA court.  Therefore, we agree with the parties that pursuant to the holdings in Alleyne and Wolfe, the imposition of mandatory minimum sentences was illegal.  Therefore, Appellant is entitled to a remand for re-sentencing without application of any unlawful mandatory minimum sentences.

February 5, 2019 in Blakely in the States, Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Monday, February 04, 2019

Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution

I highlighted in this post last week the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama this coming Thursday.  I just saw this local article from a few days ago, headlined "Judge denies stay of execution for Alabama inmate," which provides this update on the state of the litigation:

A federal judge on Friday denied a stay of execution request from a Muslim death row inmate who claimed the absence of his spiritual adviser in Alabama's death chamber would violate his religious rights.

Domineque Ray this week filed a stay of execution, which is slated for Feb. 7, to challenge Alabama's practice of placing a Christian prison chaplain with inmates in the state execution chamber. Ray argued in court documents that he should have access to his Muslim spiritual adviser in the moments before his death. Failing that, Ray requested the Christian prison chaplain not be present.

On Thursday, the Alabama Department of Corrections acquiesced to Ray's first request, agreeing to keep the prison chaplain out of the chamber. But lawyers argued security concerns required Holman prison limit the execution chamber to trained corrections employees.

In a written order on Friday, U.S. District Judge Keith Watkins agreed that allowing a "free world" spiritual adviser into the death chamber would overburden ADOC's execution process. "Though a state chaplain is usually in the death chamber, he is also a trained member of the execution team. He has witnessed dozens of executions and trained on how to respond if something goes wrong," Watkins wrote. "If the chaplain disobeys orders, he will face disciplinary action. In contrast, Ray’s private spiritual adviser is untrained, inexperienced, and outside the State’s control."

Spencer Hahn, Ray's co-counsel, argued Thursday training nonemployee spiritual advisers to be present in the execution chamber should not be a barrier to providing inmates their religious rights. "We are disappointed that the District Court's order did not uphold the substantial claim that Mr. Ray's free exercise of religion is being interfered with, or the claim that the State is violating the establishment clause of the First Amendment of the United States Constitution," said John Palombi, an attorney for Ray. "We will be appealing this ruling and asking the Court of Appeals to stay Mr. Ray's execution to allow these important issues to be resolved in a more deliberate manner."

ADOC policies allow a death row inmate's chosen spiritual adviser visitation up to 5:15 p.m. on the day of an execution, when they are then allowed to view the execution from a witness room adjacent to the execution chamber. "Why does Mr. Ray not get the same benefit that a Christian would?" Hahn asked the court.

Ray was sentenced to death for the 1995 rape and fatal stabbing of 15-year-old Tiffany Harville of Selma. Months before his death penalty trial, he was sentenced to life for a 1994 slaying of two teen brothers, The Associated Press reports.

As indicated above, this litigation is headed to the Eleventh Circuit Court of Appeals, and likely will get the Supreme Court this week in some form regardless of how the Eleventh Circuit might rule.  In this context, it bears recalling that the Supreme Court four years ago in Holt v. Hobbs ruled unanimously in favor of a Muslim prisoner based on the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Alito was the author of the opinion in Holt, and I am interested to see how he and other Justices might approach this case.

Prior related post:

February 4, 2019 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, February 03, 2019

Could there soon be a western wave of death penalty repeals?

The question in the title of this post is prompted by this group of headlines that I saw in my news feed recently:

From Colorado, "Friednash: I helped expand the Colorado death penalty; now I support its repeal"

From Nevada, "Nevada's Future: 'Broken' death penalty could be banned in 2019 legislative session"

From Wyoming, "Wyoming is the closest it's ever been to repealing the death penalty"

Because the Wyoming House of Representatives actually voted for repeal last week, that state seems to present the greatest prospect for capital abolition. Given that Wyoming have not executed anyone for more than a quarter-century and has nobody currently on its death row, repeal by the state would be more symbolic than consequential in the state. But symbolism matters a lot to a lot of folks in this setting, so a repeal in the Equality State would not be without meaning or import.

February 3, 2019 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Friday, February 01, 2019

Matthew Charles, released thanks to the FIRST STEP Act, provides view of next steps for criminal justice reform

Matthew Charles has this new Washington Post commentary headlined "I was released under the First Step Act. Here’s what Congress should do next."  It merits a full read, and here are excerpts:

In December, Congress approved and Trump signed the First Step Act.  The new law included a provision that shortened sentences for crack cocaine-related offenses, such as mine.  The U.S. Sentencing Commission estimates that change will help almost 2,700 people.

This time, there was no mistake.  The government and my defense attorney agreed that I should be released immediately.  On Jan. 3, I went home.  I was one of the first people to get released under the law.

My heart is filled with gratitude for everyone who supported me and supported the First Step Act.  Every week, I hear about more people leaving prison because of the new law. Overall, more than 150,000 people in the long term will benefit from the law’s sentencing and prison reforms.  The First Step Act was a great start, but we have to do more.  I got a second chance — and so should so many others.

Since leaving prison, I have looked for ways to serve the poor and to advocate on behalf of those I left behind.  This week, I went to Washington to thank lawmakers for supporting prison reform and to ask that they consider more reforms that will recognize that people can change.  In the year and a half that I was home, people saw that I was not the same person who was convicted of selling crack as a young man.  There are many people still serving decades-long sentences who have rehabilitated themselves, like I did.  Unfortunately, most Americans do not see or hear from them, and they are not given a real opportunity to demonstrate that they have changed.

Congress should pass a law that would allow all federal prisoners to earn a second chance after serving a certain amount of time — maybe 15 years.  People would not be guaranteed release, but they would be given an opportunity to be resentenced by a judge.  The judge could determine whether they had used their time in prison to atone for their crimes and make changes for the better.  If not, they would continue to serve their original sentence.

A law such as this would encourage prisoners to improve themselves. Some might think this idea is too lenient, but 15 years is a long time.  From what I saw during my years behind bars, anyone who wants and deserves a second chance would be able to demonstrate that within 15 years....

I got lucky. Our justice system shouldn’t depend on luck.  The First Step Act is in place — now it should be used to make real change and help families.  And let’s not lose any time in making a Next Step Act, because everyone deserves a second chance.

February 1, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (0)

Thursday, January 31, 2019

US Sentencing Commission releases new report titled "Revocations Among Federal Offenders"

Research reports are coming so fast and furious from the US Sentencing Commission, it seems that all I have time for on a busy Thursday is to blog about yet another notable USSC report. Yesterday, as flagged in this post, the new USSC report was on economics crimes; today, the USSC released this 41-page report titled "Revocations Among Federal Offenders." This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication explores a subset of the Commission’s criminal history rules—those regarding the revocation of terms of probation, parole, supervised release, special parole, and mandatory release.  These rules affect an offender’s criminal history score and Criminal History Category.  This report analyzes the nature and prevalence of revocations, and explores the impact of revocations upon safety valve relief and the career offender guideline.

Key Findings

The key findings of the Commission’s study of revocations are that:

  • Only a minority of offenders (35.0%) with criminal history points under the federal sentencing guidelines had at least one scored conviction with a revocation. Most often such offenders had only one such conviction.

  • For the minority of offenders who did have at least one scored conviction with a revocation, it often increased their criminal history score and resulting Criminal History Category. Among offenders with at least one scored conviction in their criminal history, three-fifths (60.2%) received additional criminal history points, and just under a third (30.9%) received an increase in Criminal History Category. For those offenders who received an increase into a higher Criminal History Category, the impact was generally limited to one Criminal History Category.

  • The rate at which offenders had at least one scored conviction with a revocation varied significantly depending on the type of federal offender. Firearms offenders were the most likely (54.3%) and immigration offenders the least likely (20.9%) to have at least one scored conviction with a revocation. However, the impact of such convictions on their criminal history scores and Criminal History Categories varied much less. Among offenders with at least one such conviction, firearms offenders were the most often (66.2%) and immigration offenders least often (55.9%) to receive additional criminal history points. Furthermore, among offenders who received additional criminal history points, those points resulted in a higher Criminal History Category most often for drug trafficking offenders (53.1%) and least often for firearms offenders (42.9%).

  • The Commission cannot state with certainty how often revocations are based on new crimes versus technical violations because the underlying basis for the revocation could not be determined in 38.7 percent of the cases studied. However, between 38.9 percent and 77.5 percent of the revocations studied were for new crimes, and between 22.5 and 61.1 percent were for technical violations.

  • Prior revocations did not significantly limit offender eligibility for the statutory safety valve, which relieves certain drug trafficking offenders from otherwise applicable statutory mandatory minimum penalties. Of the drug trafficking offenders studied, only 2.3 percent appear to be ineligible for the safety valve based solely on scored convictions with revocations.

  • Prior revocations had a more significant impact on offenders who received the career offender enhancement at §4B1.1. Of the career offenders studied, 10.7 percent qualified for the career offender enhancement in part because of scored convictions with revocations.

January 31, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, January 30, 2019

Texas completes first execution of 2019

As reported in this local article, "Robert Jennings was on Texas’ death row for nearly 30 years.  On Wednesday, the 61-year-old was put to death in the nation’s first execution of 2019."  Here is more:

Jennings was sentenced to death in the 1988 murder of Houston police officer Elston Howard.  According to court records, Jennings walked into an adult bookstore to rob it, and Howard was there arresting the store clerk for a municipal violation.  The clerk testified that Howard had no time to even reach for his gun before Jennings shot him multiple times, killing him.

Less than an hour after his final appeals were rejected by the U.S. Supreme Court on Wednesday, Jennings was injected with a lethal dose of pentobarbital at 6:15 p.m. in the state's execution chamber in Huntsville.  He was pronounced dead 18 minutes later.  In his final words uttered strapped to a gurney, he told his friends and family it was "a nice journey."

"To the family of the police officer, I hope this finds you peace," he said. "... Enjoy life's moments because we never get them back."

The lengthy stretch of time between Jennings' 1989 sentencing and his execution shines a light on the complications that can arise during the appeals process in the face of constantly evolving death penalty law.  In their last attempt to halt Jennings' execution, his lawyers zeroed in on changes in how death penalty juries weigh "mitigating evidence"— factors that can lessen the severity of the punishment that are largely based on the defendant's background, like an abusive childhood or intellectual disability.

January 30, 2019 in Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0)

Monday, January 28, 2019

A year after denial, Henry Montgomery (of Montgomery v. Louisiana) to get parole reconsideration by parole board

In every area of criminal law, as many are seeing in real time with the FIRST STEP Act, the implementation of any legal changes can be almost as important as the legal changes themselves.  The high-profile case of 72-year-old Henry Montgomery, who won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively, continues to demonstrate this fact.  Though granted a chance at parole after serving more than 50 years on a murder charge as a teenager in the early 1960s, Montgomery was denied parole in February 2018 as detailed in this prior post

But now I see this local news piece reporting on the interesting next chapter in this remarkable case under the headline "Louisiana parole board to rehear case of man central to Supreme Court ruling on juvenile lifers."  Here are the details:

The Louisiana parole board in April will rehear the case of the 72-year-old Baton Rouge man central to the 2016 U.S. Supreme Court decision on juveniles sentenced to life without parole, granting him a new hearing less than a year after the board first denied his release from prison.

Henry Montgomery, who is serving a life sentence for the 1963 killing of East Baton Rouge Sheriff's Deputy Charles Hurt, will again go before a three-person panel of the Louisiana Board of Pardons and Parole after it accepted his request for reconsideration, the board's appeal-like process to reconsider previous decisions given certain circumstances, like a mistake, misconduct or new evidence. Montgomery's reconsideration hearing has been set for April 11....

"Henry Montgomery has been in prison for over 55 years, longer than any other juvenile lifer in Louisiana," said Andrew Hundley, the executive director of the Louisiana Parole Project, a nonprofit that represents juvenile lifers in their parole hearings and helps them readjust to free society. "We feel strongly that he is a deserving candidate for a second chance and would be a productive member of society, if given the opportunity."

In Louisiana, there were about 300 so-called juvenile lifers in prison, like Montgomery, amounting to the nation's third highest such population. Since the decision in 2016, about 35 juvenile lifers have been released on parole, according to the nonprofit Louisiana Parole Project, all having met certain parameters set out by state law, including having served at least 25 years and completed educational and rehabilitative classes, and having received a unanimous vote from the parole board.

Montgomery, however, has remained in the minority of such cases that have come up for a parole hearing, denied his shot at freedom by the parole board last February, with two of the three board members voting no. The two members cited the small number of classes Montgomery had completed during his decades at Louisiana State Penitentiary at Angola.

Typically, prisoners have to wait two years after a denial to apply for a new parole hearing, but a decision reconsideration can be granted if an offender alleges, and the board substantiates, misconduct by a board member, a procedural error or significant new evidence that was not previously available, according to the parole board's policy on reconsideration. While Montgomery's lawyer, Keith Nordyke, filed their initial motion for reconsideration under seal, he said their argument focused on how the board misapplied the law relative to juvenile lifers when deciding Montgomery's case. A seasoned parole board attorney, Nordyke said he only files for reconsideration if he believes a major mistake had been made.

"It's a big deal," Nordyke said of the board's decision to grant Montgomery a new hearing, but noted that he does not believe the decision has any larger implications for other juvenile lifers' cases. "I really believe that all these cases are taken one-on-one, on their merit," Nordyke said.

Francis Abbott, the executive director of the Louisiana Board on Pardons and Parole, said the Montgomery reconsideration decision was made by looking at board policy, but Abbott declined to answer specific questions about the decision. The board policy, updated in 2017, outlines specific considerations for parole committee members when hearing the case of a youthful offender, saying that members "shall give great weight to the fact that youth are less responsible than adults for their actions."

This article from a few months ago from the same news source highlights how Louisiana trails other states like Michigan and Pennsylvania with large juvenile LWOP populations in the number of juve offenders who have secured parole since there Supreme Court determined that Miller had to be applied retroactively.

January 28, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 25, 2019

Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs

As reported in this local article, headlined "Gov. Mike DeWine delays killer’s execution, orders review of lethal-injection drugs," this afternoon brought some interesting news on the capital administration front from Ohio's capital. Here are the details:

Gov. Mike DeWine on Friday postponed the execution of murderer Warren Henness from Feb. 13 to Sept. 12 following a recent judicial ruling that Ohio’s lethal-injection cocktail will “very likely cause him severe pain and needless suffering.”  In a release, DeWine said that he has also directed Ohio’s prisons agency to assess the state’s current options for execution drugs and examine possible alternative drugs.

On Jan. 15, federal magistrate judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — are likely unconstitutionally “cruel and unusual punishment.” Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.

However, Merz allowed Henness’ execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”

Henness’ proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – were rejected by Merz on the grounds that neither method has ever been used to carry out an execution, they would take more than an hour to kill Henness, and that there isn’t a proven way to obtain the drugs.

DeWine, in his statement, noted that Henness has appealed Merz’s ruling, but the governor said he delayed the execution because of the magistrate judge’s opinion.

David Stebbins, Henness’ attorney, said in a statement Friday: “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio.”

Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992.  Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine....

Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.  After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs.  However, the execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV.  Campbell died in his cell a few months later.

January 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Will the FIRST STEP Act's crack retroactivity provisions result in many reduced sentences beyond those serving mandatory-minimum terms?

The question in the title of this post is prompted by a notable "Order Reducing Sentence" entered earlier this week in US v. Tucker, No. 3:00-cr-00246-2 (S.D. Iowa, Jan. 23, 2019) (available for download below). A little background is need to explain the question and what seems especially notable about this Tucker order.

As many readers know, Section 404 of the enacted version of the FIRST STEP Act retroactively applies the Fair Sentencing Act of 2010. I have assumed this section entailed only that (many) federal prisoners still serving crazy-long mandatory minimum sentences for crack offenses could get their sentences reduced.  I figured the retroactivity benefits would be confined to those serving crack mandatory-minimum terms, rather than guideline sentences, because the US Sentencing Commission had already reduced the crack guidelines and made those reduced guidelines retroactive.

But, interestingly, though Logan Tucker was convicted and sentenced in 2001 for a crack offense, his original sentence of of nearly 22 years (262 months) was driven not by a statutory mandatory minimum provision, but rather by the career-offender provisions of the (then mandatory) guidelines.  Though Tucker's sentence for a crack offense was driven by the guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a reduced sentence based on retroactive crack guideline reductions because of his career offender status. 

But now, thanks to the FIRST STEP Act, Tucker can benefit according to the analysis of US District Judge Robert Pratt.  Specifically, because Tucker was originally sentenced under a "covered offense" and also because the Fair Sentencing Act the lowered the statutory maximum he would have faced which, in turn, lowered his guideline level under the career-offender guideline, Judge Pratt concludes he can and should impose a reduced sentence for Tucker set at "188 months, the low end of the new Guidelines Range" (which, in turn, entails "a sentence reduction of seventy-four months, more than enough to warrant immediate release").

In addition to the notable outcome, I think it important and notable that federal prosecutors in this case conceded that the FIRST STEP Act authorized Judge Pratt to impose a reduced sentence (though they did urge Judge Pratt to exercise his discretion not to reduce Tucker's original sentence).  In other words, federal prosecutors in this case did not claim that FIRST STEP retroactivity benefits must be confined only to those serving crack mandatory-minimum terms, rather than guideline sentences.

So, in addition to spotlighting this interesting echo of the FIRST STEP Act's crack retroactivity provisions, I am eager to hear if lots of other courts are now considering sentence reductions for lots of other crack defendants whose terms are not directly tethered to crack mandatory-minimum terms.  I would guess that this kind of "career offender" situation may be most likely to arise, but perhaps there are other important ways in which persons sentenced to long crack terms who missed prior retroactivity opportunities now can benefit.

Download Tucker sentence reduction order 07712866067  

UPDATEIt dawned on me after I did this post that the high-profile case of Matthew Charles, who secured release just a few days after the enactment of the FIRST STEP Act, is another example of a defendant sentenced under the career offender guideline getting retroactive relief.  Thus this Tucker ruling is not itself ground-breaking, but it further highlights the sorts of folks now able to benefit from a key sentencing provision that was added to the original prison-reform-only version of FIRST STEP.

January 25, 2019 in FIRST STEP Act and its implementation, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)